Religion, morality, blasphemy and obscenity
Obscenity and morality
Extending as it does to information and ideas which “shock, offend or disturb the state or any sector of the population,” the right to freedom of expression in principle protects sexually explicit materials which some might find offensive. At the same time, international law recognises the right of states to limit freedom of expression in the interest of public morals, subject as always to the three-part test.
The concept of ‘obscenity’ does not lend itself easily to definition. Justice Potter Stewart of the US Supreme Court, despairing of the task of defining pornography, once famously wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”
International law however does not allow states to rely on their gut feeling in identifying impermissible material: under the three-part test, content restrictions must be clearly defined in law, including those relating to obscenity.
In practice, however, international courts have been fairly lenient in applying the test. The ECtHR admitted “the impossibility of attaining absolute precision in the framing of laws” and found that the meaning of a Swiss law banning ‘obscene’ materials was sufficiently foreseeable. The ECtHR attached importance to the fact the law in question had been applied in a consistent manner by the Swiss courts.
In discussing what types of materials may be banned as harmful to public morals, international and domestic courts have likewise taken a fairly broad view, and recognised that questions of morality are closely tied to national and local cultures and traditions. The ECtHR stated that,
It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.
The UNHRCm likewise noted that “public morals differ widely. There is no universally applicable common standard.”
However, states’ discretion in the area of the protection of morals is by no means unlimited. Restrictions based on this ground must still meet the necessity-test. This means, for example, that states should be considerably more reluctant to prohibit materials deemed obscene if they are directed at and available only to a mature audience.
In the Handyside case, the ECtHR permitted the British authorities to impose a ban on a publication called ‘The Little Red Schoolbook’ which, among other things, encouraged 12-18 year-old children not to feel guilty about using marijuana and engaging in sexual acts, even if their parents disapproved. The ECtHR attached great significance to the fact that the booklet was clearly addressed to a young audience and contained “sentences or paragraphs that young people at a critical stage of their development could have interpreted as an encouragement to indulge in precocious activities harmful for them”.
In a later case, by contrast, the ECmHR condemned the conviction of the vendor of erotic films for a gay audience as violation of the right to freedom of expression. An important factor was that the films were sold from an unmarked sex-shop and in practice available only to an adult, consenting audience. Prosecuting the vendor was therefore not necessary for the protection of public morals.
Blasphemy and religion
International law permits, or even requires, states to prohibit hate speech, including hate speech directed against followers of a religion.
In some countries, however, the law goes much further than the duty to shield believers against “incitement to discrimination, hostility or violence” (as hate speech is defined) and prohibits denigration of their religion or religious symbols, irrespective of whether this constitutes hatred towards the religion’s adherents. Laws of this kind are commonly known as ‘blasphemy laws’.
Few would dispute that public debate should in practice take place in a respectful manner, particularly where it concerns beliefs held dearly by others. But blasphemy laws are antiquated and unjustifiable in a democracy. Religions, like political ideologies, make claims about how the life of societies should be organised. Open debate between competing ideas about public issues is the hallmark of democracy; there is no justification to give certain ideas or beliefs special immunity from harsh criticism or ridicule simply because they happen to be grounded in religion rather than in secular beliefs.
Proponents of blasphemy laws often counter that the purpose of such laws is to prohibit denigration, not to prohibit discussion. However, laws which prescribe a ‘respectful’ tone for debate about religions are highly prone to abuse, both because of the subjective nature of ‘respectfulness’ and because of the likelihood that political opinions will take refuge under the blasphemy law by cloaking themselves as religion ones.
Despite these criticisms, several established democracies still have blasphemy provisions on the books, although most of these are rarely, if ever, used. In the United Kingdom, for example, blasphemy was abolished in 2008 but prior to that the law had been applied only twice since 1923, both instances leading to complaints to the ECtHR and ECmHR. Norway also saw its last case in 1936 and Denmark in 1938.
Other countries, including Sweden and Spain, have repealed their blasphemy laws. In the United States, the Supreme Court steadfastly strikes down any legislation prohibiting blasphemy, on the grounds that even well-meaning censors would be tempted to favour one religion over another, as well as because it “is not the business of government ... to suppress real or imagined attacks upon a particular religious doctrine ...”
