The decreasing freedom of free-speech.
Jake Neumann and Jon MC
Introduction.
In this article British writer Jon MC and American commentator and writer Jake Neumann explore some issues surrounding free-speech at present (2013).
Universal Free speech.
The UN Universal Declaration of Human Rights (UDHR) states in article 19:
“Everyone has the right to freedom of opinion and expression, and to seek, receive and impart information through any media and regardless of frontiers.' UNUniversal Declaration of Human Rights, article 19. (1948)
In its formulation the UDHR drew on two earlier declarations, the US Constitution (1776-1789) and its first 10 amendments - collectively called the “Bill of Rights” (1791) and the French “Declaration of the rights of man and citizen” (1793), both of which enact free-speech clauses.
In article 19 the UDHR declared that free speech is a basic human right. Whilst it might be thought that this right is an absolute right, this is in fact not the case. Almost all Countries restrict free-speech to some degree. Most Countries have libel/slander and/or defamation laws and most people would consent that a person should have legal protection from having lies told about them – particularly those that “lower their standing” in the community.
While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter, which is binding on all member states. Thus there is the implicit understanding that the laws of all signatories should conform, or be brought to conform, to the declaration which is considered a foundational document for international human rights. This in turn would mean that some restrictions on stating “opinion and expression” would be in contravention of the spirit, if not the letter, of international law.
Free-speech in Great Britain
The UK does not have a written constitution, instead much of it's constitution derives from ancient laws, common law and even tradition.
Whilst free-speech in the UK is not protected in the way that it is in America, the legal assumption is that one may speak freely, provided such speech is “honest”.
This freedom is circumscribed by the laws of libel and slander, which are the two legally acknowledged versions of “defamation”. Neither extends to deceased persons, nor is being simply abusive “defamatory”.
Before going further, it is necessary to point out that a person is only “defamed” if the remarks (whether written or spoken) are likely to be “damaging to their reputation”. This is important because it means (for instance) that a career criminal would be unlikely to be able to successfully sue me if I “defamed” him/her by saying “S/he stole my xxxxxx”. Their reputation is already sufficiently “low” that saying such a thing will not lower it further. On the other hand, if I said it about the local Vicar, s/he could sue successfully – unless I was telling the truth of course!
The basic position in UK law is that if someone feels they have been defamed, it is up to the person who wrote/said the defamatory comments to prove that their remarks are true, though the claimant has to show that they are the victim of the defamation. (Thus a remark made about a “Mr.Smith” would be unlikely to be defamatory, unless the Mr.Smith in question could show he was the person concerned.)
In other words, you can't tell damaging lies about people and expect to get away with it! Neither does it matter if you are merely repeating someone else's defamatory remarks – you too can be sued {5}
Thus when writing about a living person, it is wise to make absolutely certain that what is written is the truth.
The UK's defamation laws are biased towards the claimant and expensive to defend, thus even if you write the truth and thus win a libel action you are likely to be very out of pocket. Hopefully, the recent 2013 bill will address these issues and re-balance the UK law, though the common law (case law) aspects will take time to develop.
Slander laws are more rigorous in that for “passing remarks” a very much higher standard of evidence of defamation is required. In practice, such cases are rarely brought today.
Blasphemy laws in Britain were repealed in 2008, thus there is no restriction on free-speech when talking about a religion. (The laws only provided a modicum of protection and that only to some sects/parts of Christianity.)
In 2005 ACPO published “Hate Crime: delivering a quality service”, colloquially known as the “2005 hate crime manual”{6}.
On page 9 it has this to say: (Emphases mine.)
2.2.1A Hate Incident is defined as: Any incident, which may or may not constitute a criminal offence, which is perceived by the victim or any other person, as being motivated by prejudice or hate.
2.2.2 A Hate Crime is defined as: Any hate incident, which constitutes a criminal offence, perceived by the victim or any other person, as being motivated by prejudice or hate.
2.2.3 It is vitally important to note that all hate crimes are hate incidents. However some hate incidents may not constitute a criminal offence and therefore will not be recorded as a hate crime...
…
2.2.6 The perception of the victim or any other person is the defining factor in determining a hate incident.
Sections 2.2.10-14 draw a distinction between a “hate incident” and a “hate crime”. Abuse (related to sex, race, disability, faith etc.) would be a “hate incident”, however a greater degree of malignancy would be needed for this to tip over into a “hate crime”.
...
Section 2.3.5 has this to say: Faith Related Incident. Any incident which is perceived to be based upon prejudice towards or hatred of the faith of the victim or so perceived by the victim or any other person.
Thus it is clear that it is the perception of the incident as “hateful” that is key to determining whether or not it is treated as a hate-crime or hate-incident.
Furthermore, it does not matter who perceives it as “hateful”. If anybody, even someone not present at the time perceives the incident as “hateful” it is either a hate-incident or a hate-crime{8}.
This is, frankly, an incredibly dangerous precedent to set, since it means that quite literally anything perceived as “hateful” by someone (no matter how ludicrously)must be recorded as a hate-incident at least.
Thus in the UK we are in the risible position that those most easily offended and insulted will, inevitably, be the greatest “victims” of hate-incidents.
Whilst speaking about religion as such and indeed attacking a given religion is not subject to either slander or libel laws – these laws only apply to living people, the “perception clause” in hate-crime documentation means that there is the potential for the restriction of free-speech since such attacks will be deemed “hate-incidents” if they are “perceived to be based on prejudice or hatred of [a] faith by … any … person.”
