Don’t defend religion by silencing free speech

On the Holocaust?

A draft resolution scheduled for consideration by a committee of the United Nations General Assembly threatens to silence criticism of religion. The resolution, circulated by the Organization of the Islamic Conference, representing more than 50 Muslim nations, is perversely being advanced under the guise of protecting human rights.

In its current form, the resolution would declare defamation of religion to be a violation of international law. The resolution’s drafters hope to circumvent national constitutional protections for freedom of speech, including the United States’ own First Amendment, by superseding international law. If the resolution is ultimately adopted, the effort to ban speech defamatory of religion will be a centerpiece of an upcoming U.N. conference against racism, the so-called Durban II meeting, to be held in Geneva next spring.

The resolution is the culmination of many years of quiet work by the Organization of the Islamic Conference (OIC), which has set as a goal the criminalization of any “defamation of religion, especially Islam.”

By making such “defamation of religion” a crime under international law, nations would be able to seek extradition and trial abroad of persons who make statements critical or offensive to one or all faiths anywhere in the world.

This is not merely a hypothetical.

A private group in Jordan (where private parties may initiate criminal prosecutions) is seeking extradition of the Danish cartoonist and publishers of the “Mohammad” cartoons to stand trial in Jordan for defaming Islam. As a result, Denmark’s foreign minister has begun telling OIC members that if a ban on “defamation of religion” is part of the anti-racism agenda in Geneva, it and other European nations will not participate.

Defamation is defined in law as the making of a false statement about a person. Finding that a statement about religion is defamatory means finding that it is false. Like now discredited blasphemy laws, requiring judges to decide the truth of competing religious claims is to ask them to decide something well beyond their ken. Of course, offensive things about specific religions are said. Some of these are gratuitously offensive—even demonstrably false—and many are simply rude. Civility and the need to get along would often dictate that such speech be condemned—thankfully the freedom of speech guarantees the right to criticize.

It is also no surprise that religious people take offense at the mocking of their sacred ideas and values. For example, last week a meeting of Catholic and Muslim leaders issued a declaration that “founding figures and symbols they consider sacred should not be subjected to any form of mockery or ridicule.” European rabbis were uniformly critical of the decision of Danish newspapers to print the Mohammed cartoons. At an interfaith meeting in Madrid earlier this year, religious leaders echoed the OIC’s call for an end to defamation of religion.

This sensitivity is understandable. But it is not compatible with a free society.

Rules of etiquette are one thing, criminal sanctions quite another. It is a mistake to impose civility by force of law, and to confuse sensitivity with criminality.

Is it—should it be—criminally defamatory to say that Judaism has been superseded by Christianity, or is devoid of spirit, being dominated by law, or that the belief in an incarnate God is idolatry? Was Martin Luther a criminal because of his (to modern ears) unforgivably sharp attacks on the papacy? What of reciprocal Catholic attacks on Protestantism—in this country, as late as the last century, prior to Vatican II? Should it be criminal to say that some African faiths (and perhaps Hinduism) are pagan? That belief in God is a delusion? What of best-selling books by Christopher Hitchens and others insisting that over time religion has given rise to much violence and done little good? Are these books all to be banned?

The draft resolution suggests that any hint that “terrorism [is] associated with any religion …” should be made illegal. Why? It is simply an unpleasant fact that in too many places terror is committed in the name of specific religions. This is true of a small minority of West Bank settlers invoking the Bible, and it is surely true of terrorists in Israel/Palestine, Iraq, Lebanon and India/Pakistan who invoke the Koran. Some anti-abortion bombers are motivated by Christian teaching. Those who engage in religiously based terrorism cite traditional texts to support their activity. It should not be illegal to criticize those claims.

No one would think of shielding secular political ideals (say, nationalism or communism) from criticism that they foment violence. Religion is not entitled to a special immunity. Contrary to what the resolution suggests, the right to freedom of religious practice and of equal treatment is not offended by such speech. Its targets are free to respond in kind, to call attention to the disruptive effect of false charges, or for that matter, to reaffirm their beliefs.

Efforts are being made by experts on the United Nations staff to limit the ban on “defamation of religion” to such speech that directly and predictably incites to religious violence or discrimination. That effort raises almost as many questions as it resolves, and the current draft does not even come close to resolving them. The OIC has benefited from a lack of attention to, and debate about, its proposals, outside of opposition from a few governments (including our own). That needs to change.

(Marc Stern is acting co-executive director of the American Jewish Congress and a lawyer specializing in the First Amendment.)

http://jta.org/news/article/2008/11/20/1001103/op-ed-dont-defend-religion-by-silencing-free-speech