21.1 Introduction
The problem with blasphemy, according to the sixteenth-century canonist Prosper Farinacius, was that if blasphemous offenses were punished as they should have been, ‘too few men would be left’.Footnote 1 This striking combination of rigorous dogmatism and common-sense pragmatism has underpinned the legal prohibition of blasphemy in Norway from the High Middle Ages and up to the early modern period. Although the act of blasphemy was technically prohibited from the very first adoption of Canonical law in Norway in 1024 and up to the final abolition of section 142 of the 1902 Penal Code in 2015,Footnote 2 convictions under these prohibitions have been few and far between. Even during the most aggressively conformist rule during the period of absolutism in Denmark-Norway (1660–1814), only a single conviction – described in more detail in the next section – to the full extent of the ban has been recorded.
Despite its scant application to actual cases, the historical trajectory of the nature and scope of the Norwegian blasphemy ban offers an instructive overview of the interconnected nature of law and religion in the development of the modern Norwegian state and its interaction with imported legal systems. In this chapter, I will examine how the offense, prohibition and punishment of blasphemy have been construed and gradually adjusted in close interaction with surrounding domestic and international legal regulations of religion and in response to the changing religious demography of Norway.
Starting with an overview of how blasphemy has been framed in Norwegian legislation from the earliest times and up to the present, the chapter moves on to assess the role of the ban in the twentieth century and an overview of the reform processes in the 1990s and 2000s that led to its final demise. Following a brief mapping of the treatment of the topic in legal literature and international law, the chapter examines the influence of surrounding legislation before offering a brief reflection on the influence of the Charlie Hebdo attacks of January 2015 on the Norwegian blasphemy debate.
21.2 Origins of the Ban on Blasphemy in Norwegian Law
The first known legal codification relating to religious institutions and their practice in Norway is commonly dated to the church and parliamentary assembly at Moster in 1024, where Olav Haraldsson, the King of Norway that was canonized as St Olav in 1164, and his bishop, Grimkjell, announced a canonical amendment to the regional code of laws in effect in Western Norway since approximately 900, the Gulatingslov.Footnote 3 The amendment spelled out the basic necessities for the introduction and maintenance of Christianity in Norway, prohibiting idol worship, fornication and sorcery, while obliging the populace to keep holidays and build and maintain churches. A key distinction was drawn between offenses for which penance could be obtained, like the worship of heathen gods and mounds, and unredeemable offenses (ubotamål) like sorcery, for which the punishment was banishment, which was the substantive equivalent of the death penalty.Footnote 4 While this early version of the canonical chapter had no explicit prohibition of blasphemy or religious offense, such acts would likely be somewhere in between these extremes.
With the establishment of Nidaros as a separate ecclesiastical province and archbishopric in 1152/1153, the introduction of a continental Canonical code of laws in Norway and its dependencies was accelerated considerably.Footnote 5 Under this incipient code of laws, the punishment for blasphemy represented a thorny definitional challenge, as the available scriptural passages commenting upon the concept ranged from the declaration of St Paul regarding his own acts of ‘blasphemy’ during his time as persecutor of Christians to passages on blasphemy from the Old Testament referring in general to all insults or wrongs against God and to the declaration of Jesus that all sins were forgivable except blasphemy against the Holy Spirit.Footnote 6 Searching for a common denominator across these fairly dispersed examples, canonical jurists settled for a determination of blasphemy that encompassed ‘either as ascribing to God properties he did not possess, or as denying to God properties that he did possess’.Footnote 7 No historical sources documenting the practical implementation of this concept of blasphemy in Norway have been preserved.
Following the introduction of the Protestant Reformation to Denmark-Norway in 1537, the Canon law, whose influence had grown steadily during the High Middle Ages, was abolished, and a new Church Ordinance was introduced throughout the realm, signalling a clearly defined division of labour between churchly and worldly powers, as dictated and upheld by the state.Footnote 8 Under the new arrangements, Chapter 2, Section 14 of the Ordinance established the joint jurisdiction of worldly and churchly powers against religious offenses. Faced by ‘blasphemers, fornicators, violators of virgins, church robbers and the ungodly assailants of war’, in the words of the Ordinance, the church was obliged to prohibit their access to the sacraments, while ‘the sword’, or the worldly powers, was called upon to secure the ‘peace’ of the church, that is by enforcing a statutory code of laws preventing blasphemous and other contemptuous acts.
