Friday, October 26, 2018

  • Friday, October 26, 2018
  • Elder of Ziyon

A court ruling from the European Court of Human Rights today has very troubling implications.

I will try to keep as much context as I can from their press release:

Principal facts
The applicant, E.S., is an Austrian national who was born in 1971 and lives in Vienna (Austria). In October and November 2009, Mrs S. held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, Aisha, which allegedly was consummated when she was nine. Inter alia, the applicant stated that Muhammad “liked to do it with children” and “... A 56-year-old and a six-year-old? ... What do we call it, if it is not paedophilia?”.

On 15 February 2011 the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted Mrs S. for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. Mrs S. appealed but the Vienna Court of Appeal upheld the decision in December 2011, confirming in essence the lower court’s findings.
Relying on Article 10 (freedom of expression), Mrs S. complained that the domestic courts failed to address the substance of the impugned statements in the light of her right to freedom of expression....Lastly, Mrs S. submitted that religious groups had to tolerate even severe criticism.
The ruling is a little nuanced, and requires analysis:

The Court noted that those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention could not expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs. Only where expressions under Article 10 went beyond the limits of a critical denial, and certainly where they were likely to incite religious intolerance, might a State legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.
In general, I agree with this. I don't like the "certainly" being in there because the only case where criticism goes beyond the limits of criticism is when it is incitement - without qualifying that the definition can become subject to political and not objective measures. Which is apparently what happened:
The Court observed also that the subject matter of the instant case was of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, it considered that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.
Here's the crux of the question: Would the statements cause people to hate Islam and therefore be incited to violence, or would the statements upset Muslims and cause them to become violent?

If it is the latter, then the court is ruling that Muslims are unable to control themselves and to stop themselves from being violent, and they have special protection against people saying things that upset them.
The Court reiterated that it has distinguished in its case-law between statements of fact and value judgments. It emphasised that the truth of value judgments was not susceptible to proof. However, a value judgment without any factual basis to support it might be excessive.

Whatever the context, Muslims themselves admit that Mohammed had sex with a nine year old girl. No one should be precluded from talking about that and criticizing it unless they say "Attack Muslims because they support pedophilia."  Nowhere does it appear that E.S. said anything close to that. She pointed out that his actions would be considered unacceptable today - and one can say the same about many things in the sacred texts of major religions.

The Court noted that the domestic courts comprehensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation; specifically, they had not been made in an objective manner contributing to a debate of public interest (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship.
Here the formula for "statements were likely to disturb the religious peace in their country" is more clearly defined, and indeed it is protecting the feelings of the victims that is the deciding factor in whether speech is allowed.

This is a terrible mistake. Free speech is not free if one does not have the right to offend. I can find lots of web pages and cartoons ridiculing many organized religions; the court seems to say that freedom of expression is not defined by the speech itself but by the people who might be offended. This is discriminatory.

If someone would call Isaac a pedophile because of a Jewish midrashic story that he married Rebecca at the age of 3 - a direct analogy to the Mohammed story - there is no way that the ECHR would have said that the person should be fined. Because Jews wouldn't riot over that!

The Court found in conclusion that in the instant case the domestic courts carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.

If people who are offended can quash speech, then it is not free speech. I do not know if there is a human right to have one's religious feelings protected; if there is then Muslims violate Jewish human rights every day that they worship in Jewish holy places that pre-date Islam.

This is a fundamentally flawed, and dangerous, decision that gives any religious group the right to limit their opponent's free speech rights by claiming that their feelings are being hurt. No, that is not what free speech means.

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