Case Study

Freedom of Speech or Freedom from Hearing?

 

MATS TUNEHAG
[Global Council of Advocates International]

Abstract:
In many democracies one can see a shift from freedom of speech towards a freedom from hearing or seeing things that are not liked by some.

Keywords: Freedom of speech, democracy, Islam, rule of law, hate speech

Trends and Pitfalls

Should the press be prohibited from publishing cartoons that may be offensive to Muslims? Should shop keepers refrain from saying „Merry Christmas”? Is it hate speech to express that practiced homosexuality is a sin according to the Bible? Is there a shift from freedom of expression towards a freedom from hearing or seeing things we don’t like? If so, democracy is in danger.

In October 2007 an advertisement in the Stockholm underground caused a national debate. The advertisement, sponsored by the Swedish Evangelical Alliance, promoted keeping the legal definition of marriage as being between one man and one woman. The ad simply said: „mum, dad, kids”. Prominent politicians called for a ban of such messages. They argued that the ad could be perceived as offensive to people who are single, divorced or gay. Some even labeled it „hate speech”.

The Mohammed cartoons published in the newspaper Jyllandsposten in Denmark clearly show that freedom of speech is an issue with global ramifications. Throughout the world Muslims started riots, imams issued fatwas, and there were boycotts and international diplomatic hard talk. There were demands, explicit and implicit, that freedom of speech / press should be restricted.

Pastor Daniel Scot had to flee Pakistan because he was accused of blaspheming Islam, but ended up being charged with offending Muslims and Islam in democratic „Christian” Australia. There he made a comparative analysis of Islam and Christianity in a seminar in a church. For this Pastor Scot faced fines and jail time for refusing to publicly recant his religious stance. His case was processed in the Australian court systems for over five years. Eventually, in late June 2007, the Muslim Council in Victoria, Australia agreed to drop the charges against Pastor Scot. Three Australian states have laws which, in the name of tolerance, do not tolerate criticism – even perceived criticism – of Islam.

There are an increasing number of cases related to freedom of speech, cases which are being discussed in media and / or tried in courts of law. There are also legislative changes with more countries introducing or changing so called hate speech laws – further restricting the right to free speech.

In a globalised world, where laws are increasingly internationalized, we need to better understand various trends and pitfalls which may impact us all.

The Importance of Freedom of Speech

Freedom of speech is foundational and essential for other freedoms and rights. Without it we have neither freedom of the press, nor any rights to open political debate, nor freedom to manifest religious beliefs, nor freedom of expression in art and music, et cetera.

While advocating freedom of speech, one must recognize the need for limitations. Absolute general freedom is anarchy; absolute freedom of speech can have undesirable consequences. Freedoms and rights need to be defined and operate within a particular framework, which is related to both ethical and legal systems.

There are some common legal limitations to freedom of speech. You cannot instigate imminent violence nor convey state or military secrets and plead that you are exercising freedom of speech. There are also some limitations related to libel and slander against individuals.

The right and freedom to express one’s views and opinions in writing, speech, and art inevitably means that others may differ or even take offense. But that is the nature of freedom of speech. One cannot guarantee that no-one will ever be offended by a message, political, religious, or otherwise. One may say that Mohammed is the last prophet, another may disagree. Some will assert that Jesus is God and others may find that stupid or even offensive. Some may argue for homosexual marriages and others for limited abortion rights. But all these things are foundational for a functional democracy, which is based on individuals’ right to express and convey various and differing opinions.

Freedom of speech puts the emphasis on the speaker and what is said; the right to say basically anything, even things that are not true (for instance, that the earth is flat).

A worrying trend is the shift toward the hearer and to what is being heard or how things are perceived, including the possibility that an individual or group may feel hurt or offended by what has been expressed. This is a move from the objective (what was expressed) to the subjective (how was it received, perceived). This is contrary to fundamental Rule of Law principles.

One can see this tendency in both media and in legislation in many parts of the world, often relating to Muslims and those engaging in homosexual conduct.

Cases of Concern

Glasgow, 2006: A Member of the Scottish Parliament asked Strathclyde Police to investigate remarks made by the Roman Catholic Archbishop of Glasgow. The Archbishop had defended the institution of marriage and criticized civil partnerships in a church service.

In November 2003 the Bishop of Chester, the Rt. Rev. Dr. Peter Forster, was investigated by Cheshire Constabulary after he told his local newspaper that some homosexuals re-orientated to heterosexuality with the help of therapy.

– In 2002, Dutch politician Pim Fortuyn was assassinated for his views on Islam and Muslim immigration.

– In 2004, Dutch film maker Theo van Gogh was stabbed to death for producing a movie that criticized Islam.

– In 2006, former Dutch lawmaker AyaanHirsi Ali was forced to flee the country after criticizing the mistreatment of women in Islamic societies.

