The spotlight has been cast on the scales balancing the freedom of expression with the freedom of religion ever since 17 people were killed during a three-day terrorist attack in Paris, beginning with the shooting at the offices of the French satirical magazine, Charlie Hebdo, in early January.[i] The gunmen stormed the offices, determined to avenge the Muslim Prophet Muhammad, who has been the subject of many of the magazine’s caricatures.
This incidence is now being used as a basis for comparison to other attacks on the freedom of expression. On February 14, a gunman in Copenhagen, Denmark, fired 40 shots at a free speech event headlined by a Swedish artist who had previously depicted the Prophet Muhammad’s head on a dog’s body.[ii]
“Denmark and France are the same nations, feeling the same sadness but also the same will to resist, fight and defeat terrorism,” French President Francois Hollande stated in response to the attack. “They hit the same targets, they hit what we are, what we represent, the values of freedom, the rule of law, that all citizens, whatever their religion, should be able to enjoy.”[iii]
But can followers of Islam actually enjoy their religion peacefully when these types of publications attack leaders of their faith? Where should the line be drawn between what is acceptable criticism and what speech constitutes “incitement to religious hatred” and is therefore punishable? And based on that line, would the Charlie Hebdo cartoons be protected speech?
International law generally regards as fundamental the right to receive and impart information of all kinds,[iv] including that which “offends, shocks, or disturbs.”[v] In its 2011 Resolution 16/18, the UN Human Rights Council stated that public discourse is actually one of the best means to combat religious intolerance and hatred and strengthen democracy.
United States case law indicates that for speech to be considered incitement, it must include a direct call to violence.[vi] Further, the European Court of Human Rights has held that grossly offensive content cannot be prohibited just because people are insulted; rather, people should expect criticism about their religion from dissidents, especially when the religious issues are part of ongoing public debate.[vii] This expression is even further protected when it touches upon issues of political concern.[viii]
Most international case law deals with instances of public riots and outrage, whereas the Charlie Hebdo incident is an outlier, one of terrorism that cannot truly be predicted. But courts cannot determine what speech is prohibited based on the fear that people will react. This would cause two problems: first, this “heckler’s veto” would incentivize the insulted group to riot against speech in order to trigger the government’s removal of that speech; second, this could create a prior restraint to otherwise lawful speech because the government would be forced to prohibit any speech that could be deemed offensive.
While Charlie Hebdo’s publications were certainly insulting, its editors were merely exercising their fundamental right to express their views. The cartoons, though depictions of religious figures, usually had a political undertone, which grants them further protection. In this instance, the scales of justice should give greater weight to that freedom of expression which is so fundamental in today’s society.
[iv] International Covenant on Civil and Political Rights, art 19(2), Universal Declaration of Human Rights, art 19; European Convention on Human Rights, art 10; American Convention on Human Rights, art 13(1); African Charter on Human and Peoples Rights, art 9(2).
[v] Council of Europe, Parliamentary Assembly, Recommendation 1805 (2007), Blasphemy, religious insults and hate speech against persons on grounds of their religion, adopted on 29 June 2007 (27th sitting); Texas v Johnson 491 US 397, 397-98 (1989); Human Rights Council ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue’ (2011) UN Doc A/HRC/17/27 para 37.
[vi] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[vii] Otto-Preminger-Institut v. Austria, App no 13470/87 (ECtHR, 20 September 1994); Gündüz v. Turkey, App no 35071/97 (ECtHR, 14 June 2004).