Free Expression and an Elusive Middle Ground: Part Two Commentary
Free Expression and an Elusive Middle Ground: Part Two
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JURIST Guest Columnist Faisal Kutty of the Valparaiso University Law School says that the global community must engage in a serious debate over the limits of free expression as it applies to the defamation of cultures and religions, and that in order to do so the extremists on both sides must face their own hypocrisy…

The Organization of Islamic Cooperation (OIC) recently introduced calls to reexamine the balance between freedom of expression and religious/cultural defamation. Given the usual hysteria surrounding the debate, it is easy to lose sight of the fact that the OIC and its supporters have retreated from their extreme position. Moreover, each time the OIC has introduced calls to create an international defamation of religion offence, it has reiterated [PDF] its “commitment to the freedom of opinion and expression” as well as the recognition that religious criticism “is important for introspection, dialogue and better understanding.”

It is indeed encouraging that even with the minimal constructive engagement that has taken place to date on the issue the OIC has moved from defamation of religion to incitement language. Some may characterize this as a “Trojan horse” but closer analysis may reveal that it is a genuine step closer to the middle. It is also clear that proponents of the initiative realize that persuasion and engagement with the international community as a whole 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.

Despite the nuance, such calls have elicited strong reactions from free speech advocates who appear to be straining to find a clash. “This has exposed a huge fault line in political philosophies,” claimed Stewart Patrick, of the nonpartisan Council on Foreign Relations. “It may be irreconcilable.” This is arguably an overreaction, particularly when we consider that the same tensions exist in non-Muslim jurisdictions as well.

Based on the discussion in my previous commentary on this issue, the OIC position may not be as beyond the pale as portrayed by some. Indeed, as Robert Kahn argues, bringing to light that similar tensions exist outside the Muslim world “helps undermine the frames of culture clash, appeasement, and slippery slopes that dominate the debate[.]” Clearly, the issue should not be seen as an existential threat to the West, but as an opportunity to dialogue. As commentator Jehnzeb Dar suggests, the OIC resolution is “an important opportunity … to achieve a richer and empathetic understanding about issues related to vilification of Islam in mainstream media, pop culture, and newspapers.”

International Law and the Search for a Middle Ground

At the international level, 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. These restrictions must be proportionate and in-line with Article 19 of the International Covenant on Civil and Political Rights (ICCPR), namely the actions necessary to preserve national security and public order, protect public health or morals or safeguard the rights or reputations of others.

As narrow as this scope may be, there will undoubtedly be a variety of equally valid interpretations of Article 19 given the broad variety of contexts, circumstances and experiences produced by 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 a democratic society. Indeed, what counts as a democratic outcome in any given instance is highly dependent on normative contestations and social, legal and political compromises.

In Faurisson v. France, for example, a Holocaust denier challenged his conviction under French law — claiming that it violated his freedom of expression rights under the ICCPR. The UN Human Rights Committee (UNHRC) found that the ICCPR had not been violated. In its decision, the UNHRC focused on the specific context in which the expression was made. In its reasoning, the UNHRC clearly accepted the French government’s argument characterizing “the denial of the existence of the Holocaust as the principal vehicle for anti-Semitism.” And, for this reason, the UNHRC justified the prosecution as “necessary” within the balanced rights scheme of the ICCPR.

Islamophobia: The New Anti-Semitism

Some argue that the new growth industry of Islamophobia is the new anti-Semitism. Today, promoting hatred and scorn for Islam and Muslims has become one of the few socially and legally acceptable modern prejudices in western society. Numerous studies have documented the rise in Islamophobia around the globe, including one by the British Runnymede Trust in 1997 and a more recent study by the European Monitoring Centre on Racism and Xenophobia [PDF]. Moreover, Islamophobia was recognized as a form of intolerance alongside xenophobia and anti-Semitism at the Stockholm International Forum on Combating Intolerance [PDF].

The trend is no different in the US. The US Federal Bureau of Investigation (FBI), for instance, has documented a 50 percent jump in anti-Muslim hate crimes in 2010 from the previous year, while the Southern Law Poverty Center recorded the tripling of anti-Muslim groups from ten in 2010 to 30 in 2011. Indeed, earlier this year the University of California Berkeley launched the Islamophobia Studies Journal to focus on this growing phenomenon and its impact on culture, politics, media and the lives and experiences of Muslims.

