Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

This past weekend Irish voters decided, by an overwhelming majority, to amend the Irish Constitution so as to decriminalize blasphemy. Just a few days before this referendum, however, a unanimous Chamber of the European Court of Human Rights gave its blessing to the criminalization of blasphemy, in all but name, in its judgment in E.S. v. Austria, no. 38450/12.

I have now read this judgment several times. Each time I read it I was left more disturbed. It applies the Court’s previous troubling precedents in this context – such as the notorious judgment in Otto-Preminger-Institut v. Austria – wholly uncritically, while even going beyond them in policing offensive speech. It unpersuasively tries to draw a distinction between blasphemy laws, which categorically impermissibly infringe on the freedom of speech, and the Austrian law at issue, as interpreted and applied by Austrian courts, which according to the Court strikes the right balance between the freedom of speech and the freedom of religion. As I will explain, the Court’s distinctions are essentially meaningless and incapable of being applied in any non-arbitrary way, leading us not to a slippery slope of a further erosion of free speech, but to a cliff. Its reasoning lacks rigour and fetishizes the national margin of appreciation. Worst of all, the judgment will likely do nothing to promote religious tolerance in Europe, but will only help to further the narrative of Islamophobic closet neo-Nazis (who are, by the way, already in power in Austria, and not for the first time) that they are free speech martyrs , victimized in their own country by horrible minorities, elites and human rights lawyers.

The speech at issue in the case

The applicant, E.S., spoke at a series of seminars organized by the far-right Austrian Freedom Party, which were advertised to and open to members of the public. At two such seminars, each attended by about 30 people, the applicant made several statements about Islam and the Prophet Muhammad. The seminars were also attended by an undercover journalist, whose publisher made a criminal complaint against the applicant for the statements she had made. Two articles of the Austrian Criminal Code were considered by the public prosecutor in this regard: Article 283, which criminalizes the incitement of hatred, and Article 188, which criminalizes the disparaging of religious doctrines. The prosecutor partially withdrew the charges under Article 283, and the applicant was acquitted at trial for the remainder of the charges under that crime.

The applicant was, however, convicted for disparaging religious doctrines under Article 188, which reads as follows: ‘Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.’

And this was the speech that she was convicted for:

“I./ 1. One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system …

2. The most important of all Hadith collections recognised by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written…

II./ I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: “For God’s sake. Did you tell [S.W.] that?” To which I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.” And her: “You can’t say it like that!” And me: “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?” Her: “Well, one has to paraphrase it, say it in a more diplomatic way.” My sister is symptomatic. We have heard that so many times. “Those were different times” – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality, because the truth is so cruel …”

According to the Austrian courts, the basic problem with the applicant’s statement is not that she alleged that the Prophet married a child, or even had sex with a child, but that she called him a paedophile, which would imply that he had primary sexual tendencies towards children more generally:

Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha had already turned eighteen and had therefore passed the age of puberty. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements. (para. 14) …  Those who invoked their freedom of religion could not expect to be exempt from criticism, and even had to accept the negation of their beliefs. However, the manner in which religious views were attacked could invoke the State’s responsibility in order to guarantee the peaceful exercise of the rights under Article 9. Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. The court concluded that the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria. (para. 15)

So, to sum up, according to the Austrian courts (the findings of which were fully accepted by the European Court), the applicant’s statement about the Prophet were not (1) hate speech inciting to violence or discrimination, the type of which is prohibited e.g. by Article 20(2) ICCPR; nor (2) hate speech simpliciter, which ‘merely’ incited to hatred and not to violence or discrimination. The applicant’s statement was also not (3) made in a context where it could directly and imminently provoke the audience to violence (cf. the Brandenburg v. Ohio standard in US First Amendment law) – for example, the applicant did not go to a mosque on Friday and start preaching to those gathered there about the folly of Muhammad’s marriage to Aisha. Rather, the applicant’s statement (i) disparaged a person who was the object of religious veneration, and did so (ii) in a way likely to likely to arouse justified indignation. According to the Austrian Supreme Court (para. 22), these requirements were met because the applicant ‘had not aimed to contribute to a serious debate about Islam or the phenomenon of child marriage, but merely to defame Muhammad by accusing him of a specific sexual preference, based on the assumption that he had had sexual intercourse with a prepubescent child, in order to show that he was not a worthy subject of worship.’

So, what did the European Court have to say on all this?

Legitimacy of the aim of the interference

There was no dispute between the applicant and the government that the applicant’s freedom of expression was interfered with, that the interference was prescribed by law, and (remarkably) that it pursued a legitimate aim. Why do I say ‘remarkably’? Because this is one of those few cases in which the legitimacy of the aim that is being pursued, and specifically the exact framing of that aim, are non-obvious questions. Yet the Court simply uncritically accepts the government’s framing of that aim (para. 41):

While the applicant stressed that her statements had never been aimed at disparaging Muhammad, she did not dispute the legitimate purpose of criminal convictions under Article 188 of the Criminal Code, namely to protect religious peace. The Court endorses the Government’s assessment that the impugned interference pursued the aim of preventing disorder by safeguarding religious peace, as well as protecting religious feelings, which corresponds to protecting the rights of others within the meaning of Article 10 § 2 of the Convention.

