Legal Interpretations of Freedom of Expression and Blasphemy

Abstract

One of the most difficult puzzles of contemporary international relations is how to balance the human rights of freedom of opinion, religion, and expression that are set forth in the Universal Declaration of Human Rights, with calls for criminalization of blasphemy (defamation of God, religion, religious dogmas, personalities, scriptures, and artifacts) on the part of the Organization of Islamic Cooperation (OIC), the League of Arab States, Iran, and other Muslim countries, in the wake of the Iranian Revolution, the terrorist attacks of September 11, 2001, in the United States, publication of Danish and French cartoons that satirized Prophet Mohammad and equated Islam with terrorism, and the Islamist terrorist attack against the French satirical newspaper, Charlie Hebdo, in January 2015. The question is how to strike a balance between freedom of expression, which includes non-verbal symbolic speech and legal expressive conduct, with calls for respect for religion (in word and deed), as well as the installation of a global, anti-blasphemy regime under international law. Calls for international criminalization of blasphemy and enactment of global anti-blasphemy laws that would globalize respect for religion under international law began in 1988, when Salman Rushdie, a British-Indian novelist, published the Satanic Verses, an unorthodox narrative of the life of Prophet Mohammad and of Islamic dogma. Iran’s Supreme Leader Ayatollah Khomeini promptly issued a fatwa (religious decree) pronouncing the death sentence on Rushdie. In 2001, Buddhists, art historians, and scholars around the world were horrified when the Taliban destroyed the 1,700-year-old Buddhas of Bamiyan statues in Afghanistan. From 2013–2017, the Islamic State of Iraq and Syria (the Islamic State) went on a rampage, destroying ancient, pre-Islamic, Greco-Roman, Christian, and other monuments in Iraq and Syria. The actions of the Ayatollah, the Taliban, and the Islamic State represent a deployment of the argument of force and coercion rather than the force of argument and dialogue to impose acceptance of religious dogmas, personalities, and narratives. People of all religious faiths condemned the death sentence passed on Salman Rushdie, as well as the destructive actions of the Taliban and the Islamic State, drawing a distinction between modes of expression—books, cartoons, news reports, and the like—that criticize religion and illegal actions such as religiously motivated intimidation and violence. However, historically, the major religions—Christianity (specifically, the Roman Catholic Church and the Anglican Church), Islam, certain strands of Buddhism, Hinduism, and others—have not made a distinction between protected speech that is critical of religion and illegal actions directed at believers. They have not distinguished between their religion’s beliefs as philosophical worldviews and individual believers as human persons subject to criticism. In Islam, criticism or satirical cartoons of Prophet Mohammad or of Islam, as well as desecration of the Qur’an, are considered offensive actions that constitute insults against all Muslims. Most member countries of the Organization for Islamic Cooperation interpret national and international law as criminalizing all anti-Islamic expressions and call for a global anti-blasphemy regulatory regime. This would be tantamount to a universal, anti-humanist posture that places religious rites and sentiments over human rights. The question is whether putting religion and other metaphysical worldviews beyond the reach of critical examination and scholarly interrogation is consistent with the libertarian values of the Universal Declaration of Human Rights. Legal interpretations of the human right of freedom of expression and of the politico-theological concept of blasphemy are grounded in specific national, religious, historical, and politico-cultural contexts. These different national and cultural postures toward freedom of expression and blasphemy can be explained by the concept of “establishmentality,” a neologism that describes different politico-cultural mentalities or logics with respect to the role and place of religion in the life of the state, the law, and the public sphere. In Muslim countries with constitutional or statutory state religions—Iran, Pakistan, Saudi Arabia, Egypt, the Maldives, and others—the penalty for blasphemy is death. Blasphemy is also criminalized in the rest of the Middle East. In Western countries with established (state) religions—the United Kingdom and Scandinavia—blasphemy laws have either been repealed or are not being enforced. By way of contrast, the United States has an anti-establishmentarian constitutional regime. The First Amendment is a charter of negative rights that forbids the establishment of religion (creation of a state religion). In the last few years, the Organization of Islamic Cooperation and the Arab League have put pressure on the United Nations to ban blasphemy and institute a regime that puts region and religious sentiments above criticism. The danger is that the establishment of a universal anti-blasphemy right grounded in the theological concept of respect for religion would be clearly at variance with the freedom of opinion, religion, and expression provisions of the Universal Declaration of Human Rights.