<<previous | index | next>>
As the examples above suggest, there is a good deal of blurring between the rationales of hate speech and of indirect incitement. The formulation of indirect incitement, praising terrorism as “just and necessary” or holding up for admiration known terrorists, is often intertwined with derision or denigration of victims or opponents. Although there are differences in the two types of proscriptions, both derive from an appreciation of the power of speech to facilitate mass violence.
The state has a legal option to limit speech to protect national security or other state interests. But prohibiting hate speech is obligatory under several major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the later Convention on the Elimination of Racial Discrimination (CERD). The ICCPR does not require states to punish hate speech as a crime, but many states interpret CERD as requiring criminal proscription of hate speech. Many states have entered reservations or interpretations to these provisions in consideration of protecting the right to free expression.18
Hate speech is indeed hateful. It can also be deeply harmful, even when it does not incite imminent violence or criminal acts, in that it can provoke public and self-denigration, and a great deal of psychological pain. The point of freedom of expression, however, is to preserve space for highly controversial or even deeply offensive speech, as socially acceptable messages seldom need protection. The hate speech provisions of the ICCPR were negotiated by parties with fresh memories of the Holocaust, and their concern was less to spare group sensibilities from insult than to establish that hate speech, even when not direct incitement, often played a key role in facilitating violence and state discrimination against minorities.19
In the decades following the Holocaust, however, the goal of social equality became a more prominent rationale for hate speech prohibitions, particularly in Europe. Laws and prosecutions for hate speech often seemed focused on limiting certaincontent no matter the context, and seemed unmoored from hard analysis of whether the speech in question, however repugnant, had any potential actually to incite violence or any other criminal action by third parties. The shift to this rationale could be seen in the controversial trial court judgment of the International Criminal Tribunal for Rwanda in the Nahimana case, where the court construed hate speech as a basis for “persecution” as a crime against humanity. It wrote:
Hate speech is a discriminatory form of aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only in the eyes of the group members themselves but also in the eyes of others who perceive and treat them as less than human. The denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm.20
The competition between two rationales—hate speech as a catalyst of criminal acts, versus hate speech as a harm to dignity in and of itself—has not always been obvious, nor have the problems of assessing harm to dignity in a democratic society or a world of global communications. The Danish cartoon scandal brought these tensions into vivid relief.
On September 30, 2005, the Danish newspaper Jyllands-Posten published twelve cartoon depictions of the Prophet Mohammed that it said were solicited in an effort to overcome self-censorship. The cartoons were highly offensive to Muslims, because Islam is frequently interpreted to prohibit depictions of the Prophet and some of the depictions were extremely derogatory, for example, by associating him, and by implication all Muslims, with terrorism. Denmark declined to take action against the publishers, citing its own obligations to protect free expression. Beyond this, it also declined to apologize for the cartoons. By February 2006, massive and often violent protests against the cartoons and against Denmark spread throughout the Muslim world.
The context for the protests included the invasions of Afghanistan and Iraq, tensions in Israel/Palestine, rising Western prejudice and suspicion against Muslims as “terrorists,” and an associated sense of persecution and social alienation on the part of Muslim minorities in many parts of the world. Against the backdrop of travel restrictions, debates over the public acceptability of women in hijab, terrorism blacklists, deportations, and investigations of Muslim charities, the cartoons were felt as particularly denigrating, and to some Muslims may have conveyed a quality of threat.
Criticism of the cartoons, however, seldom focused on their directly provoking discrimination or violence against Muslim communities, but rather they focused on equality issues more generally. The unwillingness of Denmark to either take action against the newspaper or apologize was contrasted with the proliferation of Holocaust-denial laws and blasphemy laws protecting Christianity in Europe. The discourse on whether the media had a right to publish the cartoons became confused with whether the media were right to do so. While the European emphasis on equality and non-discrimination as values prompted much soul-searching as to whether Denmark had taken the proper course, Muslim states by and large did not respond to retorts that they permit abusive depictions of and speech about religious minorities in their jurisdictions; indeed, Iran sponsored an anti-Semitic Holocaust denial cartoon contest in response.
The after-effects of the controversy have been significant. Governments with large Muslim populations, including Jordan, Yemen, Syria, India, and Algeria, pressed charges against editors and journalists who reproduced the cartoons, and newspapers were censored, suspended or closed in Malaysia, Saudi Arabia, Yemen, Belarus, South Africa, and Russia. The Organization of the Islamic Conference criticized Denmark and has sought a UN General Assembly statement banning attacks on religious beliefs. On September 8, 2006, the United Nations General Assembly adopted a global counterterrorism strategy that contained the phrase, “and to promote mutual respect for and prevent defamation of religions.” In a speech before the UN General Assembly on September 20, 2006, Pakistan’s President Pervez Musharraf called for a ban on the “defamation of Islam.”21
This response, in essence an international endorsement of blasphemy laws as part of counterterrorism strategy, is exactly the wrong direction for any state that values robust discourse and democratic values. While critics are right to point to the selectivity of existing European blasphemy laws in protecting only Christianity, the key question here is why any religious system should be legally shielded from criticism or even ridicule when political beliefs, aesthetic views, or cultural opinions are not. Speech which targets religious believers for criminal acts should not be protected, but speech which derides only religious ideas should not be punished.
This approach avoids imposing criminal penalties for either blasphemous or hateful speech that threatens dignity but not crime. It is more consistent with the primary articulation of the ban on hate speech in article 20 of the ICCPR than an approach which places whole categories of speech outside protection. Article 20 requires states to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (emphasis added). The term “advocacy” implies that there must be a conscious intent to spur hatred, rather than just approval of or inadvertent contribution to hatred. The fact that the advocacy of hatred must additionally constitute incitement points to provocation of an action, rather than merely fostering negative feelings (since that is already specified by “hatred”), and violence and discrimination are two species of criminal acts. But what has never been clear is exactly what “hostility” entails, although the construction implies something beyond hatred, involving overt manifestation of hatred against another. An argument can be made that the sort of hostility that calls for imprisonment for speech in a democratic society must amount at minimum to a criminal level of harassment, and not to expression of repugnant opinions or impugning of reputation.22
