Blasphemy

European Court: OK to Criminalize Calling Mohammed a Pedophile

That's part of a broader doctrine under which European countries are still allowed to punish blasphemy.

|The Volokh Conspiracy |

The case, decided yesterday by the European Court of Human Rights, is E.S. v. Austria—I assume from the facts and from the initials that this is the Elisabeth Sabaditsch-Wolff case. Here's the court's own summary:

Criminal conviction and fine for statements accusing the Prophet Muhammad of paedophilia: no violation

Facts – The applicant held seminars with the title "Basic information on Islam" at the right-wing Freedom Party Education Institute. At one such seminar, referring to a marriage which Muhammad had concluded with Aisha, a six-year old, and consummated when she had been nine, she stated inter alia "[Muhammad] liked to do it with children", "the thing with Aisha and child sex" and "a 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?"

In 2011, as a result of these statements, the applicant was convicted of disparagement of religious precepts pursuant to Article 188 of the Criminal Code. She was sentenced to pay a fine of EUR 480, or serve 60 days of imprisonment in the event of default.

The domestic courts made a distinction between child marriages and paedophilia. In their opinion, by accusing Muhammad of paedophilia, the applicant had merely sought to defame him, without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty or that his other wives or concubines had been similarly young. In particular, the applicant had disregarded the fact that the marriage with Aisha had continued until the Prophet's death, when she had already turned eighteen and had therefore passed the age of puberty.

Law – Article 10: Prescribed by law, the interference had pursued the legitimate aim of preventing disorder by safeguarding religious peace and protecting religious feelings, which corresponded to protecting the rights of others within the meaning of Article 10 § 2 of the Convention.

As the subject matter of the instant case was of a particularly sensitive nature, the domestic authorities had a wide margin of appreciation, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.

As for the context of the impugned statements, the seminars had been widely advertised to the public on the Internet and via leaflets, sent out by the head of the right-wing Freedom Party, addressing them especially to young voters and praising them as "top seminars" in the framework of a "free education package". The title of the seminar had given the – in hindsight misleading – impression that it would include objective information on Islam. Anyone interested in participating had been able to enrol and as such the applicant could therefore not have assumed that there would only be like-minded people in the room but also people who might be offended by her statements.

The applicant's statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship. The applicant had described herself as an expert in the field of Islamic doctrine, already having held seminars of that kind for a while, thus she had to have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others. Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society.

The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis. Even if they were to be classified as factual statements, she had failed to adduce any evidence to that end.

As to the applicant's argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts. On the contrary, the Court had held that statements which were based on (manifestly) untrue facts did not enjoy the protection of Article 10.

With respect to the proportionality of the sanction, it was noted that the applicant had been ordered to pay a moderate fine of only EUR 480 in total for the three statements made, although the Criminal Code provided for up to six months' imprisonment. The fine imposed was on the lower end of the statutory range of punishment. Given the aforementioned, the criminal sanction had not been disproportionate.

In conclusion, the domestic courts had comprehensively assessed the wider context of the applicant's statements, and carefully balanced her right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society. They had discussed the permissible limits of criticism of religious doctrines versus their disparagement, and found that the applicant's statements had been likely to arouse justified indignation in Muslims.

In addition, the impugned statements had not been phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages but rather amounted to a generalisation without factual basis. Thus, by considering them as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace, the domestic courts had come to the conclusion that the facts at issue contained elements of incitement to religious intolerance.

They had thereby put forward relevant and sufficient reasons and had not overstepped their – wide – margin of appreciation. The interference with the applicant's rights under Article 10 had indeed corresponded to a pressing social need and had been proportionate to the legitimate aim pursued.

Conclusion: no violation [of free speech principles] (unanimously).

(See also Otto-Preminger-Institut v. Austria, 13470/87, 20 September 1994; Wingrove v. the United Kingdom, 17419/90, 25 November 1996; ?.A. v. Turkey, 42571/98, 13 September 2005, Information Note 78; and Giniewski v. France, 64016/00, 31 January 2006, Information Note 82)

The cases cited at the end also bear reading; note that Otto-Preminger-Institut v. Austria, for instance, upheld a restriction on blasphemy against Christianity, as did Wingrove v. UK. Such speech, of course, would be constitutionally protected in the U.S., at least since Joseph Burstyn, Inc. v. Wilson (1952). Thanks to Seth Barrett Tillman for the pointer.

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227 responses to “European Court: OK to Criminalize Calling Mohammed a Pedophile

  1. Heilige Scheisse! Ich wurde standing im Knast setzen wenn ich wiede in Europa leben w?rde.

    (Holy Sh***t! I would constantly be in jail if I lived in Europe again.)

    1. And rightly so, if you violate the law. The “free speech” baloney that some of these so-called law bloggers keep talking about doesn’t protect offensive “information seminars” that damage the reputation of Muhammad and his followers any more than it prevents the state from criminalizing academic “parody” confessions issued via Gmail or Twitter in the name of a man of great stature who not only serves as a department chairmen here at NYU but also represents the orthodox Jewish congregations of our great nation at the Vatican. Just because you call something an “information seminar” doesn’t make it any more kosher than unwanted, inappropriately deadpan “parody.” See the documentation of America’s leading criminal “satire” case at:

      https://raphaelgolbtrial.wordpress.com/

      1. I didn’t think there was much dispute in the muslim community as to Aisha’s age when muhammad had his way with her – 9-10 is well accepted, and supported by the text of the koran

        or is the problem with calling an adult having sex with a 9-10 year old “pedophilic”?

        1. Look, everyone knows that there are certain things that must not be said, and that no form of “expression” must be used in a manner that crosses certain lines. You simply do not call a distinguished academic department chairman and Vatican representative a plagiarist in “confessions” issued in his “name,” even if it turns out that he is a plagiarist. And you do not call Muhammad a “pedophile” in outrageous “information seminars,” even if he did fornicate with a minor. This is simply too obvious to be subject to serious debate, and the “free speech” claims to the contrary are pure baloney.

  2. If only Austria had a populist right-wing government… O, wait.

    But seriously, the ECtHR is not a national supreme/constitutional court, and so on some issues they play the “margin of appreciation” card rather than getting stuck in thorny political issues. This is one of them, another is abortion (which countries are allowed to ban), and same-sex marriage (likewise).

    1. The Social Democratic Party was in power when the prosecution occurred.

      I suppose the current government could intervene now but then they would be subjected to wails of “violating judicial independence!!!”.

      1. Or they could just repeal this law, but I wouldn’t hold my breath.

        1. They won’t. Its handy for them too.

          Every government in Europe is an authoritarian democracy.

          1. I guess if we’re going to stop caring about what words mean, then sure.

            1. They get elected thru democratic elections but then they function with authoritarian laws and behavior.

              Not too difficult of a concept. The US is down this road too but not to the extent.

              1. Bob – you don’t know what you’re talking about.

                Most European governments are parliamentary and some are coalition governments.

                Even their Executive office is usually divided between a Head of State and Head of Government.

                That’s totally different that Authoritarian.

                1. “That’s totally different that Authoritarian.”

                  You are talking about trappings. I am talking about behavior.

                2. apedad, what makes you thing a parliamentary government can’t be authoritarian?

                  Authoritarian (characterized by obedience by authority) is not the same as despotic (rule by a single person). Parliamentary governments can easily become authoritarian. This is especially true when the theoretically-opposing political parties become more concerned with their own preservation and propogation than with the constituencies that they are supposed to represent.

                  Furthermore, bureaucracies are inherently authoritarian. To the extent that political controversies allow or encourage the concentration of power in the bureaucracy, allegedly democratic governments can also easily become authoritarian in effect.

                  1. Rossami – agree with you about what ‘could’ happen (and I didn’t imply otherwise); however, the majority of the European govts–and all of the major govts (Germany, GB, etc.), are most definitely not Authoritarian…not even close.

                    1. Meh. Not having free speech is pretty authoritarian.

                    2. So the U.S. was only “pretty authoritarian” for, what… 2/3 of its history? 3/4?

                    3. “So the U.S. was only “pretty authoritarian” for, what… 2/3 of its history? 3/4″
                      I don’t know. Slavery was very authoritarian. Same for the military draft, Japanese Internment, etc. But based on my experience, in recent history the US has been much less authoritarian than Europe. Although the rise of Trump on the right and Progressivism on the left threatens to change that.

                    4. Trump is (or encourages) authoritarian ( = favoring or enforcing strict obedience to authority at the expense of personal freedom) exactly how? In exercising his freedom of speech he is often insulting and rude (probably often by design – at least according to Scott Adams), but he has not ACTED in any way that passes as authoritarian under the above definition. The “progressives” have so acted: enforcing their “authority” by shouting down speakers, blocking access to speaking venues, vandalizing the private property of those whose views are disagreeable to them, directing traffic, etc.

                      Trump has actually acted (exercising presidential power) in a manner consistent with past presidents – perhaps authoritarians all?

                      I would love to comment on the general discussion, but although this post will be stored on servers probably sitting in the US, it is being written by a lawyer currently residing in Vienna, Austria. And the defamation laws here are broad compared to the US.

                    5. Kneel before the Anthem!
                      Dissenting Dems are a lawless mob!
                      The meda is unAmerican!

