Should European Countries Ban Criticism of the Prophet Mohammed as Hate Speech?

The radical Muslim cleric Anjem Choudary asks in USA Today why France permitted the tabloid to provoke Muslims. He suggests that everyone knows that Muslims are required to impose capital punishment on those who insult Mohammed. See here. Of course, his rendition of the obligations of Muslims is sharply contested. Sarah Harvard has a persuasive retort in Slate. She argues that violence in response to insults of Mohammed are not called for in Islam; indeed, she suggests that blasphemy laws are not called for either.

Nonetheless, those who insult Mohammed are surely aware that the possibility of violence by extremist individuals or groups is not trivial. Consider the threats against Salman Rushdie, the killing of Theo Van Gogh in response to his film on women and Islam, and the assassination attempts on the Danish cartoonist Kurt Westergaard. They should also be aware, as Choudary says, that a large segment of the world’s population is likely to be offended by such a publication if it should reach them. Do European countries have a basis for passing laws against hate speech while not passing laws against speech of this kind? To be consistent, are they required to pass laws against publishing insults of the Prophet or, publishing images of the Prophet (also condemned by the Hadith)? Is their failure to do so simply another example of anti-Muslim prejudice?

Not necessarily. I wish I had a well thought out response. I am not confident in my half-baked observations, but here they are. Publishing material that insults Mohammed is not necessarily an example of hate speech. It might be an instance of serious literary, political, or religious discourse wholly bereft of hatred. Those who publish tasteless jokes about the Prophet may be bad comedians, but hatred need not be involved. The same is true of those who publish images of the Prophet.  

At the same time, publications of this sort might be motivated by hatred. Is it consistent for Europeans not to legally intervene? I think the difference between racist hate speech and religious hate speech might make a difference. Both religious and racist hate speech can undermine equality, cause harm, and trigger breaches of the peace. But there is little to be said for the substance of racist hate speech. A country that values racial equality need not tolerate the denigration of vulnerable citizens on the basis of their skin color or ethnic background. Moreover, it strains credulity to suppose that the marketplace of ideas has been seriously imperiled by such regulation. But the history of Europe is permeated by examples of governments getting into trouble when they try to determine the content of religious truth or try to regulate discussions or presentations of religious doctrine. That has finally caused Western countries to make blasphemy laws a historical relic.

This does not mean that European countries are required to look the other way when Jews, Muslims, or other religious minorities are the object of hate speech. Discussions of religious doctrine even motivated by hate are not the same as stigmatizing adherents of a religion. Drawing lines, of course, can be difficult, and it may be that those countries have not done as well as they should in drawing those lines. But European countries hate speech laws do not require them to enter a religious thicket.

Comments

[Steve Shiffrin]

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Mike
Thanks again. I think the examples show that the distinction I am using is under inclusive and does not cover enough speech, not that ideas worth preserving are
being suppressed (though I admit Matsudas definition could be applied in ways that would be problematic). Many Europeans would say that Matsudas approach is too narrow. For example, Matsudas approach would not reach to cover denials of the Holocaust. I
think there are some contexts in which her approach might be too narrow. One might argue in the Skokie case that Jews were historically oppressed, but are no longer oppressed though still an object of discrimination in some quarters. I have forgotten how she
handles that. In Skokie, what matters to me is the degree of offense and the potential for violence. Finally, I believe context matters. Despite what I have said, if demonstrators show up outside a Mosque parading images of the prophet, I would think an action
for intentional infliction of emotional distress should be countenanced.
By the way, I read your post at dorfonlaw. I entirely agree and will share it on facebook.

[Michael Dorf]

Hi Steve. I think the distinction may be sound in principle but, as your example illustrates, difficult to maintain in practice. The ostensibly historical or theological claim that Jews were responsible for the crucifixion was a staple of antisemitic attacks for centuries. Let's take another one. Suppose someone says that the Protocols of the Elders of Zion are not a transparent Czarist forgery but genuine. That's a historical claim that falls outside of Matsuda's definition. Etc. The difficulty of suppressing hate speech that fits the Matsuda definition (or some other similar definition) while not suppressing ideas is part of why I tentatively favor the "American" approach of protecting hate speech.

[Steve Shiffrin]

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Mike
Thanks for the comment. I wonder what you think of the argument that discussions of religious doctrine filled with hate are different from denunciations of groups
on the basis of character traits. So there is a difference between saying the Jews were responsible for the crucifixion of Jesus (wrong-headed and harmful as that position has been) and saying that Jews are greedy etc. I also wonder what you think of the
argument that we can be more confident that stigmatizing statements about vulnerable groups on the basis of racial or ethnic background are less valuable than statements about religious doctrine however hateful. I also wonder if my post is consistent with
Matsudas view that hate speech is speech with a message of inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful and degrading
I am thinking it might be consistent with it because statements about religious doctrine are not directed against a group. For example, I passionately despise Christian fundamentalism, but I need not harbor hatred for Christian fundamentalists by that fact.
My basic intuition is that passionate, hateful statements of religious doctrine may have value, value not shared by criticism of Jews or Muslims in general.

[Michael Dorf]

Very thoughtful post, Steve. I have a related post on my blog about self-censorship.
http://www.dorfonlaw.org/2015/01/gratuitous-offense.html
On the question you raise here, I agree with the conclusion that even in a legal system that generally bans hate speech, depictions of the prophet Mohammed would not, absent more, count as hate speech. But I think I disagree with your further point that a European country that bans racist hate speech could or should draw a different line with respect to religious hate speech. In modern times, religious hate speech very often has an ethnic/racial dimension. Antisemitism in Europe is an obvious example and Europeans on the left today worry about Islamophobia, not because they want to protect militant Islam but because they want to protect the many Muslims who do not share the ideological/religious views of militant Islamists. Thus, the sorts of reasons advanced for banning racist hate speech in Europe apply at least as strongly--and given Europe's history, perhaps more strongly--to religious hate speech. Because I take the "American" view that hate speech falling short of incitement generally shouldn't be banned, I find this question academic. But if someone agrees with racist hate speech bans, I think it doesn't make sense to distinguish religious hate speech.