Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (98 page)

48
. Eric Heinze, “Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys,” in
Extreme Speech and Democracy
, 184.

49
. Venice Commission 2008,
Annexe II
, 9.

50
. Parkinson, “Religious Vilification, Anti-Discrimination Laws and Religious Minorities in Australia,” 5.

51
. The Venice Commission is charged with upholding Europe’s constitutional heritage of democracy, human rights, and the rule of law. Its roster of experts is appointed to four-year terms and acts in their personal capacity. (H. Knox Thames, Chris Seiple, and Amy Rowe, eds.,
International Religious Freedom Advocacy
, 70.) See
Report on the Relationship Between Freedom of Expression and Freedom of Religion: The Issue of Regulation and Prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred, Adopted by the Venice Commission at its 76th Plenary Session (Venice, 17–18 October 2008) on the basis of comments by Mr. Louis-Léon Christians, Mr. Pieter van Dijk, Ms. Finola Flanagan, and Ms. Hanna Suchocka
, Strasbourg, October 23, 2008,
http://www.venice.coe.int/docs/2008/CDL-AD(2008)026-e.pdf
, henceforth cited as Venice Commission 2008,
Report
. On incitement clauses considered for inclusion in the declaration, see Kevin Boyle, “Religious Intolerance and the Incitement of Hatred,” in
Striking a Balance
, 64–65; the resulting distinction between the declaration and the CERD is also emphasized by the UN Special Rapporteur on Freedom of Religion or Belief, who thus cautions against an unthinking application of CERD Article 4 to religious matters; see “Special Rapporteur on Freedom of Religion or Belief—Framework for Communications,” Office of the UN High Commissioner for Human Rights,
http://www2.ohchr.org/english/issues/religion/IV1.htm
. Other states in the OSCE survey had legislation that could easily be interpreted to cover religious groups; for instance, Canada’s hate-speech laws cover “any identifiable group,” and Germany’s refer to “segments of the population.”

52
. In the United States, the content of speech can be restricted only in narrow circumstances. These include: cases of personal defamation and libel, laws that punish false statements of fact that harm individual persons, not the peaceful criticism of ideas; cases in which, as the Supreme Court ruled in
Brandenburg v. Ohio
, the “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (a much vaguer and attenuated standard was adopted by the UN’s International Covenant on Civil and Political Rights, Article 20(2), which obliges states to prohibit by law “[a]ny advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence”); cases of “true” threats, and intimidation, in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”; cases of “fighting words,” which are limited
to face-to-face insults that are likely to arouse an immediate violent response (and even here the Supreme Court has further narrowed the exception by finding statutes criminalizing such words overbroad and vague, or including impermissible content-based restrictions); cases satisfying “strict scrutiny,” meaning the restriction is narrowly tailored to serve a compelling government interest, and no less restrictive alternative would be as effective (e.g., grand jury secrecy, or falsely shouting “fire” in a crowded theater); and cases of harassment, as prohibited in most states by statutes covering in various forms: (1) repetitious annoyances; (2) threats specifically conveyed, orally, electronically, or by telephone or mail; or (3) conduct likely to stimulate an immediate violent response. The Supreme Court has never squarely addressed whether harassment, when it takes the form of pure speech, is exempt from First Amendment protection. Boyle, “Overview,” in
Striking a Balance
, 4. See also James Weinstein, “An Overview of American Free Speech Doctrine and its Application to Extreme Speech,” in
Extreme Speech and Democracy
, 81; in the same volume, Eric Heinze, in “Wild-West Cowboys versus Cheese-Eating Surrender Monkeys” (pp. 182–203), challenges the U.S./European divide as a cultural and practical matter but acknowledges it is a legal reality.

53
.
Brandenburg v. Ohio
, 395 U.S. 444 (1969),
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=395&invol=444
.

54
. In the case
National Socialist Party of America v. Village of Skokie
, 432 U.S. 43 (1977), the Supreme Court prevented a state court from banning a neo-Nazi march through a Jewish area on the basis that it unconstitutionally infringed on their First Amendment rights.