            2. Well, we just stopped caring about what ‘pedophilia’ means, so…

            3. Martinned, I have lived in Germany for the last three and a half years.

              Bob nails it.

              1. Martinned is a Dutch lawyer. I don’t think he’s impressed by that

          2. Illiberal, highly oligarchic democracies would probably be a better description. I.e., not as much personal freedom as America, and a politico-economic power structure that is not very open to those without the right credentials.

            1. Yes, credentials. Which are totally much more important in Europe than they are in the US. [/sarcasm]

              1. The percentage of Oxbridge MPs is much higher than the percentage of HYPS members of Congress. Likewise FTSE 100 CEOs versus S&P 500 CEOs.

                1. Where, pray tell, can you get admitted to college on the basis that one of your parents is an alumnus?

                  Also this.

                  1. Did I say merit or intelligence or academic ability? I said credentials. They are much more important in Europe than in America. There are modest legacy preferences in American college admissions (much less than the preferences for underrepresented minorities or athletes), but where you went to college is much less important. And that’s just one, easily-measured credential.

                    1. y81: “but where you went to college is much less important.”

                      Unless, of course, you want to serve on the U.S. Supreme Court. I’m looking at you, Harvard and Yale!

                      Because of course Virginia, Berkeley, Michigan, Penn, NYU, Columbia, Chicago, and Stanford could never produce equivalent justices.*

                      * What? Oh, they’re the rest of the top ten ranked law schools, according to a CNBC report. (YMMV)

            2. Yes, illiberal and especially at the EU level, not very democratic either (hence the talk of the “democracy deficit”).

    2. But seriously, the ECtHR is not a national supreme/constitutional court, and so on some issues they play the “margin of appreciation” card rather than getting stuck in thorny political issues.

      So we protect human rights, unless your local government really wants to restrict them?

      I really don’t get the point. Who is in charge, the EU or the provincial governments?

      1. “Who is in charge, the EU or the provincial governments?!

        The European Court of Human Rights (ECtHR) has nothing to do with the EU.

  3. Not only is this a horrible breach of freedom of expression, but it also has the effect of criminalizing much proselytism, since one major strand of proselytism consists of showing that a person’s current religion involves the worship of an entity not worthy of worship.

    I am also struck by the court’s very narrow construal of pedophilia. While psychiatrists may use the term only for an exclusive sexual attraction to children, in common usage a person who is attracted both to children and to adults is nonetheless often described as a pedophile.

    The court also erred in holding that the sole reason for calling Mohamed a pedophile was to portray him as unworthy of worship. Muslims do not worship Mohamed. Indeed, worship of Mohamed or any other human being is heresy. Mohamed is revered as the final prophet, but he is not worshiped. In any case, there is another reason for critics of Islam to discuss his marriage to the child Aisha. Mohamed is considered to have led a perfect life. As a result, anything he did is considered permissible for all time. Mohamed’s marriage to Aisha has been, and continues to be, cited as an argument against prohibitions of child marriage. Even if one considers him to have been a man of his time and therefore not to have behaved immorally by the standards of his time, his marriage to a child is highly relevant to an understanding of child marriage and the practice of Muslim communities in modern times.

    1. If you can’t refer to an adult who has sex with a 9-year-old a pedophile, words have lost all meaning.

      1. Have words also lost all meaning if one can’t refer to the God of the Bible as a mass murderer of innocent children (Exodus, final plague, firstborn sons)?

        1. Arch,
          I think you’re letting the Almighty off pretty easily. If you believe that life starts at conception (or even if you only believe that life starts at fertilization); God has murdered tens of millions (hundreds of millions? billions???) of innocent lives via his decision to cause spontaneous abortions/miscarriages. God has killed off more of us than we’ve lost in all wars combined since the dawn of human history.

          (If you do not believe that life starts until the newborn leaves the mother’s uterus, then the above obviously would not apply.)

          1. If God has murdered millions of unborn children through miscarriages/spontaneous abortions, then he’s murdered many times that number through the deaths of every human being born more than 125 years ago.

            1. Nope. For each human born, at least 2 fertilized eggs either fail to implant or are miscarried.

        2. Of course, arch1 ignores the fundamental and inconceivable gulf between a human, however much revered, and a deity. Nevertheless, I’ll willingly concede the meaningfulness of reference to the OT God as murderous, so long as I can then meaningfully note Mohamed’s pedophiliac proclivities. But that’s not a trade the EU appears to tolerate.

          1. Who are we to question the nuanced theological judgment of secular Eurocrats? Wrongthink is wrongthink, and for this reason, Government has a compelling interest in suppressing hate speech. How else are the citizens to know what is politically correct?

          2. HMI, I agree w/ the thrust of your comment (the “trade” wording is a bit unfortunate, but I know you are just making a point about consistency).

            We are truly behind the looking glass when the law defers more to beliefs which are constrained by evidence and reason, than to ones which are explicitly not so constrained.

            1. “defers more” -> “defers less”

        3. The Hebrew Bible is hardly evidence of wrongdoing.

          It is partly a history – written long after the fact – written by fallible individuals.

          Verbal Plenary Inspiration belief is hardly proof.

    2. The court also erred in holding that the sole reason for calling Mohamed a pedophile was to portray him as unworthy of worship. Muslims do not worship Mohamed. Indeed, worship of Mohamed or any other human being is heresy.

      Well Muhammad apparently taught that people should pray to him for intercession with Allah, similar to the way that Christians pray to Jesus for intercession with God:

      Muhammad (peace and blessings of Allaah be upon him) told us: “When the Day of Resurrection comes, the people will surge with each other like waves. They will come to Adam and say, ‘Intercede for us with your Lord.’ He will say, ‘I am not fit for that. Go to Ibraaheem for he is the Close Friend of the Most Merciful.’ So they will go to Ibraaheem, but he will say, ‘I am not fit for that. ?Go to Muhammad (peace and blessings of Allaah be upon him).’ So they will come to me and I will say, I am fit for that.’ Then I will ask my Lord for permission and He will give me permission, and He will inspire me with words of praise with which I will praise Him, words that I do not know now. So I will praise Him with those words of praise and I will fall down prostrate before Him. He will say, ‘O Muhammad, raise your head. Speak and intercession will be granted to you, ask and you will be given, intercede and your intercession will be accepted.’

      1. “similar to the way that Christians pray to Jesus for intercession with God:”

        But in Christian theology, Jesus is considered to be an aspect of God, set to Earth to redeem us, and then returning to the whole. So, when you pray to Jesus, you ARE praying to God. God the Son.

        1. Brett, well, some Christian Theology perhaps (formally known as Trinitarianism). And even in some parts of that tradition, people may pray to Saints for intercession, or to the Mother of Jesus. Other parts of Christianity (including the one favored by many of the Founding Fathers) considered Trinitarianism, heresy

          That’s the thing about religion…it’s fairly easy to find a flavor (or flavor-of-a-flavor) that matches the way you believe things should be.

          1. Other parts of Christianity (including the one favored by many of the Founding Fathers) considered Trinitarianism, heresy

            Which founding fathers considered Trinitarianism heresy? Thomas Jefferson, for example, was a Deist but I don’t think he claimed that non-Deists were heretics.

          2. It’s pretty amazing that someone who is well educated enough to use a computer doesn’t know that Christianity IS Trinitarianism and thinks Christians pray to Jesus for intercession with God. Wow!

            1. It’s pretty amazing that someone who is well educated enough to use a computer ? thinks Christians pray to Jesus for intercession with God. Wow!

              Don’t understand your point. You don’t think that Christians pray to Jesus for intercession with God?

              Hebrews 7:25 (NKJV) Therefore He is also able to save to the uttermost those who come to God through Him, since He always lives to make intercession for them.

              1 John 2:1 (NKJV) My little children, these things I write to you, so that you may not sin. And if anyone sins, we have an Advocate with the Father, Jesus Christ the righteous.

        2. But in Christian theology, Jesus is considered to be an aspect of God, set to Earth to redeem us, and then returning to the whole. So, when you pray to Jesus, you ARE praying to God. God the Son.

          Well, then, praying to Mary or to the Saints. I guess one problem is the meaning of ‘worship’. Is Muhammad worshiped if to speak ill of him is a capital offense, or if every mention of his name is accompanied by “peace and blessings of Allaah be upon him”?

      2. This is specifically about the Day of Resurrection. Muslims do not in fact address their prayers to Mohamed the way Christians address themselves to saints.

    3. Bill Poser: “in common usage a person who is attracted both to children and to adults is nonetheless often described as a pedophile”

      And by law, of course, one is prosecuted for what one does, not for what one thinks (at least in the U.S…..)

  4. I love that facts aren’t a defense here.

    “Well, she was eventually over the age of puberty”. Well, that’s the case with ALL pedophilia. The kids do eventually grow up.

    It doesn’t make it LESS pedophilia.

    1. In their mind, apparently, pedophilia has to mean you are ONLY interested in sex with children – therefore, being also interested in sex with other wives, concubines, and grown-up Aisha makes it false that Mohammad was a pedophile. Bizarre, but if you accept the initial premise, it does make sense.

      1. In their mind, apparently, pedophilia has to mean you are ONLY interested in sex with children

        No, in their minds pedophilia only applies if the sexual attraction is at least in part because the person is a child, which can’t be assumed if in a particular culture it is common for such marriages to happen without this kind of sexual attraction.

