Lost freedom of speech about religion in Europe

Dutch parliamentarian Geert Wilders was threatened with criminal punishment for hate speech from the moment his anti-Koran film Fitna hit the internet in March 2008. Last month, a Dutch judicial oversight body ordered that he be tried anew after finding that judges in the first round of court proceedings appeared to be biased. Even if Mr. Wilders is ultimately acquitted, as his prosecutors themselves urge, he will have already been punished by years of costly and tiring legal wrangling.

But the greatest threat posed by this case is not to a lone Dutch firebrand, but to Europeans at large, whose fundamental freedoms of speech and religion are being steadily undermined. Those trying to repress these individual rights in the name of sensitivity are gaining ground with each case that upholds the state's power to regulate the content of speech on Islam. Since Mr. Wilders' defense does not challenge the legitimacy of hate-speech laws per se, but instead points to the specific facts of his case, even his acquittal would not alter this encroachment on core Western rights.

Religious hate-speech is not clearly defined in the Netherlands or elsewhere in Europe. Council of Europe standards emphasize the subjectivity of the offense, stating that, with respect to religion, "there is no right to offend," that "gratuitously offensive" speech is not protected, and that there exists a new "right of citizens not to be insulted in their religious feelings." In an attempt to carve out protections for political speech and social commentary, the Council distinguishes between speech that insults Muslims, which it forbids, and that which insults Islam or would be considered blasphemous, which it permits.

Mr. Wilders argues that his film and his other criticisms entail only the latter. As his case drags on, with prosecutors and judges in open disagreement over whether he was within the bounds of acceptable speech, the confusion created by this legal dichotomy becomes apparent. Though the European Court of Human Rights, which Dutch courts follow, tries to distinguish between commentary on socially relevant religious issues and that on "intimate personal convictions," believers often view one as the necessary extension of the other. Hence, as Council advisers themselves have admitted, the boundaries "are easily blurred."

In fact, this legal test between the religious and the personal is untenable. In contrast to other hate-speech categories—such as racism and Holocaust denial—even a tendentious or hyperbolic treatment of religion and society is often linked to real debate over beliefs and values. Since religions have practices and doctrines as well as adherents, efforts to restrict criticism of religious groups involves a perilous effort to disentangle practice from practitioner, and social commentary from insult.

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