The code of laws promulgated by the worldly powers, unlike pre-Reformation canonical and penal law, was derived from Mosaic principles of lex talionis (literally: the law of retribution), significantly sharpening the punishment for religious and moral transgressions, which were viewed as direct challenges to the Godly powers of the state, and in particular the King.Footnote 9 The adoption of Christian Vs Norske Lov (‘Christian V’s Norwegian Law’, or: CVNL) in 1687, a unitary legal framework introduced by King Christian V of Denmark-Norway, following the establishment of absolutism in 1660, represented the fullest realization of this principle. Under this Act, the legislative framework of the church was entirely subordinated to state power, in a separate section entitled ‘On religion and the clergy’. In addition to this ecclesiastical section, which was mostly dedicated to the activities of the church and its employees, the CVNL dedicated two entire chapters in the penal section to combat ‘Erroneous teachings, defamation of God and sorcery’ and ‘Sacrilege’. These chapters were mostly concerned with the protection of the Evangelical-Lutheran faith from the influence of ‘papists’ and ‘sorcerers’ and the meticulous regulation of religious practice on holy days.
The introduction of chapters on erroneous teachings, defamation, sorcery and sacrilege under the civil code of laws indicates the complete transferral of authority in cases of blasphemy and religious offense to the civil courts, albeit still under the joint supervision of civil and churchly expertise. The penalty for the denigration of ‘God, his name, words and sacraments’ was that transgressors would have their tongue cut out and their head cut off, later to be displayed together on a pole. If anyone used their hands to complete the Act, those would also be chopped off and added to the display.Footnote 10 There is only one known conviction to the full extent of this prohibition: In 1739, eighteen-year-old Anders Suhm from Kristiansand was convicted of blasphemy and arson and sentenced to be beheaded. The charges were based on his attempt to ‘sell his soul to the Devil’ in order to reimburse creditors following excessive gambling and on his attempt to get the Devil’s attention by unsuccessfully setting the local church on fire. Suhm was unanimously found guilty but managed to escape with no trace after deceiving the prison guards.Footnote 11
Following the adoption of the distinctly liberal Constitution in 1814, sanctions against blasphemous offenses were dramatically reduced. Although Section 100 of the Constitution secured that ‘disrespect to the religion’ could be penalized, the 1842 Criminal Code contained only a brief chapter on ‘Crimes against Religion and Morality’ that departed significantly from the draconian measures of the CVNL. According to the 1842 law, ridicule or defamation of the sacred word of God or the sacraments, or any other defamation of the public religion of the state, could be punished with imprisonment or fines. Printed defamations could also be punished additionally, by forced labour.Footnote 12 Although the law protected followers of ‘other religions’ from ‘wilful enragement’, this protection was largely symbolic, as no other religions apart from Evangelical-Lutheranism were officially recognized at the time.Footnote 13 Convictions handed down under the 1842 law span from ten days’ imprisonment to two years’ forced labour. The prosecutions under the law mirror some of the major tensions of Norwegian society in the 1800s, as Marcus Thrane, a leader in the incipient labour movement,Footnote 14 several members of the indigenous Sami community that later instigated the 1852 Kautokeino revoltFootnote 15 and Hans Jæger, one of the main characters of the bohemian art scene,Footnote 16 all were charged with various acts of blasphemy, intimating a strong correlation between blasphemous offenses and the protection of state authority.
