Dr Carolyn Evans*

Deputy Director, Centre for Comparative Constitutional Studies, University of Melbourne

"Religious freedom and religious hatred in democratic societies"

In his searing account of his life in Auschwitz, If this be a Man, Primo Levi describes his state of mind within hours of reaching the concentration camp.

  • [F]or the first time we became aware that our language lacks words to express this offence, the demolition of a man. In a moment, with almost prophetic intuition, the reality was revealed to us: we had reached the bottom. It is not possible to sink lower than this; no human condition is more miserable than this, nor could it conceivably be so. Nothing belongs to us any more; they have taken away our clothes, our shoes, even our hair; if we speak they will not listen to us, and if they listen, they will not understand. They will even take away our name: and if we want to keep it, we will have to find ourselves the strength to do so, to manage somehow so that behind the name something of us, us as we were, still remains.(i)

The shadow of the Holocaust falls darkly across any debate over vilification and hate speech. Levi’s account of life within the camp stands as a stark contradictor to those who see speech as essentially harmless; who assume that hate is transient and unlikely to give birth to anything more than some temporary shame or brief irritation. The seeds of the Holocaust were planted over centuries of hatred against Jews in Europe and were brought to fruit in an atmosphere of government endorsed propaganda and stereotyping. There was little need for new invention by the Nazi Party – the hooked nosed, money grasping, immoral and corrupting Jew was a well establishing figure in the European imagination and culture. One can think of Shylock and Fagin as two examples from the English literary tradition in works that remain familiar, even loved, today.

The world’s great atrocities are preceded by words of hate. Whether in Rwanda, or Yugoslavia, or Nazi Germany – people have to be convinced that their neighbours, their workmates, their school-friends are in reality enemies and that there is good reason for all the evils that are done to them. They need ideological, rhetorical, religious or political coverage to convince them that killing children is not merely necessary but virtuous or that in order to protect themselves they must annihilate the Other.

Such dark periods of genocide and persecution in human history seem to some to have little to do with a country such as Australia. In the debate over the Racial and Religious Tolerance Bill(ii) in the Victorian parliament, while all members denounced religious and racial hate speech, some members (particularly from the National Party which opposed the Bill) said that there was no real problem in Victoria – a few unfortunate incidents perhaps, some unrepresentative louts who would never learn to behave, but nothing serious enough to justify such a law.(iii)

In reply, Mr Honeywood, the Liberal member for Warrandyte urged those opposing the bill to

  • Come with me on a tour of Jewish synagogues to witness rabbis in St Kilda, Caulfied or Doncaster with tears in they eyes as they escort you around the premises to look at the graffiti that is constantly carved and painted on their walls, such as ‘Jewish scum’, ‘Jewish pigs’ and Nazi slogans. Come with me to a Muslim community that experienced the Gulf War being used as an excuse for certain Australians in schoolyards and places of work to vehemently attack Muslim families because of their religion …Come with me to the homes of Chinese-Australian and Indian-Australian families who had lived in Australia for generations before Pauline Hanson hit her straps…and for the first time caused members of those families to be bullied in the street. That sort of abuse happens daily.(iv)

I have started this paper with quite a strong outline of the real damage done by hate speech – whether it is the low level harassment in a country like Australia that turns life into a series of painful humiliations for its victims or the poisonous racial propaganda that lead human rights expert observer William Schabas who visited Rwanda a year before the genocide to conclude that the ‘road to genocide in Rwanda was paved with hate speech.’(v)

I begin in this way, because in this paper I wish to explore my own ambivalence about laws banning hate speech – particularly laws banning religious hate speech or vilification. This is not a paper giving my version of the right answer to the complex issue of how to deal with religious hate speech. It is a paper about questions, concerns and the sharing of ideas.

I use the term religious vilification for the sake of simplicity, but my reference point for defining this term will the Victorian Racial and Religious Tolerance Act (hereafter the ‘Victorian Act’).(vi) The term vilification, of course, loads the dice somewhat – there are very few people who would claim to be in favour of, or to engage in, vilification or hatred. But once these terms become defined in legislation, there are always complex issues of boundaries and what type of speech is included. The Victorian Act defines religious vilification as engaging ‘in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class or persons’ on the grounds of the ‘religious belief or activity of another person.’(vii) For the rest of this paper, this definition of religious vilification is the one that is used and it is not atypical of the definitions in such laws in other jurisdictions.

