Silenced speech

We may think of Europe as largely a democratic continent and the seedbed for U.S. law and government. But a recent landmark case in Europe shows just how far Western jurisprudence is divided—or should be—by the Atlantic Ocean.

The European Court of Human Rights last month found an Austrian guilty of “disparaging religious doctrine” and fined her under Austria’s blasphemy law, Section 188 of its criminal code.

In the case E.S. v. Austria, a 47-year-old woman conducted multiday seminars titled “Basic Information on Islam” in 2009. During a “lively debate” about Muhammad’s wives, according to court records, the woman—referred to as Mrs. S. in proceedings—quoted her sister questioning whether Islam’s founder was a pedophile for his marriage to the underaged Aisha. Aisha was 6 years old when Muhammad married her, and the marriage likely was consummated when she was 9 or 10, according to Muhammad’s own teaching and early biographer Ibn Hisham. For anyone who hasn’t been living on a desert island in our #MeToo age, her sister’s question sounds relevant.

On Oct. 25 an Austrian court ruled her statements “an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace.” Mrs. S. filed the case with the ECHR under Article 10 of the European Convention protecting the right to freedom of expression.

The seven-judge ECHR panel unanimously ruled there had been no violation of Article 10—finding the Austrian courts “carefully” balanced her freedom of expression with the right of others “to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria” (italics mine). Austrian authorities could prosecute speech critical of Islam, the ECHR panel said, when the speech was “likely to arouse justified indignation in Muslims.”

Austrian authorities could prosecute speech critical of Islam when the speech was ‘likely to arouse justified indignation in Muslims.’

It should be noted the ruling did not turn on violence or threats of violence, but on value statements and statements of fact about Islamic teaching. Legal experts say the decision will be used to further shut down expression against Islam and related topics like terrorism and migration, while the jurists clearly are more concerned about making peace with Islam than with those who might criticize it.

Applying the decision to the 2015 Charlie Hebdo shooting in Paris would force authorities to blame the victims rather than the al-Qaeda gunmen. The cartoonists and editors at the satirical newsweekly killed in the attack “would have been guilty of causing the attack because they ‘hurt the feelings’ and created ‘justifiable indignation’ of the Islamic community in Paris,” said Lorcán Price, a Dublin-based attorney who has presented cases to the ECHR.

Other ECHR decisions this year failed to extend such protection from blasphemy to Christian communities. When a Lithuanian fashion designer posted ads depicting a shirtless Jesus in tattoos and tight jeans, ECHR said it “must be” possible to criticize religious ideas, “even if such criticism may be perceived by some as hurting their religious feelings.”

When the feminist protest band Pussy Riot trespassed and took over Moscow’s Cathedral of Christ the Savior to record a profane song, ECHR said the band’s right to freedom of expression “extends to information or ideas which shock or disturb.”

ECHR decisions are not legally binding, but they are historically persuasive. Plus, with 47 members in the Council of Europe, the court’s jurisdiction covers a population of 820 million. Western European countries tend to follow its precedents more than those in the East, noted Price.

Blasphemy laws in Europe are rooted in the divine right of kings, but European countries today are governed by parliaments, exercising the will of the people. How ironic that the court appeared to adopt a standard similar to strict blasphemy laws in Islamic-led countries in the same week Pakistan’s Supreme Court dealt such laws a blow.

When Muslim jurists overturned a guilty verdict in the case of Asia Bibi—the mother accused of insulting Muhammad who served eight years on death row—they showed how easily such laws can be manipulated to engender false accusations and breed violence. Pakistani streets, filled with violence after the verdict, also displayed how failing to protect free speech and religious expression, in the end, suffocates the peace.