Despite growing evidence, some continue to minimize this trend while others raise concerns about semantics, accuracy, vagueness, effectiveness and even compatibility with modern human rights discourse. In response to such critics, Burak Erdenir redirects [PDF] the discourse by suggesting that they look at the “new racism” of “Muslimophobia,” which “targets cultures, lifestyles, and physical appearances of Muslims.” He notes that “identity, to a great extent, is about perceptions, the view of the dominant group is determined and thus one cannot simply disengage from one’s faith group by renouncing the religion.” Erdenir compares this to anti-Semitism in the way “prejudice and discrimination against an outside group” rests on “a combination of religious and ethnic terms.” The most recent example of this is the New York subway murder.

The frustration felt by many Muslims was summarized by Malaysia’s foreign minister Anifah Aman, who told the UN General Assembly that the creators of the anti-Islam film — The Innocence of Muslims — had shown “blatant malicious intent.” She added: “When we discriminate against gender, it is called sexism. When African Americans are criticized and vilified, it is called racism. When the same is done to the Jews, people call it anti-Semitism. But why is it when muslims are stigmatized and defamed, it is defended as ‘freedom of expression’?”

The Way Ahead

It appears that reasonable people can disagree about the limits and semantics of it and still remain committed to a robust conception of free speech. I would also venture to argue that most people in either camp would find themselves somewhere in the middle, particularly when it impacts on themselves, their community and values as opposed to when it is seen as impacting only the “other.” The key is to strike a balance that protects the individual right to expression but at the same time allows the more protective of communitarian values — such as preventing social unrest, and promoting societal inclusiveness and anti-discrimination values.

There is some basis to believe that the OIC does not seek to restrict legitimate debate or even disagreement with Islam. Even the masses — as opposed to some fanatical fringes — in the Muslim world are not against freedom of expression per se. A groundbreaking Gallup study of the Muslim world in the wake of 9/11 revealed that Muslims — in some nations as much as 99 percent — cited the West’s liberty and freedom of speech as what they most admired. Moreover, when asked whether they would include a provision for freedom of speech in a new constitution, overwhelming majorities (94 percent in Egypt, 97 percent in Bangladesh, 99 percent in Lebanon, etc.) in every Muslim-majority country responded “yes.”

Healthy criticism provokes thought and fuels the collision of opinion which is a necessary, if uncomfortable, process, which eventually results in an improved understanding of the self as well as the other. However, as Andrew March argues, while it may sometimes be worth offending people on religious grounds from an ethical (and, I would argue, legal) perspective, we may nonetheless wish to restrain ourselves in the interest of maintaining certain social and political relationships. Every society sets certain legal limits defined by respect for local customs, sensibilities and what is perceived rightly or wrongly as existentialist threats. The boundaries placed on free speech should be minimal, but in an increasingly globalized world it must be consistent, minimal and based on treating all equally and with mutual respect.

Rather than hysterically dismissing their calls as leading us down the slippery slope of banning any critical discussion of religion, it would serve us well to engage with the OIC and its supporters in addressing their valid complaints about Islamophobia. This discussion should move from points of agreement to areas of disagreement and work toward developing a new international consensus. Given the existence of similar tensions between religion, hate and free expression in much of the world, the two sides may not be as far apart as many believe.

Is it not 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? In answering this question, it is important to keep in mind that the only way to ensure universal compliance international norms is by removing the crutch used for so long by opponents — that the notion of freedom of expression is a uniquely western construct.

Faisal Kutty teaches at Valparaiso University School of Law in Indiana and serves as an adjunct professor at Osgoode Hall Law School in Toronto. His areas of interest are legal writing & reasoning, comparative law, international law, human rights and Islamic law. His most recent work on the intersection of common law and the Shari’ah appears in “Debating Sharia: Islam, Gender Politics, and Family Law Arbitration” published by the University of Toronto Press this past summer.

Suggested citation: Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, JURIST – Forum, Jan. 7, 2012,

This article was prepared for publication by Caleb Pittman, head of JURIST’s academic commentary service. Please direct any questions or comments to him at

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