When the 1902 Penal Code was adopted, the offense of blasphemy was further watered down, as the nature of the offense was changed from the denigration of the ‘holy word of God or Sacraments’, with a particular protection for the official religion, to the ‘declaration of faith’ of any ‘recognized’ religion. Admittedly, this expansion was limited in nature, as the only explicitly recognized religions at the time were Evangelical Lutheranism, Judaism and a limited number of Christian ‘dissenters’, following the adoption of the Christian Dissenter’s Act in 1845 and the revision removing the constitutional prohibition against Jews in the realm in 1851.Footnote 17
Throughout its existence, from the adoption of the 1902 Penal Code and to its demise in 2015, the maximum penalty available under Section 142 was six months’ imprisonment. The one and only conviction under the ban was handed down in 1912, when Jens Arnfred Olesen, editor of the magazine The Free Thinker (Fritænkeren), was convicted for publishing an article entitled ‘The Great Scam. The Christmas Holiday of the Christians’.Footnote 18 At the time of Olesen’s conviction, the offense had to be ‘defamatory’, indicating a certain level of intent from the perpetrator.Footnote 19 Olesen was fined 10 Norwegian kroner.Footnote 20 Later on, two adjustments were made to the original text. First, in 1934, the scope of the prohibition was expanded from ‘recognized’ religious faiths to cover all ‘legally extant’ faiths and their manifestations; simultaneously, the scope of the offense was expanded from ‘defamation and ridicule’ to cover also ‘contempt’, thereby covering offenses that may not have been intended as blasphemous but whose content was ‘hurtful’ or ‘abusive’. Then, in 1973, an additional clause was inserted, limiting the application of the prohibition to cases in the public interest.Footnote 21
Due to its lack of use, the scope of the prohibition was never entirely clear. The by far most famous case was the trial of author Arnulf Øverland in 1933, for his statements on Christianity during his lecture ‘Christianity: the tenth plague’ at the Norwegian Student Society.Footnote 22 The explicit purpose of the lecture, which caused much consternation among conservative Christians, was to test the applicability of the blasphemy section.Footnote 23 His acquittal was by the narrowest possible margin, and the trial judge later observed in a letter to the Ministry of Justice and Police that he considered both the objective and subjective requirements of Section 142 to be fulfilled by Øverland’s speech, claiming outright that the jury had come to the wrong conclusion.Footnote 24
From the 1950s and onwards, scattered attempts to apply the prohibition were exclusively intended to protect the Christian faith. The most well known and ridiculed example of these attempts was the decision by the Film Board of Norway in 1980 to prohibit the release of the satirical British movie Life of Brian, portraying a hapless man born next door to Jesus Christ, finding himself frequently mistaken for the Messiah. According to the Film Board, the crucifixion scene towards the end, in which numerous actors are portrayed as singing the song ‘Always look on the bright side of life’ while nailed to their crosses, was particularly suited to cause offense to religious sentiments.Footnote 25 The film was only allowed cinematic release several years later, featuring a textual introduction specifically clarifying that Brian was ‘not Jesus’ and leaving potentially offensive sections of dialogue without the usual Norwegian subtitles.Footnote 26 Eight years later, Martin Scorsese’s The Last Temptation of Christ, whose censorship in Chile was tried all the way to the Inter-American Court of Human Rights,Footnote 27 provoked demonstrations, demands of boycott and angry letters to the press but no legal complaints, signalling that the debate on blasphemy targeting the Christian faith was moving out of the courtroom.
