Protecting free speech

The limitations placed on freedom of expression in the liberal West.

Muslims protest cartoons of prophet Mohammed 370 (photo credit: 	 REUTERS/Faisal Mahmood)
Muslims protest cartoons of prophet Mohammed 370
(photo credit: REUTERS/Faisal Mahmood)
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 the freedom of expression and its boundaries to the fore.  
Freedom of expression, which encapsulates the freedom of the press, includes the right to communicate ideas and to receive and impart information without fear of persecution or unnecessary state interference. It exists not to protect speech we like, but to protect contentious, often distasteful speech we do not like. The question soon becomes at what point does the exercise of an individual freedom transform into criminal behavior or indeed warrant censorship? Recent events have again caused us to question whether blasphemy constitutes the upper limits on this freedom. 
Whether we are talking about this 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 Organisation for Islamic Co-oporation and the Arab League have vehemently advocated the criminalization of ‘defamation of religion’ , as further evidenced by Pakistani President Asif Ali Zardari 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 do so.
Recently in Israel, MK Taleb a-Saana and others’ filed a petition in the Jerusalem District Court, demanding that the Court issue a temporary injunction against Google in order to block 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 are deliberating 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 States.
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. Perhaps most relevant is the Racial and Religious Hatred Act 2006 which created a new offence which is committed when a person uses threatening words or behavior or displays, publishes, threatens, or broadcasts any material which is threatening if he/she intends thereby to stir up religious hatred. 
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 changes by the House of Lords 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 in order to be punishable. Religious hatred requires the behavior to be threatening. The English Jewish community has successfully 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. Speech which 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 principle. 
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 NY Times v Sullivan has significantly eroded ‘defamation’ as a significant restriction on freedom of speech. The Supreme Court ruled in this case that “actual malice” was needed in order to claim defamation and restrict speech.
In the UK in the case of Abdull v DPP, a group of Muslim protesters had been prosecuted under section 5 of the Public Order Act for shouting the slogans, “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 expression.  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 was convicted of the same offense when the group burnt poppies, a popular symbol to recognize fallen soldiers, during a two-minute silence on Remembrance Day.. 
Conversely, in Snyder v 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 – whilst proclaiming support for free speech, tried and failed to force Google and Youtube to remove the film. In the UK however, the position is less certain. The English Court might give a gagging 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 stirs up religious hatred, where it 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.
Trevor Asserson and Lucie Hecquer are lawyers with Asserson Law Offices, Israel’s largest UK law firm.