When Speech Becomes Dangerous

Seven years jail for gay hate preachers" announced Britain's Telegraph newspaper on October 9, 2007, reporting government plans to introduce new hate speech legislation to the U.K. Parliament.1 This follows on from new "religious hatred" legislation, already passed, that became law a week previous.

One response to this new proposal came from an intriguing source—the English comedian Rowan Atkinson who plays the role of "Mr. Bean." (Having once stood in the middle of Hong Kong Airport watching this very visual humor [no sound necessary] I can personally testify that at least a dozen different nationalities present were finding him very funny.)

So it's a little strange that a comic should be writing to The Times (of London) to protest such heavyweight issues, perhaps. In his letter, Atkinson makes the telling point that even those in the presumed victimized minority do not see the need for such legislation, and that the proposals end up in a sadly futile exercise to legislate what is far more of a social than a legal problem. Even worse, says Atkinson, is the detrimental effects on freedom of speech. He ends his letter like this:

"This 'tick the box if you'd like a law to stop people being rude about you' is one way of filling the legislative program, but there are serious implications for freedom of speech, humor, and creative expression.

"The devil, as always, will be in the detail, but the casual ease with which some people move from finding something offensive to wishing to declare it criminal — and are then able to find factions within government to aid their ambitions — is truly depressing."2
This comes in the same week as U.K. news reports that:

Catholic adoption agencies are having to close down their operations rather than follow government demands that they agree to place children with homosexuals.

A very successful foster couple who have looked after 28 children are now being forced to resign because they refuse to sign that they will promote homosexuality as valid to children as young as 11, which is in complete conflict with their Christian beliefs.

A magistrate felt obliged to resign from his post because he was refused permission to opt out of decisions to place adopted children with same-sex parents.

Some may take such news reports as proof that compelling people to act against their religious beliefs is absolutely necessary. Others may see such actions as heavy-handed government interference in people's personal convictions. Whether any attitude is offensive is very dependent on the perspective of both parties—the offender and the offendee. Most disturbing is the desire to criminalize beliefs, offensive or otherwise, as Atkinson observed.

So will it really be "Seven years jail for gay hate preachers"? In a desire to be nondiscriminatory, equal, and nonoffensive, a number of countries have passed legislation to combat what they identify as "hate speech." The results have hardly been inspiring.

The case of Ake Green, a Pentecostal pastor in Sweden, has received much coverage. He was convicted of hate speech against homosexuals. The prosecutor in the case is reported as saying: "One may have whatever religion one wishes, but this is an attack on all fronts against homosexuals. Collecting Bible citations on this topic as he does makes this hate speech."3

While it may be that the sermon went beyond simply a recitation of Bible texts, and while there are other aspects to this case that deserve attention, it is true that Pastor Green did receive a prison sentence before the case was overturned on appeal by the Swedish Supreme Court.

A Canadian case parallels that of Green. In 1997 Hugh Owens of Regina, Saskatchewan, Canada, placed an ad in a local newspaper with four Bible verses condemning homosexuality, together with a sign indicating homosexuality was not allowed. He was tried and convicted, together with the newspaper, of breaching the Saskatchewan Human Rights Code, and ordered to pay damages. In the first appeal, which was denied, Justice J. Barclay in his judgment observed in connection with Leviticus 20:13 that "the biblical passage which suggests that if a man lies with a man they must be put to death exposes homosexuals to hatred."4
Owens won on appeal to the Saskatchewan Court of Appeal, which said the ad did not contravene the code.

What both cases do reveal is that some, including those within the judiciary, do believe that quoting the Bible on homosexuality is indeed hate speech.

Commenting on the case, Janet Epp Buckingham, director of Law and Public Policy and general legal counsel for the Evangelical Fellowship of Canada in Ottawa, wrote:

"I, for one, do not believe it is particularly Christian to go around condemning people and then claim that it is part of one's religious beliefs. Nevertheless, once an issue like this gets to court, and the courts start dealing with religious freedom, Christians need to be there to ensure that Christians do not lose the ability to distribute Scriptures or the ability to speak publicly on sexual morality as a side casualty in the legal process. At the Saskatchewan Queen's Bench, the judge ruled that Leviticus 20:13 promotes hatred against gays."5
Hate speech on the global scene

So what of the wider aspects of religious free speech that can be regarded as hate speech? Various countries are considering, or have already adopted, hate speech legislation that includes religious hate speech, with some exclusions based on religious conviction. The United Nations has been occupied (some might even say preoccupied) with such issues, especially since the Danish cartoon controversy. As a result, various proposals to deal with "defamation" (UN-speak for hate speech) have been floated, particularly at the UN Human Rights Council in Geneva. The latest round has seen defenders of religious liberty and freedom of expression in conflict with such organizations as the Organization of the Islamic Conference (OIC), and even the Human Rights Council (which as currently composed has a majority of Muslim countries).

Asked to prepare materials dealing with the issue of defamation, UN special rapporteurs Doudou Diene and Asma Jahangir have made clear the position that while not defending incitement to religious hatred, no religion or believer can expect to be free from criticism.