    2. The fact that it was the norm in that culture makes it something other than what pedophilia means nowadays, though not something laudable.

      1. Sarcastr0: “something other than what pedophilia means nowadays”

        You’re right of course……but why couldn’t he just have “settled” for — you know — an actual woman?

      2. I disagree. That something is a norm doesn’t make it acceptable. Take slavery for example.

        You might want to accept the “but everyone does it defense,” but I think that everyone doing something wrong makes the situation even worse rather than being a good reason to say that an individual doing what others are also doing isn’t doing anything wrong.

        1. I’m not saying it was acceptable, I’m saying it was something different than the sick compulsion we think of it as today.

          The mentality involved in joining into a normal practice is fundamentally different from that involved in transgressing probably our greatest taboo.

          Like the Mayans loved them some human sacrifice, and that’s bad. but they weren’t exactly serial killers.

          1. Isn’t it wonderful that we can freely debate such things here (for now at least) rather than ceding our individual judgment to a cabal of legal “experts,” because according to current progressive thought “hate speech” doesn’t deserve protection?

            1. No argument here!

              Though of course for every dumb invocation of hate speech on the left, you have unpatriotic or obscene or blasphemous on the right.

              Free speech is harder than you might think even in America. Never rest on your side’s laurels.

              Some interesting discussions to be had about private deplatforming and free speech.

              1. Well, for what it’s worth, I don’t think flag burning, blasphemy of any kind, the antics of the Westboro Baptist idiots, or kneeling during the national anthem should be criminalized, although I think none of those things is a good idea. I’m also not a big fan of gratuitously poking the Mohammedans with a stick, even though I understand the argument that such tests of free speech could be viewed in much the same way as freedom of navigation exercises on the high seas in demonstrating that they have no special exemptions in this regard.

                As for private deplatforming, yeah–that’s a tough one. The larger social media sites like Facebook (which I don’t use) are certainly private businesses, but their reach and influence is so pervasive that they could arguably be thought of as monopolies subject to break up or less severe sanction by Government, which is itself the ultimate monopoly. Where to draw the line is certainly a conundrum. In this era of rapid technological change, I tend to view Government interference here with a jaundiced eye.

      3. “The fact that it was the norm in that culture makes it something other than what pedophilia means nowadays”

        This amounts to the assertion that there is some transcultural norm that allows members of Sarcastr0’s culture to pronounce on whether other cultures’ norms are or are not laudable. Excellent.

        1. I am quite willing to use my culture to pass judgement on other cultures, and their individuals.

          But blindly applying modern standards to the past makes you lose all moral resolution and history just becomes a span of evil, which is silly.

          Of course, no one here is quite so silly, they’re being much more selective. Conveniently so, seems to me.
          Admitting Lincoln wasn’t a saint is one thing; lumping Mohammed in with modern sex criminals is quite another.

  5. Professor, isn’t it still OK to prosecute Americans for calling Mohammed a pedophile, if it otherwise fit the case for an incitement to violence? I know the doctrine is in decline, but it hasn’t been outright overruled, has it?

    1. To be punishable incitement, speech has to be advocacy of illegal conduct that is intended to and likely to cause imminent illegal conduct, which is to say illegal conduct in the coming minutes, hours, or perhaps at most days. See Brandenburg v. Ohio (1969); Hess v. Indiana (1973). So if you’re standing in front of a church or mosque or synagogue, telling a mob of your followers, “The Catholic Church is the whore of Babylon / Mohammed is a pedophile / Jews are Termites, so let’s burn this place down!,” that would be punishable incitement — and likewise for speech related to nonreligious institutions (“Corn dealers are starvers of the poor / let’s burn down this warehouse”). But note how narrow this exception is.

      1. You’ll notice I specified it it “otherwise fit the case for incitement”.

        “But note how narrow this exception is.”

        Yes, I’m aware how narrow “fighting words” doctrine is. But it still exists. So the short answer to my question is “yes”, and the longer answer is “An American could be prosecuted in an American court for saying ‘Mohammed was a pedophile'”.

        The implication is, if you can be prosecuted in America, it’s not that surprising that you can be prosecuted in Europe.

        1. “Fighting words” is a different doctrine than “incitement to imminent unlawful action.” There is a real question about the vitality of the “fighting words” doctrine.

          1. As y81 notes, “fighting words” is a different exception from “incitement,” and I thought you were asking about incitement. As to “fighting words,” that requires a personal insult that is individually addressed to a particular listener. See, e.g. Cohen v. California (1971); Texas v. Johnson (1989). Simply expressing views that are highly offensive to a particular religion (as in Cantwell v. Connecticut (1940)) is not punishable, even if it does create some risk of a hostile reaction.

            So if you personally insult a particular listener, e.g., “You dirty [raghead/kike/capitalist pig/motherfucker], etc.,” then you can be prosecuted on a fighting words theory, even if part of the insult includes an insult to the person’s religion (or the leading figures of that religion) — just as this would be true for entirely nonreligious insults. But the prosecution is for that personally individually targeted insult, not for the political, religious, or other ideologically message. The Austrian law, of course, focuses on the message, regardless of whether it’s personally targeted to a particular insulted listener.

            1. IANAL but you do intrigue me enough to ask about a nitpicky variant. What if you stand right in front of someone, inches away, close enough to spray spittle, etc — whatever distance it takes to make this hypothetical work — and say “*#^! like you deserve to be shot” or even “I shoot *#^! like you” — would either of those count as a personal insult and fighting words?

              1. IAANAL (extra A = Also).

                I would think it’s unlikely that your hypothetical would fall under the fighting words doctrine, but depending on circumstances, it could qualify as a true threat.

            2. It is good to observe that the Volokh Conspiracy has improved to a point at which “kike” and “motherfucker” are permitted from the days in which “cop succor” was censored by the proprietor. Progress should be noted and applauded.

              I wish Artie Ray Lee Wayne Jim-Bob Kirkland could be here to witness this..

              1. The improvement you observe is probably not the doing of the Conspirators, but simply the result of switching from Bezos’s sandbox to Reason.

                1. Mr. Bezos was not involved in the repeated censorship of “cop succor” nor in the banning of Artie Ray Lee Wayne Jim-Bob Kirkland. Each was a Volokh production.

          2. “‘Fighting words’ is a different doctrine than ‘incitement to imminent unlawful action.'”

            They overlap.
            Incitement to violence is causing a group of people to do something illegal, presumably, something that they otherwise would not have done. This covers the cases where the intent to do something illegal lies in one person, but the actions taken were by different people.
            “Fighting words” come into play from the belief that there are some words that are SO offensive that a person so addressed cannot be blamed for reacting with violence. The typical case there is that a person who goads the other person into throwing the first punch might still be liable for the chaos created by the violence… injuries to property, to third parties, and general disturbance.
            I shouldn’t have to explain this.

            “There is a real question about the vitality of the ‘fighting words’ doctrine.”

            Gee, if I’d known THAT, I’d have made some mention of it in my original posting.

            1. Sigh.
              James Pollack: “Incitement to violence is causing a group of people to do something illegal, presumably, something that they otherwise would not have done.”

              Prof. Volokh: “To be punishable incitement, speech has to be advocacy of illegal conduct that is intended to and likely to cause imminent illegal conduct, which is to say illegal conduct in the coming minutes, hours, or perhaps at most days. See Brandenburg v. Ohio (1969);”

              This presents quite a quandry about who to believe. I mean, one is a 1A Law prof who backs up his claim with a cite to a court case, and the other is some dude on the internet…

              1. 12inch: “the other is some dude on the internet…”

                Always go with the wisdom some random dude on the internet. At least that’s what I gather from my reading of discussion groups.

              2. @TwelveInchPianist,

                Those two statements don’t actually contradict each other.

                While I would presume that Prof. Volokh is correct (he after all an expert), that doesn’t by itself, make the statement from James Pollack that you quoted wrong.

                Brandenburg v. Ohio, which was cited by Prof. Volokh was about a speech given at a KKK rally, in other words, it involved speed directed to a group, not an individual.

        2. “so the short answer to my question is “yes””

          No. The answer is “no, not even close, nice try though.”

          1. “No. The answer is ‘no, not even close, nice try though.'”

            You must have asked a different question, then.

            1. Well, you can’t be prosecuted “for calling Mohammed a pedophile” so the answer is no. You could be prosecuted for something else you did while you were doing that, though. Like you could be charged for committing arson while eating an apple.

              1. You could be arrested for eating an apple??!! Are you sure? Is the answer yes or no?

        3. Yes, I’m aware how narrow “fighting words” doctrine is.

          You’re confused; incitement and fighting words are different doctrines.

          So the short answer to my question is “yes”, and the longer answer is “An American could be prosecuted in an American court for saying ‘Mohammed was a pedophile'”.

          This is frivolous, like your arguments about law school accreditation. Can you be prosecuted for saying, “I dislike the president of the United States”? Sure — if you’re do it in the Oval Office after breaking into the White House. Can you be prosecuted for saying, “I want all of your money?” Sure — if you do it while pointing a gun at a bank teller. Does that mean that the “short answer” to those questions is “Yes”? No, it does not.

          1. “Can you be prosecuted for saying, “I dislike the president of the United States”? Sure — if you’re do it in the Oval Office after breaking into the White House.”

