Defamation of Religions
For over a decade, the 57-member Organization of the Islamic Conference, now renamed the Organization of Islamic Cooperation (OIC), has sponsored and actually pushed to passage a U.N. resolution calling on countries to criminalize what it terms "defamation of religion." Though the language of these resolutions has changed at times, the OIC's goal has remained the same—to impose at the international level a conception of freedom of speech and expression that would severely limit anything deemed critical of or offensive to Islam or Muslims. Unfortunately, even as the OIC continues its efforts to enshrine a binding version in international treaty law, the U.S. is softening its traditional opposition to such efforts and to the OIC in order to curry favor with the Islamic world. The negative impact of this approach on freedom of expression domestically and abroad could be significant.
The Concept of "Defamation of Religion":
The notion that an idea (here, religion)—rather than a person—can be "defamed" does not fit within most Western legal systems' understanding of defamation. Further, the OIC does not precisely define what it means by "defamation of religion." However, as several examples of the sort of censorship it has in mind under this concept consider the following:
Impact on Freedom of Expression and Other Rights:
As the above examples illustrate, the OIC and its member states' concept of freedom of expression includes severe limitations, even, for example, placing some scientific theories, discussion of human rights violations, or even mild political commentary outside the bounds of protected expression. It should come as no surprise then that over 200 NGOs from across the ideological spectrum have signed a joint statement warning that banning "defamation of religions" is incompatible with free speech rights. Indeed, the Cairo Declaration on Human Rights in Islam sets forth specifically the OIC's parameters on what constitutes "legitimate" freedom of expression. In relevant part it reads:
There are a number of specific reasons, beyond a commitment to free speech, to be very concerned about the OIC's efforts.
First, the continued dominance of U.N. human rights discussions by the OIC's "defamation of religion" rants distracts attention and resources away from actual human rights violations in the world. (e.g., the arrest of journalists and bloggers and killing of others, the persecution of religious minorities (view here), "honor" killings, acid attacks, and genocide to name a few.
Second, a fall 2009 report from the U.S. Commission on International Religious Freedom noted that the OIC's effort is based on domestic laws OIC members states already exploit domestically to "intimidate and … detain" religious minorities. So, in addition to the obvious strictures that they place on speech, laws restricting "defamation of religion" are incompatible with other fundamental human rights including freedom of religion. Other studies have echoed these findings.
In 2010, Freedom House published Policing Belief: The Impact of Blasphemy Laws on Human Rights, a detailed account of the human rights violations resulting from the domestic manifestation of "defamation of religion"—so-called "blasphemy" laws. While the deleterious effect of such laws on other human rights, particularly freedom of religion, may come as no surprise to some, such an impact is ironic given the manner in which the "defamation of religion" concept has been sold to the public. In the August 2011 Pew Research Center report, Rising Restrictions on Religion, the following is noted regarding law against "blasphemy, apostasy, and defamation of religion":
In the years since its introduction at the now-defunct United Nations Human Rights Commission over a decade ago, the concept of "defamation of religion" has masqueraded under various names. Its original name, "defamation of Islam," revealed the goal of its proponents—to limit any expression deemed critical of or offensive to Islam or Muslims. Although the concept was soon renamed to the more general "defamation of religion," discussions surrounding various resolutions focus almost exclusively on expressive acts related to Islam and to the supposedly growing incidence of "Islamophobia" in the West.
November 2010 saw the introduction of the similarly vague term "vilification of religion" as well as the terms "Christianophobia" and "Judeophobia" to give a more ecumenical veneer to a concept that is primarily about restricting criticism of Islam or non-Shari'ah-compliant speech. Still, however the concept of "defamation of religion" remained.
In March of 2011, the OIC introduced a version of the resolution at the Human Rights Council (HRC) that did not include the troublesome term "defamation of religion." While some considered the change a victory for free speech, a defeat of the OIC in its years-long campaign, and perhaps even the death knell of the "defamation of religion" concept, no sooner had the term supposedly been dropped than the OIC was publicly describing the resolution using that very terminology. It also threatened that "defamation of religion" could be reintroduced in the future. Further, the OIC characterized the West's acquiescence as a concession and an implied admission that there was a problem of religious discrimination in the West.
An additional concern is that the latest resolution, like several others before it, continues to track the language of Article 20 of the International Covenant on Civil and Political Rights (ICCPR). The language of Article 20 was considered a threat to freedom of expression from the beginning. For that reason, when the United States finally ratified the ICCPR in 1992, it did so with the reservation that it could not be interpreted as authorizing or requiring restrictions on freedom of speech and association in contravention of the U.S. Constitution or other laws.
