In Search of the Elusive Middle Ground Between Blasphemy and Free Speech: From Defamation of Religion to Incitement to Hate

Globally, freedom of expression norms are based on internationally recognized laws and standards for human rights, including the International Bill of Human Rights. Free speech proponents argue that expression should not be restricted except in accordance with international human rights laws and standards, and the rule of law. As narrow as the scope of such limitations appear to be, it does not take much to conclude that the different philosophies, foundational principles, and views, undoubtedly will produce a wide range of reasonable interpretations of such articles and human rights standards in general given the broad variety of contexts, circumstances and experiences of people exercising their fundamental right to self- determination. There is no such thing as a one-size-fits-all-model, even if we were to insist that such restrictions must be justified as necessary in democratic societies. Indeed, what counts as a democratic outcome in any given instance is highly dependent on normative contestations and social, legal, and political compromises. This Article argues that blasphemy and apostasy laws have no place in the modern world, but we do need a discussion about setting limits on free speech and that this discussion must be open to the community of nations and must allow all communities to have some say. Rather than hysterically dismissing calls from Islamic groups to provide some level of protection to religious symbols outright as leading us down the slippery slope of banning any critical discussion of religion, it would serve us well to engage with these groups in addressing their valid complaints about Islamophobia. We could then move from the points of agreement to areas of disagreement and work toward developing a more inclusive international consensus. Indeed, given the existence of similar tensions between religion, hate, sacred symbols and free expression in much of the world, the two sides may not be as far apart as many of us both in the East and the West believe. It is indeed encouraging that even with the minimal constructive engagement that has taken place to date on the issue, there appears to be a move away from blasphemy and apostasy laws (and the related “defamation of religion” language) to incitement language. It is also clear that proponents of the initiative realize that persuasion and playing with the international community and within the bounds of international norms is important, even if the ultimate goal may be to try to push the norms to be more reflective. This Article lays the groundwork to argue that it is high time for the community of nations to engage with each other to formulate a new consensus on what is and is not acceptable to the global community. Such a rule of law should truly be globally relevant, apply equally and universally, and credibly enable a new awareness that all people and traditions have inviolable norms. Indeed, this Article concludes that the only way to ensure universal acceptance of and compliance with international norms is by removing the crutch used for so long by violators that the existing notion of rights is a Western construct.