The longevity of the blasphemy section represents one of the most visible and concrete examples of the move from a range of specific legal protections of the majority religion to a system of religious equality in the regulation of religion in Norway, a shift that has happened only recently for most aspects of legislation, despite swift and considerable changes in religious demography throughout the last three decades.Footnote 28 Throughout the twentieth century, legislation on religion in Norway distinguished clearly between Evangelical Lutheranism, which remained the state religion until constitutional amendments in 2012, and other religions, until the 1960s only explicitly recognized as ‘Christian Dissenters’.Footnote 29 The role of Evangelical Lutheranism as the official religion of the state was,Footnote 30 and to some extent still is,Footnote 31 embedded throughout the legal framework.Footnote 32 Following constitutional amendments introducing the freedom of religion in 1964 and the adoption of the 1969 Law on Faith Communities, both explicitly required by the international obligations of Norway, the scope of recognized religions was expanded considerably.Footnote 33
Strictly speaking, the changes to the blasphemy section actually preceded, by several decades, the gradual changes from an overall legal framework specifically tailored to protect the state religion to a system of religious legal equality. While the overall legislative framework on religion only became generalised with the introduction of the Law on Faith Communities, the blasphemy section was effectively expanded to cover contemptuous expressions towards all ‘legally extant’ faith communities already in 1934. Hence, unlike other statutory laws on religion, the section – at least in theory – became an available remedy for anyone residing in Norway of whatever legally tolerated religious persuasion, which would only exclude Jesuits, whose access to the realm was banned until 1956. This very enlargement, which represented a final departure from the absolutist ideal of protecting the state from criticism, was most likely a major influence on the later inapplicability of the prohibition, whose scope had become generalised to the extent that its precise determination had become virtually impossible.
21.3 Reform Efforts 1989–2015
The first traces of a broad, public debate on the blasphemy ban appeared in February 1989, with the religious ruling (fatwa) issued by Iranian ‘Supreme Leader’ Ayatollah Ruhollah Khomeini against the author Salman Rushdie following the publication of his 1988 book The Satanic Verses. Four days after the publication of the fatwa, Norwegian Muslim leaders established the Islamic Defence Council (Det Islamske Forsvarsrådet), with the explicit purpose of using the Norwegian prohibition on blasphemy to prevent the import and distribution of the English original and any attempts at its translation into Norwegian.Footnote 34 The Council sought the imprisonment of publisher William Nygaard of the publishing house Aschehoug for violating the blasphemy section if he published the book, fines for the publishing house, and 2 million Norwegian kroner in damages/compensation.Footnote 35 Shortly after the charges were made public, leader of the populist Progress Party and MEP Carl I. Hagen presented Parliament with a proposal to remove the blasphemy section. The main rationale in the proposal was that the section, having remained unapplied despite numerous contemptuous attacks on Christianity, risked offering better protections for ‘other religions’ than the Christian faith, in what amounted to a thinly veiled reference to the charges launched by the Islamic Defence Council.Footnote 36 Several MEPs declared their support for the removal of the section, but the matter was postponed with a majority of 60 against 16, pending a broad-based assessment of the proposal and surrounding penal legislation.Footnote 37
Following the failed and still unresolved assassination attempt on Rushdie’s Norwegian publisher William Nygaard in October 1993, two successive government commissions (1994–1996 and 1996–1999) were appointed to examine the status of the freedom of expression in Norwegian law, both of which recommended the removal of Section 142 of the 1902 Penal Code and the prohibition against defamation of religion in Section 100 of the Constitution.Footnote 38 In transmitting the proposal of the 1999 commission to Parliament, the government recommended the constitutional amendment but argued against the removal of the blasphemy ban, pointing out that the symbolic nature of the section and its protection of ‘religious feelings’ could become revitalized by the growth of new religious groups in multicultural Norway.Footnote 39 While the constitutional amendment gave rise to considerable public debate culminating in the removal of the ban on religious offenses, the proposal to remove Section 142 of the 1902 Penal Code was not approved, either by the preparatory committee or by the parliamentary assembly.Footnote 40
In January 2006, several Norwegian newspapers published facsimiles of the caricatures of the Islamic prophet Muhammad originally published in the Danish daily Jyllands-Posten on 30 September 2005. The publications and the response from the local and global Muslim community led to a flurry of legal charges of blasphemy throughout the year, both lodged by and targeting Muslim faith societies.Footnote 41 Following the public outcry, Progress Party Leader and MEP Carl I. Hagen and MEP Siv Jensen again proposed the removal of the blasphemy section, arguing that its removal would ‘send a strong message’ that the freedom of expression is more important than the prophet Muhammad and other religious authorities.Footnote 42 During the parliamentary debate, the proposal was dismissed once more, primarily because of the pending revision of the entire 1902 Penal Code, a long and protracted reform effort started in the 1980s.Footnote 43