Article 20 calls on states to outlaw speech that "constitutes incitement to discrimination, hostility or violence." The latest HRC resolution tracks this dangerously vague language—language that would, upon a plain reading, subsume much speech currently deemed constitutionally protected in the United States. More troubling still, is that the world has witnessed the application of similar language in the so-called "hate speech" laws that have proliferated throughout Europe, Canada, and Australia. Such laws criminalize much speech that is merely offensive, and these law have not been applied in a viewpoint neutral way. Not surprisingly, speech deemed critical of Islam has been specifically targeted as indicated by the growing list of criminal prosecutions in Europe (including, Geert Wilders, Elisabeth Sabaditsch-Wolff, Jesper Langballe, and Lars Hedegaard).
Even if the OIC's decision to drop "defamation of religion" language from the HRC resolution is maintained, there is nothing to indicate that its goal has changed. The OIC may have merely substituted "hate speech" law for "defamation of religion" as the means to the same end, criminalizing expression deemed critical of or offensive to Islam or Muslims. This is all the more troubling given the current Administration's softening approach to the OIC and its efforts.
Administration's changing response to OIC:
Despite OIC's history at the U.N. of attempting to restrict speech, the current administration announced early on that it was prepared to work with the organization. In September 2009, the United States "surprised" many in the Human Rights community by co-sponsoring a resolution with Egypt that condemned "negative religious stereotyping," "incitement to discrimination," and the "promotion by certain media of false images and negative stereotypes." News sources quoted American diplomats saying the measure was part of the Obama administration's "effort to reach out to Muslim countries."
In addition, rather than meeting the OIC's recent wording changes to the HRC resolution—dropping problematic terminology while keeping the expression-restrictive goal the same—with the appropriate level of skepticism, the Administration has responded, paradoxically, with praise. Secretary of State, Hillary Clinton responded with words of approval, applauding the OIC and "complimenting the secretary general on the OIC team in Geneva." In addition, Washington has plans to host a meeting with the OIC on how to implement the new resolution. Although Clinton assures us that the new measure will not "criminalize speech unless there is an incitement to imminent violence," the troubling language of "hate speech" laws is part of the latest resolution, keeping open another route to speech restriction. Further, even the act of supporting such a resolution can alter the outer contours of our free speech protection at home.
The existence of treaties limiting speech can color the way U.S. courts construe the boundaries of free expression. International law and the First Amendment are not independent issues. The more such treaties there are, the greater the likelihood courts will find they embody a compelling government interest that could trump the First Amendment.
The Legal Project is working on both the policy and public awareness fronts to address this threat. It participated in the joint NGO statements opposing the measures. Nevertheless, sustained vigilance is required particularly given the Administration's willingness to engage the OIC on the issue. Accordingly, the Legal Project continues to monitor the issue with articles, speeches, and blog posts.
Daniel Huff – "Is the First Amendment in Jeopardy?" – Why U.S. support of the OIC initiative to establish an international covenant against defamation of religions is a slippery slope.
Jeremy Rabkin – "Islam and Free Speech" – A look at U.S. and European responses to the OIC's defamation campaign.
L. Bennett Graham – "Defamation of Religions: The End of Pluralism?" – An article in Emory's International Law Review on why laws providing for "defamation of religions" are problematic.
Daniel Huff – "A Silver Lining at the Human Rights Council" – Why the latest victory for the OIC's "defamation of religions" resolution at the U.N. Human Rights Council may actually portend defeat in the General Assembly.
Supna Zaidi – "Lawful Islamism's Greatest Attack Yet: The OIC Resolution against Defaming Religion" – How passage of a binding U.N. resolution on "defamation of religions" would insulate the Muslim world's worst human rights violators from criticism.
"The Dangerous Idea of Protecting Religions from 'Defamation': A Threat to Universal Human Rights Standards" – A report by the U.S. Commission on International Religious Freedom on how efforts to expand the definition of defamation—and conflate it with incitement—pervert international human rights norms.
"Defamation of Religions" – An issue brief by The Becket Fund for Religious Liberty on the OIC's campaign to codify "defamation of religions" into international law.
"Why the U.S. Should Oppose 'Defamation of Religions' Resolutions at the United Nations" – Steve Groves on why any attempt to legitimize the concept of "defamation of religions" in the U.N. must be resisted.
U.N. Human Rights Council – "Combating Defamation of Religion" – The most recent non-binding resolution passed by the U.N. human rights body on March 25, 2010.
U.N. Human Rights Council – "Freedom of Opinion and Expression" (i.e. "the U.S.-Egypt compromise") – An October 2009 non-binding resolution, co-sponsored by Egypt and the United States, adopting a more expansive definition of defamation.
Organization of the Islamic Conference – "Islamophobia Observatory" – A collation of incidents and developments compiled by the OIC "that vindicate the Ummah's concerns about the rising trend of Islamophobia."
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