This clearly feeds the notion of “Islamophobia” since any criticism of Islam can be deemed a “hate-incident” ergo the person critiquing Islam is guilty of “hatred” ergothey are an Islamophobe.
Note also that truth is no defence! If the statement, even if demonstrably true, offends someone and they perceive it as being motivated by hatred of their religion, thende facto it is a hate-incident.
In principle, I have no problem with “hate-speech” legislation, but it is my belief that such legislation should be tightly drawn such that “hate-speech” has to be defined as that likely to promote violence towards a given group in society and specifically rules out the idea that something may be “hate-speech” because a group in society finds some speech upsetting or offensive and reacts with or threatens violence as a result.
In 2006 the UK enacted the “Racial and religious hatred Act 2006” which defined a (small) number of crimes if the actions, words or writings of people were intendedto “stir up religious hatred”(29B). Thus it would be possible to fall foul of this act if published writings were deemed likely to stir up religious hatred.
The act also included a clause specifically permitting “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents” (29J).
Thus the test must be whether or not a “reasonable person” would regard what is written as being “intend[ed] thereby to stir up religious hatred”. In legal terms this is a test of mens rea.
This seems perfectly satisfactory and reasonable and were the law applied even-handedly (or in the English law expression “indifferently”) to all, then its stated goals would be achieved.
The likelihood of action being taken against speech depends on how likely it is that someone will be offended or insulted by it. Rowan Atkinson made a speech on this issue in which he pointed out that the Act(s) support “the Outrage Industry: self-appointed arbiters of the public good, encouraging media-stoked outrage, to which the police feel under terrible pressure to react” and that “Under the law’s current wording, anything could be interpreted subjectively as “insult”; criticism, ridicule, and sarcasm, any unfavourable comparison, or merely stating an alternative point of view to the orthodoxy can be interpreted as insult.” and thus fall foul of the law.
As Peter Tatchell points out, in the UK “I was arrested for saying the homophobia and sexism of Islamist extremists is akin to the mentality of the Nazis. Separately, a youth was arrested for calling Scientology a dangerous cult. In both instances, it was deemed we had committed religious hate crimes.”
Clearly, Tatchell's words were taken as likely to “stir up religious hatred” towards (or perhaps by) Muslims, yet Tatchells' words would appear to fall under the terms of section 29J of the act rather than 29B.
Recently, (June 27th, 2013) the UK government banned Robert Spencer and Pamela Geller from entering the UK. Both stand accused in the Home Office letters they received of “making statements that may foster hatred which might lead to inter-community violence in the UK”. Note the conditionals in the letter (and law) and the ambiguity as to which community would author the violence.
Conversely, when a white boy is beaten and stabbed by “Asians” (“Asians” is the UK press code for “Muslims”), then even if the victim perceives the attack as racially motivated, it is not so recorded.
Muhammad al-Arifi, who has advocated Jew-hatred, wife-beating, and jihad violence, entered the U.K. recently with no difficulty.
Anjem Choudary is widely known as a “hate preacher” in the UK. He has, most recently, called for both President Obama and Prime Minister Cameron to be killed. He will not be prosecuted, the Police stating that “The material fell below an evidential threshold to pursue a criminal case against him.”
Mehdi Hasan is a political editor of the “Huffington Post” UK and appears on UK TV despite previously having said that all ‘Kuffar’ (a derogatory term in the Koran for non-Muslims) ‘live like cattle and have no intelligence.’ Holding such a view has clearly not harmed his career at all, but a non-Muslim’s public career would be destroyed if a comparable statement was made about Muslims.
"Sheikh" Yasser al-Habib, who lives in Buckinghamshire has a reputation for offending … other Muslims. Khalid Mahmood, a Labour MP, says of him: “This man deliberately sets out to offend, if it was the English Defence League or the British National Party using this sort of rhetoric the authorities would, quite rightly, come down on them like a ton of bricks. Yet this guy, because he is a Muslim, gets away with it. This could cause problems of the kind we have not had in the UK before.” In case you are wondering, Mahmood is meaning “inter-community violence in the UK” - now where have we heard this before?{9}
Thus we see that the implementation of this law is not even handed. On the one hand the UK system takes action against Geller, Spencer, Tatchell (and several others) for remarks that are merely insulting to (e.g.) Islam; whereas al-Arafi, al-Habib and Choudary (to name but three) are permitted a much greater degree of free-speech for words that directly incite violence and/or religious/racial hatred. If people do – or even say – anything that “offends” Muslims, their actions are either “hate incidents” or hate-crimes, whereas if the victim is non-Muslim and the perpetrators Muslim then, despite the wording of the law, the attack will not be classified as a “hate” matter, sometimes even in cases involving serious injury.
I can't emphasis this enough: people can fall foul of this law not because their speech stirs up (i.e. incites) hatred towards (e.g.) Muslims, but because of the fear that their speech will incite (e.g.) Muslims to violence. The glaring example of such “incitement” in the UK was Salman Rushdie and his book “The Satanic verses”, which caused riots, death threats and murders. One wonders whether he would be allowed to publish the book in the UK today – it was published in 1998, eight years before the 2006 “hate crime” act.