Three years later, in 2009, the government supported the proposal of the commission in charge of reforms of the 1902 Penal Code and recommended the removal of the blasphemy section. Simultaneously, however, the government proposed a considerable expansion of the ban on hate speech in Section 135a (see next sections), which at the time of the proposal already protected individuals targeted for their religious identity.Footnote 44 The white paper put out by the government argued that religious faith and convictions merited particular mention in the section, because ‘they are lodged deep within one’s personality’, evoking ‘strong feelings’ that should be protected.Footnote 45 As such, attacks against faiths and worldviews could both influence the individuals in question but also poison the climate for debate in the public sphere. Referring to increased religious pluralism and the precarious position of religious minorities, the government recommended a ban on hate speech constituting ‘qualified attacks on declarations of faith and life stances’, thereby effectively resurrecting the blasphemy ban.Footnote 46
The proposal was met with wide protests, both from the media, from intellectuals, from the opposition and from within the ranks of the government coalition.Footnote 47 The proposal, which was quickly shelved by the government following the criticism,Footnote 48 dovetailed other thorny issues on the regulation of religion in Norway at the time, including controversial questions about allowing the Islamic veil as part of the police uniform and questions about the criteria for financial support to religious youth organizations.Footnote 49 On 28 May 2009, parliament decided to adopt the new proposal for the 2005 Penal Code, in which both the ban on blasphemy and the proposed prohibition of hate speech targeting faith and worldviews was excluded, thereby starting the final part of the drawn out process of removing the blasphemy ban that was – as discussed in what follows – finally concluded in May 2015.
21.4 Legal Literature and International Law
As a direct consequence of the limited case law on the prohibition against blasphemy, there has been little mention of the topic in domestic legal literature. To the extent that blasphemy has become subject to legal scholarship in the modern era, it is in the form of duty-bound summaries of how the blasphemy section has developed over time and why it has become redundant.Footnote 50 Social anthropologist Sindre Bangstad has claimed that the Rushdie affair created socio-cultural conditions in Norway that rendered legal protections against racist and discriminatory speech ‘all but symbolic’ in the name of stronger protection for the freedom of expression,Footnote 51 a claim that finds – as discussed in what follows – at least some support in the jurisprudence of the Supreme Court of Norway on hate speech.
International human rights law has indirectly influenced the prohibition against blasphemy in Norwegian law by requiring the creation of a legal framework for the equal treatment of religions. International monitoring bodies, on the other hand, have tended to ignore the Norwegian ban on blasphemy. Over the course of seven consecutive periodic reviews of the obligations of Norway to uphold the freedom of religion or belief and the freedom of expression as enshrined in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee has not commented upon the blasphemy section on a single occasion. The Committee has, however, expressed considerable disapproval of constitutional provisions securing the special status of Evangelical Lutheranism in Norway.
During the meeting with the committee upon the review of the second periodic report of Norway in 1981, the prohibition against ‘contempt against religion’ in Section 100 of the Constitution was raised by several members of the Committee:
As regards the use of the term ‘contempt of religion or morality’ in … the Constitution, questions were raised as to whether ‘religion’ meant the State religion, or included other religions, particularly those which were registered; whether if a person advocated revolution or advocated abortion, that would constitute contempt of religion; whether, if a person advocated living together of couples outside of marriage, that would amount to contempt of morality.Footnote 52
The exchange did not become subject to a particular mention in the annual report of the Committee, nor was it addressed in the consecutive review of Norway. Although Norwegian authorities have heeded the call by the Committee in its General Comment no. 22 on the scope of freedom of religion or belief that states should include in their reports ‘information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous’,Footnote 53 the committee has taken no further interest in the matter. Somewhat ironically, during the Universal Periodic Review of Norway by the UN Human Rights Council in 2014, the delegate from Saudi Arabia proposed that Norway should ‘criminalize contemplation of prophets and religions through all kinds of media (visual, audio and printed)’,Footnote 54 apparently unaware that legislation in that vein was still technically in effect in Norway.