            No, actually. You’d be prosecuted for the breaking and entering.

            1. Um, actually, that was the point.

            2. —~~~~—-> The point
              .
              .
              .
              .

        4. If you went up to a Muslim on the street with whom you had no real business and shouted ‘Mohammed is a pedophile’ and other insults at him directly into his face, that might indeed be fighting words.

      2. James, don’t forget that in all of these cases, the “Religion is X” is protected speech. It’s the “Let’s burn the place down” part that’s the problem.

        1. “James, don’t forget that in all of these cases, the “Religion is X” is protected speech.”

          Say something bad about Scientology, and try that defense to their defamation lawsuit.

          1. Lots of lawsuits are frivolous, it doesn’t change constitutional protections.

      3. There are other contexts in which one could be prosecuted under American law. For example, if I am the head of a gang of robbers and I set up a code in which when I say “Mohammed is a pedophile” that means “the plan to rob the bank is on,” I could be prosecuted for saying the phrase. There are others.

        The difference between the American and European schemes is that in order to prosecute someone for saying the phrase under American law, a substantial set of additional facts also has to be true, facts needed to establish that one of the various relevant legal theories applies. You can’t prosecute someone for saying the phrase unless these additional facts are also true.

        Europe is difference. In Europe, disseminating the phrase itself, without additional facts, can be criminalized. That’s not true in America. That’s what makes them different.

      4. To be punishable incitement, speech has to be advocacy of illegal conduct that is intended to and likely to cause imminent illegal conduct, which is to say illegal conduct in the coming minutes, hours, or perhaps at most days.

        Brandenburg (1969) overruled Whitney v. California (1927) which didn’t require the illegal conduct likely to result from the speech to be ‘imminent.’ In upholding a California statute the Whitney Court deferred to the legislature’s determination “that the acts defined involve such danger to the public peace and security of the State that they should be penalized in the exercise of the police power.”

        The European law here appears to be closer to that of Whitney, in that there is no ‘imminence’ requirement. On the other hand, it seems to give more protection than Whitney, which apparently would allow a statute that prohibited even speech that aimed to contribute to a serious debate about Islam if the legislature determined that the “the acts defined involve such danger to the public peace and security of the State.”

        In any event, maybe those lambasting the backwardness of Europe should consider that it appears that an approach similar to theirs operated in the U.S. until fairly recently

  6. “her statements were partly based on untrue facts…

    “…Even if they were to be classified as factual statements, she had failed to adduce any evidence to that end….”

    So the court knows which historical claims about religious figures are true or false, and in the alternative, you can be punished if you can’t prove that what you say about a religious figure is true. Did I get that correct?

    1. So, the Koran is not evidence enough?

    2. “Mohammed was a pedophile” is a specific statement of alleged fact. It may be true. It may not be true. I don’t have access to enough information to determine the answer (nor much interest, to be honest).

      Having a child bride is evidence that it is true, but it is not sufficient by itself to prove that claim.

      Being sexually attracted to children (or to the specific child) is pedophilia. So if you can prove that someone wants to have sex with children, you can say that person is (or was) a pedophile. OK, but having a child bride doesn’t necessarily indicate an interest in having sex with a child. Having sex is not the only reason to be married, nor (gasp) to all married people have sex with each other. So child marriage may indicate pedophilia, but it doesn’t prove it.

      Your religious outlook may affect how you perceive the evidence.

      I’m not a huge fan of child marriage, whether of the sort (whatever it may have been) in Mohammed’s Mecca, or in present-day United States, where several states allow 14-year-olds to marry. At the same time, I’m not a huge fan of the government telling people that they can’t do something because of their age, where age is an inexact proxy for something else.

      My offspring married after finishing university and a year of volunteer service to America.

      1. The wedding was consummated when she was nine, so yes to sex with children.

        1. Except pedophilia is not just sexual attraction to children, it is specifically sexual attraction to prepubescent children.

          Nine is old enough that she might not have been prepubescent anymore.

      2. “I don’t actually know anything about Mohammed and child marriage, nor am I willing to look it up, but here’s what I think.”

        As noted above, Mohammed definitely had sex with a child according to the Quran and hadith, which is the basis for why certain Islamic countries still generally allow child marriages, at least for girls.

        1. “‘I don’t actually know anything about Mohammed and child marriage, nor am I willing to look it up, but here’s what I think.'”

          Disregarding the rest.

          1. If you are both unwilling to figure out things you don’t know or read anything that other people say, why do you feel the need to say things you don’t know about?

          2. Here’s what Gibbon had to say:

            “If we remember the seven hundred wives and three hundred concubines of the wise Solomon, we shall applaud the modesty of the Arabian [Mohammed], who espoused no more than seventeen or fifteen wives; eleven are enumerated who occupied at Medina their separate apartments round the house of the apostle, and enjoyed in their turns the favour of his conjugal society. What is singular enough, they were all widows, excepting only Ayesha, the daughter of Abubeker. She was doubtless a virgin, since Mohammed consummated his nuptials (such is the premature ripeness of the climate) when she was only nine years of age.”

            1. Poor Gibbon had to take a year off from writing the 2nd volume of the Decline and Fall to defend himself against charges (non-legal, but still) that the final chapter of the 1st volume, which deals with the growth of the Christian church in the first few centuries AD, was heretical.

            2. Well, by any measure, that’s a lot of fucking. And if that’s not outright sinful, the likelihood that amongst all that conjugating, an occasional omission of affirmative consent may have occurred is most certainly unacceptable by our enlightened progressive standards.

              Also, our friend Roy Moore might have something to say about the heat and humidity of Alabama’s climate in regards to premature ripeness.

  7. The teacher should have illustrated the lesson with a picture of Mohammed. In for a groschen, in for a shilling.

  8. This is why I never had much respect for European or whatever declarations of human rights. They talk a good game, then leave loopholes big enough for a dictatorship aborning to drive through.

    The whole point of free speech and freedom of religion was to prevent those in power from jamming their religion on everyone else, because that is a vector to gaining and maintaining power.

    Yet here we are, Europe, with one religion using government as the Arbiter of Truth to enforce its beliefs on others.

    In meme terms, one memeplex has grabbed part of that magical meme power: the legal ability to force itself onto units (humans) that are not infected with it yet.

    It’s only partial, tentative, halting steps, but steps society should never allow. Thus speaketh all human history (and many current countries, where these memeplexes hold total dominance on the legal power to force themselves onto resistant units.)

    1. Wait, you’re angry because arch-catholic Austria is protecting the religious sensibilities of the 8% of its citizens who are Muslims?

      Whatever issue one might have with this case (and I suspect you and I agree on the merits), this is hardly a dictatorship of the majority-type situation.

      1. And we don’t wanna get there, and value the principle of deactivating entirely all powers used and abused by dictators. I explained the ones violated in this instance.

        No half steps buttressed from becoming full steps by weak principles allowed!

        1. I suggest you take that up with the Austrian Supreme Court.

          1. If the Austrian Supreme Court is to be the final arbiter of it, so be it. Let them be responsible for the outcomes.

            Why have an extra layer on top if they aren’t going to be the ones with responsibility.

        2. ” all powers used and abused by dictators”

          All of them? The Roman dictators were elected, so get rid of elections? They had the power to raise armies, so no more military spending?

          1. I submit if all dictators had no power to raise armies, humanity would have been better off.

          2. How disingenuous can you be? He’s clearly talking about modern dictators, for one, and two, Roman dictators weren’t able to raise armies or call for elections except on behalf of the Senate. If the Senate didn’t ask them to do so it was illegal for them to do so.

            They also weren’t elected; the Senate would tell the consuls to choose a dictator from themselves and if both agreed that consul would become dictator. Otherwise they drew lots. The consuls were elected but the dictatorship was not.

      2. Well, I don’t know about Krayt, but I never had much respect for Europe’s views on human rights when they insert sections like this:

        The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

        TL;RD: You have Human Rights*!
        * – Unless we don’t want you to have them, then you don’t.

        1. Although no single rubric definitively resolves which expectations of privacy are entitled to protection, (…) our cases have recognized some basic guideposts. (…) we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment

          Carpenter v. United States

          Tl;dr: You have the right to privacy*
          *- Unless we don’t want you to have it, then you don’t.

          The European Convention explicitly recognises the trade-offs involved when applying human rights, and requires the courts to apply a fixed test to make that tradeoff. In the US, the courts either pretend that the trade-off doesn’t exist (1st amendment) or make stuff up as they go along (2nd amendment, 4th amendment).

          1. Did you look at the list of exceptions? “Public safety”, “morals”, “reputation”, “authority of the judiciary”? You can drive any circumstance you want through those gaping holes.
            In contrast, “privacy” isn’t a Constitutional right – and Kyllo’s, um, rejection of the written law is an example of exactly the sort of bad ‘justice’ that the EU’s “human rights” make easy to create.

            I mean, if you WANT your “Human Rights” to be so weak and vague that any court can interpret and re-interpret them to get the desired outcome, then yes! Go ahead and love that European Convention on Human Rights (where the list of exceptions is longer than the list of rights).

            People who actually want freedom of speech, on the other hand, will find much to dislike in a “right” that has more holes than substance.

