My God.... Your Speech!

Everyone should have the right to freely express their opinions through a variety of mediums. Under no circumstances should these rights be impeded unless they incite danger upon other human beings. This notion is supported by most Western democracies and by the international convention, namely the United Nations. Despite the protection such rights of expression receive; they have been threatened by provisions such as blasphemy laws. Provisions that are set in place in regard to freedom of speech that do not infringe upon our basic right to free speech are laws against libel and racism. In hopes of maintaining religious harmony blasphemy laws purport to grant asylum to religious groups from ridicule and judgment; however they often conflict with other human rights. Blasphemy laws are problematic because they infringe upon our basic rights of free speech and expression.

An example of this conflict can be seen in the Denmark cartoon controversy. During this controversy arguments in favor of free expression were challenged by blasphemy laws. The controversy started on 30 September, 2005 when Danish newspaper Jyllands-Posten published 12 editorial cartoons, most of which depicted the Islamic prophet Muhammad. The publication was in response to an ongoing debate about Islam and self-censorship. This, along with other publications of the cartoons in 50 other countries, led to Islamic protests across the Muslim world. Many of these protests escalated to violence and there were approximately 200 deaths.

The newspaper was taken to Danish court by 11 Muslim groups charging them with blasphemy. Critics of the cartoons described them as racist and argued that they were blasphemous to the people of the Muslim faith. Supporters of the publication pushed back against such critique, stating that the newspaper was “within the constitution, the Danish penal code and international convention. . . . It is not a dictatorship like Saudi Arabia that is going to dictate our editorial line here in Denmark."

The right to freedom of speech is supported Western democratic states, and Denmark is no exception. The Constitution of Denmark under Section 77 specifically states that “[a]ny person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice.” This law not only offers Danish citizens the right to free expression but it also provides them the right to publish those expressions and opinions. According to this section of the constitution, the newspaper and cartoonists are protected. What’s interesting is the provision added at the end of section 77 which states that the publisher may be answerable in the court of law. In essence the Danish government is leaving a back door open to potentially punish those responsible for offensive material. The law states you can state and print whatever you want but it doesn’t grant you protection from being punished for doing so. As it turns out, that is exactly what happened in this case.

Supporting section 77 of the Danish constitution the United Nations (UN) Universal Declaration of Human Rights, under Articles 1 and 2, states that all men are equal and granted the same rights regardless of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Hence no group of people, organization, or religious sector is regarded as the exception to the rule. If people have the right to free expression then it is safe to assume that such rights extend to expression of opinion about religious groups, corporations, and other groups of people. The UN’s Declaration of Human Rights, under Article 19, further supports the Danish law by stating that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

There are provisions set forth in the Danish government as well as the UN, in regards to freedom of speech which are meant to protect citizens and maintain harmony without infringing upon other basic rights. Like most Western democracies, Denmark has certain provisions against freedom of speech under the Danish Penal Code which include provisions against libel and racism. The provisions against libel are meant to maintain our humanity and maintain harmony between people. Libel law is where freedom of speech meets the requirement of responsible journalism.

The provision against libel is set down in § 267 of the Danish penal code:

"Anybody who offends another person's honor by insulting words or actions or by stating or disseminating charges, that are suitable for reducing the insulted person in the esteem of fellow citizens, will be punished by fine or ordinary imprisonment."

There are limitations to libel law, such as when a person is reporting the truth. Even if that truth defames a person’s character or reputation, such a report is protected under the freedom of speech.

Racism is another provision set forth against the freedom of speech. The laws against racism are set down in § 266b of the Danish penal code:

“Whoever publicly, or with intention to disseminating in a larger circle makes statements or other pronouncement, by which a group of persons is threatened, derided or degraded because of their race, colour of skin, national or ethnic background, faith or sexual orientation, will be punished by fine or imprisonment for up to 2 years.”

The laws against racism are set in place to protect the notion of equality amongst all human beings which is stated in the UN declaration of Human Rights under Articles 1 and 2. The prevention of slanderous speech helps maintain our humanity and aids in preventing future genocides. Under racism laws it is illegal to slander someone because of their faith. Therefore laws against racism work to protect the individual religious practitioners. In contrast, blasphemy laws protect the religious institutions. It is more important to protect the rights of the individual rather than that of the institution. Based on this blasphemy laws are rendered unnecessary. Despite this blasphemy laws are present and often enforced.

In the Danish penal code blasphemy is strictly forbidden by § 140:

"Anybody who publicly mocks or insults any in this country legally existing religious community tenets of faith or worship, will be punished by fine or imprisonment for up to 4 months."

The UN has also made decisions on religious intolerance. When approached by the Organization of the Islamic Conference in 1999 with a resolution titled “Defamation of Islam,” the UN adopted a modified version titled “Defamation of Religions.” The resolution urged that:

"[A]ll States, within their national legal framework, in conformity with international human rights instruments to take all appropriate measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by religious intolerance, including attacks on religious places, and to encourage understanding, tolerance and respect in matters relating to freedom of religion or belief."

The resolution was intended to limit speech that offends religion, particularly Islam. Though it remains an active resolution, debate about blasphemy laws is in full force. Because of this, courts have remained inconsistent with upholding such laws.

One relevant case is the 1811 case of People v. Ruggles. In this case the New York court ruled to uphold conviction against the defendant who stated that "Jesus Christ was a bastard, and his mother must be a whore." The conviction upheld that “[t]he free enjoyment of religious opinion is granted…but to revile the religion professed by almost the whole community is an abuse of the right.”

A conflicting example is the 1917 case of Bowman v. Secular Society. In this case the court ruled to end blasphemy prosecutions. Lord Sumner stated that “reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed….”

In another example, the 1952 case of Burstyn v. Wilson, the US Supreme Court reprimanded the New York law banning “sacrilegious” films that states that “no religion shall be treated with contempt, mockery, scorn, and ridicule.”

And so the debate continues; whilst people do have the right of free expression and opinion, there are stipulations placed upon that freedom. While some stipulations do not hinder the freedom of speech and expression, that is exactly what blasphemy laws accomplish. The stipulation relevant to the Denmark cartoon controversy was the blasphemy law. Fortunately the courts threw this case out on grounds that freedom of expression took higher precedent than the ban on blasphemy. It seems to be a recent pattern in Western democracies to have the freedom of speech and expression take precedent over that of blasphemy laws.

Today with a clear distinction between church and state, one would think that blasphemy laws would be rendered unconstitutional. There is a blatant contradiction between the right to free speech and blasphemy laws. Simply criticizing a person’s beliefs is not constitutional grounds for punishment. Under these grounds the Danish newspaper Jyllands-Posten had every right to print the 12 editorial cartoon sketches which depicted the Islamic prophet Muhammad. Individual rights to free speech should not be varied culture by culture but remain unchanging.