Keane on South Park, Islam and Hate Speech: A European Perspective

We are delighted to welcome this guest post from Dr. David Keane. Dr. David Keane is a Lecturer in Law, Middlesex University, United Kingdom.  David researches and publishes on issues relating to human rights, minority rights, freedom of expression, racial discrimination and regional human rights systems. A full list of David’s publications can be accessed here. This is David’s response to my previous post South Park: ‘Religious Defamation’, Freedom of Expression & Human Rights

I hadn’t seen South Park in many years, but coincidentally happened to be watching last Wednesday when Episode 200 was shown. I realised that the portrayal of Mohammad dressed in a bear costume (although it turns out not to be him – see here) was going to re-ignite questions of religious defamation and freedom of expression, and wasn’t surprised to see the Guardian, for example, run with the story for the past three days. Liam Thornton’s interesting analysis on this blog has firmly supported freedom of expression and underlines South Park’s irreverent approach as an ‘equal opportunities offender’. As a human rights academic and a firm believer in freedom of expression, and indeed cartoons as an art form, I am always surprised to find myself often arguing against the cartoonists who are behind the series of recent controversies. I sometimes wonder whether it may be related to the fact that every time I read an article about the Danish cartoons or other such incidents, I detect a certain triumph in the portrayal of Muslims as intolerant of freedom of expression. They’re only cartoons! seems to be the central message.

Liam Thornton’s piece makes reference to an article of mine, and I’d like to go back to the central idea I had in writing it in order to explain my position. In much of the analysis on the ‘Danish cartoons’ controversy, there was an implicit understanding that cartoons are for children. How could people be offended by something which is essentially harmless juvenile fun? Yet the history of cartoon satire tells otherwise; cartooning has had a long political history, according to one study beginning as far back as 1360 BC with an unflattering portrait of King Tutankhamen’s father. This noble tradition of political dissidence, or the cartoon as social protest, spread from 17th century Holland, and morphed into the editorial cartoon we have today.

Cartooning has also, from an early point, engaged in racial intolerance. The Irish context has already been mentioned above, and the infamous Punch caricatures of hideous ape-faced Irish thugs led one 19th century commentator to wonder why some irate Celt didn’t conform to stereotype and club the cartoonist with his shillelagh. More recently Tintin in the Congo was banned in the UK for containing images of ‘hideous racial prejudice’, according to the Commission for Racial Equality. If you were to buy a copy now in a UK bookshop, it comes sealed in plastic with a warning that it portrays colonial stereotypes which are no longer relevant. It has also been transferred from the children’s sections of bookshops.

Cartoon portrayals of religion are less common; political and racist cartoons flourished in Victorian England but there would have been no question of publishing attacks on Christianity. One interesting example on the website of the Political Cartoon Society tells of an early depiction of Mohammad showing deference to a then English cricket hero, Sir Jack Hobbs, in the Indian version of the Morning Post some 81 years ago. It caused outrage according to a Calcutta correspondent at the time, with Muslims ‘convulsed in rage’. Anti-Semitic cartoons were prevalent in the twentieth century, epitomised in infamous Nazi publications such as Die Sturmer with Jewish figures the victims of vicious ridicule and hatred, often through zoomorphic images such as a Jewish octopus straddling the world.

By contrast cartoonists are also vulnerable to repression. In Saudi Arabia in 2007, two newspaper editors were sentenced to prison and hundreds of lashes for printing a comic strip which questioned the existence of God, while in Iran a cartoonist received a similar sentence for drawing a soccer player adjudged to resemble the late Ayatollah Khomeini. Democracies are also open to stamping out unwanted cartoons; two Spanish cartoonists were fined in 2007 for defaming the royal family, while in the US a satirical caricature of George Bush based on a Vietnam war photo, in which the former President was depicted holding a gun to his head which symbolised the Iraq war, prompted a visit to the offices of the LA Times by the US Secret Service.

But the contemporary debate has raged around depictions of Mohammad, as referenced in South Park. The subsequent threats to Parker and Stone have been documented in the newspapers. The extent of freedom of expression protections in the US can be divined from the fact that there has been no immediate call for prosecution of the group Revolution Muslim who sent the animators a photo of the murdered Dutch film-maker Theo Van Gogh. In order for such a case to be taken, the prosecutor would have to prove incitement to violence. This is also the standard found in Article 20 of the International Covenant on Civil and Political Rights 1966. However the rest of the world does not exhibit such light hate speech laws, notably Europe.

There have been very few cases in the European Court of Human Rights on hate speech. This is because usually such cases do not pass the admissibility stage. The earliest example, Glimmerveen and Hagenbeek v. The Netherlands (1979), involved the members of a Dutch far-right party who passed out leaflets addressed to ‘white Dutch people’ and called for an ethnically homogenous state with the expulsion of ‘foreigners’. They were prosecuted in Rotterdam, and their claim of a violation of Article 10 ECHR (freedom of expression) was rejected by the European Commission at the admissibility stage. The decision was based on Article 17 rather than Article 10. Article 17 reads:

‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein (…)’

The subsequent admissibility decision in Kuhnen v. Germany (1986), similarly outlining a pamphleteer’s desire for German racial unity in the face of ‘bolshevists, Zionists, foreign workers’ etc., was rejected on the basis of Article 10 and Article 17, with Article 17 used as a guiding provision while making the decision under Article 10. Thus the interference in the Article 10(1) right was justified under Article 10(2), although the Commission had regard to Article 17.

