A Flawed European Ruling on Free Speech

According to dominant Islamic traditions, the Prophet Muhammad’s third wife Aisha was six years old at their marriage and nine at its consummation. Muslims, as Graeme Wood has pointed out, have debated the issue of Aisha’s age for a very long time, and critics of Islam seemingly can’t keep off the subject.

In the fall of 2009, a woman referred to as E.S., a 47-year-old Austrian national, convened two seminars offering “Basic Information on Islam” at the right-wing Freedom Party Education Institute (FPEI) in Vienna. The seminars were advertised on the Freedom Party’s website and were open to members of the public. Each attracted around 30 participants, including an undercover journalist, who lodged a complaint against E.S. to the police. The substance of the complaint related to two comments E.S. made in the course of a discussion about Muhammad’s marriage to Aisha. He “liked to do it with children,” she asserted, adding, “A 56-year-old and a six-year-old? What do we call it, if it is not pedophilia?”

Now, in a historic move, the European Court of Human Rights (ECHR) has waded into this inflammatory controversy, ruling, in effect, that no, he wasn’t a pedophile and no, you can’t publicly refer to him as such.

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It is a drastic overstatement to suggest that the ECHR ruling amounts to a jettisoning of, in the words of the British commentator Douglas Murray, a “whole system of critical inquiry which has made Europe what it is today.” But it has given legitimacy to what is in all but name an Austrian blasphemy law, and by invoking the slippery notion of “religious peace,” it has effectively given a veto to those who would deploy violence in defense of their religious beliefs.

The ECHR ruling came on appeal. On February 15, 2011, the Vienna Regional Criminal Court found E.S. guilty of publicly disparaging religious doctrines, which is a crime in Austria. The basis for the court’s decision was that E.S. had deliberately sought to degrade Muhammad by disseminating the falsehood that he was a pedophile. And while the court recognized that criticizing child marriages was justifiable, E.S. had wrongly “accused a subject of religious worship of having a primary sexual interest in children’s bodies.” The court further stated that E.S.’s comments about Muhammad not only constituted “a malicious violation of the spirit of tolerance,” since they were “capable of hurting the feelings” of Muhammad’s followers, but also a threat to religious peace in Austria.

E.S. lodged an appeal with the ECHR, arguing that her criminal conviction had violated her right to freedom of expression under Article 10 of the European Convention on Human Rights. The substance of her appeal was that her comments about Muhammad were not value judgments, but statements of fact: It was a matter of historical record, she insisted, that Muhammad had had sex with a 9-year-old girl when he was in his 50s. She also claimed that it had not been her intention to disparage Muhammad, adding that she made her comments “in the framework of an objective and lively discussion which contributed to a public debate.”

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The ECHR was unpersuaded, and on Thursday it unanimously rejected E.S.’s application. In its judgment, it affirmed that “freedom of expression constitutes one of the essential foundations of a democratic society.” It also acknowledged that religious minorities “cannot expect to be exempt from criticism” and “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” However, the ECHR was adamant that “the exercise of the freedom of expression carries with it duties and responsibilities, including “the duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.” It also made clear that where criticism of religion takes the form of “an improper or even abusive attack on an object of religious veneration” it should be considered as exceeding the bounds of acceptable expression, since it is “likely to incite religious intolerance.”

Was E.S.’s contention that Muhammad “liked to do it with children” just such an abusive attack? The ECHR was unanimous and emphatic that it was: E.S.’s statements were not only “without factual basis” and went well “beyond the permissible limits of an objective debate”; they also amounted to “an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace.” “Accordingly,” the ECHR concluded, “there has been no violation of Article 10 of the Convention.”

Or has there?

The weakest part of E.S.’s defense is her claim that she was not disparaging Muhammad—that by suggesting he was a pedophile she was merely relaying the “facts” in a spirit of objectivity. This is not tenable, given that to describe a person as a pedophile is to simultaneously condemn that person—and to condemn them in the most strenuous way possible. Moreover, the concept of pedophilia only makes sense in the context of the modern distinction between children and adults; in biblical times, child brides were part of the norm. So applying the term to Muhammad is anachronistic. Neither can E.S.’s assertion that her comments were designed to foster “an objective and lively discussion” be taken seriously.

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Yet the ECHR’s judgment is not wholly convincing either. Consider, for example, its complaint that E.S.’s “statements [about Muhammad] were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages.” This is clearly true, but it’s hard to see how this is remotely relevant to the case or why the ECHR should lament the absence of objectivity in a seminar on Islam sponsored by a right-wing party in Austria. Who cares if E.S. said things that didn’t meet the standards of an “objective contribution to a public debate”? Clearly there is a whole range of expression that falls dismally below such standards, and yet we should still want to protect the right of individuals to engage in it. Thus the notion of certain kinds of expression, in the ECHR’s words, “going beyond the permissible limits of an objective debate” seems tendentiously and worryingly narrow.

Another problem relates to the ECHR’s endorsement of the argument that E.S.’s statements were “capable of stirring up prejudice and putting at risk religious peace.” While it’s not difficult to imagine that E.S.’s statements about Muhammad would have flattered the prejudices of some or even many of her listeners, it’s not clear how what she said would have put religious peace in Austria at risk. The ECHR, for its part, provides scarce illumination on this, although there are clearly two possibilities. One is that E.S.’s statements were so inflammatory as to stir up members of her audience to harass or violently attack Muslims. The other is that some Muslims, on coming across her statements, would be so riled up as to violently attack E.S. or even other non-Muslims. Given the substance of what E.S. said, it seems unlikely that anyone would take up arms against Muslims on hearing it. But who seriously doubts the chances of some jihadist taking up arms against E.S. and her sympathizers on hearing what she had to say about Muhammad?

In the current political climate in Europe, where only the most courageous cartoonist would dare to make fun of the Prophet Muhammad, it is hard not to read the ECHR’s ruling as a concession to those who wouldn’t hesitate to interpret E.S.’s comments not just as offensive, but as deserving of a murderous retaliation.