Can I Say That?: How an International Blasphemy Law Pits the Freedom of Religion Against the Freedom of Speech
| Citation | Vol. 28 No. 1 |
| Publication year | 2014 |
Can I Say That?: How an International Blasphemy Law Pits the Freedom of Religion Against the Freedom of Speech
Caleb Holzaepfel
On August 16, 2012, a young Christian girl, living in the overwhelmingly Muslim nation of Pakistan, was arrested for allegedly burning pages of the Noorani Qaida, a booklet used to learn the basics of the Qur'an.1 Despite the fact that the 14-year-old had Down Syndrome, the police were forced to arrest the girl, fearing repercussions from violent and restless Islamic mobs.2 The local citizenry, as part of their enraged protest prior to the arrest and indictment of the girl,3 physically beat and abused the girl and her mother.4 Following the arrest, the mobs set up roadblocks in Mehrabadi to prepare an attack on local Christian families.5 The mob agitators spent the day shouting into loudspeakers to incite the crowd, making inflammatory accusations against the girl's small Christian neighborhood.6 The impending attack on the Christians of that neighborhood was "expected to occur after Friday prayers at the local Mosque, but, at the last moment, negotiations with Muslim clerics were successful and the attacks were called off. However, Christian villagers were warned that the truce was only for the time being, and peace would depend on [the girl's] being punished for her crimes."7 After additional evidence was released that an Islamic cleric falsely accused the girl with Down Syndrome,8 who had in fact
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committed no infractions against the Qur'an, the Islamabad High Court dismissed the case in September 2012.9
In another recent case, an amateur, thirteen-minute satirical film incited riots across the globe.10 The film ridiculed Islam and its prophet Mohammed, inducing anger from religiously fervent Muslims, most notably in Cairo and Libya.11 The clip was posted on YouTube for some time, and gave rise to anti-American protests and riots starting on September 11, 2012.12 The producer of the film, Nakoula Basseley Nakoula, was forced into hiding.13 A Pakistani government minister, reacting to the perceived insult to his religion and religious figures, even placed a $100,000 bounty on Nakoula's life.14
The legal justification for arresting the alleged criminals in these recent news stories is blasphemy laws, which purport to protect individuals, religions, or sacred personages from expression that is perceived as an unjust attack.15 Damaging the Qur'an is not representative of indictable action under blasphemy laws16 in every nation. However, cases such as these are the reason the international debate concerning blasphemy laws has been thrust into the
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limelight in the past decade. Resolutions and recommendations supporting these laws, from both the United Nations General Assembly and the UN Human Rights Council, are increasing in their frequency and determination.17 These resolutions decry and condemn free speech that insults or outrages individuals on the basis of their religious beliefs.18 New developments in the blasphemy law debate emerge almost daily.19 Though these laws have yet to receive international approval while the debate continues,20 the danger that blasphemy will be criminalized internationally is becoming real.
Blasphemy laws are a largely forgotten legal concept in the United States. The U.S. Constitution, almost uniquely among nations, expressly forbids any restriction on persons' freedom of speech.21 Legislation that impedes free speech is viewed negatively in the United States. The U.S. Constitution does not grant free speech22 but rather expressly bars Congress from interfering with its citizens' freedom of speech.23 As a result, blasphemy remains a protected form of communication for which no legal repercussions exist. For this reason blasphemy laws remain a foreign discussion to many Americans. However unconnected blasphemy laws are to the conversation in the United States, the international debate concerning these blasphemy laws is quickly coming to a head.
As of 2011, there are fifty-nine countries with domestic statutes containing anti-blasphemy, apostasy, or defamation of religions bans.24 Events of high or
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very high social hostility or restrictions against religion, directly stemming from religious issues, occurred in thirty-five of those countries.25
Violent reactions to religion also increased by twenty-eight percent in fourteen of these countries from 2006 to 2009, while decreasing in only 3.4 percent of these countries.26 Events of moderate social hostility or restrictions against religion occurred in an additional twenty-three percent of countries.27
In contrast, in the 139 countries without such blasphemy laws, only seventeen percent had a "high" hostility rating.28 Hostilities only rose in six percent and decreased in seven percent of these countries.29
These statistics help to reveal that blasphemy laws currently affect global hostilities. Nearly thirty percent of nations now have some form of blasphemy law, and fifty-five percent of nations experienced events of moderate to high hostility stemming from religious incidents.30 The international conversation concerning these laws will not go away soon.
Freedom of speech is a foundational human right. Its enumeration in history stretches far back into antiquity, but was eloquently voiced by great social philosophers including Locke, Voltaire, and Mill.31 Article 19 of the 1948 Universal Declaration of Human Rights laid the foundation for freedom of speech as customary international law, asserting: "Everyone 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."32 The 1966 International Covenant on Civil and Political Rights reaffirmed freedom of speech in nearly identical language: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
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the form of art, or through any other media of his choice."33 Freedom of speech is essential in any free society. It makes possible the free flow of knowledge and ideas, upon which opinions and actions necessary for society are founded. Scientific development, social growth, political change, and even religious development owe a debt of gratitude to dissemination made possible by the freedom of speech. Freedom of speech as a foundational international human right and binding international law is well established.
This Comment aims to illustrate the dangers inherent in blasphemy laws, by examining both their past and present state. If blasphemy laws become customary international law, as recent resolutions passed in the United Nations indicate, an important human right is unnecessarily threatened. Though blasphemy laws protect the freedom of some individuals to practice religion as they see fit without insult or unjust attack, blasphemy laws also inherently limit other individuals' freedom of speech. The conversation over enacting and enforcing blasphemy laws is multi-layered and complex, but the foremost concern about certain new blasphemy laws is that they give freedom of religion undue precedence over freedom of speech, to the detriment of society. This Comment will illustrate the faulty thought processes behind blasphemy laws and the danger of allowing domestic blasphemy laws to evolve into international customary law.
This Comment will describe the inevitable human rights violation-the destruction of important facets of the freedom of speech-that will occur if international blasphemy laws are condoned. Part I will briefly explore the history of blasphemy laws, from their ancient conception through their revival in modern times. Part I will also consider the three major approaches to blasphemy laws and freedom of speech in existence today: (1) laws that prohibit any formulation of a domestic blasphemy law; (2) laws that protect religions or religious groups from defamation and criticism; and (3) laws that protect individuals from religious insult and incitement. To illustrate, Part I will include an example of a modern law falling under the two latter blasphemy law types. Turning to Part II, the conversation will turn to international law and trace the United Nations' insistence that blasphemy laws become customary, and therefore enforceable international law. Part III will explore the debate over blasphemy laws, including a look at current legal
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trends and cases, as well as an idea of what the future conversation is likely to hold for international blasphemy laws. Finally in Part IV, the conclusion will argue that the best course of action is to reject both types of blasphemy laws, allowing freedom of speech and freedom of religion to continue to coexist as equally necessary human rights.
A. The History of Blasphemy Laws
Blasphemy laws are nearly as old as civilization itself. In ancient Greece and Rome, one could criticize the state, but would face strict legal consequences for mocking or defiling the gods.34 Biblical sources portray blasphemy laws dating from 4000 to 5000 years ago.35 Originally, blasphemy laws were not written to protect against defamation of any religion, but rather to protect the honor of a particular deity.36 Leviticus 24:15-16 harshly declares, "[w]hoever curses his God shall bear his sin. He who blasphemes the name of the Lord shall be put to death; all the congregation shall stone him; the sojourner as well as the native, when he blasphemes the Name, shall be put to death."37 This is the law under which the Judaic Sanhedrin accused Jesus Christ.38
As Christianity moved from the Early Church...
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