Recently, Professor Volokh criticized an Austrian ruling that affirmed a criminal conviction for “denigrating religious beliefs.”  Professor Movsesian then discussed  Professor Volokh’s criticism here at CLR.

The Austrian ruling is virtually unthinkable in the United States, where we enjoy broad freedom of expression.  (The defendant is Elisabeth Sabaditsch-Wolff, an outspoken “anti-jihad” Austrian activist who, among other causes, also opposes what she understands to be the treatment of women under Islam.)  But, in a nation with Austria’s Second World War history, criminalizing such expression may not, as Professor Volokh asserts, be an instance of the “disappoint[ing] . . . intoleran[ce] of condemnation of religion” by “a European democracy such as Austria.”  Rather, it may be an appropriate way to remedy a truly reprehensible period in Austrian history.

Americans nurtured on grade-school civics may find prosecuting someone for “denigrating” a religious belief very difficult to accept; however, Austria’s social tapestry, which includes some of the worst atrocities of WWII, is not readily comparable to America’s constitutional framework and historical experience.  As Americans, we frequently pride ourselves for allowing—protecting, even—very ugly speech.  That is to say, as a constitutional ideal, the great weight we accord freedom of expression outweighs any abhorrence we might feel toward the belief expressed.  So that, as a legal matter, mere expression is rarely punishable (exceptions, such as those for obscenity and incitement, or, on the civil side, defamation, are judicially disfavored and strictly curtailed).  But our ability to maintain this moral and legal regard for free expression on religious matters may be a result of the deviating historical experiences that make our and Austria’s socio-criminal needs so different.  For more elaboration, please follow the jump.

Complicity in Nazi religious persecution made Austria’s (and France, Holland, and other nations’) twentieth-century experience very different from the United States’.  I do not claim the U.S. is a religiously harmonious utopia:  Bigotry and persecution exist now and existed in our past, at times even systemically and violently.  But in the U.S., religion-based persecution on the scale and character of the Holocaust never occurred in the twentieth century.

During the 1930’s and 40’s, on the other hand, Austrian citizens enthusiastically tormented their Jewish neighbors and co-nationals.  Austrian Nazis have been described as particularly virulent anti-Semites who enjoyed the support and cooperation of the wider populace.  Mobs of brownshirts and civilians mercilessly brutalized and humiliated Jews on a regular basis during the WWII era.  The violence became so widespread that even the notorious Reinhard Heydrich (pictured right)—head of the Gestapo and S.S. Security Service and chair of the Wannsee Conference that initiated the “final solution”—threatened to arrest brownshirt perpetrators to reign in the continual disturbances.  (Also note, for example, that Kristallnacht occurred simultaneously in Germany and Austria—where Austrian racial laws nearly identical to the 1935 Nuremberg Laws were in effect and crowds destroyed Jewish shops and synagogues with impunity.)

Austrians also contributed materially to the Third Reich’s organized murder of religious minorities.  Among other camp networks, Austria hosted Mauthausen-Gusen and its estimated forty sub-camps, known for their particular brutality (Vienna’s city council provided the land for Mauthausen in return for its quarry’s cobble stones [the fatally steep ascent to the quarry is pictured left]).  In the Mauthausen network alone, some 119,000 prisoners died, of which 38,000 were Jews.  This figure does not capture the scope of the Austrian antipathy toward their Jewish population:  Austrians deported tens of thousands of Jews to the East—that is, to perilous labor-internment, or more immediate death at the hands of Einsatzgruppen.  Finally, tens of thousands of Jews had no choice but to escape Austria (until escape became impossible).  For an historical overview, see Richard J. Evans, The Third Reich in Power 648, 657–61 (2005).

I mention, in fairness, that pockets of resistance to the Third Reich’s vicious religious policies existed in Austria as they did elsewhere in German-occupied territory.  For an edifying account of such resistance in Tunisia, see Eva Weisel’s recent Op-Ed in the New York Times, discussing a Muslim who sheltered members of the Tunisian Jewish community from the Nazis.  Eva Weisel, Honoring All Who Saved Jews, N.Y. Times, Dec. 28, 2011, at A23.

Thus, in light of these atrocities, American freedom of expression and Austria’s restrictions on such freedom defy comparison.  In the twentieth century, despite America’s failings, the U.S. simply did not engage in the kind of religious persecution that Austria and its citizenry did.  To that extent, Americans do not feel the need to restrict speech as strongly as Austrians do.

Austrians, intent on preventing the recurrence of their past errors, chose criminalization of certain speech as one way of achieving the goal of eliminating the potential for WWII-type religious brutality.  One may debate whether criminalization of speech is a step too far, yet more restriction than exists in the United States—given Austria’s history—appears to be a reasonable remedy among many possible remedies—despite our innate American aversion to it.