Another point worth mentioning is that a religiously based hate-crime can, as far as I know, only be defined by the religion of the victim, not the perpetrator. Thus those Muslims who attacked (e.g.) Gunner Lee Rigby whilst chanting “Allah Akbar” are notguilty of a religious hate-crime since Rigby's religion (if any) was not a reason for his murder, even though the religion of the perpetrators clearly was{10}. This omission in the law is obviously perverse.
Free speech in America
Although both Britain and the United States are democracies with free elections that lead - in the UK to the election of a House of Commons and the political party with the majority of seats forms the government while in the US political parties field candidates for Senate and House of Representatives with a Presidential candidate being selected by The Electoral College after nationwide votes - the two countries are dramatically different in the application of free speech especially when it comes to criminalization of hate speech as hate crimes. Both countries however are virtually identical in the non application of these laws to Muslims.
The American Declaration of Independence (1776) and the United States Bill of Rights (1791) are foundational documents in the history of the US:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The first amendment, ratified,December 15, 1791, states:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
These are powerful, timeless words. They stand as a beacon for all humanity. These words are not only in the Constitution of the United States, they are a fore-runner to the UN UDHR and the ECHR.
In the US, freedom of speech gives you the full right to demean, make fun of and even speak racial slurs against any person or group. But this does not mean that there are no consequences to such actions. Sports casters have been fired for uttering racial slurs. Media/political personalities have been condemned for degrading remarks - many losing endorsement fortunes as advertisers run from them.
Like the UK and other Countries, the US legal system defines defamation of a living person as follows:
“Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are subcategories of defamation. Defamation is primarily covered under state law, but is subject to First Amendment guarantees of free speech. The scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion.”
Thanks to the first amendment and a series of case-law results a successful defamation claim can only be brought if it can be shown that the defamatory statement(s) are a matter of fact not opinion and that they are not a matter of “fair comment and criticism”. What compounds these laws is the legal independence of the US states – thus a defamatory statement in one state may not be held to be so in another.
A relatively recent phenomenon in the U.S. is that of “lawfare”:
"...lawfare is about more than just delegitimizing a state's right to defend itself; it is about the abuse of the law and our judicial systems to undermine the very principles they stands for: the rule of law, the sanctity of innocent human life, and the right to free speech. Lawfare is not something in which persons engage in the pursuit of justice; it is a negative undertaking and must be defined as such to have any real meaning. Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law, on the one hand, and what is lawfare, on the other. Because that is the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the U.S. and Israel are bad. Now, the question is not "who is the target," but "what is the intention" behind the legal action: is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the system of laws being manipulated?" (Brooke Goldstein)
To this we might add the intent of silencing the person(s) with whom the plaintiff disagrees – either through fear of the threat of lawfare (in which case they do not speak out at all) or as a result of the financial costs resulting. Fighting such a suite often proves very expensive and time-consuming for the defendant(s) who can be financially ruined by legal bills in the $100K region as a result – even if the suite is withdrawn before trial (which means a person is unlikely to risk further lawfare attacks in the future).
This has the corollary that people can be intimidated into silence by the mere threat of lawfare even if they know they would win any case were it to reach trial.
The U.S.legal system defines hate speech as follows:
“Hate speech is defined as a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.” (Emphases mine.)
Hatred is demeaning to human dignity – for both the hater and the hated. Yet, abhorrent as hate speech is, it is not necessarily a criminal act, but hate speech that calls for violence, murdering, terrorizing, enslaving or torturing of any individual or groups is criminal.
Only speech that poses an imminent danger of unlawful action, where the speaker has the intention to incite such action and there is the likelihood that this will be the consequence of his or her speech, may be restricted and punished by that law.
There were a number of very important legal cases that have defined what constitutes hate speech in the United States.
In 1969, the Supreme Court ruled that; "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action." and in 1992R.A.V. v. City of St. Paul, the Supreme Court categorically stated that “hate speech was legal unless it will lead to imminent hate violence.”
In 1993, theNational Telecommunications and Information Administration(NTIA) released a report titled“The Role of Telecommunications in Hate Crimes.”This report gave one of the first definitions by government on hate speech. According to NTIA hate speech is:
· Speech that advocates or encourages violent acts or crimes of hate.
· Speech that creates a climate of hate or prejudice, which may in turn foster the commission of hate crimes.
There are now 2 major attempts underway in the US to weaken if not destroy the First Amendment as it relates to Islam by criminalizing criticism of Islam as a hate crime.
In order to undercut the First Amendment the FBI in alliance with the Department of Justice endorsed the very clever and novel legal strategy of utilizing The Civil Rights Act of 1964 declaring that criticism of Islam was a violation of Muslim's civil rights and therefore a crime that could be prosecuted under the Civil Rights Act.
The Civil Rights Act of 1964 (Pub.L. 88–352, 78 Stat. 241, enacted July 2, 1964) is a landmark piece of civil rights legislation in the United States that outlawed major forms of discrimination against racial, ethnic, national and religious minorities, and women. It ended unequal application of voter registration requirements and racial segregationin schools, at the workplace and by facilities that served the general public (known as "public accommodations").
Quoting from POLITICO:
"Bill Killian, U.S. attorney for the Eastern District of Tennessee, was quoted by the Tullahoma Newsthis week suggesting that some inflammatory material on Islam might run afoul of federal civil rights laws.