55
. William J. Krouse,
Hate Crime Legislation in the 109th Congress
, Congressional Research Service Report RL 33403 (2009), 2. A key 1952 Supreme Court precedent is
Joseph Burstyn, Inc. v. Wilson
, 342 U.S. 495, 505 (1952), invalidating a NY statute banning “sacrilegious” films: “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” In 1970, a state appellate court overturned a conviction under Maryland’s 1860 blasphemy law, finding it violated the First Amendment’s religion clauses. (The Supreme Court found it unnecessary to reach the free speech question.) See
Maryland v. West
, 9 Md. App. 270 (1970). Blasphemy laws remain on the books in six states (Massachusetts, Oklahoma, Michigan, South Carolina, Wyoming, and Pennsylvania). Officials expect not to enforce them and could face legal and professional sanctions for bringing obviously untenable cases. Indeed, shortly after the Maryland decision, planned blasphemy prosecutions in neighboring Delaware and Pennsylvania were dropped. See Robert C. Post, “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment,” 76 Calif. L. Rev note 1 at 316–17, 1988. An exception to the pattern of arcane and unenforced statutes, a 1977 Pennsylvania law, enacted overwhelmingly, banned corporate names containing “words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name” (19 Pa. Code §17.5). In July 2010, a federal judge struck down the statute.

56
. Jeffrey Breinholt, in “More Overlooked History: The Muslim Libel Cases,”
Counterterrorism Blog
, August 2, 2007,
http://counterterrorismblog.org/2007/08/more_overlooked_history_the_mu.php
, notes a number of such cases and the likelihood that more remain unknown to the public because the accused opted to settle out of court rather than pay the legal fees for a defense.

57
. Paul Marshall and Nina Shea, “Afghan Blowback,”
National Review Online
, April 8, 2011,
http://www.nationalreview.com/articles/264222/afghan-blowback-paul-marshall
; Paul Marshall, “New Koran Campaign Follows Old Patterns,
National Review Online
, April 4, 2011,
http://www.nationalreview.com/corner/263779/new-koran-campaign-follows-old-patterns-paul-marshall
; Paul Marshall and Nina Shea, “The Source of Their Rage,
National Review
magazine, October 4, 2010; Nina Shea, “A Heckler’s Veto Afterall?”
National Review Online
, September 15, 2010,
http://www.nationalreview.com/corner/246669/hecklers-veto-after-all-nina-shea
; Paul Marshall and Nina Shea, “Burning the Koran,”
National Review
Online
, September 7, 2010,
http://www.nationalreview.com/articles/245877/burning-koran-nina-shea
.

58
. Tom Gross, “J’Accuse,”
Wall Street Journal
, June 2, 2005; Jon Henley, “Le Monde Editor ‘Defamed Jews,’ ”
The Guardian
, June 4, 2005,
http://www.guardian.co.uk/media/2005/jun/04/pressandpublishing.france
; Rachel Zabarkes, “Fallaci’s Fight,”
National Review
, June 26, 2002,
http://old.nationalreview.com/comment/comment-zabarkes062602.asp
; Lara Marlowe, “ ‘Le Monde’ Acquitted of ‘Racially’ Defaming Israel,”
The Irish Times
, July 13, 2006,
http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=48256
; Ben Leach, “Foreign Office Diplomat Arrested over ‘Anti-Semitic’ Rant,”
Telegraph
, February 9, 2009,
http://www.telegraph.co.uk/news/newstopics/politics/4564216/Foreign-Office-diplomat-arrested-over-anti-Semitic-rant.html
; Shea Peters, “John Galliano Released from Rehab, Fate of Christian Dior Still Unknown,”
Examiner
, April 12, 2011,
http://www.examiner.com/designer-fashion-in-national/john-galliano-released-from-rehab-fate-of-the-john-galliano-label-still-unknown
.

59
. See Ian Leigh, “Homophobic Speech, Equality Denial, and Religious Expression,” in
Extreme Speech and Democracy
, 379–93.

60
. “Sweden—Criminalizing Religious Speech—Ake Green,” Becket Fund for Religious Liberty,
http://www.becketfund.org/index.php/case/93.html
; John Leo, “Canadian Kangaroos,”
National Review
, June 20, 2008,
http://article.nationalreview.com/361166/canadian-kangaroos/john-leo
; Bruce Korol, “Constitutional Rights Must Be Protected,”
Calgary Herald
, December 6, 2007,
http://www.canada.com/calgaryherald/news/theeditorialpage/story.html?id=02a2999c-f366–47b5–846d-2c0d6e378502
; Deborah Tetley, “Alberta Judge Rules in Favor of Author of Anti-gay Letter,”
National Post
, December 5, 2009,
http://www.nationalpost.com/m/story.html?id=2305614&s=Today%27s%20Newspaper
.

