by Austin Dacey

Do you have a human right to blaspheme? Ask a philosopher and you may get two different answers. If by ‘human right’ you mean a moral claim that governments everywhere have a duty to recognize, then I think the answer is clearly affirmative. If, however, by ‘human right,’ you mean an entitlement provided by international law, the answer is clearly muddled. While human rights law recognizes rights to expression, conscience, and equality that together should protect blasphemy, it also contains provisions that have been used to justify its criminalization.

Legally, the human rights system is rooted in the United Nations Charter and the Universal Declaration of Human Rights, which was adopted in 1948 by the newly-created United Nations. The standards expressed in the Declaration, or UDHR, guided a series of subsequent international human rights treaties beginning with the International Covenant on Civil and Political Rights, or ICCPR, which came into force in 1976. States have voluntarily agreed to be bound by terms of these treaties and—in most cases—by their enforcement mechanisms as well.

Institutionally, the human rights system is embodied in the Human Rights Council in Geneva; the “treaty bodies,” committees of independent experts charged with monitoring the implementation and enforcement of the treaties; and regional human rights courts, chief among them the European Court of Human Rights in Strasbourg.

So, what of sacrilegious expression? The foundational human rights documents do not speak of it explicitly; however, the UDHR sets forth both the individual’s right of freedom of opinion and expression in Article 19 and the right of freedom of thought, conscience and religion in Article 18, which includes freedom to change religion or belief, and freedom, either alone or in community with others and in public or private, to manifest religion or belief in teaching, practice, worship and observance. Articles 2 and 7 also provide for equality before the law and protection from discrimination, a value that I will be revisiting throughout this series.

The rights enumerated in the UDHR are not absolute. They do not permit acts aimed at the destruction of any of the rights and freedoms set forth in the Declaration (a so-called Abuse Clause) and they are subject to limitations “as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” In other words, the rights of one may not be exercised at the expense of the rights of others or of a democratic society.

If you wanted to make blasphemy illegal under international law, or to leave to nation states the ability to make it illegal, there are a number of approaches you could take within the existing framework. You could appeal to the “limitations” based in public order or respect for the rights of others and argue that outrages against religious feeling can run afoul of these limitations. Or you could argue that the denigration of beliefs can rise to the level of incitement to discrimination (or worse) against the believers themselves.

Both of these approaches have been vigorously pursued in the years since the adoption of the Universal Declaration of Human Rights. In interpreting international standards for the European region, The European Court of Human Rights, beginning with the 1994 case of Otto Preminger Institut v. Austria, has ruled that existing bans on blasphemy by European states do not violate the guarantee of freedom of expression because they count as legitimate limitations grounded on respect for the rights of others. In this case, it was a right to respect for “religious feelings” the origin and nature of which the judges felt no need to explain.

The other tradition of blasphemy suppression depends on equating blasphemy with incitement or “hate speech.” It takes legal force from ICCPR Article 20, Paragraph 2, which requires states to prohibit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The sweep of this language is broad. It expressly calls on governments to pass legislation criminalizing hate speech. Moreover, it does not restrict hate speech to the advocacy of actual acts of lawlessness. Engendering “hostility” is enough to override free speech protections.

Today, laws against religious hate speech, religious defamation, and religious insult are common outside of the United States, where they contradict the prevailing interpretation of the First Amendment. However, as Johannes Morsink recounts in The Universal Declaration of Human Rights: Origins, Drafting, and Intent, such limitations on expression were firmly opposed by Eleanor Roosevelt—who chaired the commission that drafted the UDHR—along with the majority of Western European nations.

The Soviet delegation repeatedly attempted to introduce more expansive language ostensibly designed to suppress fascist ideology. But Roosevelt and her allies feared that such language could be used suppress dissent of all kinds, including non-communist understandings of democracy. The Soviet Union, Ukraine, Yugoslavia, Belarus, Czechoslovakia, Poland, South Africa, and Saudi Arabia (which had opposed the right to change one’s religion) abstained from the vote adopting the Universal Declaration.

However, when the ICCPR was adopted in 1966 by the expanded membership of the UN General Assembly (there were only 58 member states in 1948), it contained the hotly contested hate speech standard of Article 20(2). Today, all European states ban religious hate speech. Yet, as Roosevelt warned, such a standard is liable to abuse. It was under just such a law that Alexander Aan was sentenced last month in Indonesia. Some observations on the sex life of Muhammad that appeared on Aan’s Facebook page were found to violate the 2008 Information and Electronic Transaction Law by spreading religious hatred. It could be arguing that in doing so, Indonesia was upholding its treaty obligations under human rights law.

 

Austin Dacey is a representative to the United Nations for the International Humanist and Ethical Union. He is the author of The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights and The Secular Conscience: Why Belief Belongs in Public Life. His writings have appeared in the New York Times, USA Today, and Dissent. In 2010, he created The Impossible Music Sessions, a forum in New York City for artists who cannot perform publicly due to censorship, political intimidation or cultural pressure. Read Austin’s previous posts for The Revealer’s blasphemy series here.

With support from the Henry R. Luce Initiative on Religion and International Affairs.