"We need to educate people about Muslims and their civil rights, and as long as we’re here, they’re going to be protected," Killian told the newspaper.
"This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion," Killian said about the meeting. "This is also to inform the public what federal laws are in effect and what the consequences are."
The Department of Justice did not respond Friday to a question about what guidelines it draws concerning offensive speech and Islam, or whether the department believes that civil rights statutes could be used to stifle criticism of Islam.
While threats directed at individuals or small groups can lead to punishment, First Amendment experts expressed doubt that the government has any power to stop offensive material about Islam from circulating.
"He’s just wrong," said Floyd Abrams, one of the country's most respected First Amendment attorneys. "The government may, indeed, play a useful and entirely constitutional role in urging people not to engage in speech that amounts to religious discrimination. But it may not, under the First Amendment, prevent or punish speech even if it may be viewed as hostile to a religion."
"And what it most clearly may not do is to stifle political or social debate, however rambunctious or offensive some may think it is," Abrams said.
A conservative watchdog group, Judicial Watch, accused the Obama administration of using federal law to specifically protect Muslims from criticism.
"In its latest effort to protect followers of Islam in the U.S. the Obama Justice Department warns against using social media to spread information considered inflammatory against Muslims, threatening that it could constitute a violation of civil rights," the group wrote ina blog post.
In recent years, the federal government has faced difficult questions about how to respond to material posted about Islam and the 'Prophet' Muhammad — especially when the content causes riots or attacks abroad."
The rapid Islamization of the FBI, Department of Justice and the US army is a direct threat to freedom and democracy because it places these agencies with their virtually unregulated police powers against those fighting Islam. These agencies create an atmosphere of fear that can stifle free speech and make a farce of the First Amendment. Snowden revealed the uncontrolled police state apparatus that was arrayed not in monitoring Mosques but tracking the entire population. There can be no doubt that anti Islam websites and those fighting Islam are being closely monitored including their phone conversations, reading of emails, tracking their daily activities including car trips. In this reality (reminiscent of that in the novel “1984”), fear is being utilized as a tool to create an atmosphere of NO SPEECH IS FREE SPEECH.
PJ Media’s Patrick Poole noted in May, 2012 that the FBI training manual's counter-terrorism lexicon made no mention of terrorism in regards to al Qaeda, Hamas, jihad, Islam, or the Muslim Brotherhood.
“The fact is religion has been expunged from counter-terrorism training,” said counter-terrorism specialist with the Foundation for Defense of Democracies Sebastian Gorka to the Washington Times.He added, “The FBI can’t talk about Islam and they can’t talk about jihad.”
In October of 2011, an organization called “Muslim Advocates,” a group composed of fifty-seven Muslim advocacy groups from across the country, signed and sent a letter to high level Obama administration officials. They urged the administration to enact a widespread purge within law enforcement departments and agencies of any materials that could be deemed biased or discriminatory against Muslims.
Brennan shared with the 57 Muslim advocacy organizations the plan the White House had going forward, stating, “Departments and Agencies are taking aggressive steps to create broader review processes and build rigorous CVE curriculum standards.” These included:
“Collecting all training materials that contain cultural or religious content, including information related to Islam or Muslims; (2) establishing a process, in construction with subject matter experts, to ensure that such materials comply with core American values, professional standards, and the United States Constitution; and (3) writing guidance for CVE training which will be shared with components, field offices, and external partners. Moreover, we are committed to engaging in a sustained dialogue with all relevant stakeholders on these issues as we move forward.” In short white washing Islam.
We in America believe in free speech, but also censure hate speech, and even ban speech that incites violence and terrorism. This obviously creates a certain tension between ideals that are, in some respects, pulling in opposite directions and, more importantly, opens up the possibility of these tensions being used to manipulate free speech/hate speech/criminal hate speech boundaries to protect or criminalize speech that various groups deem “hateful”.
Free-speech in Islam.
I am sure that to some the title of this section sounds like an oxymoron, but I would remind the reader of two points: firstly, all Countries (and even the US which sees itself as a great champion of freedom) actually limit free-speech to some degree and secondly many Muslims assert that they believe in free-speech and indeed criticise the West for hypocrisy in that Western Countries ban defamation of a person yet allow “defamation” of Allah and his Prophet, which to them is a vastly more important matter.
On the face of it, extending defamation laws to dead personages is not irrational. Why should it be possible, without any risk of legal sanction, to tarnish the name of a dead person by uttering defamatory remarks against them?
However, there are two (or three – depending on how you wish to think about it) other factors that must be considered.
The first is the honour/shame culture of Islam{11}. For our purposes it will be sufficient to say that “honour” forbids saying anything 'bad' about a fellow Muslim and that, therefore, so doing is shameful and shaming. What is significant is that the issue is not whether what is said is true or not, merely whether what is said/written would be shaming or not.
The second is the doctrine of “Sitr”{12}. In essence this means that any “haram” (unlawful) doing by a (Muslim) person should be covered up (more literally “veiled”) and not spoken about – unless they are repeat offenders in which case Sharia Law should take its course.
Taken together, these two (three) things mean that anything “bad” or “shameful” done by a (Muslim) person should be overlooked and not spoken/written about.
The consequence of this is that anything, even if it is the truth, that reflects negatively on a (Muslim) person should not be spoken/written about. The corollary of this is that many Muslims instinctively define “defamation” in terms of honour/shame rather than truth/lie.
