Chronicles of a Wandering Mind

The power of the web never ceases to amaze me, both from positive and negative perspectives. Positive due to the incredible amount of concrete information on any subject, if you care to look for it, and negative due to the fact that this wealth of information does not seem to make people look into the facts before making judgements. The urge to blog/write a comment is too strong, and much easier than attempting to substantiate the thoughts with research (including the author of this blog).
There has been massive amount of activity in the blogosphere about the Danish cartoon controvery. I found that it consumed my thoughts as well. Many people take offense to the fact that muslims take offense to the cartoons and state the “freedom of speech” flag. Yet from my research so far, neither laws nor the application of the laws and social culture are uniform in Europe on restrictions on the freedom of speech. First I found out the blasphemy is a crime in Denmark by law, yet these laws have not been applied since 1938.
“In Denmark, while a law prohibiting blasphemy exists under Section 140 of the Danish Penal Code, it has not been used since 1938. The Danish Penal Code also contains a provision (Section 266b) against expressions that threaten, deride or degrade on the grounds of race, colour, national or ethnic origin, belief or sexual orientation. That provision, however, has never been used against statements offensive to religion. Indeed, in 1992, a film made by an artist, Jens Jørgen Thorsen, was shown in cinemas all over Denmark. The film portrayed Jesus as sexually active and the clergy as corrupt. Though the film caused debate, no legal measures were taken and no charges were laid. Similarly, in 1984 a local art club asked the same artist to create a “happening” on the wall of the local railway station. The work displayed a naked Jesus with an erect penis. The work caused considerable controversy, and was eventually removed, but no legal charges were ever brought. ”

Fair enough. The law was not applied but clearly some people were offended by the latest example. Once can say that the affair was resolved as it should be in a democracy: something happened, there were discussions and some appropriate action was taken. There was no need for legal/governmental involvement.

Then I found out about several European Human Rights Court decisions related to this subject. Let’s take a look at these cases: Otto-Preminger vs Austria; the story is quite relevant to the current controversy and telling:

In 1985, in a film “God the Father is presented both in image and in text as a senile, impotent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with a corresponding manner of expression and in which the Eucharist is ridiculed”

1. At the request of the Innsbruck diocese of the Roman Catholic Church, The Austrian prosecutor stopped the showing of the film with the court approval under the Austrian “Media Act”. Hold on a second, what happened here. Don’t they have freedom of speech in Austria? Apparently not for everything. Well some people did not like the decision of the court, so the case was appealed. Let’s see what happened…

2. The Court of Appeal considered that artistic freedom was necessarily limited by the rights of others to freedom of religion and by the duty of the State to safeguard a society based on order and decided that the seizure was justified, upholding the original decision. The court reasoning is spectacularly relevant to the current controvery:

“The conditions of section 188 of the Penal Code are objectively fulfilled by this portrayal of the divine persons - God the Father, Mary Mother of God and Jesus Christ are the central figures in Roman Catholic religious doctrine and practice, being of the most essential importance, also for the religious understanding of the believers - as well as by the above-mentioned expressions concerning the Eucharist, which is one of the most important mysteries of the Roman Catholic religion, the more so in view of the general character of the film as an attack on Christian religions …”

Strike two for the absolute protection for the freedom of speech. Austrian laws does not seem to agree that freedom of speech allows anyone to insult someone’s religious beliefs (in this case Christian religion). So in Austria, it seems blasphemy is illegal by law and unlike Denmark, the law is still actively used.
3. This still did not sit well with the people involved, so they went to the European Human Rights Court. They asked the European Human Rights Court to “decide in favour of the applicant association and find that the seizure and forfeiture of the film were in breach of the Republic of Austria’s obligations arising from Article 10 (art. 10) of the Convention, and that just satisfaction as specified be afforded to the applicant association”.

What is Article 10 of the European Human Rights Convention, one may ask. Well, it is also quite relevant to our subject so let’s take a look:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Basically it says that yes, you have the right to freedom of expression, BUT it can be restricted for number of reasons listed in 10.2 (which is way to broad for my taste by the way) that includes “protection of health or morals”.

In conclusion, European Human Rights court rejected the application. The full explanation for the decision can be read via the link posted above, and I’d highly recommend it as it goes methodically through many of the points currently being discussed in the blogosphere.

Bottom line: Freedom of Speech is far from being absolute as it is widely assumed by many in the western world. There are number of precedences where blasphemy was not considered under protection of the freedom of expression of the European Human Rights Convention or the laws of many European countries.

This is also not the only case, in 1996, Wingrove v. UK, UK authorities have decided that the videotape, which portrayed the crucified Christ in acts of a sexual nature with a nun, violated blasphemy laws and the European Human Rights Court have decided that Article 10 was not violated.
Hence, can we at least grant the people right to be offended by these cartoons (there seems to be no disagreement that the cartoons are blasphemous)? I cannot help but think that if the initial response to the Muslim protests were more open and fair, the Muslim extremists would not have been able to seize the opportunity to spew their hate and get wider support in the Muslim world.

I dare ask, could we not not protest the publishers of this unnecessarily provocative material rather than showing “solidarity” by siding with them and re-publishing the offensive material? Is the cause of freedom of expression better served by testing the limits of tolerance so aggresively? Don’t we have enough (and way more pressing problems) in these societies to deal with than exploration of the boundaries between freedom of expression and religious tolerance?
I plea that we should at least refrain from aiding the extremists in their quest to polarize the world and gain further support for their un-peaceful means.