Posted by Eugene Volokh:
Censorship Envy, Speech That's Offensive to Muslims, and European Law:
http://volokh.com/archives/archive_2006_02_12-2006_02_18.shtml#1140117468
One recurring argument that I've seen from Muslims who want the
cartoons legally suppressed is that European laws prohibit other kinds
of speech offensive to other groups -- for instance, Holocaust denial,
which is often restricted chiefly because it's seen as implicitly or
explicitly anti-Semitic -- and that Muslims should get the same
treatment. In practice, those laws don't get used that often, and
European speech is actually more free than the laws would suggest.
Nonetheless, the laws' presence does make possible the argument I
describe; and I suspect it does make many Muslims feel even more
aggrieved than they would be by the cartoons themselves, since they
are also now aggrieved by what they see as discriminatorily enforced
laws.
Consider, just as one example among many, [1]Norwegian Penal Code
secs. 135 & 135a (noted [2]here; thanks to [3]Rebecca Davidson for
pointing to that article):
§ 135. Any person who endangers the general peace by publicly
insulting or provoking hatred of the Constitution or any public
authority or by publicly stirring up one part of the population
against another, or who is accessory thereto, shall be liable to
fines or to detention or imprisonment for a term not exceeding one
year.
§ 135 a. Any person shall be liable to fines or imprisonment for a
term not exceeding two years who by any utterance or other
communication made publicly or otherwise disseminated among the
public threatens, insults, or subjects to hatred, persecution or
contempt any person or group of persons because of their creed,
race, colour or national or ethnic origin. The same applies to any
such offensive conduct towards a person or a group because of their
homosexual bent, life-style, or inclination.
The same penalty shall apply to any person who incites or is
otherwise accessory to any act mentioned in the first paragraph.
These belong to the family of restrictions on "hate speech" and
"incitement to hostility" that Europeans (and some Americans)
sometimes praise as a model "reasonable" alternative to America's
speech protections. But look how broad they are: If you "endanger[]
the general peace" by "publicly stirring up one part of the population
against another," you can go to prison. If you disseminate a
communication that "insult[s]" "any group of persons because of their
creed," you can go to prison.
Of course publication of the cartoons would be covered. My providing
[4]a link to the cartoons (which I've done in many of my previous
posts, since providing such a link is in my view necessary to helping
people understand the controversy) would be a crime under Norwegian
law: I would be an accessory to a communication that insults some
Muslims because of their creed. And of course many Muslims would feel
entitled to have this law enforced to protect their sensibilities.
Many Muslims are surely offended enough by the cartoons on their own;
but at least in America we can tell them to join the club -- American
Christians have no legal protection from anti-Christian speech,
American Jews have none from anti-Semitic speech, blacks have none
from racist speech, Americans generally have none from anti-American
speech. What can Norwegians tell them, other than (1) "Sorry, the laws
don't protect you," (2) "OK, we'll enforce the laws to suppress this
speech that insults you," or (3) "These are bad laws, we're glad that
they've rarely been used, we're sorry they were ever enacted, and we
are going to repeal them right away" (my preferred suggestion, though
not one likely to be implemented, and one that would still be
understandably offensive to many Muslims, since the laws' repeal would
have been triggered by speech that's offensive to Muslims)?
References
1.
http://www.coe.int/T/E/Legal_affairs/Legal_co-operation/Conferences_and_high-level_meetings/European_Public_Prosecutors/00_Norway_Penal%20Code.asp#P2_31
2. http://www.islam-online.net/English/News/2006-02/15/article04.shtml
3. http://rebeccafrog.livejournal.com/156808.html
4.
http://blog.newspaperindex.com/2005/12/10/un-to-investigate-jyllands-posten-racism/
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