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Islam and Free Speech

Will the United States follow the UN's lead and go the way of Europe and Canada in appeasing politicized sensitivities?

By From the March 2009 issue

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Is freedom of speech in America threatened by the political mobilization of Islam? People who warn about threats to free speech usually like to shout about them—perhaps to show that they themselves won't submit to threats. I don't think America will face any shortage of people ready to shout about Islam or the Middle East or homeland security any time soon.

But there are certainly ominous trends stirring in the world. Not shadowy extremists but representatives of actual governments—nearly 60, in fact— have demanded that Western nations suppress speech that casts Islam in a bad light. UN human rights agencies have endorsed such demands. European nations have sought to accommodate them. The trend has not yet taken root in America. But our own courts have not always been firm protectors of free speech when restraints on speech are demanded to protect against "sexism" or "racism"—and official organs at the UN and the EU see "Islamophobia" as much the same thing. Meanwhile, the U.S. Supreme Court, cheered by a sizable contingent of American legal scholars, has held repeatedly in recent years that our own Constitution should be interpreted in the light of world trends in human rights. Anyone seen any hard-hitting Danish cartoons in the American press lately?

I. Defending Islam at the UN

The campaign against "Islamophobia" in the Western media first gained public notice when that campaign turned violent. In February 2006, mobs attacked Danish embassies in cities across the Muslim world. They claimed to be enraged by cartoons published in a single small-circulation Danish newspaper that associated the Prophet of Islam with terrorist bombings.

Setting fire to peaceful embassy buildings might seem an odd way to prove that Islam should not be associated with terrorism. So it was easy to dismiss the "cartoon intifada" as little more than random violence in unstable countries. But the protests actually seem to have been coordinated with an international campaign that was quite well organized.

In December 2005—only two months before these violent protests—the Organisation of the Islamic Conference (OIC) had convened an "extraordinary summit" with heads of state from its 57 member states. The summit endorsed a Ten-Year Program of Action to protect "the true image and noble values of Islam" by "combating Islamophobia." Among other things, it called for the UN to "adopt an international resolution on Islamophobia" that would "call on all states to enact laws to counter [Islamophobia], including [through] deterrent punishment."

None of this, in fact, was simply a response to the anxieties and resentments aroused in the aftermath of the 9/11 attacks. At the United Nations, member states of the OIC had started complaining about "defamation of Islam" in the late 1990s. An article in the September 1999 issue of Middle East Quarterly was already warning of the implications, under the heading "Islamism Grows Stronger at the United Nations."

In 1999 OIC member states, under the agenda item on "racism," urged the UN Human Rights Commission to condemn "defamation of Islam," arguing that antagonism toward Muslims risked the sort of violence previously unleashed by European anti- Semitism. Western states balked, then agreed to a resolution of concern about "defamation of religion… particularly Islam." The resolution passed without formal votes in 1999 and 2000 and then, when put to votes, passed by solid majorities in the ensuing years. A similar resolution was adopted by the General Assembly in 2005.

By 2005, the UN Human Rights Commission had become so discredited by its obsessive denunciations of Israel and indifference to human rights abuses elsewhere that even Secretary-General Kofi Annan urged its reform. The new, supposedly reformed Human Rights Council ended up with such human rights champions as Cuba, Russia, and China, along with 14 members of the OIC, including Saudi Arabia, Pakistan, and Algeria.

In its meeting of March 2007, the new council promptly adopted a new resolution warning that "defamation of religion…leads to violations of human rights" and again mentioning only "Islam and Muslims in particular." The resolution specifically invoked the OIC's 2005 "extraordinary summit" as if it were part of the UN's official rationale—which, in effect, it was. The resolution specifically "emphasize[ d] that…freedom of expression…should be exercised with responsibility and may therefore be subject to limitations…necessary for respect of the rights and reputations of others…and respect for religions and beliefs" and therefore "deplore[d] the use of the print, audio-visual and electronic media, including the Internet…to incite…xenophobia or related intolerance and discrimination toward Islam E2." For good measure, it also protested "the increasing trend in recent years of statements attacking… Islam and Muslims in particular in human rights forums."