To put this more clearly: In the eyes of Islam a truthful statement can be “defamatory” if it brings shame on it's subject. What “adds insult to injury” is that such a thing should be covered up anyway. Thus the person who exposes such a matter of “shame” has not only “shamed” another, they have also broken the Islamic “honour code”{13}.
Such a definition of “defamation” is entirely foreign to Western thought.
Bearing this in mind, let us now move on to consider the ramifications for free-speech in Islam.
Islamic Free-speech and non-Muslims.
The Pact of Umar, despite existing in severalforms, is the archetypal document defining relations between Muslims and Dhimmis (subjugated people). In the pact a number of conditions are imposed on the Dhimmi population{14}.
There are several key clauses in the pact. The first to consider is:
“If we break any of these promises that we set for your benefit against ourselves, then our Dhimmah [promise of protection] is broken and you are allowed to do with us what you are allowed of people of defiance and rebellion.”
This clause (the last in the main body of the pact) makes it clear that the pact is to the benefit of the Muslims (and by implication to the detriment of the Dhimmis); but more importantly, if the Dhimmis break the pact, the Muslims “are allowed to do with us [Dhimmis] what you are allowed of people of defiance and rebellion”.What this means is that a Dhimmi who breaks the pact has lost its “protection” and s/he can be lawfully (i.e. permitted by Sharia law) killed, enslaved or despoiled. In fact such a pact-breaking-Dhimmi is regarded in exactly the same light as an actively hostile “Harbi”{15}. Worse is that this is a “hostage” clause: if any one Dhimmi broke his/her pact, all the Dhimmi community could be held to be in breach – at least in theory.
This then begs the question as to what sort of things might breach the pact.
For the consideration of free-speech the key clause of the pact is “We will respect Muslims and move from the places we sit in if they choose to sit in them”. This might seem relatively innocuous, but the “respect” clause is widely understood to mean much more than giving up seats to Muslims.
Hanbal and Malik hold that four things put the dhimmi outside the law: blasphemy (“disrespect”) of Allah, of His book, of His religion, and of His Prophet.
Abu Hanifa taught that they must not be too severe with dhimmis who insulted the Prophet. Shafe’i said that one who repented of having insulted the Prophet might be pardoned and restored to his privileges. (Often proof of repentance would mean conversion to Islam.)
(Malik, Shafe'i, Hanbal and Hanifa are the originators of the four main (and eponymously named) schools of Islamic Jurisprudence in Sunni Islam.)
What we see here is that the Dhimmi must not speak “blasphemy” against Islam in any way; not against Allah, or Mohammed, or the Koran, or “Islam” (this latter, practically speaking, Shariah law). These rules, derived from the requirement of the pact for Dhimmis to respect Muslims and coupled with the honour/shame culture and Sitr, silence any criticism of Islam whatsoever. As noted above, Salman Rushdie, the UK author, fell afoul of this attitude.
Thus inherent in Islam is a limitation to free-speech that says non-Muslims cannot criticise Islam in any way, as Mu?ammad al-A??ami once wrote: “Certainly anyone can write on Islam, but only a devout[not learned!] Muslim has the legitimate prerogative to write on Islamand its related subjects.” Thus at best all non-Muslims writing on Islam are “illegitimate” and at worst they are blasphemous{16}.
That it is “unlawful” for non-Muslims to criticise Islam can be seen from the Blasphemy laws found in Countries (such as Pakistan) where even the allegation of a “blasphemous” statement is sufficient to put a non-Muslim's (and their community's) life in great danger.
Islamic Free-speech and Muslims.
Muslims in the West most definitely criticise Islam, but that is not the point – they, after all, are protected by free-speech legislation and legal systems that would regard their killing (for instance) by their co-religionists as murder, rather than a lawful response to their “blasphemy”.
In early “medieval” Islamic history, criticism was permitted – within certain bounds. It was acceptable to criticise the state and the religious authorities and Al-Ma'arri(973-1058 A.D.) went as far as to criticise the “traditions” (i.e. hadith) and their interpretation as well as Islamic religious dogma and “religion” in general, though he seems to have picked his words so as to not criticise “faith” (or “Iman” in Arabic) which would have been construed as a direct attack on Islam.
However, from the late 10th century A.D. on, Sunni Islam “closed the door to ijtahid”{17} and as a result increasingly de-legitimised such criticism for about 90% of the world's Muslims. Thus for the last millennium or thereabouts, Islam per se has been held as being above criticism by (almost) all Muslims.
Also, in Islam Mohammed is considered as being the “perfect human being”{18}. As such he too must be held above criticism.
A further point to consider is that in Islam Sharia law is “Allah's law”. As such it also has a “divine” status. This has the corollary that (from the Islamic perspective) nothing it permits can be wrong and nothing it forbids can be right and furthermore, since it is “divine law”, it cannot be changed by mere mankind.
Today the position for a Muslim is very similar to that for a non-Muslim. Any “defamation” or “blasphemy” of “Allah, His book, His religion, and of His Prophet” could easily cost a Muslim his life, because such a statement could be treated as (ultimately) an expression of apostasy.
This is not to say that the various sects within Islam do not attack each other – they do, for example the Sunni/Shia mutual denigration and fratricide has nigh on 1400 years of history to it! But no sect of Islam would directly attack “Allah, His book, His religion, [or] His Prophet”, rather they attack each other's interpretations and implementations thereof.
