Brian Johnstone. The Right to Freedom of Speech

During his flights to Sri Lanka and the Philippines, Pope Francis spoke of the massacre of the staff of a French magazine Charlie Hebdo and others at a kosher supermarket, which killed 17 persons. The attack was in reprisal for satirical depictions of the prophet Muhammad.

“One cannot make war [or] kill in the name of one’s own religion, that is, in the name of God,” Francis said. “To kill in the name of God is an aberration.”   But, the Pope added, freedom of speech does not imply total license to insult or offend another’s faith.  “Every religion has its dignity . . . and I cannot make fun of it.”

Spokespersons of the Orthodox Churches have also protested against the publication of the cartoons satirising religion.  The World Russian People’s Council chaired by Orthodox Patriarch Kirill stated:  “We call on journalists worldwide to observe a moratorium on publishing caricatures offending Muslims, Christians and followers of other faiths.”  The statement continued:  “Calls to reprint them are irresponsible and unjust–a blow to millions of innocent Muslims, and a show of disrespect for an entire civilisation.”

Some Muslims reacted strongly and even violently to the republishing of the cartoons.   Muslims are reported to have protested in Niger, Sudan, Somalia, Senegal, Mali, Mauritania, Algeria, Jordan, Pakistan and the Russian republic of Chechnya.  In Niger there were reports of three deaths in the capital, Niamey, and another five in the second city, Zinder. The BBC reported that some 45 churches were set on fire or looted, and three dead were found in churches.  About 800 Muslims gathered to protest in Lakemba in New South Wales, Australia; a spokesperson rejected the Western value of freedom of speech. The protest was peaceful.

Not everyone agreed with Pope Francis. As Christopher Lamb reported in the Tablet, on 19 January 2015, when the British Prime Minister, David Cameron, was asked about Pope Francis’s remarks by the American television channel CBS, said: “I think in a free society, there is a right to cause offence about someone’s religion.”  He went on:

I’m a Christian – if someone says something offensive about Jesus, I might find that offensive, but in a free society I don’t have a right to, sort of, wreak my vengeance on them. We have to accept that newspapers, magazines, can publish things that are offensive to some, as long as it’s within the law. That is what we should defend.

The UK Catholic Herald on 19 January 2015 interpreted this as contradicting Pope Francis’s comments.  This is not completely correct; the Pope would agree with Cameron on some points, but would disagree on others.

Cameron said it was wrong to take revenge if someone insulted your faith.  Pope Francis would agree that vengeance in such a case is morally wrong and that the one who is offended does not have a moral right to take such vengeance.  He would also accept that in some countries there is a legal right to cause offence to someone by criticising that person’s religion, in the sense that it is not prohibited by the civil law.  The Pope did not require that that there should be a law prohibiting offensive speech against some people’s religious beliefs.

There are three issues that emerge from these reports.

Religion as solely private?

The first is the meaning of religion itself.  In a modern secular society a typical view of religion might be as follows.  Religion may be a good thing, but it is a purely private matter.  Religious people may form communities such as Churches, but this is a free, personal decision.  Religious faith is a personal matter and it consists of individual convictions that are the expression of religious sentiments; there is no such thing as a ‘Christian culture’ except in the most general sense. The state exists basically to enable individuals to follow their personal projects and to protect them from intrusions from others that might hinder them from this pursuit.

A right is essentially a claim to be able to act or to speak to express one’s convictions provided one does not harm anyone else.   Because religion is considered to be largely a matter of private sentiment, people generally find it difficult to appreciate that actions and speech that offend the religion of another can cause serious harm to that person.  It is moreover presumed that democracy requires freedom of speech.  Thus, whatever harm may be caused to someone by offensive speech will be outweighed by the benefit of maintaining freedom of speech for the sake of democracy.

For various reasons, however, society may decide to set limits to the exercise of this freedom, for example by prohibiting “hate speech.”  But where there is no law against it an individual must be presumed to be free to offend others.  Since there are no generally agreed ethical norms governing such speech, one who desires to speak offensively does not need to justify his speech by providing ethical arguments, apart from a general appeal to his ‘democratic rights.’