The implications of all these claims have been made more clear in the past year. In earlier resolutions, "Islamophobia" was linked with "racism and xenophobia" and referred to the council's Special Rapporteur charged with monitoring "racism, xenophobia and related intolerance." In its meeting of March 2008, the council voted to refer its concerns about "defamation of religion" to the Special Rapporteur on Freedom of Expression. In effect, the resolution demanded that protection of free speech give way to protection against improper—Islamophobic— speech. As the Canadian delegate protested, "instead of promoting freedom of expression, the Special Rapporteur would be policing its exercise." But of course, it made no difference. In its December meeting at the end of last year, the UN General Assembly simply went ahead and endorsed the OIC-sponsored resolution that condemned "discrimination against religions"—but, as usual, mentioned only "Islamophobia" rather than attacks on any other faith.

Last June, OIC members gave a startling demonstration of how they would protect against "attacks" on "Islam" in "human rights forums." In the midst of a review of women's rights, a representative of a Western NGO tried to present a report on the practice of female genital mutilation in Egypt and Sudan. The speaker tried to say that the practice would be stopped if religious authorities in Egypt clarified that it was not required by sharia law. Whereupon the Egyptian delegate immediately brought the proceedings to a halt, protesting that the statement was an attack on Islam. After futile efforts to calm tempers by the chair (a delegate from Romania), the Egyptian ambassador insisted that "Islam will not be crucified in this forum." The chair closed the meeting with assurances that the Council would not in future presume to discuss "religious questions"—which, given the background, seemed to indicate that even oblique references to understandings of sharia, even if misunderstandings, could no longer be tolerated.

If that is the standard for public debate, quite a lot would not be open to comment. A number of Western NGOs, concerned with religious freedom, raised objections. The Becket Fund, a Washington-based advocacy group for religious liberty, warned that the concept of "defamation of religion" would "undermine the foundations of the human rights system" (as previously understood), shifting its emphasis from "the protection of individuals" to "the protection of ideas or of group identities."

When courts are asked to decide claims of "defamation" against individuals, it noted, truth is always a defense: instituting legal actions against "defamation of religion" would "require the state to determine which ideas are acceptable, as opposed to which facts are true." Enforcing measures against "defamation of religion" would thus "empower majorities against dissenters and the state against individuals."

But the OIC does seem to think any discussion of Islam or even political opinion among Muslims should be taken as prima facie evidence of Islamophobia and properly curbed by governments. In May 2007, the OIC agreed to establish an "Observatory" for "monitoring all forms of Islamophobia." The Observatory's first report, released last summer, offers "a collation of incidents and developments that vindicate the Ummah's concerns about the rising trend of Islamphobia." But it offers only one paragraph on incidents of actual violence against Muslims in Western countries, only three of which are even specified as to location (two in Belgium and one in Poland) while the others—including "incidents" of "bombings and arson" against mosques and "lethal bludgeoning, stabbing and shooting" are not counted or even located, let alone described.

The bulk of the report instead focuses on "Islamophobic incidents" constituted by the "spate of insulting cartoons, caricatures, writings and mockery of Islam" in Western media. The first example: Ayaan Hirsi Ali, the Somali refugee who served for three years in the Dutch Parliament, published opinion pieces in the New York Times and Washington Post that the Observatory judged to be "insulting to the sentiments of Muslims." Item 14 calls attention to another "blasphemous caricature of Prophet Muhammad" in a "Swedish provincial newspaper published alongside an editorial on freedom of expression." By item 18, the Observatory is trying to focus international outrage on the Internet posting of one Alex Epstein, "a junior fellow at the Ayn Rand Institute in Irvine, California," for his claim that "hatred of America is irrational and undeserved.