Thus there is no history or practice of criticism (which would be seen as “shameful”) in Islam as there is in Judaism or Christianity, since this would be seen to impugn the “divine” stature of Islam.
All of the above clearly has consequences for free-speech, in that “Islam” is deemed to be above criticism – particularly by “uneducated” (or ignorant){19} non-Muslims, though ignorant Muslims also must not criticise.
In 1990 the OIC{20} adopted the “Cairo Declaration on Human Rights in Islam” (CDHRI) which affirms Islamic Shari'ah as its sole source. The CDHRI states that it is "general guidance for Member States [of the OIC] in the Field of human rights". The declaration is usually seen as an Islamic response to the UN UDHR – which is criticised by some Muslims as being inherently “Western” or “Christian”{21}. Article 24 states “All the rights and freedoms stipulated in this Declaration aresubject to the Islamic Shari’ah” and article 25 adds that “The Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration.” thus ramming home the subordination of all rights to Sharia. Thus, for example, Dhimmis (here meaning non-Muslims resident in Muslim-majority Countries{22}) may be expected to abide by conditions similar to the Pact of Umar and Muslim women may be denied the vote, though this depends on the interpretation of Sharia used.
Thus the position within Islam is that free-speech must only exist in terms that are Sharia-compliant and as part-and-parcel of this Sharia forbids “defamation” and “blasphemy” of Islam. Let me again remind the reader that any criticism of “Allah, His book, His religion, and His Prophet” that was “shameful” - i.e. any negative critique at all{23} – could easily fall foul of one (or both) of those requirements.
Within Islam there is also unlimited freedom to “defame” (according to both the western and Muslim definitions) other belief systems and peoples with little or no chance of legal re-dress at law. The reason for this is quite simple: the Koran itself is very defamatory – indeed outright hateful - with respect to non-Muslims and since the Koran is “Allah's word” it must be true, ergo such statements are not defamatory and may be freely spread even to the point of inciting “imminent hate violence” against a target group. Thus the extent of Islamic free-speech in relation to anti-kafir (i.e. against non-Muslims) hate-speech actually extends into regions that would be deemed “hate-crimes” under US law. Such speech is based on verses in the Koran and the prophetic hadith{24} and thus would be entirely acceptable under the CDHRI, since such speech is allowed under Sharia law interpretations.
Islamic free-speech and the West.
However, since the provisions of CDHRI could only apply to “member states” of the OIC, the OIC had been tireless in trying to ban “defamation of religion” (don't forget this means criticism of Islam) world-wide through the agency of the UN itself{25}. However, with growing opposition it became clear to the OIC in 2010 that such attempts would fail to gain enough support to make it beyond the non-binding resolution phase.
Consequently they switched track and in 2011 the UNHRC adopted “resolution 16/18” titled “Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief”. This resolution has garnered far more international support beyond the Muslim world than did the “defamation of religion” resolutions, due to 16/18's apparent even-handedness. Indeed, many in the West heralded it as “a triumph for free-speech”.
And in fact were resolution 16/18 to be implemented even-handedly by all nations (Muslim and non-Muslim alike), then indeed it would be a victory for free-speech and freedom of religion.
However, some Western commentators were more sceptical. And they had a reason so to be. It has to be remembered that many Muslim-majority Countries and Islamic states are signatories to the UDHR – yet they have demonstrably failed to legislate for free-speech and religious freedom. Post CDHRI one can see why: since all human rights are to be subordinated to Sharia, in the view of these states Sharia overrides the UDHR and (potentially) 16/18 (and in particular when it comes to the freedoms of non-Muslims within Muslim governed states). Thus many Western commentators worried that in practice 16/18 would only be effectively implemented in non-Muslim Countries and thus 16/18 would become another avenue via which to criminalise criticism of Islam in the non-Muslim world.
Sadly, the scepticism proved to be correct as it soon became apparent that all that was happening was a switch in language, not intent. The key change was a move from language on “defamation” (i.e. criticism) to that of “incitement” which interlocks with the ICCPR to which all Western Countries (though not all Muslim ones) are signatory and the concomitant move from protection of religion (Islam) per se as the primary goal to the idea of “protecting believers” - but to protect believers (Muslims) from “insult” and “upset” requires that religion (Islam) is also protected from “defamation” - anything that the believers (Muslims) find “upsetting” or “insulting”.
As shown above, the trouble with “incitement” type legislation is that is often does not specify who is “incited” by a speech or a piece of writing and consequently if A says something that C thinks may “incite” B to attack A, A may be deemed guilty of “incitement” and charged with a hate-crime – thus potentially criminalising even truthful free-speech.
In Istanbul on 15 July 2011 the first meeting of what has come to be known as the “Istanbul process” took place under the joint chairs of Hilary Clinton and OIC Secretary-General Ekmeleddin Ihsanoglu. The later objected to those who use “... the freedom of expression to incite hatred by demonizing purposefully the religions and their followers." Just substitute “defaming” for “demonising” and one sees that the intent (and even language) remains the same. In the Geneva meeting (June 2013) Ihsanoglu brought “defamation of religion” right back to the table by saying that free-speech “transforms into a case of incitement to discrimination, hostility or violence when the freedom is abused to denigrate[i.e. defame] symbols and personalities sacred to one or the other religion”. Thus the OIC view is clear: defamation = incitement. He continued: “It is, therefore, essential to draw a line between free speech and hate speech” - with the clear implication that any “defamation” of religion (Islam) equates to hate-speech (ergo the speaker/writer is fomenting hatred, ergo they are Islamophobic). At the same meeting the US Ambassador Michael G. Kozak had some quite acid things to say about the biases appearing in the “Istanbul process”, thus indicating that at least not all American politicians are being bamboozled.
