Madera on Religious Hate Speech in Europe

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Adelaide Madera (University of Messina) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

In modern multicultural societies, various groups claim visibility in the public space and an equal opportunity to manifest their views, values, and convictions, even of a religious nature. In Europe, since the release of Salman Rushdie’s Satanic Verses, further events, such as the Danish cartoons controversy and the Charlie Hebdo killings, have given rise to increasing skepticism and prejudice against religious minorities and emphasized the risk of a clash between religious freedom and freedom of expression. The crucial questions are whether and to what degree freedom of expression can be subject to restrictions to protect the religious feelings of the faithful and what are frontiers of freedom of expression. Hate speech could be entangled with freedom of religious expression, which could degenerate into a dangerous religious hate speech, aimed at offending those who do not share analogous convictions. However, the difficulty of defining hate speech has given rise to a proliferation of claims of hate speech. The risk is the rise of a culture of offence where everyone can claim a right not to be offended.

Indeed, the construction of a hierarchy between the two liberties concerned would provoke a constitutional conundrum as both concern fundamental rights. So a careful case-by-case balance is required, which takes into careful consideration all the circumstances of the case. Thus, not only should the content of the message be assessed, but also the expressive waysused. Furthermore, who speaks and who the audience is can make a relevant difference.

The search for such a balance acts as a stress test for domestic legal frameworks and emphasizes their inadequacy. At the moment, the notion of hate speech is extremely fluid in Europe, due to the lack of a uniform legislative approach. Although in many European countries there is a progressive dismantling of traditional blasphemy laws, which were based on a privileged link between the State and the predominant religion, various States are experiencing some difficulties abandoning regressive patterns aimed at highly protecting religion—preventing an offence against divinity—and moving toward models of protection of religious adherents (hate speech).

In Recommendation 1805 (2007), the European Parliamentary Assembly urged national law and practice to “permit open debate on matters relating to religion and beliefs” and not “privilege a particular religion in this respect, which would be incompatible with Articles 10 and 14 of the Convention,” and to “penalise statements that call for a person or a group of persons to be subjected to hatred, discrimination or violence on the grounds of their religion as on any other grounds.” Finally, a decriminalization of blasphemy is solicited. Despite these guidelines, states have struck disparate balances between free speech and freedom of religion, due to their various historical, political, and social background, exacerbating the political debate and giving rise to litigation.

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