Below, I outline a series of concerns about anti-vilification laws. But, as the opening of the paper demonstrates, my concerns about such anti-vilification laws are not based on the ‘sticks and stones’ school of thought – the idea that such speech is not harmful in any meaningful sense or the idea that it is always better to get these ideas out in the open on the rather dubious assumption that in those circumstances rational debate will lead to their discrediting. I do not think that we can be sanguine that it will all turn out all right in the end or that, even if everything does ultimately turn out for the best, there will not be real damage done to real people along the way. Speech that dehumanizes is harmful and must be recognized as such, including by governments in their policies, spending priorities and possibly laws.

Even once it is accepted that such speech is harmful, laws that create legal limits on religious hate speech are only one such possible legal or policy approach to addressing the harm. They have undoubted strengths. One is that they send a clear message to the public – both potential victims and victimizers – that such speech is unacceptable in the particular political community. The Victorian Act is a statement by a representative legislative body that the legitimate representatives of the Victorian people will not tolerate that sort of behaviour in Victoria. Even if they are rarely enforced (and such laws tend not to be enforced very often), they can have an important symbolic effect. Some groups working with religious and ethnic minorities in Victoria have reported such a response to the Victorian Racial and Religious Tolerance Act – for example, that some Muslim women feel more confidence wearing the hijab while walking down the street because they feel that the Victorian Act protects them from harassment on the basis of their religion.(viii)

Another strength of the laws is that they aim to prevent or at least de-legitimate hateful speech at the type of level at which it exists at present rather than allowing such speech to flourish and potentially give rise to the more serious persecution. It is difficult to take issue with such an aim.

There are, however, undoubtedly also problems with such laws and it is to those that this paper now turns. The first problem is that, in human rights terms, the laws place a limitation on the right to freedom of speech or free expression. This right is recognized in the International Covenant on Civil and Political Rights (ICCPR) in addition to many other treaties, constitutions and domestic bills of rights. (ix) In Victoria freedom of expression is recognized in the Charter of Rights(x) and even the Commonwealth Constitution has been found to contain an implied freedom of political communication.(xi) In Victorian parliament, a number of opponents of the Victorian Act made reference to the extent to which the proposed law limited free speech and argued that such a limitation was not justified in a community that was generally respectful of racial and religious differences.

Religious vilification laws may also interfere with freedom of religion for some religious groups. This was clearly the concern of a number of Christian denominations that made submissions to the Victorian parliament when the Racial and Religious Tolerance Bill was being debated. Such laws pose particular problems for proselytizing religions such as Christianity and Islam whose missionary work often includes two aspects – one promoting the benefits of their own religion and the other pointing out the faults, limitations or problems with other religions. Some religious groups were concerned that even the first of these would be prohibited under the new law – something that I think was a misunderstanding of its provisions – but they were probably right to be concerned about the second, more negative approach to missionary activity being undermined.

Many people might have little sympathy with these arguments – proselytism is hardly the most favoured form of speech in Australian society. Freedom of speech and religion might be well accepted rights in Australia, but they have their limits and many would argue that those limits are clearly reached when it comes to vilifying speech. This was indeed the claim of those members of parliament that supported the Victorian Act – they recognized that it was an imposition on rights, but claimed that the Act struck an appropriate balance between free speech and other important social goals. Neither international nor Australian domestic law recognizes an unrestricted right to freedom of expression. Indeed the ICCPR requires in Article 20 that States limit some types of speech, in particular any ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’(xii)

There is another concern that is specific to religion rather than race.(xiii) There is a difficult borderline to draw between legitimate (if severe) criticism of religious beliefs and practices and inciting hatred of people who are members of a religion. Experience has taught us that many religions will seek to protect themselves from all forms of criticism, offence or disrespect and may try to obtain for themselves greater protection than that given to other forms of belief, personal philosophy or political commitment. The legal tools that have been deployed – and continue to be deployed in many parts of the world – include the criminalization of blasphemy, heresy, apostasy and other forms of offence against religions. These are normally used by the dominant religion in order to shore up its own position and following, but may also be used as a way of attempting to preventing hostility between religious groups by trying to enforce respect between them.