Thus it is becoming increasingly clear that the “Istanbul process” insofar as it relates to issues of free-speech/hate-speech/hate-crime is another attempt to persuade the world to view the issue of “defamation” through Muslims eyes – or to put it another way, to get the non-Muslim world to effectively accept (parts of) the Pact of Umar and, implicitly, a degree of dhimmitude{26}.
From the Western perspective there is a huge hypocrisy in Muslims demanding that on the one hand Islam be protected from criticism (via criminalising legislation) whilst on the other asserting their “religious freedom”{27} to “defame” (in their terms, please note) all other belief-systems, see here for some examples.
Summary.
Free-speech isn't entirely free, or at least it isn't free of consequences. Most Countries accept that defamation is actionable at law and that people deserve the protection of the law from speech and writing that is “damaging to their reputation” (in the UK phrase).
However the Muslim world and the western world disagree on the definition and extent of defamation.
In the western world something can only be defaming if it is untrue, whereas in the Muslim-majority world something can be defaming if it is shaming. This definition clearly includes large swathes of untruth, but it also extends to statements that are true but which are considered shaming according to Islam's sense of honour/shame.
In the Western world, defamation applies solely to the living – in this view you cannot defame a dead person. The Muslim-majority world extends defamation to both the dead and the 'divine' – in particular to the persons of Mohammed and Allah and defamation of either is often seem as “blasphemy” which carries a death penalty in some Muslim Countries. Furthermore, Muslim-majority Countries also extend their concept of defamation to include the religious ideology of Islam itself. This extends defamation into a whole new realm – that of “defamation” of an ideology.
Thus the definition and scope of defamation form two fundamental areas of conflict in views between Muslims and much of the rest of the world.
As stated at the start of this article, the UDHR was written to explicitly define the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter, which is binding on all member states. Of the 196 Countries in the world{28} only three, Kosovo, Taiwan and the Vatican City State are not signatories to the UN Charter. Of these, only Kosovo is Muslim. It is therefore reasonable to say that Muslim states – just like the rest of the world – are signatories to the UN charter and therefore should have the UDHR as the standard to aim for in terms of human rights and freedoms.
Whilst it is a sad truism to say that many states – including those who consider themselves champions of human rights and freedoms – have failed to live up to the UDHR in various ways, it is also true to say the Muslim-majority states have consistently ignored it within their own borders and sought to undermine it internationally.
Many Muslim-majority Countries do not allow freedom of religion – in the sense of the freedom to apostatise from Islam and, by their definition of defamation, stifle even honest and truthful criticism of “Allah, His book, His religion, and His Prophet” (Hanbal, Malik).
With the adoption of the CDHRI by the OIC{20} all "fundamental freedoms" and "human rights" are explicitly subordinated to the Islamic Sharia Law – thus entrenching the oppression of those seeking to leave Islam and critics of Islam{29}.
This deliberate suborning of the UN charter and UDHR is a rank hypocrisy on the part of Muslim Countries of the OIC; but far worse is their persistent attempt, through the championing of laws aimed at preventing “defamation of religion” - which by it's mere formulation indicates the desire to enforce the Muslim definition of defamation on the rest of the world – at silencing criticism of Islam world-wide.
In it's latest guise this attempt is on-going through resolution 16/18 and the “Istanbul process”. To be fair, resolution 16/18 is even-handed in it's wording, but the problem is that Muslim-majority Countries have history when it comes to ignoring or “reinterpreting” resolutions from the UN and with the OIC adoption of the CDHRI, resolution 16/18 can only apply to Islam within Muslim-majority Countries – thus the protection sought for Islam outside of the Muslim-world will not be given to other religions within it.
To any un-biased observer this can only be construed as a truly monstrous case of hypocrisy and double-standards.
Many western countries also have legislation relating to hate-speech and hate-crime. Whilst the definitions vary from Country to Country, the US and UK definitions are probably quite typical. In summary we may say that:
· Hate speech can be any form of expression regarded as offensive - generally by any person - to racial, ethnic and religious groups and other discrete minorities.
· Hate crime is hate-speech that “tips over” into speech likely to directly incite violence (US) and/or “stir up hatred” (UK) and (obviously) violence that is motivated by hatred of the victim's race, religion etc.
One immediate problem that arises from the formulation of hate-speech legislation is that it is the most easily offended who will appear to be the greatest victims. In the case of Islam this means that any criticism of Islam deemed offensive (it all is) is “hate-speech”, ergo the speakers is motivated by hatred, ergo they are “Islamophobes” - and the law will support this string of assertions. This problem is not just manifested by Muslims, many non-Muslims will also define criticism of Islam as “hate-speech” either out of fear of what Muslims will do or else out of an over-weaning pseudo-respect for Muslim “sensibilities”{30}.
