Posted on by Mark Movsesian

Al-Azhar’s Bill of Rights

Earlier this week, Al-Azhar University in Cairo, the world’s preeminent Sunni center of learning, announced a new “Bill of Rights” for Egypt. Al-Azhar hopes that the non-binding document will guide the newly-elected parliament in preparing the new Egyptian constitution. Al-Azhar consulted Muslim and Christian intellectuals during the document’s drafting, and influential religious and political leaders have endorsed it, including Coptic Pope Shenouda and representatives of Islamist parties like the Muslim Brotherhood and the Salafi Al-Nour. Observers say the announcement is one in a series of attempts by Al-Azhar to assert a “moderate” version of Islam and beat back challenges from stricter versions of the faith endorsed by the Islamists.

The Times  reports that the document protects “freedom of expression and belief.” I haven’t been able to find an official translation online, but phrases like these can obscure serious underlying tensions. For example, a secular Western liberal might understand “freedom of belief” to cover, among other things, the choice to change one’s religion. In a Muslim context, though, the phrase could mean only that non-Muslims have the right to convert to Islam — Muslims still would be prohibited from converting to other faiths. Similarly, “freedom of expression” would not protect expression perceived as an insult to Islam, for example, attempts to convince Muslims that other faiths are superior. The fact that Islamist parties have signed on to the new document suggests that these narrow interpretations are at least plausible.

Posted on by Marc O. DeGirolami

Review of Books by Inazu and Zick

Over at The Book at the The New Republic on-line, there is an interesting review of two books dealing with, respectively, the freedom of assembly and free speech in public places: the one by John Inazu (Washington University St. Louis) (and which we noted here) and the other by Tim Zick (William & Mary).  The review is authored by Jeremy Kessler, a J.D./Ph.D. student at Yale.  John’s book is, I believe, more particularly interested in religious assembly, though I could be wrong about that.

Congratulations to John (and Professor Zick) on the very positive review!

Posted on by Mark Movsesian

Prominent Egyptian Liberal to Face Trial for Insulting Islam

According to the Reuters FaithWorld blog, a Cairo prosecutor has decided to prosecute Egyptian billionaire Naguib Sawiris, head of the telecommunications firm MobilNil and founder of the secularist “Free Egyptians” party, on the charge of showing contempt for religion. The charge stems from an episode last June, when Sawiris tweeted a cartoon that many Muslims found offensive. The cartoon showed Mickey Mouse wearing a beard and Minnie Mouse wearing a face veil. Sawiris subsequently apologized for the incident.

The Reuters headline refers to Sawiris as a “leading Copt,” but in this BBC interview, in which he criticizes the “closed” nature of the Egyptian Christian community, he comes across more as a secular nationalist. Like other liberal parties,  his “Free Egyptians” party, which advocates the separation of religion and state, has struggled in recent parliamentary elections, which have been dominated by the Muslim Brotherhood and  more radical Salafi parties.

Posted on by Marc O. DeGirolami

Public Internet Access and the Establishment Clause

In a lawsuit filed yesterday, a resident of Salem, Missouri, claims that a public library’s decision to bar her Internet access to “occult” web sites, as well as those that impart “criminal skills,” violates the Freedom of Speech and the Establishment Clause.  The ACLU is spearheading the law suit (h/t Religion Clause blog). 

Setting aside the Free Speech Clause, and as respects the Establishment Clause claim alone, the allegations are that the library’s screening policies block access to information about minority religions, and specifically “Native American spirituality and related spirituality” including the Wiccan Church, Druidism, Haitian Voodoo, and Neo-Paganism.  These policies have no secular purpose, have the principal effect of promoting some religions over others, and endorse “particular faiths and viewpoints,” according to the complaint.  This language is drawn from Lemon and the endorsement test decisions. 

I am having a difficult time seeing how, even if one agrees that these tests ought to be the standard, these facts make out an Establishment Clause violation.  There might be all sorts of reasons that websites about various religions are blocked by a public library: the overinclusiveness of the screening mechanism, the dangerousness of the content of the site, the links on a particular site (which themselves may go to dangerous content), and the untrustworthiness of the site (it may have viruses).  There are many other possibilities.  And it does not appear that web sites about other religious minorities have been blocked.  Is the claim that by blocking access, the library is endorsing Sikhism, Zoroastrianism, Wahhabism?  That can’t be right.  But if the claim is that the library is endorsing Christianity by blocking access, then how does the plaintiff account for the access that is granted to other minority religions?  And as for secular purpose, protecting the public from dangerous material on the Internet seems like it might fit the bill.  Consider the example of Satanism: it would be permissible for a library to block access to Satanic sites not because it was disfavoring Satanism in particular, but because of the dangerousness of Satanic practice.  Of course, the defendant will need to show that public safety or some similar secular reason grounds its Internet access decisions here.  

Note that saying that the policy does not seem to violate the Establishment Clause is perfectly compatible with the view that it is poorly conceived, closed-minded, obtuse, mindlessly bureaucratic, or even problematic under the Speech Clause.  It may be all of those things, of course, too.

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Volokh on Austrian Freedom of Expression—Are Austria’s Restrictions Legitimate?

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.

Elisabeth Sabaditsch-Wolff

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. Read more

Posted on by Mark Movsesian

11th Circuit Rules Against Christian Student in Religious Discrimination Case

Last Friday, the 11th Circuit dismissed a lawsuit a graduate student had brought against Augusta State University in Georgia, arguing her expulsion from the university’s school-counseling program violated her constitutional rights. The student, a Christian, had expressed skeptical views about homosexual identity and conduct, and the university required her to participate in a “remediation plan” to make sure that her views did not affect the counseling she would provide clients in the program’s clinical practicum, particularly clients from the “gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ) populations.” When she refused to do so, the university expelled her. The 11th Circuit ruled that her expulsion violated neither her free speech nor free exercise rights. Briefly, with respect to the former, the court noted that the student would be advising clients in a university-sponsored clinic; the university thus could require her to conduct herself in accordance with the American Counseling Association’s code of ethics, which forbids counselors from imposing moral views on clients. The university was not disciplining the student for her religious views, in other words, but for failing to agree to put them aside in accordance with her professional responsibilities. With respect to the student’s free exercise claims, the court held that school’s requirement that students abide by the ACA code, notwithstanding their own religious convictions, was neutral and generally applicable, and rationally related to the university’s legitimate interest in maintaining its accreditation. The case is Keeton v. Anderson-Wiley (Dec. 16, 2011).

Posted on by Mark Movsesian

Kahn on the Trial of Geert Wilders

In 2009, a Dutch court decided to prosecute right-wing politician Geert Wilders for hate speech. Wilders had made several highly critical comments about Islam and had produced a film, Fitna, that explored Islamist violence in a way that some people allege incites hatred against Muslims.  In June 2011, the court acquitted Wilders of all charges. Robert Kahn (St. Thomas – Minnesota)  has posted a piece, The Acquittal of Geert Wilders and Dutch Political Culture, that discusses Wilder’s case and its implications for multiculturalism. The abstract follows. — MLM

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.