II. The Campaign in Europe

It's tempting to dismiss the worldview of the OIC as alien. It's easy to dismiss its success at the UN as predictable effusions from an organization that lets repressive governments dominate human rights debates. To their credit, European representatives have raised questions about the recent trend of these debates and voted against the more crudely worded resolutions. But they have not threatened to abandon the Human Rights Council if the trend is not reversed—as the United States has already done. Europe's policy has been to meet the demands of the OIC halfway.

The European Union established a Monitoring Centre on Racism and Xenophobia in 1997. A year after the controversy over the Danish cartoons, it published a report on "Muslims in the European Union—Discrimination and Islamophobia." The violent response to the cartoon showed, according to the report, "the pivotal importance of intercultural respect." It acknowledged that "freedom of expression is part of the principles and values that the EU was founded upon" but also affirmed "certain limits…to protect other fundamental rights." There isn't even a conflict or strain between them: "Freedom of expression and the protection against racist and xenophobic language can, and have to, go hand-in-hand—the two together make democracy meaningful."

It tells much about the atmosphere in Europe that the report, in over a hundred pages, nowhere tries to explain the difference between permissible discussion of religious differences and "racist and xenophobic language." It acknowledges that the term Islamophobia "has been criticized by a number of commentators"—but then reassures readers that "Muslim and human rights organizations have argued that the presence of Islamophobic sentiments and action is a real problem that needs addressing." How to tell whether a given "action" is "Islamophobic" rather than merely rowdy or thuggish?

In the section urging coordination of crime statistics, it urges that "a victim's perception of a crime as 'Islamophic' is the first step toward acknowledging that an incident might be Islamophobic"— but never gets around to explaining the second step. It affirms that "fundamental principles…must be respected," including "the equal right of women to make individual choices in all walks of life." Then it acknowledges that "efforts to protect those principles may at times clash with the perception of certain individuals or faith groups." The way forward is "to ensure that a potential critical stance toward certain religious manifestations respects the principle of equal treatment."

Shortly after the publication of this very tactful report, the Monitoring Centre was relaunched as the "Fundamental Rights Agency"—promising that "the fight against racism, xenophobia and related intolerance will be at the heart of FRA's activities." So the EU's commitment to freedom of expression will be left to an agency whose core concern is battling "racism," and the most pressing "racism," in its view, is "Islamophobia."

It's true that the EU has not been centrally concerned with human rights protection in the past. That has been left to the Council of Europe, which embraces all EU states but also nearly all other European nations. It has not, however, been much more steadfast. Last year, the council called on all member states "to be vigilant in their work to prevent and combat the phenomenon of Islamophobia" by, among other things, measures to "encourage the promotion of fair coverage of Muslim reality and views in the media."

Might there be some tension between "vigilant" efforts to "prevent Islamophobia" and guarantees of free speech? The Council of Europe sponsors a European Convention on Human Rights, interpreted and enforced by a Court of Human Rights. In 1994, the court endorsed the action of the Austrian government in seizing a film that was deemed to contain blasphemous mockery of Jesus and Mary:

"In seizing the film, the Austrian authorities acted to ensure religious peace…and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner." Advocates for an "Islamic perspective on human rights" have already drawn attention to the relevance of this ruling to current concerns. No case has yet qualified the open-ended reasoning of this ruling.

Nor is there a strong tradition of free speech advocacy within national parliaments or national courts. Laws against incitement to hatred have been on the books in most Western European countries sine the 1970s. In Italy, journalist Oriana Fallaci, internationally respected for her probing interviews with world leaders, was subject to prosecution for warning that Islamic immigrants were undermining Europe's culture of open debate. She died of cancer in 2006 before the case could be resolved, but other prominent and mainstream writers have been caught up in harassing claims in France and other countries.