". . . international human rights law protects primarily individuals in the exercise of their freedom of religion and not religions per se. . . . The right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. . . . Defamation of religions may offend people and hurt their religious feelings, but it does not necessarily, or at least directly, result in a violation of their rights, including their right to freedom of religion. Freedom of religion primarily confers a right to act in accordance with one's religion but does not bestow a right for believers to have their religion itself protected from all adverse comment."6

In fact, hate speech legislation relative to religion can be seriously counter-productive, they note.

"In a number of states, in all regions of the world and with different religious backgrounds, some forms of defamation of religion constitute a criminal offense. While the different responses to such defamat/ions depend on various factors, including historical and political factors, criminalizing defamation of religion can be counterproductive. The rigorous protection of religions as such may create an atmosphere of intolerance and can give rise to fear and may even provoke the chances of a backlash. There are numerous examples of persecution of religious minorities as a result of excessive legislation on religious offenses or overzealous application of laws that are fairly neutral. As a limit to freedom of expression and information, it can also limit scholarship on religious issues and may asphyxiate honest debate or research."7

Speaking in New York on October 25, 2007, shortly before her detention under house arrest in Pakistan, Jahangir observed that "objective criticism of religion is a human right," and that "defamation is sometimes stretched to include criticism. If some definitions of defamation are adopted, social norms based on religion could not be debated. Defamation is an issue of civil law, not a violation of human rights." She also critiqued blasphemy laws that are used to silence dissent.

Religion and race are sometimes compared to each other, she said, and then the provisions against racial hatred are applied to religion. But, she observed, "religion is unlike race—you cannot proselytize to change one's race. There are serious differences. "Additionally, there is not a consensus among states on fundamental issues, such as conversion. Some are not willing to accept the idea of leaving a faith community."8
So, how best to deal with true religious hatred, rather than objective criticism (though, as already noted, much depends on the individual perspective)? Jahangir again:

"It is my firm belief that religious hatred can best be combated by sound policies and by building strong public opinion against it. However, taking disproportionately harsh action could be counterproductive and degenerate into witch-hunting."9

Incitement to violence is already illegal in most countries, so the very real question is why extra legislation is needed to specifically ban hate speech. Added to this is the question of definition, especially in religious matters, because what may be offensive to some is not to others. This leads governments and judiciaries onto the dangerous ground of determining whose religion is "right."

Added to this is the issue of the correct response to "offense." Is it legitimate to riot and kill innocent people because one's religious feelings have been outraged? The threat of violence in response to religious challenge is just as much a violation of human rights as is any presumed hate speech.

The implementation of hate speech legislation, particularly in the religious sphere, has resulted in serious issues of free speech restriction and violation of religious rights. Perversely, those targeted by such laws often use these same laws to silence dissent, while in other cases the very minorities who are being "protected" end up on the wrong side of the law.

One person's gibe is another's offense, and there's the rub. Definitions and connotations are hard to pin down. What is said is different than what is heard. Communication is not exact. In a democratic society, issues of rights are always a question of balance. Criminalizing religious speech that some may find offensive (and who determines this?) will chill debate and prevent objective analysis. Antidefamation proposals are intended to remove religious debate from the public arena. Any comment that may seem in any way adverse could result in charges of hate speech. Is that what we really want to happen, however much we are persuaded of the importance of protecting others from hate speech?

The old proverb that "sticks and stones may break my bones, but words will never hurt me" may not say it all, but surely it is agreed that it is the actions of hate that maim and kill. Words play a role in the incitement to such violence, and any such incitement is already deemed illegal.

George Orwell in 1984 pointed out the dangers of thought-crime legislation. Policing ideas and speech is surely a highly dangerous practice. The result is a totalitarian society where even thinking wrong is a crime. In order to achieve harmonious thinking, freedom of thought and conscience is condemned. Is that our preferred future? "If liberty means anything at all, it means the right to tell people what they do not want to hear," Orwell concluded.
Ultimately, hate speech laws do indeed express "the sad futility of making the unacceptable illegal."

Jonathan Gallagher is deputy secretary-general of the International Religious Liberty Association. He works in both Washington, D.C., and New York City, and writes from Silver Spring, Maryland.

1 www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/10/09/ngay109.xml
2 Rowan Atkinson letter to the editor, The Times, November 7, 2007, available at www.timesonline.co.uk/tol/comment/letters/article2820029.ece
3 www.cwnews.com/news/viewstory.cfm?recnum=30655
4 The full text of the judgment can be found at www.canlii.org/en/sk/skqb/doc/
5 jmm.aaa.net.au/articles/15940.htm
6 A/HRC/2/3, available at: http://daccessdds.un.org/doc/UNDOC/GEN/G06/139/90/PDF/G0613990.pdf?OpenElement
7 Ibid.
8 www.irla.org/news/2007/oct07.html
9 January 24, 2007, statement to the IRLA World Congress (Ref: G/SO 214 [56-20)]), available at www.irla.org/congress/doc/IRLA-address.pdf

Article Author: Jonathan Gallagher