Yet we should be very wary of claims of religions to be entitled as a matter of law to protection from offence, disrespect or criticism. These are claims that are increasingly being heard from both religious majorities and minorities. There is a worrying trend in the international human rights courts, particularly the European Court of Human Rights, towards reading in to human rights treaties a right to respect for religious feelings. In the Otto-Preminger Case for example, the decision of the Austrian government to ban, in the Catholic province of Tyrol, a film that mocked important Christian figures and doctrines was upheld by the European Court of Human Rights. In that case the Court discussed the ‘respect for the religious feelings of believers as guaranteed by Article 9’ of the European Convention on Human Rights(xiv) – the religious freedom article. (xv) In the later case of Wingrove v the United Kingdom the Court spoke of the ‘right of citizens not to be insulted in their religious feelings.’(xvi) In both these cases the Court simply asserted that such a right to respect for religious feelings existed – yet the wording of Article 9 contains no direct reference to the protection of such feelings and the Court emphasized several times that religions could not expect to be free from criticism. There might be all sorts of good arguments in favour of treating the religious beliefs of others with respect, but it is strongly questionable whether a rights based argument is one of them (at least insofar as respect is given the very broad meaning that it has in these cases).

Another lesson from the European case-law is that it should not be assumed that any protection for religious feelings or legal enforcement of respect for religious groups will be limited to protecting small, vulnerable, religious minorities – the typical case put forward to argue the need for such legislation in the Victorian parliamentary debates. Such laws can and have been used quite effectively by religious majorities to protect the religious sensibilities of their followers and to insulate themselves from criticism or mockery.

There are, of course, many groups that may wish to be critical, even harshly critical, of religious beliefs in general, or of a particular religion or religious doctrine. They may have a variety of reasons for wishing to do so, including reasons that are perfectly consistent with the development of a pluralistic, democratic, rights respecting society. Committed atheists may wish to ridicule the whole concept of religious beliefs and to say that religious believers of any stripe are simply irrational and wrongheaded. Followers of one religion may wish to warn others of the danger of any belief other than belief in the one true religion – whichever religion that may happen to be. Women’s groups may wish to be critical of religious institutions or doctrines for their subordination of women or to be critical of religious interveners in debates over issues such as access to contraception, abortion, or assisted reproduction. And gay and lesbian groups might wish to criticize some religions for their teachings on homosexuality.

There is a potential for laws prohibiting religious vilification to skew this sort of vigorous debate about religions and their teaching, as developing one of the above examples illustrates. A number of religious groups and individuals engage in speech in relation to homosexuality that is vilifying in its content and inflaming in its tone. Homosexuality is condemned in the strongest possible terms and homosexual men and women described as vile, sinful, and corrupting – they are condemned to hell in sermons, books, television and radio programmes. This speech, so those who use it claim, is protected both as free speech and as a manifestation of freedom of religion. Yet if gay men and lesbian women attempt to use the same type of harsh criticism and intemperate language against such religious groups or engage in what might be very effective ridicule or satire against religious leaders, they might run the danger of having the religious vilification laws applied against them. In what is often described as the ‘chilling effect’ of vilification laws, it may make groups who are critical of religions more muted or circumscribed in their criticism than they need to be in strict terms of the law. The laws themselves tend to be drawn in fairly broad terms and that may well discourage people from speaking out when they are not sure what the legal limits of the law are. In the Victorian legislation, for example, how harsh can criticism become before it amounts to inciting ‘serious contempt’; how mocking can a satire be before it incites severe ridicule? This legal asymmetry is not desirable from the point of view of equality, healthy pluralism or freedom.

Indeed one of the things that makes me ambivalent about religious hate laws or legal protection of religious groups is that the claim for protection is often made by groups that do not always themselves respect the need for respectful dialogue, but simply seek to be insulated from ideas that they find offensive – while demanding a right to be able to continue to propagate ideas that others find offensive and harmful.

The Danish cartoon controversy brought all these ambivalences to a head for many people. The controversy was sparked when a regional Danish newspaper solicited cartoons of the Prophet Mohammad and published twelve such cartoons in the paper. The newspaper defended its position on the basis of free speech and said that Islam had, through threats and violence, become immune from the mockery and criticism that every powerful social institution should be subject to in a liberal democracy.(xvii) Of course, it was not quite that simple and pure a protection of free speech. The newspaper was a right-of-centre publication that was involved in a longer term anti-immigration, particularly anti-Muslim immigration, campaign. It had, only a couple of years before, refused to publish satirical pictures of Jesus on the basis that they were offensive to their conservative Christian readership.(xviii)