Look carefully what happens here: ‘religious peace’ and ‘religious feelings’, which are not mentioned as legitimate aims for the limitation of the freedom of expression in Article 10(2) of the Convention, become such under the guise of ‘protecting the rights of others.’ According to the government’s own formulation of these aims, which, recall, is expressly endorsed by the Court (para. 36):

Article 188 of the Criminal Code did not prohibit critical or offensive statements about a church or religious community per se, but merely regulated the manner in which such statements could be made. As the explanatory notes on the Government bill (Erläuternde Bemerkungen zur Regierungsvorlage, RV 30 BlgNR XIII. GP, pg. 326 et seq.) stated, the primary purpose of that provision was to protect religious peace, which was an important element of general peace within a State. Religious peace was to be understood as the peaceful co-existence of the various churches and religious communities with each other, as well as with those who did not belong to a church or religious community. The Government concluded that the applicant’s criminal conviction had pursued the legitimate aim of maintaining order (protecting religious peace) and protecting the rights of others (namely their religious feelings).

Note the first confusing point about how the purpose of the Austrian law was not to regulate the content of criticism of religion, but the manner in which such criticisms were made. But this case is precisely about the content of the applicant’s message, rather than the manner of its expression – again, she did not go to a mosque or shout directly into a devout Muslim’s face about Muhammad’s supposed moral failings. The problem with her speech was that she didn’t simply say that Muhammad had intercourse with a child (arguably true), but that he was by his general proclivities a paedophile (false). ‘Religious peace’ is then defined not simply as an absence of violence – which the applicant’s statements were not held to provoke in the first place – but as some more nebulous idea of peaceful co-existence. Then, finally, a person’s religious feelings are neatly subsumed under the person’s rights, i.e. I have a right for my religious feelings not to be hurt. And all this, right or wrong, is simply taken by the Court at face value, without any kind of critical reflection.

Necessity of the interference

Assuming that the aim of the interference was legitimate, the Court then moves to examining its necessity in a democratic society. When recapitulating the general principles of its case law in that regard (paras. 42-49), the Court emphasizes the importance of the margin of appreciation doctrine, and repeatedly cites to the (much criticized) 1994 Otto-Preminger-Institut v. Austria judgment, in which it held (at para. 49) that states may prohibit statements which are ‘gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.’ (This case thus treated causing offence to someone as an infringement of their rights. Readers may recall that the film at issue in that case ‘portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. He is also portrayed as swearing by the Devil. Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the Devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting. God, the Virgin Mary and Christ are shown in the film applauding the Devil.’ (para. 22))

In fact, the Austrian Supreme Court relied extensively on Otto-Preminger-Institut in justifying the applicant’s conviction, finding that her statements were gratuitously offensive to Muslims and did not contribute to any objective form of public debate (E.S., paras. 21-22). Remarkably, however, while repeatedly citing Otto-Preminger-Institut in the general principles section of its judgment, the European Court does not actually apply that standard to the applicant’s statement. In other words, the Court does not find – except perhaps implicitly – that the applicant’s statement was gratuitously offensive and therefore incapable of furthering public debate.

Rather, the Court first (para. 50) holds that matters of religious peace are particularly sensitive and vary from country to country, so that Austria had to have a wide margin of appreciation. Second, the Court attempts to distinguish the Austrian law at issue and the applicant’s conviction under it from a pure blasphemy law (para. 52):

The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance. Article 188 of the Criminal Code (see paragraph 24 above) in fact does not incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance. The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship (see paragraph 22 above). The Court endorses this assessment.

This is probably the single most important paragraph of the judgment, and also the one most internally inconsistent. The Austrian law is not a blasphemy law, says the Court, because it not only requires that a statement offends or hurts religious feelings but also that the statement was able to arouse ‘justified indignation’ in the followers of the religion in question (just by the way, recall that in this case the criminal complaint against the applicant was not brought by any Muslim faithful, but by a newspaper). It is entirely unclear what, in the Court’s view, makes real or hypothetical indignation justified or not. Imagine if the applicant did not accuse Muhammad of being a paedophile, but simply said that ‘Muhammad is not a worthy subject of worship’ (even if, again just by the way, Muslims do not actually worship Muhammad). Would the indignation suffered by any Muslim believer now somehow not be justified?

Or, imagine if a Roman Catholic believer saw this clip:

If they felt indignation after watching that clip, why exactly would that indignation not be ‘justified’? Isn’t the whole point of this expression (dancing nuns and cardinals and all) that a particular doctrine espoused by that religion is evil and stupid and should not be followed?

Similarly, if I was to call Scientology a demonstrably silly religion, a big fat global scam, does that not necessarily imply that its precepts are not worthy of worship? And if a Scientologist experienced indignation at that statement, which they may well do, why exactly wouldn’t that indignation be justified?  