          2. If you are saying that American courts should adhere more closely to the plain text Constitution, I agree.

            If you are saying that our Constitution should incorporate such “fixed tests” using the model of the European Convention to accommodate the trade offs progressives insist are necessary, I vehemently disagree.

            Either way, as you rightly note, it is inappropriate to “make up stuff as we go along,” and I would add the 10th amendment to your list.

            If you want to change the Constitution, we have an amendment process for that. The first step is winning the votes to initiate it, and that requires convincing enough people that you are right rather than circumventing the process altogether in a fit of impatience.

            Progressives find such restraint difficult, but it is hard for a reason.

          3. The European Convention explicitly recognises the trade-offs involved when applying human rights, and requires the courts to apply a fixed test to make that tradeoff.

            A fixed test? Really? How many points does free expression get? How many points does the right of religious minorities get?

            How fixed of a test is it when any 1L could write a convincing opinion one way or the other?!

    2. “The whole point of free speech and freedom of religion was to prevent those in power from jamming their religion on everyone else, because that is a vector to gaining and maintaining power”

      The challenge, of course, is when belief finds its way into behavior. Even if one is free to believe whatever beliefs, that doesn’t necessarily mean free to carry out whatever actions and say “my religion told me to do it”.
      We have that tension in America, as people have used the cover of religion to demand exceptions to laws that are not religious in nature. Additionally, an unfortunate number of Americans believe “freedom of religion” means “freedom to practice MY religion” but object when other religions seek equal treatment.

      1. I don’t disagee, although religion isn’t a “cover” to be exempted from non-religious laws. The People, and their religion (and free speech) precede the laws, and are at the very core of daily life.

        Vewing religion as a cover to escape from laws stepping on daily behavior inverts this primacy order. One must keep food in one’s mouth, and the government, insinuating itself into control of business, declaring religion out of bounds in business, essentially forbids you from the actual practice of your religion in the acqusition of things needed to stay alive.

        Funny about the First Amendment, though. Government can’t mandate sinful behavior even then. As it has developed, government needs a serious reason, and that the forced sinful behavior is the least restrictive method available to accomplish that goal. Whether this comes about via the Constitution or normal law in the spirit of it are details for later.

        tl;dr Using law to order people to sin or they can’t feed themselves has an all-too long multi-millenia pedgree of misuse. Hence the First.

    3. Krayt: “The whole point of free speech and freedom of religion was to prevent those in power from jamming their religion on everyone else, because that is a vector to gaining and maintaining power.”

      Actually Austria, like much of the rest of Europe west of Poland, is VERY secular. Fewer than half believe in a God and even nominal membership in the dominant Catholic and Protestant churches has declined greatly (by a third and a half respectively) over the past half century.

      The thing is, Europe simply does not value open speech and it doesn’t tolerate anything that it thinks may lead to disorderliness.

      1. Except soccer and drinking.

        1. Clearly you’ve never seen some of the laws the British enacted to put an end to football hooliganism in the 80s. Here’s a summary, courtesy of the Crown Prosecution Service.

    4. The whole point of free speech and freedom of religion was to prevent those in power from jamming their religion on everyone else, because that is a vector to gaining and maintaining power.

      But we recognize certain limitations on speech in order to prevent threats to public safety and order. Europe is doing the same thing. They just differ with us in how imminent and obvious the resulting disorder has to be. This case involved speech that was determined to be gratuitously offensive to others, that had the aim to defame, and that did not aim to contribute to a serious debate. It seems to be a stretch to say that prohibiting speech that meets these conditions is a profound blow to freedom of speech or to the honest exchange of ideas, including ideas critical of particular religions.

  9. I know one person who is glad to hear this: Warren Jeffs.

    Oh wait a minute…on 8/9/2011, Jeffs was convicted on two counts of sexual assault of a child and sentenced to life in prison. He will be eligible for parole on July 22, 2038.

    So he is in fact a pedo and we’re OK going to Europe and letting everybody know.

    1. You may want to be careful with that. Paedophiles have a right to privacy too.

      1. You may want to be careful with that. Paedophiles have a right to privacy too.

        Criminal convictions are a matter of public record.

        1. That doesn’t necessarily give you the right to print them in the newspaper, shout them off the rooftops, etc. (At least not under European law, which is relevant under the scenario specified by apedad.)

      2. We live in the U.S., so no.

        1. Apedad specified a hypo involving him coming to Europe, so no.

  10. This is the totalitarian world the left has in store for us, both here in America and elsewhere.

  11. “They had discussed the permissible limits of criticism of religious doctrines”

    Unfuckingbelievable. That today in civilized and enlightened Europe, there is a bunch of bureautards who tell people what the PERMISSIBLE LIMITS of criticism of religious doctorines are.

    “hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”

    How? How could it be so conceived? Is the world upside down?

    1. Congratulations! You’ve made an important step towards enlightenment! You’ve discovered that reasonable people can disagree about something you took for granted. Way to escape your bubble, even if just a little bit.

      1. What evidence do you have that the tribunal deciding this case is reasonable? Based on your lack of factual support for this statement, I believe you should have to pay a $1000 fine or serve sixty days in jail. And if you don’t agree, just know that there probably exists reasonable people somewhere who think you deserve to be punished for stating your opinion of the facts without providing evidence. That should be helpful as you contemplate the reduction of your basic freedoms.

  12. American Psychiatric Association Fact Sheet on Pedophilia
    http://www.canadiancrc.com/PDFs/pedfacts2.pdf

    Has the person had repeated fantasies or urges about engaging in sexual activity with a child generally 13 years
    or younger, or has he actually had sexual encounters with a child? Fact Sheet

    A touch of Satire
    wikiislam.net/wiki/Farsideology:_Lesson_3_-_Aisha

    1. Has the person had repeated fantasies or urges about engaging in sexual activity with a child generally 13 years
      or younger, or has he actually had sexual encounters with a child? Fact Sheet

      The definition in the source you gave seems to require sexual fantasies or urges. The term ‘sexual encounters with a child’ appears to assume that these sexual encounters were caused by sexual urges. The diagnosis probably would not be made if the sexual urges were not present. For example, suppose a maniac holds a gun to a man’s head and says he will kill both of them unless the man has sexual intercourse with the child. If the man does so is he a pedophile? Or what about an ancient culture in which it is common for an adult man to marry a child and have sexual intercourse under circumstances where sexual desire is completely absent or is not related to the age of the child?

  13. Let’s stipulate that we all prefer the First Amendment approach to these issues, but then examine whether the decision was a correct interpretation of the relevant European law, which appears to be that even improper attacks on religious groups have to be tolerated, even if based on untrue facts, and even if the opinions and ideas offend, shock or disturb. However, what is not protected are expressions that are gratuitously offensive to others, have the aim to defame, and do not aim to contribute to a serious debate about Islam or the phenomenon of child marriage.

    The court found that the term ‘paedophilia’ was used to discredit Muhammed since that word is used to describe the psychiatric disorder of a sexual pervert, whereas such a condition should not necessarily be imputed where a marriage with a child is normal in a particular society. The argument would be that this is unfair in the same way that by characterizing a person holding a racist belief in the 1850s as vile, despicable and repugnant one is being gratuitously offensive and intentionally misleading if one leaves out the fact that 95% of the white population held identical beliefs, and especially if the speaker claims to revere Abraham Lincoln, who firmly held such beliefs.

    (continued)

    1. (continued)

      So the court was saying that the term paedophile really only applies if the youth of the partner formed a major part of the attraction and that cannot reasonably be assumed in some cultures just because an adult married the child.

      Did this speaker have the aim of being gratuitously offensive if she was an expert in this area and if marriages to children for reasons other than paedophilia were common in the culture of the time, and if the speaker made no attempt to explain this aspect of it, but rather had the goal of presenting an offensive depiction for readers who lack this perspective?

      1. There are plenty of people in this country who call Abraham Lincoln a racist – are they being gratuitously offensive, disregarding historical context/feelings/etc?

        1. There are plenty of people in this country who call Abraham Lincoln a racist – are they being gratuitously offensive, disregarding historical context/feelings/etc?

          Not necessarily. The point is that today to say that someone is an open and defiant racist is to say that his status will be that of a pariah. Such a person will not be welcomed or tolerated in most social settings today. To call a person a racist without pointing out that his attitudes were the norm for his time could be intended to leave the impression that because of his racism his status was far lower among his peers than was probably the case. This is dishonest if done in order to exploit listener ignorance for the purpose of besmirching the person’s reputation. That’s the bottom line. Is it an attempt to characterize one person as vile, despicable and repugnant, leaving the impression that 95% of the whites of the time were not equally vile, despicable and repugnant?

          1. What if the critic is trying to remove Lincoln, or Mohammed, from a pedestal on which he’s been placed (metaphorically in M’s case, literally very often in L’s case)? But enough about Lincoln, I’m not setting out to bash him, just to use him to illustrate a point.

            Contrary to the Court, M’s behavior a part of a public debate, a debate, by the way, in which the pro-Mohammad side is more than adequately represented. By focusing on feelings and presumably the risk of angry mobs, the court manages to avoid the obvious point that counterspeech is the remedy for bad or incomplete/inadequately-contextualized speech.

            1. I think Eddy has the right question here. Personally, I think people trying to call M and pedo are being silly, since that was the cultural norm at the time; if it’s not deviant then it’s not the same sort of problematic compulsion.