The only Norwegian case to be brought before the European Court of Human Rights (ECtHR) concerning the interrelationship between religion or belief and the freedom of expression in article 10 of the European Convention of Human Rights (ECHR) is TV Vest AS & Rogaland Pensjonistparti v. Norway.Footnote 55 In the case, the Court found the Norwegian ban on televised political or religious commercials in Section 3-1 of the Broadcast Act to be in violation of the right to freedom of expression in article 10 of the ECHR.Footnote 56 Although the facts of the case concerned political content and did not involve religion or belief, the Norwegian Supreme Court reasoned that the ban was legitimate because it was based on considerations similar to the ban on religious broadcasting in Ireland, which the ECtHR had approved in its decision in Murphy in 2003.Footnote 57 The European Court found the analogy unconvincing, pointing out that the reasoning in Murphy was intended to narrow the margin of appreciation for limitations on political expressions while expanding the margin for states to limit religiously offensive expressions, allowing states significant leeway to censor what they might consider to be blasphemous expressions. This is also in line with the Court’s earlier acceptance of limitations to religiously offensive expressions and its overall tendency to allow states a considerable margin of appreciation in cases involving religion.Footnote 58 The ban on religious commercials has never been tried by Norwegian courts, but to the extent that jurisprudence from the ECtHR would have any bearing on this topic, it could most likely be relied on to legitimize restrictions.
21.5 The Impact of Surrounding Legislation
The historical development and eventual demise of the blasphemy section can only properly be assessed if the ban is considered within its wider legal context, which has been instrumental to the gradually increasing irrelevance of the ban. In particular, the adoption of legislation prohibiting religiously motivated hate speech has been decisive to a re-conceptualisation of the limits between religion and freedom of expression. Following the amendment of Section 135 of the 1902 Penal Code in 1961, which expanded the ban on hate speech from offenses targeting public authorities to also offer protection for sections of the population recognized by a particular ‘declaration of faith’ or ‘descent’,Footnote 59 it became uncertain where hate speech targeting individuals identified by religious adherence ends and offense against religious sentiments begins. Developed in close interaction with provisions negotiated at the international level, the protection of individuals in hate speech legislation represents a more updated and relevant restriction on the freedom of expression than the vague protections offered for declarations of faith in the blasphemy section. Unlike the blasphemy section, the prohibition on hate speech has been subject to widespread litigation, with several high-profile court cases from the 1970s and up to the present.
Like the prohibition of blasphemy, the ban on hate speech has been amended several times. Following the Norwegian ratification of the International Convention on the Elimination of Racial Discrimination (ICERD) in 1970, the protection offered by Section 135 of the 1902 Penal Code was found to be insufficient, and a separate clause was added as Section 135a, colloquially known as the ‘racism paragraph’. The section, like ICERD, offered protection against publicly disseminated hate speech targeting anyone for their racial, ethnic or national characteristics. Unlike ICERD, however, the section also offered protection for hate speech targeting people for their ‘declaration of faith’.