When Stephen Fry says that Jewish/Christian/Muslim God is an ‘evil, capricious, monstrous maniac’ in an interview on Irish TV (which is then subsequently investigated by the Irish police on the basis of the blasphemy law, but without any charges being pursued), does that statement not cause a ‘justified’ sense of indignation in a follower of one the Abrahamic religions? Does he not say expressly that this stupid, maniacal God is not worthy of worship? Conversely, has not every theist proselytizer in history, including the Prophet Muhammad, claimed that his own religion is worthy of worship, while others are not?

I could go on. The Court’s attempt to distinguish the Austrian law from blasphemy is completely unpersuasive – every blasphemous utterance could easily be said to cause indignation in the faithful, and the supposed justifiability of that indignation is an entirely subjective standard. Note also how this goes beyond the Otto-Preminger-Institut’s insistence on the ‘gratuitously offensive’ nature of the expression, unless the justifiability standard is simply reduced to the test from that case (which the Court does not seem to be doing, at least not expressly).

But the Court does not stop there. In para. 53 it further notes that:

[It] agrees with the domestic courts that the applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others. In that context, the Court reiterates that the Convention States are even required, under their positive obligations under Article 9 of the Convention, to ensure the peaceful co-existence of religious and non-religious groups and individuals under their jurisdiction by ensuring an atmosphere of mutual tolerance (see paragraph 44 above). The Court endorses the Regional Court’s statement in its judgment of 15 February 2011, that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society (see paragraph 15 in fine above).

There is thus, according to the Court, not only a positive obligation to protect the freedom of religion under Article 9 even from the acts of private actors (a proposition which is by itself uncontroversial), but this obligation appears to extend to suppressing speech which is ‘presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion.’ The Court adopts this language from the first-instance Austrian court which tried the applicant. Just consider for a moment how incredibly broad this language is – isn’t Monty Python’s ‘Every Sperm is Sacred’ extravaganza quite clearly provocative and capable of hurting the feelings of a devout Catholic? (et cetera) Couldn’t every example of religious satire ever made be suppressed, on this basis, by a state saying that the speaker should have been less provocative and could have conveyed their message in a less hurtful way?

The Court wraps up its analysis by emphasizing the leniency of the 480 euro fine imposed on the applicant (para. 56) and the carefulness of the balancing exercise of the domestic courts (para. 57), which it chooses to defer to – even while apparently agreeing with everything they said even if no deference was warranted – because they enjoy a wide margin of appreciation (para. 58).

Conclusion

There are many lessons we can draw from this case. First, it can tell us something about the dangers of proportionality as an analytical framework when it is applied without sufficient doctrinal rigor, but as a broad-brush balancing exercise accompanied by ritualistic invocations of the margin of appreciation. Much will depend in that regard on the sensibilities of the different judges hearing a case – the E.S. judgment appears fundamentally at odds with more robust approaches to the freedom of speech as recently shown by a different Chamber in the Pussy Riot case, but also with that of the Human Rights Committee. It is especially noteworthy that this was a case in which the speech at issue was not regarded by either the domestic judges or the Court as inciting to hatred, violence or discrimination, but was merely blasphemy-plus (and an ill-defined and ultimately meaningless plus at that).

Second, it is particularly disturbing to observe just how casually (and with unanimity!) the Court’s interpretation of the interplay of positive and negative obligations under Articles 9 and 10 of the Convention lead it to embrace what is effectively a Singapore-style model of religious tolerance, a tolerance enforced by a vigilant nanny state, rather than through a public debate over controversial ideas where the best remedy against stupid and disgusting speech (like that of the applicant) is more speech exposing that stupidity. Now, you may well think that this nanny model would be a good thing. But whether it is or isn’t is something to be properly considered and discussed, not walked into as blindly as the Court appears to have done.

Finally, a real if entirely predictable irony of the case is that the Austrian authorities’ efforts to suppress the applicant’s speech have only served to amplify it. Nobody would have heard or cared about the applicants’ ruminations on Muhammad and Aisha other than the 30 people present in the room were it not for the undercover journalist and the prosecution initiated by the publisher. Now, however, that message is everywhere, and the price to pay for that was a measly 480 euro fine (a particularly fine example of the Streisand Effect). Note the further irony of closeted neo-Nazis using a human rights court to vindicate their rights, and in reality getting more out of losing than by winning. Their purpose is better served by having this judgment stand and by not appealing it to the Grand Chamber. Regardless of whatever Austrian law or the European Court might say they can already indulge in far more virulent Islamophobia than that exhibited by the applicant in that digital ocean of poison that is the Internet (and remember, they’re back in analog power in Austria – happy times). The ultimate problem with this judgment, in other words, is that the bottom line of all that balancing is a manifest imbalance: the Court eroded the freedom of speech while doing nothing meaningful for religious tolerance. It can and should do better.