              But it doesn’t matter, really. Wrong or right, people should be able to say that without having the state come down on them. Though people can judge them as racist trolls (but still gotta sell them a cake!).

              Islam always makes for a spicy side dish, but the main thing is the censorship here, and how Europe’s balance of respecting minorities versus liberty ends up not assuaging either side.

              1. “(but still gotta sell them a cake!)”

                Let’s force a Muslim baker to bake a cake to celebrate the anniversary of the Battle of Lepanto.

                1. Could work fine – Muslim coworker here doesn’t know what that was.

                  I had to look it up, actually. I’m pretty good on US history, and classical history as a beginner, but all those European kings and Popes and crusades are just so hard to keep track of!

              2. But it doesn’t matter, really. Wrong or right, people should be able to say that without having the state come down on them.

                But we have similar restrictions on speech that constitutes fighting words or incitement to riot. If your intention was to inflame the rioters and you used words that could be expected to have that result, I’m not sure how effective a defense it would be to blame the rioters for being too touchy.

            2. What if the critic is trying to remove Lincoln, or Mohammed, from a pedestal on which he’s been placed

              The problem here was that the Court concluded that the discussion followed the path that would have been followed by a person intent on being gratuitously offensive, and deliberately excluding facts or explanations that detract from the desired offensive conclusion and incitement of religious intolerance. It was not the path that would have been followed by a person wishing to conduct an objective inquiry into the history, according to the finders of fact.

              By focusing on feelings and presumably the risk of angry mobs, the court manages to avoid the obvious point that counterspeech is the remedy for bad or incomplete/inadequately-contextualized speech.

              In other words, you prefer the First Amendment approach and philosophy. But even our approach has exceptions for slander, for fighting words, and for incitement to riot. The reason behind the latter two seems to be the same as the reason behind the European law.

              Furthermore, the Court did not characterize this as “incomplete/inadequately-contextualized speech.” They characterized it as being an intentionally offensive attempt to whip up religious hatred and animosity, lacking any redeeming attempt to be balanced, objective and factual.

              1. How much of the Internet would be left if the government was able to punish people it believed were being inflammatory, excluding evidence, etc?

                Come to think of it, what would happen to the free speech of Muslims if they had to face a skeptical government tribunal whenever they made some innocent remark about the superiority of their religion to the delusions of the infidels?

                1. Imagine a hostile government censor picking through a Muslim apologist’s speech where he explains that his is a religion of peace? Could the censor find evidence that the speaker was deliberately excluding facts and explanations, and being gratuitously offensive to terrorists’ victims?

                  1. Imagine a hostile government censor picking through a Muslim apologist’s speech where he explains that his is a religion of peace? Could the censor find evidence that the speaker was deliberately excluding facts and explanations, and being gratuitously offensive to terrorists’ victims?

                    Well, that’s one of the problems with reality ? it’s subject to different interpretations. The judicial process is designed to resolve these disputes.

                    1. “Well, that’s one of the problems with reality ? it’s subject to different interpretations. The judicial process is designed to resolve these disputes.”

                      I observe you didn’t actually answer the question. Could the court convict the Muslim speaker or not?

                      Or do you prefer a regime of speak first, find out afterwards whether you get punished?

                    2. I observe you didn’t actually answer the question. Could the court convict the Muslim speaker or not?

                      A speaker may claim one thing when he was actually doing something else. A person can claim that he was trying to conduct a reasoned public debate when his actual purpose was to incite a riot. These determinations are made though the court system.

                      Under European law, if the fact finder determines that he was actually being gratuitously offensive, that his purpose was to incite religious intolerance, that his speech did not contribute to any form of public debate, and that he did not conduct himself as would be expected by a person looking for reasoned dialogue, then such conduct is not allowed and he was on notice beforehand about what the rules were.

                    3. Would it be possible for an unbiased tribunal to find that Imam Whoever wasn’t looking for a reasoned dialogue when he simply rattled off talking points about “religion of peace” and dismissed all concerns as “Islamophobic”?

                      Seriously, with the kind of censorship regime you like, how does one find politically-neutral cops, prosecutors and judges who know when someone is making a fair point and when they’re just whipping up prejudice?

                      Of course, merely being prosecuted can have a chilling effect, which is why I mentioned potential biases by cops and prosecutors.

                2. How much of the Internet would be left if the government was able to punish people it believed were being inflammatory, excluding evidence, etc?

                  The Supreme Court has recognized a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.

                  In other words, the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication.

                  The thing about internet trolls is that they typically pose no threat to public safety and order. However, different rules could be in play for an internet troll who intentionally sparked a public panic or without any justification instigated a riot.

                  Come to think of it, what would happen to the free speech of Muslims if they had to face a skeptical government tribunal whenever they made some innocent remark about the superiority of their religion to the delusions of the infidels?

                  We can’t lose sight of one crucial element of this case: it was determined to be not an attempt at honest dialogue or objective claim of the superiority of one philosophy over another, but rather was a gratuitously offensive and intentionally misleading attempt to whip up religious hatred and animosity.

                  1. “We can’t lose sight of one crucial element of this case: it was determined to be not an attempt at honest dialogue or objective claim of the superiority of one philosophy over another, but rather was a gratuitously offensive and intentionally misleading attempt to whip up religious hatred and animosity.”

                    A skeptical censor would not think Imam Whoever is arguing honestly when he gratuitously and offensively says that anyone who criticizes his totally peaceful religion is simply an Islamophobe, thus seeking to whip up religious hatred and animosity.

                    1. A skeptical censor would not think Imam Whoever is arguing honestly

                      It’s true that a biased judge or jury will convict someone regardless of the evidence, but are you saying that it wouldn’t be possible to find an unbiased judge or jury?

                    2. So in essence, censorship laws are as just, fair, intelligible and neutral as laws against murder and arson, with no more risk of bias?

                    3. So in essence, censorship laws are as just, fair, intelligible and neutral as laws against murder and arson, with no more risk of bias?

                      A better analogy would be to slander laws or laws against inciting to riot or reckless driving, or other laws that evaluate conduct that is on a continuum, but which nevertheless must be evaluated.

                    4. What other laws can be justified by this sort of analogy?

                      I suppose laws against “excessive” Muslim proselytizing would be justifiable, so long as such laws are “limited” to patently offensive and historically inaccurate statements. Denying the Crucifixion, for example, and saying Jesus tricked the Jews into thinking He’d been crucified, would probably qualify, wouldn’t it?

                    5. so long as such laws are “limited” to patently offensive and historically inaccurate statements.

                      The standard they use is ‘gratuitously offensive’ not ‘patently offensive’. It is not ‘historically inaccurate’ but rather ‘deliberately misleading by excluding facts and lacking any aim to be historically accurate’. Also, you left out ‘lacking any attempt to contribute to a serious debate’.

                    6. Denying the Crucifixion, for example, and saying Jesus tricked the Jews into thinking He’d been crucified, would probably qualify, wouldn’t it?

                      This things do not on their face seem to be gratuitously offense or deliberately misleading or lacking any aim to be historically accurate or lacking any attempt to contribute to a serious debate.

                    7. gratuitously offensive – denying the Crucifixion isn’t gratuitously offensive?

                      deliberately misleading – what is your evidence the Crucifixion didn’t happen?

                      not attempting to contribute to serious debate – what kind of serious political debate would be advanced by such a statement, given that discussing the marital behavior of the prophet of Islam is out of bounds?

                    8. Incidentally, my example isn’t hypothetical, but involves an actual Muslim pamphlet called “Crucifixion or Crucifiction,” which drew the attention of South Africa’s censorship board, as reported in the following book:

                      https://amzn.to/2qimxLS

                    9. gratuitously offensive – denying the Crucifixion isn’t gratuitously offensive?

                      gratuitous : being without apparent reason, cause, or justification : a gratuitous insult.

                      There are plenty of serious historians who doubt some or all of the historical accuracy of the New Testament. Furthermore, there are documents claiming to be Gospels that deny the crucifixion, for example the Gospel of Barnabas. This is considered by Christians to be inauthentic historically but an argument on its behalf would not be gratuitous.

                      given that discussing the marital behavior of the prophet of Islam is out of bounds?

                      It’s difficult to avoid coming to the conclusion that you are deliberately misunderstanding. Discussing the marital behavior of the prophet of Islam is not out of bounds.

                    10. Yet the South African Censorship Board, despite all your assurances, found it offensive to deny the Crucifixion.

                      Presumably the Board knew full well about the “alternative gospels,” but it could have cited the European Court: “Even if they were to be classified as factual statements, she had failed to adduce any evidence to that end.” The burden of proof is apparently on the one who says the Crucifixion didn’t happen.

                      So as to your assurance that denial of the Crucifixion wouldn’t be censored, take it up with the South African censorship board. Wait, never mind, I think the Board was abolished by the post-apartheid government as a relic of oppression.

                    11. Yet the South African Censorship Board, despite all your assurances, found it offensive to deny the Crucifixion.

                      How is the South African approach relevant to the European approach? Next are you going to argue that the North Korean approach invalidates European approach?

                    12. “How is the South African approach relevant to the European approach?”

                      Censors gonna censor.