– In Italy, the journalist and author OrianaFallaci was taken to court for writing that Islam „brings hate instead of love and slavery instead of freedom.”

– In France, novelist Michel Houellebecq was taken to court for calling Islam „the stupidest religion.” He was acquitted in October 2002.

– In Nottingham (Britain), the Greenwood Primary School cancelled a Christmas nativity play because it interfered with the Muslim festival of Eid al-Adha.

– In Scarborough, the Yorkshire Coast College removed the words Christmas and Easter from their calendar so as not to offend Muslims.

– In Glasgow, a Christian radio show host was fired after a debate between a Muslim and a Christian on whether Jesus is „the way, the truth and the life.”

– In East London, the Tower Hamlets town council renamed a staff Christmas party a „festive meal” so as not to offend Muslims.

– In the spring of 2010 a middle-aged preacher in Wokington, Cumbria in England was recently arrested for having „caused distress” among listeners. He had stated that according to the Bible drunkenness and homosexuality are wrong.

– In 2010 both Swedish and American television did not dare to broadcast an episode of South Park where there are references to Islam, arguing that it was dangerous - one might be threatened or killed.

– Also in 2010 a group in Miami, Florida had ads on buses promoting religious freedom and offering to help those who wish to leave Islam. The bus company quickly took them down because they did not want to „violate Islam”.

– Christian hotel owners in Liverpool were arrested and prosecuted for expressing an opinion about Islam in a conversation about religion. Although they eventually were acquitted, the case was an economic disaster for the couple who were forced to sell the hotel.

– 55% of the Muslims in Denmark think criticizing religion should be forbidden and 64% support curtailing freedom of speech.

Dangerous Shifts

The above examples indicate dangerous shifts when it comes to freedom of speech. Put briefly:

from freedom of speech to freedom from hearing
from speaker to hearer
from „instigating violence” to „I was offended or hurt”
from objective to subjectivecriterias / laws

The emphasis is now on the hearer, not the speaker. It is a move from the objective (what was expressed) to the subjective (how was it received, perceived). A common limitation of freedom of speech used to be instigating violenceand threats, now certain groups mustn’t feel hurt or offended.

It needs to be stated again: Free speech is absolutely essential since other democratic freedoms hinge upon free speech (such as religious freedom, freedom of press, free political debate). Restrictions on free speech are attacks on the very foundation of democracy.

The losers will in the end be everyone, including Muslims and people engaging in homosexual practice. It is of no virtue to intentionally offend others, but we must distinguish between etiquette and law, what are good manners and what is accommodated by free speech.

Another example of a worrying and dangerous shift: The Islamic Conference, consisting of 57 Muslim countries, proposed a resolution that was passed by the UN Human Rights Council in March 2007 in Geneva relating to the Mohammed cartoons.

The resolution talks about vilification and defamation, but is quite different from libel and slander legislation in Rule of Law societies. There are several major flaws in the resolution. Firstly, it refers primarily to Islam and Muslims. Secondly, it makes freedom of speech content based. Thirdly, it is a major paradigm shift from individual freedoms and rights to protection of a group and their supposed „right” to not be offended. Fourthly, it presupposes that truth about religious issues can and should be established in courts of law. (cf. Inquisition)

„This resolution poses a dire threat to the rights of individuals – both Muslims and non-Muslims alike - to discover and live out their religious beliefs without fear of prosecution. It is imperative that the international community rise up to oppose the UN’s endorsement of anti-blasphemy laws, and expose these resolutions for what they really are: legal justifications for undermining the freedoms of religion and expression, and institutionalized intolerance against religious minorities.” (Tina Ramirez, Congressional Fellow for Rep. Trent Franks, USA)

Four Trends

The above examples and shifts point towards four trends. They are all very serious threats to freedom of expression – a cornerstone of democracy and human rights.

First, the so-called hate speech laws. They violate a fundamental rule of law: laws must be objective and predictable. Freedom of speech laws should be about what is said, not how it is perceived. These laws go from the objective to the subjective, from the predictable to the unpredictable.

Secondly, we see increasing harassment by police, employers and surrounding communities.In October 2009 a grandmother in the UK, Pauline Howe, was investigated by police for ‘homophobic hatred’ after objecting to a ‘gay pride’ parade in her home town of Norwich.

In 2005 pensioners Joe and Helen Roberts, also in the UK, were interrogated by police because they had expressed opposition to their local council spending public money on ‘gay rights’ projects.

The Church has for 2000 years taught that sex outside the marriage of one man and one woman is a sin. But in the summer of 2010 Intereconomia, a media group in Spain, was targeted with a fine of 100 000 Euros for its broadcast of television ads that promote the traditional family.It was deemed as hateful against homosexuals.

Thirdly, the increasing number of threats. We have already mentioned threats against AyaanHirsiand the death threats and assassination attempts of the Danish cartoonists.

