The recent storm across the Arab world in response to the emergence online of an
amateur anti-Islam film has once again brought the debate regarding freedom of
expression and its boundaries to the fore.
Whether we are talking about a
crude anti- Islam film or satirical cartoons of the Prophet Muhammad, we are
delving into the realm of “defamation of religion.” In recent years, the
Organization for Islamic Co-operation and the Arab League have vehemently
advocated the criminalization of “defamation of religion,” as further evidenced
by Pakistani President Asif Ali Zardari’s latest call for a global ban on
blasphemy before the UN General Assembly. Much of the democratic world,
including the US, has strongly opposed this proposition and it is undoubtedly in
the interests of promoting religious freedom and tolerance that they continue to
Recently, MK Taleb a-Sanaa (United Arab List-Ta’al) and others
filed a petition in the Jerusalem District Court demanding the court issue a
temporary injunction against Google, blocking the anti-Islam film. The judge
denied the request and set a hearing on the question of a permanent injunction
for October 15.
While the Israeli courts deliberate on the issue, it is
interesting to consider what limitations are placed on freedom of expression in
other liberal democracies, including the United Kingdom and the United
IN THE UK, freedom of expression is enshrined in Article 10 of
the Human Rights Act 1998. This right is not absolute and is subject to numerous
restrictions, including, for example, anti-terrorism legislation, criminal
sanctions imposed on speech designed to incite racial hatred, legislation
relating to obscenity, public order and defamation. It is noteworthy that the UK
abolished its archaic law against blasphemy in 2008.
relevant is the Racial and Religious Hatred Act 2006, which created a new
offense: the use of threatening words or behavior or displays, or publishing or
broadcasting any threatening material with the intent to foment religious
The House of Lords amended the Bill to include a provision
safeguarding free speech, stating that these offenses are not intended to limit
discussion, criticism or expressions of antipathy, dislike, ridicule or insult
or abuse of particular religions or belief systems. The Muslim Council of
Britain unsuccessfully opposed these amendments.
The House of Lords
changes ensured that religious hate speech does not attract the same level of
legal protection as racial hate speech. Inciting racial hatred merely requires
that the words used be insulting or abusive to be punishable. Religious hatred
requires the behavior to be threatening. The English Jewish community has
successful argued that Jews are a race, and so enjoy the protection of the laws
forbidding words of racial hatred.
In the US, the First Amendment to the
Constitution unequivocally protects the freedom of expression, affording the
press no greater or lesser freedom than the private individual. Firmly
entrenched Constitutional principles uphold the notion that speech, however
hateful, should not be subject to censorship or punishment for its content
alone. Restrictions on the content of speech are only valid if they are shown to
be necessary to achieve a compelling government interest.
can be restricted includes that which is obscene, defamatory, incites imminent
lawless action or constitutes “fighting words,” criminal intimidation or
harassment. But freedom of speech is often held as the more important
Recent case law in both England and the US illustrates that
the UK is more ready to restrict freedom of speech to protect some other good.
In the US, it is clear that on balance freedom of expression and a free press
trumps other values. For example, in the field of defamation, the celebrated
case of The New York Times vs. Sullivan has significantly eroded “defamation” as
a significant restriction on freedom of speech.
In the UK, in the case of
Abdull vs. DPP, a group of Muslim protestors had been prosecuted under section 5
of the Public Order Act for shouting “go to hell,” “baby killers,” “rapists” and
“murderers” at British soldiers during a military parade. The claimants argued
that their convictions violated their right to freedom of
LORD JUSTICE Gross noted that their words presented a “very
clear threat to public order” and that they were “potentially defamatory and
undoubtedly inflammatory,” and ultimately held that their actions exceeded the
boundaries of legitimate protest. In a similar case, a member of Muslims Against
Crusades who burned poppies during a two-minute silence on Remembrance Day was
convicted of the same offense.
Conversely, in Snyder vs. Phelps, the US
Supreme Court upheld the rights of members of Westboro Baptist Church to protest
at the funerals of US soldiers and display placards reading, “Thank God for Dead
Soldiers” and “You’re Going to Hell.”
Returning to the infamous
anti-Islam film, there does not seem to be any doubt that in the US, the maker
of the film, as well as subsequent publishers (Google/YouTube), are cloaked with
the full protections of the First Amendment. The White House – while proclaiming
support for free speech, tried and failed to force Google and YouTube to remove
In the UK however, the position is less certain.
English court might give a gag order a more sympathetic hearing, but would still
be very slow to suppress such a film.
The English courts might only ban a
film which not only stirs up religious hatred, but is also threatening. The US
would probably favor freedom of speech even over a threatening film. Both
jurisdictions would permit mere ridicule or insult of religion. Crucially, both
jurisdictions clearly hold that the correct forum for resolving this debate must
be in the courts and the legislature, not on the street.
and Trevor Asserson are lawyers with Asserson Law Offices, Israel’s largest UK