The way in which the story has become conflated for many in the West is that there was then a sudden, spontaneous outburst in the Muslim world against these cartoons.(xix) This led to violence against Danish, other European and Jewish embassies and other representatives in many parts of the Muslim world resulting in a small number of deaths and more widespread injuries and property damage. There were also a larger number of peaceful protests. Again, the picture is not quite as simplistic as this portrayal suggests. There was little initial reaction against the cartoons by Danish Muslims except for some peaceful protests and overtures to the government for dialogue on the issues by Danish Muslims and ambassadors from certain Muslim countries – overtures that were rejected by the Prime Minister.(xx) A small number of religious leaders in Denmark were unsatisfied with this response. Unable to drum up sufficient antagonism against the cartoons in Denmark, they traveled to Egypt with the original cartoons and three additional cartoons that had never been published and were far more offensive than the ones that were published.(xxi) The controversy was useful to several governments in the region who needed the distraction from domestic political problems and was also used by groups such as the Muslim Brotherhood to rally support.(xxii) Several months after the cartoons originally appeared the violence and destruction began. (xxiii)

The extremists on each side did little to attempt to appreciate the views of the other. The vast majority of European Muslims who did not even join in a protest, let alone in any violence – who expressed hurt and offence, but accepted the requirements of free speech and pluralism – hardly got any media coverage at all. The newspaper and some of its supporters gave no consideration to the feelings of Danish Muslims, a relatively vulnerable minority who were already being told in a whole variety of ways, by a whole variety of institutions (including the newspaper in question), that they were not welcome or valued.(xxiv) Several commentators have pointed out the chilling similarities between the portrayal of the Prophet in the cartoons and the racist, anti-Semitic cartoons circulating in Europe in the 1920s and 30s.(xxv) Freedom of speech may give you the right to say anything but that does not make it right to say anything. There are circumstances in which self-restraint is appropriate – there is nothing terribly worthy about giving gratuitous offence; nothing wonderfully creative about racism.

However, calls from many Muslim countries and even from some UN officials for Denmark to control or discipline its press demonstrated a lack of regard for freedom of speech and the Danish culture of an independent and robust media.(xxvi) And the reactions of some groups suggested that the only way to deal with any insult or offence to Islam was through violent retaliation. There was no reaction more likely to feed the very stereotypes and mistrust of Muslims that was the source of the hostility that led to the publication of the cartoons in the first place. This was a point that some European and Middle Eastern Muslim leaders made many times over, but that was rarely given coverage in the mainstream press, where images of flags being burnt, embassies being stoned and angry mobs made far more compelling viewing – however unrepresentative such actions may have been.

Can religious vilification laws cut this vicious cycle? One hope is that such laws give groups that feel that they have been wronged the chance to take action within the legal and political system rather than to explode in violence when no alternative presents itself. That is a good theory and it may sometimes prove true. But it is by no means inevitably right. There were religious vilification laws in Denmark, but the Prime Minister made it clear very early on that there would be no permission given to test the cartoons in court – the cartoons were simply a manifestation of freedom of expression he said (another example of such laws being used selectively to protect majority rather than minority interests). And in Victoria, it is by no means certain that the lengthy, expensive, unpleasant legal process in the Catch the Fires Ministry Cases(xxvii) did much to promote the interests of religious harmony.

As I made clear at the start of this paper, this is not a paper about answers - it is about questions. While some people find the answer to these questions very easy – either because they place a very high value on free speech or a very high value on tolerance and harmony – I must admit that I do not find the answers at all easy. I wonder if the more difficult, time-consuming, expensive methods of building trust and respect between people of different religious viewpoints will not ultimately be at least as successful as banning hate speech and far less problematic from a rights point of view. But there are many attempts to build these kinds of bridges and they are not always particularly successful. It may be that something is needed in the meantime to curb the worst of the excesses by those who spread hate on the basis of religion. Law probably does have a role to play here, but exactly what that role is and how it interacts with other governmental and private initiatives to promote inter-cultural harmony is a question that needs more sophisticated consideration than it has yet been given in this jurisdiction. The parliamentary debates in Victoria, while containing many useful insights into some of the problems that exist, did little to really probe the extent to which the law was appropriate and adapted to the problems of religious vilification in Victoria.

These are not easy questions, but they are important ones that as individuals and a society we need to grapple over the coming years. If the conclusions in this paper seem a little ambivalent in an area where most writers have strong views, I can only plead that sometimes a little questioning and ambivalence can be as useful as the all-too-familiar dogmatic certainty when it comes to issues of religion and politics.

