The Decreasing Freedom of Free-Speech

by Jake Neuman and Jon MC (September 2013)

Universal Free Speech

The UN Universal Declaration of Human Rights (UDHR) states in article 19:

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

Thus when writing about a living person, it is wise to make absolutely certain that what is written is the truth.

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.

Blasphemy laws in Britain were repealed in 2008, thus there is no restriction on free-speech when talking about a religion.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.)

ACPO published “Hate Crime: delivering a quality service”, colloquially known as the “2005 hate crime manual”²

On page 9 it has this to say: (Emphases ours.)

2.2.1 A 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.

2.2.6 The perception of the victim or any other person is the defining factor in determining a hate incident.

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.

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, then de facto it is a hate-incident.

Racial and religious hatred Act 2006” which defined a (small) number of crimes if the actions, words or writings of people were intended to “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.

Muhammad al-Arifi, who has advocated Jew-hatred, wife-beating, and jihad violence, entered the U.K. recently with no difficulty.

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.”

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?⁴

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. 

Gunner Lee Rigby whilst chanting “Allah Akbar” are not guilty 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.⁵ This omission in the law is obviously perverse.

Free speech in America

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:

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 forerunner to the UN UDHR and the ECHR.

Like the UK and other Countries, the US legal system defines defamation of a living person as follows:

legal bills in the $100K region as a result – even if the suit 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.

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.)

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.

R.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.”

National 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.

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 segregation in 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 News this week suggesting that some inflammatory material on Islam might run afoul of federal civil rights laws.

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.

A conservative watchdog group, Judicial Watch, accused the Obama administration of using federal law to specifically protect Muslims from criticism.

a blog post.

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.

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.

Washington Times. He added, “The FBI can’t talk about Islam and they can’t talk about jihad.”

Free-speech in Islam.

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?

Bearing this in mind, let us now move on to consider the ramifications for free-speech in Islam.

Islamic Free-speech and non-Muslims.

forms, 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:

This then begs the question as to what sort of things might breach the pact.

Islamic Free-speech and Muslims.

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.

life, because such a statement could be treated as (ultimately) an expression of apostasy.

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.”¹⁵ Article 24 states “All the rights and freedoms stipulated in this Declaration are subject 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 Countries¹⁶) 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.

Islamic free-speech and the West

defamation of religion” (don't forget this means criticism of Islam) world-wide through the agency of the UN itself.¹⁹ 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.

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.

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.”

acid things to say about the biases appearing in the “Istanbul process,” thus indicating that at least not all American politicians are being bamboozled.

here for some examples.

Summary

However the Muslim world and the western world disagree on the definition and extent of defamation.

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.

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:

• The position in Muslim-majority countries and those with a large Muslim minority is almost diametrically opposite.

  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.

  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).
  • Afterword

    For a good overview of honour/shame, see here.

  • This article explains this in more detail.
  • The wording of the pact says that the Dhimmis imposed the conditions on themselves. Given that the alternative was death this may actually be true. However, the Umar of the pact added some conditions unilaterally, which suggests that the conditions were in fact imposed with little or no real discussion.
  • Arabic: Ihsan Kamel, The Perfect Being.
  • Organisation of the Islamic Conference aka  Organisation of Islamic Cooperation. A group consisting of the (currently) 56 Islamic/Muslim-majority nation. Whilst a group in its own right, it's members form the largest power-bloc in the UN.
  • Dania Akkad offers a rebuttal and partial comparison of the UDHR and CDHRI here.
  • here for evidence.
  • A Prophetic hadith are those supposedly uttered by Mohammed himself and collected in the great collections of (e.g.) Muslim and Bukhari.
  • Here meaning the freedom to hate-preach about other religions, not the freedom to convert for example.
  • As of June 2011.
  • Doing either can prove fatal in many Muslim-majority Countries.
  • banning of any decorations etc. relating to Xmas (UK) for fear of “offending Muslims”, often to the complete bafflement of the local Muslims themselves who really couldn't care less.
  • here for the rationale.

   

  Jon MC is a British writer.

   

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