Hate-crime legislation usually works when the victim is targeted because of their ethnicity, minority grouping or religion, but in most formulations it fails to account for the fact that violence can also be motivated by these same factors on the part of the perpetrators. Thus, for example, the recent slaughter of British soldier Gunner Lee Rigby by “Islamists” is not a hate-crime according to (UK) law, since Rigby was not targeted for his race, religion etc. The fact that his murderers were motivated by religion does not make his murder a religiously motivated hate-crime - ludicrous though this may seem.
A further problem with western “hate” legislation is that it is seldom implemented even-handedly and, generally speaking, minorities and Muslims in particular can “get away” with saying and doing things that members of the majority population would find themselves prosecuted for doing (Jon MC has recounted some examples above) and in particular no western Country takes steps to prosecute hate-preach within it's mosques where intolerance and sedition are frequently preached{31}.
The position in Muslim-majority Countries and those with a large Muslim minority is almost diametrically opposite.
In these Countries the Muslim majority can often utter hate-speech with impunity, whereas the (often Christian) minority must maintain an attitude of subservient respect – or else face charges of blasphemy which often result in mob-violence - with the tacit permission of the authorities. Indeed, in many such countries religiously motivated violence against “kafirs” (non-Muslims) is normative and seldom effectively prosecuted.
Thus even before the stultifying nature of resolution 16/18 and the Istanbul process is brought into effect, Muslims have an extra degree of protection in non-Muslim Countries that they are demonstrably never going to offer to non-Muslims within Muslim-majority Countries.
Conclusions.
Free-speech is an important freedom for human discourse.
It is necessarily limited in that no one should have the right to utter or write falsehood about another without risking legal consequences, especially if that falsehood is “damaging to their reputation”.
Free-speech is under attack across the free-world and has never truly existed within the Muslim-world.
Free-speech is under attack in the free-world on two fronts:
· there is the ongoing effort of the OIC to criminalise criticism of Islam (most recently in the guise of resolution 16/18 and the Istanbul process).
· By the unequal implementation of Western hate-crime/hate-speech laws which almost exclusively favour Muslims, often out of the desire to avoid any risk of the authorities being branded “racist”{32} or” Islamophobic”.
The Muslim world shows a strange dichotomy. On the one hand Muslims are completely free to say what they like in the most hateful and inciteful of terms about non-Muslims as individuals or groups without fear of legal action; on the other neither Muslims nor, especially, non Muslims may criticise Islam itself. Muslims may criticise interpretation and implementation.
If the OIC succeeds in its aim of getting non-Muslim Countries to criminalise criticism of Islam, either through it's own efforts of via the use of free-world “hate-speech/crime” legislation, then the position of free-speech throughout the world will be that of free-speech in Muslim Countries. In short it will cease to exist in a meaningful form. As such this will be a major step towards the Islamification of the the world (or at least its Dhimmification).
Consequently, any further erosion of free-speech in the free-world needs to be vigorously resisted and the vast hypocrisy of the Islamic world needs to be emphasised in order to de-legitimise their claims about either protecting religions or believers from “defamation” of their religion.
Afterword
If God created man then - the greatest gift Homo sapiens received from God is his brain that directs an intelligence to reason, to explore, to seek the truth of any question – total freedom of thought. To think and reason without fear of jail or death. It is against the will of God to threaten anyone with death, torture or prison for freely exercising his God-given brain. The human brain is the greatest gift God has ever bestowed on man. It was given to mankind to pursue the arts, literature, sciences, and intellectual pursuits. Its free exercise, the exercise of freewill is the will of God. All mankind has the right to freedom and democracy, equality before the law, freedom of action, freedom of thought, right to elect their leaders. God does not want dictators and tyrants to rule over other men. Freedom of speech and expression are unimpeachable rights. In order to be God - God must be Moral Perfection. If God does not believe in the right of mankind to freedom and democracy then god is no longer Moral Perfection and therefore, god is no longer God.
At the very core of freedom of expression (and democracy) is the right to challenge non-violently all concepts - including the very existence of God. It is not blasphemy or a sin to climb Mount Everest and yell and swear at God, waving your fist and daring God to strike you dead. And if you do this - you are the fool not God.
You have the FULL right granted by God to speak your view on any subject. To write any book on any subject, to read or not read any book, tear out pages, deface in any way, or burn any book that is your property. You have the FULL right to non-violently challenge any religion, or religious teaching or deface any religious ornament you own. These acts are not blasphemy. To declare that these acts are “blasphemy” is, in its own terms, blasphemy.
You do not have the right to beat or murder anyone, destroy their property, burn their books, burn their churches, temples or mosques, enslave or rape women – whether in the name of your god or not. To use your God given brain to command your hands to do these horrendous acts or commit any other criminality against your fellow man rather then acts of brotherhood, love, mercy, assistance - this is the very worst form of blasphemy.
We can state categorically and without equivocation that Muhammad never met the Angel Gabriel. Not one word was ever spoken by God to Gabriel to be retransmitted to Muhammad. Not one word of the Quran is from God. - that Sharia Law is not the divine constitution of God that Muhammad was no prophet of any God. We can state that Muhammad made up the Quran and Allah, that Muhammad was Allah and Allah was Muhammad, that Islam is totally and completely fraudulent. And no one has the right to prosecute or kill us for it!
Free thought and speech is part of the very essence of humanity. To deny this essence is to deny the essence of God.
Footnotes references.
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