* Associate Professor Carolyn Evans, Deputy Director of the Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne. The research in this paper is supported by the Australian Research Council Discovery Grant on Parliaments and the Protection of Human Rights undertaken by Carolyn Evans and Simon Evans. My thanks to Simon Evans for his insights into the parliamentary dimensions of this paper and to Jessica Moir for her research assistance. A more developed account of the Victorian legislation will be published in a chapter by Simon Evans and Carolyn Evans in a book on hate speech being edited by Adrienne Stone and Kath Gelber to be published by Federation Press in 2007.
i Primo Levi, If this be a Man  (Abacus Edition, 1979) 33.
ii Racial and Religious Tolerance Bill 2001 (Vic).
iii See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 5 June 2001, 1605 – 1611 (Peter Ryan); Victoria, Parliamentary Debates, Legislative Council, 13 June 2001, 1413 – 1423 (Jeanette Powell); Victoria, Parliamentary Debates, Legislative Council, 13 June 2001, 1427 – 1430 (Peter Hall).
iv Victoria, Parliamentary Debates, Legislative Assembly, 5 June 2001, 1616 – 1617 (Phil Honeywood).
v William A. Schabas, ‘Hate Speech in Rwanda: the Road to Genocide’ (2000) 46 McGill Law Journal 141, 144.
vi Racial and Religious Tolerance Act 2001 (Vic).
vii Racial and Religious Tolerance Act 2001 (Vic), s 8(1).
viii These viewpoints have been expressed to me in a series of conversations over the last year with representatives of some ethnic and religious groups. This evidence is anecdotal only and not based on any comprehensive survey of such groups.
ix International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 19. See also Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force September 3 1953), Article 10; Human Rights Act 1998 (UK), s 12; United States Constitution amend I.
x Charter of Human Rights and Responsibilities Act 2006 (Vic).
xi Charter of Human Rights and Responsibilities Act 2006 (Vic), s 15; Australian Capital Television v Commonwealth (1992) 177 CLR 106.
xii The Victorian Act goes further than Article 20 by not requiring incitement to discrimination, hostility or violence and by inclusion of ‘severe ridicule’ as vilification.
xiii I accept that these categories cannot be simply and unproblematically separated in all cases, but they can in many others.
xiv Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force September 3 1953).
xv Otto-Preminger-Institut v Austria (1994) 295 Eur Court HR (ser A) [47]..
xvi Wingrove v the United Kingdom (1996) 23 Eur Court HR 1937 (1996-V) [47].
xvii See Svenning Dalgaard, ‘The Right to Offend: Causes and Consequences of the ‘Danish Cartoon Affair’’ (2006) 151(2) RUSI Journal 28, 28 - 29.
xviii Heiko Henkel, The Danish Cartoon Controversy and the Self-ImageofEurope(2006)RadicalPhilosophy<http://www.radicalphilosophy.com/default.asp?channel_id=2187&editorial_id=21398> at 13 October 2006.
xix For an example of this version of events, see Paul Marshall, ‘The Mohammed Cartoons: Western governments have nothing to apologize for’, The Weekly Standard, 13 February 2006, 14.
xx See Romesh Ratnesar, ‘Fanning the Flames’ (2006) 167(8) Time 30.
xxi See Claude Moniquet, ‘Caricatures of Mohammad: The History and Consequences of a Global manipulation’, European Strategic Intelligence and Security Center: Background Analysis, 9 February 2006.
xxii See Dalgaard, above n. 16, 29 - 30.
xxiii For an overview of the violence and demonstrations, see Moniquet, above n.20, 1.
xxiv "The cartoon controversy should be understood against a backdrop of rising Western prejudice and suspicion directed against Muslims, and an associated sense of persecution…" When Speech Offends: Questions and Answers on the Danish Cartoons and Freedom of Expression (2006) Human Rights Watch <http://hrw.org/english/docs/2006/02/15/denmar12676.htm> at 13 October 2006.
xxv See, e.g. Henkel, above n. 17.
xxvi For a discussion of Denmark’s strong tradition of free speech, see Dalgaard, above n. 16, 29.
xxvii Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2003] VCAT 1753 (21 October 2003); Islamic Council of Victoria v Catch the Fire Ministries Inc (Anti Discrimination - Remedy) [2005] VCAT 1159 (22 June 2005); Islamic Council of Victoria v Catch the Fire Ministries Inc (Final) [2004] VCAT 2510 (22 December 2004). On 14 December 2006, the Victorian Court of Appeal allowed an appeal by Catch the Fire Ministries, and ordered that the case be reheard by the Victorian Civil and Administrative Tribunal, by a different member and with no additional evidence (Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (14 December 2006)).