The ECtHR has taken a different position and permitted states to enforce blasphemy provisions, subject of course to their meeting the conditions of the three-part test.
Otto-Preminger-Institut v. Austria concerned the seizure of a film by the Austrian authorities, undertaken at the request of the Roman Catholic Church. The film was based on an 1894 play by Oskar Panizza – who was himself jailed for ‘crimes against religion’ by a German court in 1895 – and depicted the God of Christianity as a senile old man, the Virgin Mary as a lascivious woman and Jesus Christ as mentally deranged, with all three displaying sympathy for the Devil. The ECmHR noted that the film had been shown only late at night to an interested, paying audience which had been provided with prior warning about the film’s content. It went on to conclude that the seizure had been disproportionate, since there was no risk that children or others who might be offended by its content would be accidentally confronted with the film.
The ECtHR disagreed, however. Its reasoning centred on the right to freedom of religion, which, like all human rights, is principally a right against the state rather than against other private persons. The ECtHR noted that believers “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith,” but at the same time found that states may be justified, even required, to protect religions against the harshest attacks:
[T]he manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right [to freedom of religion] … The respect for the religious feelings of believers ... can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society.
The ECtHR concluded, by six votes to three, that the Austrian authorities could reasonably have considered the seizure of the film “necessary in a democratic society” in order to protect the rights of others.
The decision in the Otto-Preminger case came in for heavy criticism amongst scholars, many of whom questioned how the ECtHR had been able to conclude that the showing of the film had impaired the right of believers to practice their faith. Others noted that in a religious society like Austria, dissenting voices need the protection of the law more than the dominant Catholic Church, and that a right to freedom of expression which protects only views which are already accepted is of little use.
Nevertheless, the ECtHR adopted a similar line of reasoning in its subsequent judgment in Wingrove v. United Kingdom. This case again concerned a film, Visions of Ecstasy, which was loosely based on the life and writings of St. Teresa of Avila, a sixteenth-century nun. Among other things, the film depicted St. Teresa in the erotic embrace of another woman, interlaced with images of her “moving in a motion reflecting intense erotic arousal” besides the crucified body of Christ. As required by British law, the director submitted the film to the British Board of Film Classification for a classification certificate, a procedure designed mainly to rate films on their suitability for viewing by children, but under which films can be banned for all audiences. The certificate was denied on the grounds that the film’s mixing of sexual and religious imagery constituted blasphemy, as prohibited under the criminal law.
Wingrove argued before the ECtHR that blasphemy laws were “incompatible with the European idea of freedom of expression.” The ECtHR rejected this point, noting the lack of agreement between European states as to whether blasphemy laws are necessary in a democratic society. It went on to find that, as with ‘obscenity’, there was no uniform European conception of what was required for the protection of the rights of others against attacks on their religious convictions.
States consequently have a certain margin of discretion to decide whether to act against blasphemy, although the court warned of “the breadth and open-endedness of the notion of blasphemy and the risks of arbitrary or excessive interferences with freedom of expression under the guise of action taken against allegedly blasphemous material.”
British law, however, provided sufficient guarantees that only material of a high degree of offensiveness, such as Visions of Ecstasy, would be banned. Accordingly, Wingrove’s right to freedom of expression had not been violated.
Individuals protesting against a failure by the domestic authorities to take action against blasphemy have had less success at the European human rights bodies. In Choudhury v. United Kingdom, the applicant had unsuccessfully urged the prosecution of Salman Rushdie and his publisher for The Satanic Verses, which he considered offensive against Islam.
The ECmHR ruled that the right to freedom of religion does not entail a guaranteed “right to bring any specific form of proceedings against those who, by authorship or publication, offend the sensitivities of an individual or of a group of individuals” and rejected the application. In Dubowska & Skup v Poland, which concerned the publication in a newspaper of a picture of Jesus and Mary with a gas mask over their faces, the authorities had opened an investigation and examined all sorts of evidence, but decided not to take any further action. The ECmHR found that, in contrast to the situation in the Otto-Preminger, the publication in question had not prevented anyone from exercising their freedom of religion and that the decision not to prosecute did not, in itself, amount to a failure to protect the applicants’ rights.
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