Meanwhile, the threat of violence hovers in the background. As the OIC Observatory reports (with some satisfaction), the OIC's Secretary General protested to the Dutch government in November 2007 after Dutch parliamentarian Geert Wilders announced that he was making a film critical of the Koran. Within weeks, the Dutch foreign minister had arranged to meet with the OIC's Secretary General to assure him that the government "condemns such activities in the strongest possible terms," would try to stop the broadcast of the film in the Netherlands, and if the film "violates Dutch laws" would assure that "the parliamentarian would be prosecuted." In return, the Dutch government "appealed to the OIC Secretary General for his help and cooperation so that the film does not hurt the Dutch interests in the Muslim world."

Pushing back against the OIC's campaign is not Europe's agenda.

III. Saved by the First Amendment?

Will this tide reach America? One thing is for sure, it is no longer an ocean away. Like most countries in Europe, Canada has had laws against hate speech since the 1970s, enforced by provincial human rights commissions with procedures that make it quite easy to launch charges of improper speech. In 2007, the Ontario Commission, acting on complaints by the Canadian Islamic Congress, opened an investigation of Maclean's magazine (Canada's largest-circulation news magazine) for publishing excerpts of Mark Steyn's book America Alone. A similar investigation was launched by the Alberta Human Rights Commission against the much smaller Western Standard for publishing the Danish cartoons in 2006, along with a commentary on free speech. These cases stirred enough angry debate in Canada—where no one ever seems to get angry—that the Ontario Commission dropped the Steyn case without any action this past summer. Prominent Canadian politicians have called for repealing hate speech laws. But B'nai Brith Canada issued a report last summer that strongly condemned abusive investigations like those against Maclean's, but still insisted hate speech laws were needed to protect against Holocaust deniers and white supremacists. Muslim advocacy groups won't be the only defenders of Canada's existing network of speech controls, which have long been endorsed by the Canadian Supreme Court.

Is America in an entirely different place? One reason for worry is that we have not yet seen Muslim advocacy groups mobilizing on behalf of official speech restraints in American localities or even on university campuses. Ezra Levant, publisher of the Western Standard (which has now ceased print publication), warns that Canada is "more like Europe" in many ways, including its experience with Islamist political campaigns, but Canada is often an "experimental lab for a lot of bad ideas that are then imported into the States." We have seen this before. Speech codes sprang up on college campuses across the United States in the 1990s, as liberal opinion (including in much of the legal academy) embraced the notion that minorities and women needed to be protected from "hostile environments." Meanwhile, the federal civil rights agencies insisted that institutions might be charged with "discrimination" if they did not prevent minorities and women from feeling "harassed" by hostile comment—even when such comment was not directed at any individual person.

Courts did put some limits on campus speech codes at public universities. The Rehnquist Court tried to apply brakes to the more outlandish versions of "sexual harassment" claims based on "hostile environment." But the Court always sidestepped the question of whether the First Amendment really allows government to demand that corporate managers and school officials suppress free speech just because it offends some employees or students. It is not, in fact, a large leap from the ideology of the sexual harassment cases of the 1990s to the sorts of claims Islamists have been pursuing in Europe. But perhaps the most worrisome concern is that a lot of American legal commentators, and now a narrow majority of Supreme Court justices, hold that the meaning of our own Constitution should evolve in some response to trends in "the world community."

Over the past six years, the Court has cited international conventions the U.S. did not ratify, admonitions of UN and European human rights bodies, and rulings of foreign courts (including the European Human Rights Court) in support of changed interpretations of the U.S. Constitution on a number of disputed social issues. A number of serious scholars have interpreted the Court's most recent rulings on the rights of Guantanamo detainees as a nod to "international" opinion. Harvard Law professor Noah Feldman recently urged, in the pages of the New York Times, that courts have an obligation to convert the Constitution into an "outward looking document" by assuming responsibility for judicial foreign policy.

To defend free speech in America, we may find it more and more important to insist that we have the right—and under our inherited Constitution, the duty—to hold to our own ideas about what we can be allowed to say among ourselves.

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About the Author

Jeremy Rabkin is professor of law at George Mason University School of Law and the author of Law without Nations? (Princeton University Press), The Case for Sovereignty (AEI Press), and Why Sovereignty Matters (AEI Press).