                    13. Here it is, South Africa’s 1974 censorship law

                      “(2) For the purposes of this Act any publication or object, film, public entertainment
                      for intended public entertainment shall be deemed to be undesirable if it or any part of it…

                      “(b) is blasphemous or is offensive to the religious convictions or feelings of any
                      section of the inhabitants of the Republic…”

                      This may look on the surface to be similar to European legislation, but be assured, it’s different because the apartheid regime had Bad Intentions and European censors have Good Intentions, and that makes all the difference.

                    14. And while I’m not very familiar with Muslim polemics, I’ll guess this much: If Imam Whoever is preaching about the fictitiousness of the Crucifixion, his phrasing will probably not be something “moderate” such as: “I say, much as I hate to offend my Christian and Jewish brothers and sisters, my tradition indicates that there was no Crucifixion, but I’m sure that we can all get together in peace despite this minor disagreement.”

                      Imam Whoever is more likely to speak in what the court would consider offensive language: “The abominable Jews tried to kill Jesus the prophet but he escaped, althought the lying, cursed Christians say to this day that he was crucified.” Protected speech or not?

                    15. “The abominable Jews tried to kill Jesus the prophet but he escaped, althought the lying, cursed Christians say to this day that he was crucified.” Protected speech or not?

                      I don’t know. You’ll have to ask an attorney who specializes in this area. There’s no question that the point at which a statement becomes gratuitously offensive is elusive, but maybe not more elusive than determining when the statute in Whitney v. California was violated “by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.”

                    16. “You’ll have to ask an attorney who specializes in this area.”

                      And that’s precisely why traditional liberals are uneasy of broad censorship laws – not only the specific censorship incidents under these laws, but the fact that you can’t tell in advance if something is forbidden.

                      AKA the “chilling effect” doctrine.

                    17. And that’s precisely why traditional liberals are uneasy of broad censorship laws – not only the specific censorship incidents under these laws, but the fact that you can’t tell in advance if something is forbidden.

                      You’ll get no argument from me on that. The fewer restrictions the better, and speakers in the U.S. have greater freedom and fewer worries of government censorship or of being sued for libel than speakers in Europe, no question.

  14. could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship

    A sentiment shared by approximately every Muslim in the world.

  15. Yeah, this is a bad case. They should know, and do, better.

    But people crying that it makes Europe into an authoritarian hellhole need to get some perspective.

    We’re more free, yay us. But to turn that into ‘everyone less free than us are all illiberal’ is to turn legitimate pride into a nationalist zealotry that is itself illiberal.

    1. Flattery of superstition in public affairs is never attractive or appropriate.

      Exhibit 1: Blasphemy laws (and prosecutions)

      Exhibit 2: Regular disregard of the rule that sensible people neither advance nor accept fiction-based arguments in reasoned debate, especially with respect to public affairs, most especially among ostensible adults.

      Exhibit 3: The addition of “under God” to the Pledge of Allegiance.

      Exhibit 4: Religious oaths in courtrooms and at installations of public officials.

      Exhibit 5: Superstition-based testimonial privileges.

      Exhibit 6: Government funding of schools that teach nonsense.

      People should be entitled to believe as they wish, without government interference. They should be entitled to worship when and as they wish, although not necessarily with special privilege to violate generally applied laws.

      1. People should be entitled to believe as they wish, without government interference.

        But is a person entitled to insult others, by using words that can be expected to foment violence, if violence and disorder are his only aim?

    2. Perspective is important. I tried to point that out to people who compared Trump immigration policy to Auchswitz, and I assume Sarcastr0 did too. Hopefully they didn’t unfriend him.

      1. Oh, I’m not on Facebook anymore, and even when I was I did not use it for politics.

        I revel in being an anonymous coward.

        I do think there a whiff of authoritarian internment camp and dehumanizing a subgroup in this child separation thing, but until I hear about Zyclon, I’m not going to make any comparisons to the Nazis.

        1. What about fascism generally (eg the Italian or Spanish kind)?

          1. I don’t think there’s much comparison to America nowadays. Our issues are much more about subgroups, IMO.

  16. Anyway, the “hurt feelings” argument is probably going to be fairly selective – people who reject a religion’s tenets may be offended to hear people preach those tenets and demand to be taken seriously, but those kinds of hurt feelings are apparently not legally significant.

    I mean, there are people who are offended by wishes of “thoughts and prayers.” Just about anything offends *somebody.* But you have to be selective in choosing whose feelings matter enough to be protected by law.

    1. I fully agree with you, but lets play devil’s advocate here, just for fun.

      If you want Muslims to feel included, allowing people to attack them in this area central to their faith is going to be harmful to that desire. And, as a minority, they are more vulnerable and thus feel more sensitive.
      And on the other side you have the guy who wants to ask dumb questions who have no real ideological utility, since you don’t debate matters of faith with historical or cultural facts.

      So doesn’t the balance of equities redound to the Muslims?

      1. I only want to make people feel included in the community that values free expression, upon which we have staked our all, not in any other community.

        1. But you can’t be fundamentalist about free expression; it’s not all or nothing. People tend to like some restrictions – slander, time place and manner, etc. So if you’re already drawing lines, why is this one worse than the others?

      2. The devil’s advocate position here is weak.
        1. A grown man who has sex with a preteen is a pedophile.
        That is an incontrovertible fact in our culture.
        2. If Muslims want to be accepted into this culture, then they must take the culture as it comes. That includes freedom of speech.

        1. 1. That’s weak formalism. The mental impulse is different. See my Mayans analogy above.
          2. Diversity does not require complete assimilation; in fact, such assimilation is not what we are seeking.

          For me, the error I hid in there was using utilitarian analysis. Don’t put free speech into a cost-benefit paradigm with diversity, another thing that isn’t amenable to cost-benefit analysis.

        2. 1. A grown man who has sex with a preteen is a pedophile.

          But what if the grown man is not sexually attracted because of the youth of the bride, or even not sexually attracted at all but such marriages are common in the culture (perhaps for reasons of political or business alliance) and sexual intercourse is required in order for the marriage to be valid?

          The word pedophile has two parts: ‘pedo’ meaning child and ‘phile’ meaning loving. What if ‘child loving’ is literally not in the picture or if the person even has a repugnance of it but the political or business reasons necessitate it (and it is common in the culture)?

          1. Then it’s a culture that permits pedophilia.
            Just like there are cultures that permit murder (i.e., ritual sacrifice) of virgins.
            That does not change the meaning of the word. It may change the level of moral opprobrium we attach to the act, but a person is not wrong, and a fortiori, can’t be guilty of a crime–at least in any polity that purports to value personal liberty–for uttering a true statement.

            1. Then it’s a culture that permits pedophilia.

              But doesn’t pedophilia require a person who is sexually attracted to children because of their youth? What if that element is not present? For example, suppose a maniac holds a gun to a man’s head and says he will kill him and the child unless the man has sexual intercourse with the child. If the man does so but was disgusted by the encounter is he nevertheless a pedophile?

              1. Ok. Change “pedophile” to “child molester”, the definition of which does not have as an element the mental state of the defendant.
                Does that change the speaker’s liability? I imagine not.
                But if it does, then you may have a tiny (microscopic, even) point.

                1. Ok. Change “pedophile” to “child molester”, the definition of which does not have as an element the mental state of the defendant.

                  In the first place, the term used was “pedophile,” not “child molester.” In the second place, of course “child molester” references the mental state of the defendant.

                  molest : to make indecent sexual advances to

                  Child molestation is committed by a sexual pervert who has a psychiatric disorder. Would you characterize as a child molester the adult man in my example?

                  1. The point is that pedophilia (or child molestation) is not applicable if the man is not lusting after children because of their childlike or immature characteristics. In a culture in which adults marry children for business or political reasons, if a man marries a child and is required to have intercourse with the child to finalize the arrangement so he has the intercourse despite finding the act repugnant, the man is not a pedophile.

                    1. Please don’t confuse your Google search with my law degree.
                      The perpetrator’s motive is not an element of any child molestation statute–or any other criminal statute for that matter.

                    2. (This is the main reason that “hate crimes” enhancements are so stupid)

                    3. The perpetrator’s motive is not an element of any child molestation statute–or any other criminal statute for that matter.

                      If you look up the meaning of “pedophilia” it is defined as a sexual perversion in which children are the preferred sexual object. Does this apply to a man who finds sex with a child to be repugnant?

      3. “you don’t debate matters of faith with historical or cultural facts”

        Actually, for most Muslim sects, to which almost all Muslims belong, historical facts about early Islam, especially those about Mohammed, are very important, and cultural practices of the early Arabs are important, to distinguish between the cultural and religious acts of the prophet.

        Not that this lecturer’s methods or topics would convince an Islamic theologian. I’m pretty sure they’ve figured that out.

        1. The facts appear to be very important, but the sectarian aren’t actually about the truth in the end, are they?

  17. I was going to just comment here, but it went to 4000 words, so I wrote a blog entry. Note that this was much much worse than the 1994 Austria Otto Preminger decision, which was a 6-3 split true blasphemy case. The present case is about the IDEA being expressed, not the MANNER; about a statement at a 30-person meeting of people on one side of a question (with a hostile journalist who attended specifically because he wanted to hear something that would offend him); unanimous; and very poorly reasoned and written.

    http://rasmusen.dreamhosters.c…..v-austria/

  18. I guess that the defensible statement might have been: “Here in Austria, having sex with a 9 year old child is called pedophilia.” Even if EU courts rule that having sex with children is OK if you are a devout Muslim.

