In Europe, Speech Is an Alienable Right

A human-rights court upheld an Austrian woman’s conviction for disparaging the Prophet Muhammad.

A board reads "Human rights" in front of the European Court of Human Rights in Strasbourg
A board at a tram stop reads "Human rights" in front of the European Court of Human Rights in Strasbourg (Vincent Kessler / Reuters)

A few years ago, I appeared on a live Egyptian television show hosted by a conservative Muslim with jihadist sympathies. He lured me on by offering to answer any question I had about Islam, including, he said, “whether the Prophet Muhammad was a child molester.” The host seemed awfully open-minded, I thought, given how humorless jihadists tend to be about the Prophet. When the lights went up and the program began, I mentioned the child-molester issue, and the host remained true to his word, neither bursting into a rage nor chiding me for my impertinence. (I wrote about the experience for the November 2012 issue of this magazine.)

Around the same time, a woman referred to as E.S. was convicted in Austria for, in effect, not phrasing her identical curiosity in the form of a question. On Thursday, the European Court of Human Rights (ECHR) upheld her 2011 conviction for “disparagement of religious precepts,” a crime in Austria. The facts of what E.S. did are not in dispute. She held “seminars” in which she presented her view that Muhammad was indeed a child molester. Dominant Islamic traditions hold that Muhammad’s third wife, Aisha, was 6 at the time of their marriage and 9 at its consummation. Muhammad was in his early 50s. The Austrian woman repeated these claims, and the Austrian court ruled that she had to pay 480 euros or spend 60 days in the slammer. The ECHR ruled that Austria had not violated her rights.

Predictably, the ECHR decision has rekindled old debates about freedom of expression, the perceived inability of some Muslims to handle polemics against their religion with grace, and—an issue that has gained new salience since Brexit—pan-European legal institutions and their tendency to foist outrageous decisions on member states. If you believe, as I do, that the free expression of ideas, including bad ideas, is a human right that no government can legitimately infringe, then you will probably find the ECHR decision appalling, and a bad sign for civil liberties in Europe. You can share this concern whether or not you think Europe’s Muslims will riot at hearing an unkind word about the Prophet.

What you should not believe, however, is that the ECHR’s decision represents a sudden change in European norms and laws about free speech. Those norms and laws have been rotten since long before Europe’s refugee crisis, before the vilification of the European Union by nationalist parties, before anyone thought that digging up dirt on a seventh-century Arabian trader was a matter of political urgency in modern Vienna. European laws (and, indeed, laws in most of the world) have long treated freedom of speech as a dispensable, very much alienable right. Cue Lee Greenwood, because this craven buffoonery makes me proud to be an American.

The ECHR judgment summarizes the Austrian court’s reasoning, which deserves quotation in full:

Having sex with a child isn’t pedophilia, in other words, if the child’s prepubescence is not your biggest turn-on, or if you also have sex with adults, or if you continue having sex after the child reaches maturity. (Am I alone in finding the Austrian court’s reasoning offensive? Muhammad lived in late antiquity, when January-December marriages were common. The Austrian judges have no such excuse. A decade ago, Austria was laboring to shed its reputation as the “land of sex dungeons.” I don’t think “land of narrowly defined pedophilia” is much of an improvement.) On this basis, the court said E.S.’s statements were “untrue facts,” and fair game for prosecution.

The ECHR also judged E.S.’s claims “capable of arousing justified indignation given that they had not been made in an objective manner.” I have little doubt that her politics led her to a skewed view of an old controversy. Muslims have dealt with the issue of Aisha’s age for a very long time, and I see no evidence that E.S. cared to acquaint herself with the history of polemics and counterpolemics. (There is, for example, a tradition that says Aisha was older. But that tradition is weak and presents theological challenges of its own.) That an Austrian court presumes to say what constitutes balance in a case like this is itself a shocking encroachment on E.S.’s freedom of belief. Moreover, Muslim apologists also present a skewed view of the controversy, seemingly without fear of prosecution.

But here’s what’s most appalling: The ECHR’s decision was not wrong, however foolish its reasoning. E.S. “aimed at demonstrating that Muhammad was not a worthy subject of worship,” the court held, and intended to “disparage religious precepts.” If that is a crime—and in Austria it is—then she is guilty, and it falls to the people of Austria to revise their laws to protect her rights, and theirs.

The relative infrequency of prosecution under these statutes has lulled many into believing that they do not exist, or that they are nullities, on the books only for antiquarian reasons. E.S.’s case shows that they are not. In Denmark, the law does not even protect demonstrably true, factual public statements if those statements tend to incite racial or religious hatred. In Ireland, a referendum rid the country of blasphemy laws only yesterday. The United Kingdom abolished its blasphemy law only in 2008. (Here is the James Kirkup poem that was the subject of the last British prosecution, in 1977. Click through if you don’t mind reading about gay sex with Jesus or about necrophilia. If you can’t take them in combination, you should probably skip it.)

Non-Europeans and Europeans alike shred the human right to freedom of conscience and expression on a regular basis. The Organisation of Islamic Cooperation has repeatedly urged countries to criminalize defamation of religion, which in practice means outlawing nearly anything that hurts the sensibilities of a believer. The European Convention on Human Rights specifically reserves the right of its signatories to force citizens to shut up if their statements threaten “public safety” and “health or morals” or might cause, intentionally or otherwise, “disorder or crime.” The International Covenant on Civil and Political Rights, which is signed and ratified even by the United States, carves out an exception that allows infringement of speech “for the protection of public order, health, or morals.” Although under U.S. law most attempts to limit speech would be unconstitutional, other countries have provisions to force your silence if what you say will hurt people’s feelings or make them mad enough to commit violence.

To call restraint on speech “the heckler’s veto” is all too dainty: It’s more like the murderer’s veto. Defenders of the murderer’s veto point out, correctly, that all societies limit some speech—in the U.S., true threats and direct incitement to imminent lawless behavior, for example, are illegal. But if societies really care about freedom of expression, they need to safeguard that right especially in difficult situations, and not undercut it at the slightest sign that someone might be indignant, let alone violent, over something another person said. The Austrian court purported to balance this right against other legitimate social concerns. But if European courts assess freedom of speech at barely a feather’s weight, as it appears in this case, they should spare us their sanctimony and admit that they do not value free expression at all. Have the courage to admit your cowardice.

The previous cause célèbre over free speech in Austria was the English historian David Irving’s incarceration for Holocaust denial in 2005. Too few came to Irving’s defense, for the obvious reason that no one wanted to have to go through the metaphorical delousing process that association with that man entails. But note the trajectory: He was thrown in jail for lies, and now E.S.’s conviction is upheld not even for lying but for taking up one side of a controversy whose facts will almost certainly never be determined. The American system of virtually limitless debate has proved highly capable of discrediting Irving, and of allowing Islamophobes and Islamists to yap at each other. It blames violence on the violent. It is a model sadly unreplicated in the world, and its time has come on continents other than our own.