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.

As an example, in Finland, the Helsinki Court of Appeal, following the request of the public prosecutor, decided to re-open the case of a Christian MP and of a bishop accused of hate speech, regardless of their acquittal before the District Court. The defendants shared their Bible-based convictions about marriage and sexuality, and according to the prosecutor, the use of the word “sin” is extremely “harmful.”

This is not the first time a politician has been accused of hate speech. In Europe, Boris Johnson gave rise to concern for his comments with regard to Muslim women wearing a niqab and Geert Wilders underwent two criminal trials for his public Islamophobic statements.

It goes without saying that in a democratic, religiously neutral state everyone is free to express his religious views. However, the boundary between the legitimate exercise of free speech and the violation of equal dignity of minority groups can be blurred. The consequential question is whether political discourse should be subject to a stricter regime, as it has the potential to reach a huge number of persons, and its inner meaning could affect them and cause anxious reactions against minorities. In that case, it goes without saying that such a cautionary measure should be extended to all actors whose words have a potentially powerful impact on civil society as a whole or on a relevant part of it.

Another recent case concerns a controversial new film, “The Lady of Heaven.”  According to certain groups of British Muslims, the film is “blasphemous.” In response to protests of Muslim fundamentalists, who asked to cancel its screenings, cinema chains decided to self-censor, with a view to security concerns, for the sake of the staff and the audience.

As is known, blasphemy laws provided protection only to the established religion. The Blair Government enforced new laws to criminalize “incitement to religious hatred” (2006 Racial and Religious Hatred Act). They tried to reconcile the preservation of free speech with the protection of minorities against denigration, offence, violation of their equal dignity, and incitement to violence.

However, in many cases, free speech is subject to informal self-restraint, because of fear of violence and intimidation.

The English example is not isolated. In previous years, certain English schools had been forced to self-censor educational resources featuring images of Muhammad because of the protests of Islamic fundamentalists and the risk of violence against teachers (the Batley case).

As domestic policies are not consistent, the ECtHR should be charged with drawing the line between free speech and its distortions. Its task is to guarantee a fair balance between competing interests with a view to granting all individuals equal access to the ECHR protection when they exercise their fundamental rights. However, the ECtHR adopted an approach that over-expanded the protection of religious feelings. In 2018, in E.S. v. Austria, the Court held that a state can legitimately restrict free speech to protect the religious feelings of a religious minority, making controversial use of the test of proportionality.

However, such an approach has been reversed in a more recent decision. The case concerned a Russian law (Associations Act), according to which an association can be dissolved if it fails to remove a member because his name has been added to the list of extremists and terrorists grounded on the Money Laundering Act. In 2011, an atheist blogger, Mr. Yefimov, was accused of extremist activities because, in one of his articles, he expressed concern for the strict link of the Orthodox Church with the State, and its access to public funding, to the detriment of society as a whole.  The ECtHR’s reasoning emphasized the recognition of excessive discretional power conferred to an investigator. Indeed, the domestic provisions provided that an investigator’s decision that a person is suspected of an extremist offence is a necessary, but also self-sufficient, legal basis for expelling the suspected individual from participating in any association, and for adding the person’s name to the list of terrorists and extremists. No judicial control or review of the investigator’s decision is provided, and no procedural safeguard is offered against the investigator’s potentially abusive use of discretion. Therefore, the Russian provisions do not meet the “quality of law” standard which is required to pass the ECtHR’s scrutiny. Furthermore, in the case concerned, the ECtHR resorted to a strict analysis of proportionality. Such a proportionality test not only requires a sufficient connection between the measures adopted and the means pursued, but also charges the authorities with the search for the least restrictive alternative regarding the right affected.

As far as I’m concerned, the case is extremely relevant with regard to the issue of hate speech. First, in para. 43, the ECtHR underlined that the assessment of the necessity of the interference in cases of alleged extremist speech should take into consideration various factors: “the existence of a tense political or social background; the presence of calls for – or a justification of – violence, hatred or intolerance, the manner in which the statements were made, and their potential to lead to harmful consequences.” Therefore, an interference cannot be considered as justified merely because its subject is included within a specific category or is provided by a general provision. The assessment of the necessity has to be strictly linked to a serious scrutiny of the circumstances of the case.

Secondly, the applicant demonstrated the strong link between the Orthodox Church and the political party in power by referring to “the continued construction of religious buildings at public expense, the allocation of former kindergartens for use by the church, and the pervasive presence of priests on public television.” On this point, the Court underlined that “merely because a remark may be perceived as offensive or insulting by particular individuals or groups of individuals does not mean that it constitutes ‘hate speech.’ Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression.” So the Court clarifies that conduct establishes hate speech where the expressions are given strict scrutiny, are examined “as a whole and in their context,” and result in “promoting violence, hatred and intolerance.”

The real question is whether and to what extent, in the near future, the ECtHR will generalize the above-mentioned reading and extend it to other legal contexts, in the case of a majority religion that feels offended.

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