For the three groups that have been mentioned, the Catholic Church as represented by Pope Francis, the Orthodox Churches as represented by Patriarch Kirill and Muslim communities in general, religion is not merely an individual matter; it requires community and exists in specific communities.   Further, religious faith is not merely a matter of individual sentiment; it is a deeply personal commitment that expressed a person’s reason for living and constitutes that person’s identity.   An offence to a person’s religion is considered to be an offence to the person himself or herself.

Religion and the state

This second issue is the relation between religion and the state and in particular to the law of the state.  There are complex differences between the ways these three groups, Catholic Christians, Orthodox Christian and Muslims, relate to the state.  The Catholic Church has come to recognise a separation between the two; the Orthodox Churches would appear to favor a closer form of positive collaboration; the Muslim religion in principle requires the laws of the state to embody religious teaching. Such laws are called Sharia law.

However, it does not follow that the members of such groups would require that their religion and its beliefs and practices should be protected by the law of the country in which they reside. In Australia where there are at present over two hundred different religious traditions represented, such a law would not be practically viable. This was the view of the judge in a case brought by the then Archbishop of Melbourne, George Pell in 1998. The case concerned the exhibiting of a photograph of Christ entitled “Piss Christ” that the Archbishop claimed was “blasphemous libel.”

Justice Harper, while he acknowledged that the image was indeed offensive to Christians, found that there was no legal basis for the court to ban it. “A plural society such as contemporary Australia operates best where the law need not bother with blasphemous libel,” said the judge.

Ethical aspects

The third issue is that of ethics.  Cameron would seem to presume that, if there is no law against offending the religion of members of a society, such offences are justified.  However, an act may be legally permitted and nevertheless be ethically wrong.  A person who exhibits an image or makes a statement that offends the religion of others is not justified in doing so merely because he wants to express himself.  Nor may he claim a right to the freedom to do so on this basis. Such a right to freedom must be socially justified.

The justification of the right to freedom of speech is that it is required to enable the relatively powerless to challenge the abuse of power by the more powerful.  For example, when a government official abuses his power to grant favours to his friends, a reporter may claim the right to freedom of speech to investigate and publish the facts of the case.

But it could happen that a journalist or publisher who has significant power abuses the right to freedom of speech by attacking another who is relatively weak since he or she has fewer financial or political resources.   The effect of such an attack could be the destruction of the other’s reputation and the reduction of the capacity of that other to function effectively in society.  I would argue that this was the case when the journalist Andrew Bolt accused several persons who are light-skinned of claiming Aboriginal identity for motives of personal gain.

The Australian Racial Discrimination Act (1975) was later amended to include a new Section 18C which prohibits: “Offensive behaviour because of race, colour or national or ethnic origin”.  The Act states:  (1) “It is unlawful for a person to do an act, otherwise than in private, if:  (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

It is noteworthy that the act prohibits offending, but does not include religion as one of the factors that could be the basis of the offence.  The alternative later proposed by the federal attorney general Brandis stated the following:  “3. Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.”

This means that the judgment as to whether the act is offending or not is to be made not, for example, by the Aboriginal person who experiences the offence, or by the Aboriginal community, but by the “ordinary reasonable member of the Australian community.”

This is a clear example of imposing the judgment of the more powerful group on the relatively less powerful which is a criterion for an abuse of the right of freedom of speech.  It means that the judgment as to whether the person who experiences offence is really offended is to be made not necessarily by those who might be offended, but by any member of the community.  This criterion is discriminatory; it could include those who may well be engaged in doing the offending.

What is to be said of the use of violence in response to an offence against religion?   It is clear that Pope Francis would not justify such violence.  The connection between religion and violence was explained some years ago by René Girard, who argued that the strong commitments and even passions that are connected to religion must be channeled in a relationship with transcendence, for example with a transcendent God. When that connection is lost or abandoned the intensity characteristic of religion can be attached to a culture, a way of life, a political system or a race.

These become invested with absolute importance and violence can readily be justified in their defence; there are incontrovertible examples of this in the history of Christianity, as in the violent suppression of heresy, the wars of religion and the persecution of the Jews.  The history of Islam includes comparable instances.

The key word is one invoked by Pope Francis, ‘dignity.’  Dignity implies a two-way relationship: it is impossible to preserve one’s own dignity while undermining the dignity of another.  I cannot ask another to recognise my dignity, when I am refusing to recognise the dignity of that other.  This is what one does when one offends another by mocking what he holds most dear: his religion.

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