November 5, 2018
–Last week, the European Court of Human Rights ruled that the civil liberties of an Austrian woman found guilty of “disparaging religious doctrines” after she insulted the Prophet Mohammed had not been violated. Predictably, scores of commentators have argued that this was a failing of the ECHR and yet another in a long line of attacks upon freedom of expression. But is that really the case?
There are several points to be raised here. Firstly, the ECHR did nothing more than uphold the existing Austrian verdict, reached in 2011, which ordered her to pay a Dh2,000 fine. Declaring that the judgment did not contravene the ECHR’s own definition of freedom of speech merely underscores the fact that the Austrian courts were operating within the boundaries of national law.
Had the Austrian court ruled in favour of the plaintiff, the ECHR would equally not have gone against it. In fact, the ECHR has on several occasions ruled that religious freedom can be curtailed if its member nations decide as much. A number of high-profile cases, in which Muslim women went to court to protest being discriminated against by not being allowed to wear the hijab either at school or work, have failed. The ECHR is many things, but a perennial bastion of legal protection for Muslim sensibilities it is not.
The Austrian legal system is not terribly favourable to Islam anyway, particularly when one takes into account the tone of contemporary politics in the country. The far-right chancellor Sebastian Kurz was elected on a platform of opposition to what he calls “political Islam” and, in December, he formed a coalition government with the country’s anti-Muslim Freedom Party.
This issue is not one of conflicting values, either. Many European legal systems already sanction some forms of speech. There are laws banning public denials of the Holocaust and various kinds of hate speech, for example. Such legislation is entirely justified, given that racism, historical revisionism and overt expressions of prejudice create a hostile environment for minorities and marginalised groups, and can easily precipitate violent acts.
Such laws say little about privileging the feelings and beliefs of one group over another and more about the fact that, as Europeans, we simply accept that speech that denigrates a group or ethnicity does not merit protection.
Freedom of speech is important, but not at all costs. The concept has also always existed within certain boundaries. After all, the foundations of a truly civil society rest upon co-operation, considering the needs of others and the principle that every one of us should be able to live free from fear of discrimination or physical harm.
Today, some people – predominantly on the right – have embraced a more radically libertarian definition of free speech, in which everyone has the right to say whatever they want, no matter how inaccurate or hate-filled it may be, and regardless of the consequences to others. This is clearly deeply problematic. It also violates a long-standing western tradition of tolerance and co-existence.
To see the devastating effects of untrammelled hate speech, one need look no further than the recent murders at the Tree of Life synagogue in Pittsburgh. This profoundly distressing event cannot be uncoupled from the rising tide of reactionary nationalism in the United States. The rhetoric of high-profile figures – including the current US president – are inextricably linked to what happens in the street.
Demagogues and rabble-rousers might try to distance themselves from horrific attacks such as the one that occurred in Pittsburgh, but when a person cries “fire” in a crowded theatre, they cannot pretend that their words did not cause people to be trampled in the aftermath.
Of course, some will argue that freedom of speech is a right so inviolable that it cannot and should never be limited. However, that vision of a libertarian utopia denies the fundamental principles of any society.
It is also telling that this position is often taken by insecure white males from backgrounds of privilege who use the rallying cry of free speech as an excuse to defame and insult people far less fortunate then themselves. Take, for example the so-called “alt-right” provocateur Milo Yiannopoulos, the white-nationalist ideologue Richard Spencer and Donald Trump himself. When we consider their rise to prominence and the recent upsurge in violence and discrimination against people from minority groups, it is clear that words have consequences. As the internet fills with protestations about the ECHR’s decision, we would do well to remember that.
Dr HA Hellyer is a senior non-resident fellow at the Atlantic Council in Washington, DC and the Royal United Services Institute in London