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. Continue reading