A series of French cases decisively shifted the ECHR approach to Article 17. In Lehideux and Isorni v. France (1998), the Court carved out a particular role for Article 17; Holocaust denial. The plaintiffs were prosecuted for glorifying the achievements of Phillippe Pétain in a Le Monde advertisement. France argued that the interference was justified under Article 17 and Article 10(2). The Court ruled that the offending document sometimes omitted important historical facts, ‘but does not belong to the category of clearly historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17’. Since Lehideux, Article 17 is applied with strict scrutiny to cases of Holocaust denial only. Thus in Garaudy v. France (2003), the plaintiff was prosecuted for a book which wrote about the ‘myth of the Nuremberg trials’ and the ‘myth of the Holocaust’. The application was deemed inadmissible, as the intervention was held to be justified under Article 17.

What is the significance of using Article 17 instead of Article 10? The result is an absence of a balancing process. Article 10 cases take the right to freedom of expression in Article 10(1), and weigh this against the public interests in Article 10(2). This is found for example in the Jersild v. Denmark (1996) case, in which a journalist was prosecuted for relaying the opinions of a group of racist youths known as the ‘Greenjackets’. While prosecution of the youths would have been justified under Article 10(2), prosecution of the journalist was not held to be necessary given the serious context of the piece, which was a relevant investigation into far-right movements in Denmark. This is a rare example of hate speech passing the admissibility stage and being upheld by the Court. There is no such balancing process under Article 17; speech is restricted solely because of its content.

Consequently Europe exhibits a three-tiered approach to hate speech. At the top is Holocaust denial; it is severely restricted under Article 17, with no ‘balancing process’ taking place. In the middle is racist speech; it is protected under Article 10(1) but states are justified interfering with that protection provided they meet the criteria of Article 10(2). This necessitates a ‘balancing process’, seen in the Jersild case, although it should be noted that most instances of racist speech would not pass the admissibility stage. Finally there is religious intolerance, or religious defamation, seen in the Danish cartoons. If Denmark had decided to prosecute Jyllands Posten, would the magazine have succeeded in invoking their Article 10(1) right to freedom of expression? The answer would appear at present to be no, under past rulings on blasphemy such as the Liebeskonzil v. Austria (1982) decision, although unlike cases of racist speech, such religious cases will pass the admissibility stage. Also there are calls from influential commentators, for example Kevin Boyle, urging reform of European support for blasphemy prosecutions.

The failure to prosecute the Danish cartoonists has not received much attention, but it is quite remarkable from a legal point of view. The Danish Penal Code has a ‘racism clause’ and a ‘blasphemy clause’, the latter of which makes it a criminal offence to publicly mock or degrade the religious beliefs or worship of any religious community. Quite how the Danish Prosecutor decided that the cartoons did not satisfy this provision has never been explained. He stated only that:

‘Even though… the fact that some of the cartoons were satirical caricatures of the Prophet Mohammad, and that as such, given the central role of Mohammad for Islam, they might imply ridicule of or express disdain for Muslims’ religious beliefs or worship in the sense protected by the blasphemy clause… a concrete interpretation and evaluation of the cartoons led the Public Prosecutor to the judgment that the cartoons did not, after all, constitute an infringement of the clause’.

This extraordinary piece of reasoning did not feature at all in the debates, which took the view that Denmark was an open society which would never prosecute for a simple cartoon, even though they quite obviously constituted blasphemy and its laws couldn’t be clearer. I am not advocating that the cartoonists should have been prosecuted – I am only drawing attention to the fact that Europe’s laws in this area are murky, with a strong hint of double standards. Holocaust denial (protection of historical belief?) is pounced upon; attacking Muslim beliefs is something of a free-for-all despite unequivocal legal rules to the contrary in many European states.

As such, Europe awaits the first real case on these issues at the regional level. I believe that this could potentially be provided by Geert Wilders, who is presently on trial in Holland for incitement and discrimination over his comments attacking Islam and his film, Fitna. If he is prosecuted, there will certainly be an ECHR appeal. It will come as a surprise to many commentators who imagine Europe to be a free space for all ideas however abhorrent, but on past rulings the Court will hold the prosecution necessary under Article 10(2). Not doing so would mark a major departure. This could happen, given the depth of feeling that a change is required. If Europe wishes to allow untrammelled criticism of Islam, it will need to reconsider other restrictions on hate speech, including blasphemy laws and Holocaust denial, in the interests of consistency.

There cannot be too much of a disconnection between these cartoons and Muslims as a vulnerable minority in Europe and the US. The growing sense of being under attack, seen in the banning of the full Islamic veil in France, and the Swiss vote banning minarets (an outrageous violation of freedom of religion), is fuelling a sense of entrenched discrimination. The constant media crowing over Muslim reactions, seen as a self-fulfilling prophecy of the cartoons, seems disproportionate. I am an admirer of cartoonists, and appreciate the art and style of bandes dessinées (a far better descriptor than the English ‘comics’, which again has that misplaced sense of juvenilia). But the power of cartoons should not be underestimated, and just as we regard past racist stereotypes such as Tintin’s adventures in the Congo with distaste, it is possible that in the future, these attacks on Islam will be viewed with similar repulsion.

The argument runs that religion is different from race as it is chosen rather than inherited; but for many people, religion is a primary source of identity, perhaps more so than their ethnicity. Their bewilderment (and I am talking about ordinary Muslims, not the extremists) in the present climate should at least be understood. Criticism of religion, like criticism of anything, is essential. But the cartoons have always been malevolent, produced in a climate of fear and discrimination against the Muslim minority. Should South Park censor itself? No, I don’t think so. But I also refuse to join those who are delighted to proclaim that this is another blow for free speech.