    1. Even if EU courts rule that having sex with children is OK if you are a devout Muslim.

      You may want to go back to Infowars.

  19. Can we criminalize anyone who says “Zombie Jesus” or any book that denies Jesus as the “Son of God” (looking at you, Quran)?

  20. Anyone who ever had sexual relations with a 9 year old today would be called a pedophile by most of the general public. So what they’re really criminalizing is the lack of a double standard in characterizing a historical figure who had sex with a 9 year old. South Park’s Bloody Mary episode was much worse. The real problem is that Europe has imported a new underclass of fundamentalists who can’t take a joke and can’t handle free speech.

    1. Naughtius, you should be ashamed of yourself for fathering that poor boy out of wedlock. Absentee fathers like you are the number one cause of juvenile delinquency in Judea. It’s no surprise that he ended up crucified after serving time in a Roman dungeon. You have only yourself to blame, sir.

      1. Right. If Muhammad was a pedophile, then Christians eat flesh and drink blood, in a religion started by a bastard, since adherents acknowledge that Jesus’s mother was not married to his father.

        1. You hurt my feelings! What’s the contact information for the Austrian public prosecutor’s office?

          /sarc

  21. This case is an important reminder that courts simply cannot be relied upon to protect basic freedoms. If you want freedom of speech, you have to secure it through the political process rather than relying on the courts afterwards. Sometimes courts will go against the grain of the political process to recognize or protect some right. But you really can’t rely on this. Too many people have mentally delegated the defense of rights to courts rather than to themselves, and this is problematic as it has a tendency to lead to lower vigilance.

    1. Remind me, are you for or against activist courts? Because this ECtHR judgment is the very opposite of activist. It’s upholding an Austrian law, in line with previous precedent, that was exceedingly common at the time when the European Convention was written. Courts can be relied upon to protect basic freedoms, but not necessarily to make stuff up out of whole cloth.

    2. No, you have to secure it through the use of force.

  22. For the censors who say that of course they support full and robust public debate but this woman took it too far, etc…perhaps they can play the ideological Turing Test game and give an example of criticism of Islam which is fully legal, and a legitimate contribution to public debate?

    1. For the censors who say that of course they support full and robust public debate but this woman took it too far, etc…perhaps they can play the ideological Turing Test game and give an example of criticism of Islam which is fully legal, and a legitimate contribution to public debate?

      If you read the court’s decision in this case (see E.S. v. Austria cited on the first line) you will find references to a number of cases involving criticism of Islam that were held to be permissible. The defendant tried to say that her speech should likewise be permissible but the court held otherwise and explained why. For example,

      In addition, the Court considers that the impugned statements were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages (contrast Ayd?n Tatlav and Giniewski, both cited above), but amounted to a generalisation without factual basis. Thus, by considering them as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace, the domestic courts came to the conclusion that the facts at issue contained elements of incitement to religious intolerance.

      1. Interesting, they cited another case, I. A. v. Turkey, about a novel.

        “29. However, the present case concerns not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha’s arms. … God’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”

        1. “30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a “pressing social need”.

          “31. The Court concludes that the authorities cannot be said to have overstepped their margin of appreciation in that respect and that the reasons given by the domestic courts to justify taking such a measure against the applicant were relevant and sufficient.

          “32. As to the proportionality of the impugned measure, the Court is mindful of the fact that the domestic courts did not decide to seize the book, and accordingly considers that the insignificant fine imposed was proportionate to the aims pursued.

          “There has therefore been no violation of Article 10 of the Convention.”

          1. Interesting, they cited another case, I. A. v. Turkey, about a novel.

            Is there a point you’re trying to make?

            1. I was hoping the court’s opinion would provide me an answer to my question:

              “For the censors who say that of course they support full and robust public debate but this woman took it too far, etc…perhaps they can play the ideological Turing Test game and give an example of criticism of Islam which is fully legal, and a legitimate contribution to public debate?”

              That is, actually say something critical of Islam which qualifies as protected speech under the court’s decision. I’m just getting examples of stuff which gets you fined.

              1. Do you have any criticisms to make? Are you prepared to make them, in full confidence that European free-speech law will protect you.

                Then go right ahead. Show me.

                1. Then go right ahead. Show me.

                  I could make the same criticisms made in Ayd?n Tatlav and Giniewski without repercussion, since there was no repercussion there.

                  The Court said:

                  Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention, irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut, ? 47; ?.A. v. Turkey, ? 28; and Ayd?n Tatlav, ? 27, all cited above).

              2. That is, actually say something critical of Islam which qualifies as protected speech under the court’s decision. I’m just getting examples of stuff which gets you fined.

                I gave you two examples in my quote above, in which criticisms of Islam were determined to be permissible: Ayd?n Tatlav and Giniewski.

                1. Let’s see…

                  “In 1992, Erdo?an Aydin Tatlav, a journalist living in Istanbul, published a five volume book under the title Islamiyet Ger?e?i (The Reality of Islam). In the first volume of the book he criticised Islam as a religion legitimising social injustice by portraying it as “God’s will”. Following a complaint on the occasion of the fifth edition of the book in 1996, the journalist was prosecuted for publishing a work intended to defile one of the religions (Art. 175 of the Criminal Code). He was sentenced to one year’s imprisonment, which was reduced to a fine.

                  “…The Court is of the opinion that certain passages of the book contained strong criticism of religion in a socio-political context, but that these passages had no insulting tone and did not contain an abusive attack on Muslims or on sacred symbols of Muslim religion (see IRIS 2005-10:3). The Court did not exclude that Muslims could nonetheless feel offended by the caustic commentary on their religion, but this was not considered to be a sufficient reason to justify the criminal conviction of the author of the book. The Court also took account of the fact that although the book had first been published in 1992, no proceedings had been instituted until 1996, when the fifth edition was published.

                  1. “… It was only following a complaint by an individual that proceedings had been brought against the journalist. With regard the punishment imposed on Tatlav, the Court is of the opinion that a criminal conviction involving, moreover, the risk of a custodial sentence, could have the effect of discouraging authors and editors from publishing opinions about religion that are non-conformist and could impede the protection of pluralism, which is indispensable for the healthy development of a democratic society….”

                    http://merlin.obs.coe.int/iris…..e2.en.html

                    OK, so if your book survives until the fifth edition before being prosecuted that’s a point in its favor. Good to know. But how can you predict *in advance* how many editions you’ll put out before a complaint gets filed?

                    The law needs to be predictable. The author needs to know *at the time of writing* whether he’s exercising his freedom or abusing it. The author has no way of knowing in advance if the censors will wait until the fifth edition.

                    1. “In 1994, the newspaper Le quotidien de Paris published an article with the headline “The obscurity of error”, concerning the encyclical “The splendour of truth” ( Veritatis Splendor ) issued by Pope John Paul II. The article was written by Paul Giniewski, a journalist, sociologist and historian and contained a critical analysis of the particular doctrine developed by the Catholic Church and its possible links with the origins of the Holocaust. A criminal complaint was lodged against the applicant, the newspaper and its publishing director, alleging that they had published racially defamatory statements against the Christian community….

                      “In a judgment of 31 January 2006, the European Court of Human Rights holds that the article in question had contributed to a debate on the various possible reasons behind the extermination of Jews in Europe: a question of indisputable public interest in a democratic society….

                    2. “… In such matters, restrictions on freedom of expression are to be strictly interpreted. Although the issue raised in the present case concerned a doctrine endorsed by the Catholic Church, therefore a religious matter, an analysis of the article in question showed that it did not contain attacks on religious beliefs as such, but a view which the applicant had wished to express as a journalist and historian….”

                      http://merlin.obs.coe.int/iris…..e1.en.html

                      So It’s OK to criticize a Papal encyclical in the context of blaming the Catholic Church for the Holocaust…but in other circumstances criticisms of an encyclical might be ruled gratuitously offensive.

                    3. Just so long as you don’t mention pedophilia in criticizing the Catholic Church!

                      (Just as the court was willing to argue that, in the strict sense, marrying a girl at 6 and having sex with her at 9 doesn’t make one a pedophile, Catholic apologists have rejected the pedophilia label regarding sex with pubescent teenage boys, so be careful with your justified indignation, it might get you punished!)

                  2. OK, so the Tatlav Court pointed out strong criticisms of Islam that did not constitute an abusive attack. People are on notice that such comments can be made in the future with no risk. You are unhappy that there is not a brightline rule, but neither is there one in the U.S. as to exactly when speech crosses the line and becomes fighting words or incitement to riot.

                    1. The court also pointed out that the censors waited until the fifth edition had come out.

                      How can the author predict which edition the censors will pounce on?

                    2. How can the author predict which edition the censors will pounce on?

                      I don’t deny that the U.S. rule is preferable. However the rule applied in this case appears to be not that much different from the one announced by the Supreme Court in Whitney v. California (1927), which was not overruled until Brandenburg (1969), and I don’t hear people claiming that there was no free speech in this country until the 1960s.

                    3. I expect Anita Whitney complained.

                    4. I expect Anita Whitney complained.

                      Finally, something we can agree on.

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