61
. These cases, many of which began with complaints from the Catholic organization AGRIF (General Alliance Against Racism and for Respect of French and Christian Identity), included complaints concerning posters for the film
The People vs. Larry Flint
(featuring the title character standing as if on a cross) in 1997; Janssen, “Limits to Expression on Religion in France,” end page,
http://www.ivir.nl/publications/janssen/Limits_to_expression_on_religion_in_France.pdf
. On Jehovah’s Witnesses, see “Anti-sect Deputy Jean Pierre Brard Sentenced for Hate Speech Against Jehovah’s Witnesses,”
Human Rights Without Frontiers (HRWF
), September 28, 2009,
http://hrwf.net/uploads/France%202009.doc
; “The Antisect Movements and Money,”
Coordination of Associations and Individuals for Freedom of Conscience
, December 16, 2009,
http://www.freedomofconscience.eu/the-antisect-movements-and-money/
; “The Director of the Weekly Magazine ‘Le Point’ Sentenced for Defaming Jehovah’s Witnesses,”
HRWF
, June 7, 2010,
http://tech.groups.yahoo.com/group/rael-science-select/message/20364
. On a conviction in Russia for perceived anti-Christian art, see “Russians Convicted and Fined over Forbidden Art Show,”
BBC News
, July 12, 2010,
http://news.bbc.co.uk/2/hi/europe/10595903.stm
; Alexander Verkhovsky, “Art Curators’ Verdict Not Isolated Instance—This Is a System,”
Forum 18
, July 19, 2010,
http://www.forum18.org/Archive.php?query=Verkhovsky&religion=all&country=all&results=10
.

62
. “Four Men Jailed over Cartoon Demo,”
BBC News
, July 18, 2007,
http://news.bbc.co.uk/2/hi/uk_news/6904622.stm
; “Homecoming Soldiers Branded ‘Murderers’ and ‘Terrorists’ by Muslim Extremists,”
Telegraph
(U.K.), January 5, 2010,
http://www.telegraph.co.uk/news/newstopics/onthefrontline/6931203/Homecoming-soldiers-branded-murderers-and-terrorists-by-Muslim-extremists.html
; “Hate Crimes and Discrimination Based on Religion or Belief,” Human Rights Without Frontiers International, September 1, 2009; Toby Sterling, “Dutch to Prosecute Arabs over Holocaust Cartoon,”
AP
, September 2, 2009. Norway’s “Act on prohibition of discrimination based on ethnicity, religion, etc. 2005,” forbids “statements which have an offensive, frightening, hostile, degrading or humiliating effect, or which are intended to have such an effect.” Burden of proof falls on the accused: “If there are circumstances that give reason to believe that a breach of any of the provisions … has taken place, such breach shall be assumed to have taken place unless the person responsible for the act, omission or statement produces evidence showing that no such breach has taken place.”
Unofficial translation, Norwegian Ministry of Labour,
http://www.regjeringen.no/en/dep/aid/doc/lover_regler/reglement/2005/the-anti-discrimination-act.html?id=420606
.

63
. Nina Shea and Paul Marshall, “We Need to Talk about Islam,”
The Wall Street Journal: Europe
, November 8, 2010,
http://online.wsj.com/article/SB10001424052748704462704575590480959035618.html
.

64
. In “Postscript” in Daniel Pipes,
The Rushdie Affair
, 2nd ed. (New Brunswick: Transaction Publishers, 2003), 270. A similar case arose in Belgium, where a priest of Turkish extraction was charged with incitement to racial hatred after harshly denouncing Muslims; he was acquitted, and subsequently the law was amended to add religious hate-speech bans. “Hate Crimes and Discrimination Based on Religion or Belief,”
HRWF
, September 1, 2009, hrwf.net/…/Religious%20intolerance%20and%20discrimination%202007-2009.doc.

65
. Jonathan C. Randal “Brigitte Bardot vs. Muslim Sheep Slaying—Animal-Rights Stand Criticized as Racist in Tone,”
Seattle Times
, May 23, 1996,
http://community.seattletimes.nwsource.com/archive/?date=19960523&slug=2330801
.