In May 2010 the Swedish artist Lars Vilks was attacked at the University of Uppsala in Sweden when he gave a lecture on freedom of expression, which included showing some pictures of Mohammed. He was physically attacked by Muslims chanting „Allahuakbar”.

Freedom of expression is designed to protect views and expressions that can provoke and shock.Freedom of speech also includes the right to question Lars Vilks and what he does. He has the legal right to do what he does and the state must uphold his right to freedom of expression. But in a civilized society and daily human interactions we would strive for good manners and to avoid intentionally causing anger. It feels a bit childish and immature to have as a primary goal to provoke and offend. But it is the smaller problem.

The attack on and threats against Vilks is just one of a growing number of examples of similar incidents which are threatening and harming democracy. That is the major problem.

Fourth, increasing self-censorship. Freedom of speech must be used – otherwise it dies. But more and more news desks, politicians and ordinary citizens are censoring themselves. This has reduced freedom of speech even though no laws may have been changed. The Swedish and American television networks that censored themselves regarding South Park and Islam are case in point.

Three Necessities

For freedom of religion, freedom of assembly and freedom of expression to work there must be at least three things in place. First there must just laws and good law enforcement. Secondly, the State and authorities must have the intention and the power to ensure that these rights and freedoms can be exercised. But thirdly, it also requires that there is an acceptance of these freedoms and rights among ordinary people, by different groups in society, otherwise these rights and freedoms may be undermined.

This includes allowing people to believe and express things you don’t like as well as accepting their right to assemble.

AlberthMohler writes about the „hate speech” concept in the article The Culture of Offendedness?. He rightly points out that you cannot have a free and democratic society and at the same time have guarantees that no-one should ever be offended by other people’s expressed opinions.

„The very idea of civil society assumes the very real possibility that individuals may at any time be offended by another member of the community. Civilization thrives when individuals and groups seek to minimize unnecessary offendedness, while recognizing that some degree of real or perceived offendedness is the cost the society must pay for the right to enjoy the free exchange of ideas and the freedom to speak one’s mind.”

On Valentine’s Day in 1989, the Iranian Ayatollah Khomeini issued a death sentence against Salman Rushdie,accusing him of blasphemy against Islam in his book „The Satanic Verses”. Khomeini called on Muslims worldwide to execute the death sentence. Rushdie had to go underground. Thus he knows better than most the importance of freedom of speech and the threats against it. Mr. Rushdie’s observations are critical:

„The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: do we want to live in a free society or not?

Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions.People have the fundamental right to take an argument to the point where somebody is offended by what they say. It is no trick to support the free speech of somebody you agree with or to whose opinion you are indifferent. The defense of free speech begins at the point where people say something you can’t stand. If you can’t defend their right to say it, then you don’t believe in free speech.”

A state needs good laws protecting freedom of speech. Media and law enforcement must not harass those who express unpopular views. But it is equally important that each and every one of us, as individual and in groups, learn to accept others’ rights to express views we don’t like. We need to create a society where even detested opinions can be heard. A democratic society must not accept any demands of freedom from hearing.

Concluding Remarks

Freedom of speech is about making room for opinions which may make us uncomfortable.It is for the politically incorrect, for minority views, for the odd, and also for the ordinary. This is the basis for political debate and activity.

You cannot have freedom and still have guarantees that no one should feel offended or hurt. However, it is guaranteed that if freedom of expression is curtailed then democracy is endangered.

Freedom of Speech is also important as we fight against dictatorships. As Mr. Sam Ericson, president and founder of Advocates International, notes: „There is no greater threat to any dictator – political, social, or theocratic – than the freedom of expression. Speaking truth to power is always a threat to those who want a monopoly in the marketplace of ideas. Access to truth has brought down dictators throughout history.”

Democracy, human rights and freedom are not destinations you arrive at. We mustn’t take freedom of speech for granted – it can be lost.

„Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.” (President Ronald Reagan)

The attacks on freedom of speech in Europe and beyond are worrying. We need to fight against hate speech laws, harassments, threats and self censorship. We need to stand up for everyone’s right to express opinions in print, words and images.

There are no winners – only losers – if our societies continue down the road of „freedom from hearing”.

Freedom of speech is the very hub of the wheel of democracy and human rights. Don’t tamper with it.

MATS TUNEHAG – is a journalist, lecturer and consultant from Sweden. He has worked in nearly half the countries of the world. Tunehag is also a global spokesperson on Religious Liberty & Freedom of Speech for the World Evangelical Alliance. He serves on the Global Council of Advocates International, a global network of 30 000 lawyers in over 120 countries. Tunehag has lectured for lawyers in Europe, Latin America and North America on Human Rights issues and lessons learned in building strategic and influential alliances shaping public opinion and legislation.

 sus