In 1981, the scope of protection was expanded to cover homosexual orientation, less than ten years after the decriminalisation of homosexual acts. The amendment was adopted with a slim margin in Parliament and sparked a vigorous debate on the potential limits it would impose on the religious freedom of expression.Footnote 60 In 2005, the notion of ‘public’ was expanded considerably to also cover expressions made in private but reaching a wider public, and ‘declaration of faith’ was replaced with ‘religion and view of life’ as part of a larger restructuring of Norwegian anti-discrimination law.Footnote 61 With the implementation of the 2005 Penal Code, the racism paragraph was kept largely intact as Section 185. Following the Norwegian ratification of the Convention on the Rights of Persons with Disabilities in 2013, the scope of protection was expanded to cover hate speech targeting people for their disabilities. Throughout its existence, the ban on hate speech for private persons has been dovetailed by a similar-sounding prohibition against denial of service.Footnote 62
The maximum penalty for hate speech in the 2005 Penal Code is three years’ imprisonment for public hate speech and one year’s imprisonment for hate speech with more limited distribution. The latter penalty was added to cover ‘semi-public’ and private acts of discrimination.Footnote 63 Mirroring the UN debate on hate speech in the 1960s,Footnote 64 Norwegian jurisprudence on hate speech has been marked by the inexact borders between different grounds of hate speech, in particular between religious intolerance and racial discrimination, the entanglement of which has featured in several decisions. In the Leaflet case, decided by the Supreme Court in 1981,Footnote 65 a woman was charged with targeting Muslim immigrants in a series of inflammatory leaflets that were widely distributed in the Oslo area. In one of the eight leaflets reviewed by the court, the message was that:
The biddings and laws of Islam are in violation of Norwegian law in all the most important and decisive areas. Therefore, it is absurd, illogical and unreasonable to bring Islam into Norway by allowing the construction of mosques. This is tantamount to introducing crime. Building mosques means honouring barbarism, and one of the world’s worst, totalitarian systems.Footnote 66
In its reasoning, the Court distinguished between accusations directed against the religion of Islam, the state of affairs in Muslim countries and general immigration policy, which it found to be outside the ambit of the law, and accusations levelled directly at immigrants as individuals and a social group, which it found to be ‘at the centre’ of the protection against hate speech.Footnote 67
To the extent that the general criticism of Islam in the leaflets could be prosecuted, the Court observed, it would have to be under the blasphemy section. However, following the 1973 amendment of Section 142, prosecution could only be raised if it was required by the ‘public interest’, which the prosecutor in the Leaflet case did not find to be the case. In its overall assessment of the leaflets, the court reasoned that the scope and gravity of the general accusations against Islam as a religion and the state of affairs in Muslim countries, while conceptually distinct from the accusations targeting Muslim immigrants more specifically, served to exacerbate the overall message. Consequently, the woman was found guilty of the offense and sentenced to sixty days’ conditional imprisonment. With this judgment, the court inaugurated a phase in its jurisprudence in hate speech cases under which wider assessment of context would be considered than in its earlier judgments, which had opted for more strictly textual interpretations.Footnote 68
In the Pastor decision, another high-profile hate speech decision handed down by the Supreme Court in 1984, a pastor at a local church in Oslo was charged with hate speech targeting homosexuals during a live, nightly radio show answering phone calls from listeners.Footnote 69 The statements about homosexuals were made following a sexually explicit message from one of the listeners, the nature of which the court of first instance somewhat surprisingly found to be ‘undoubtedly within the boundaries of the blasphemy section’, although no claims were being made in that direction by either party. Assessing the nature of the offense, the Supreme Court observed the emphasis in the preparatory works on the protection of ‘religious freedom of expression’ preceding the 1981 inclusion of homosexual orientation to Section 135a. As in the Leaflet case, the court distinguished clearly between the ‘purely religious’ part of the message, which it found to be well within the boundaries of the acceptable, and the more specific calls for listeners to pray for the ‘removal’ of homosexuals from leading positions in society, which it found offensive to a marginalized social group. Taken together, the court opined that the religious message, while clearly protected by the freedom of expression, served to amplify the specific targeting of members from a social group and overturned the acquittal by the lower court.
This contextual method of interpretation held sway until 2002, when the Supreme Court considered the so-called Boot Boys case,Footnote 70 in which a neo-Nazi leader stood trial for his remarks about Jews during a commemorative march celebrating the birthday of Rudolf Hess in 2000. The case was narrowly decided by a plenary session of the Supreme Court, indicating the complexity attached to determining the scope of hate speech prohibitions vis-à-vis the freedom of expression. As in the Pastor decision, the subject matter in Boot Boys was orally transmitted, and the Court reasoned that ‘the immediate context for the demonstration, with uniform dark attire, that most participants were masked, that “Sieg Heil” was shouted and so on, cannot have significant bearing on the consideration of the utterances’.Footnote 71 Turning to the more specific content of the speech, the court found that it constituted little more than a ‘general subscription to Nazi ideology’ despite fairly concrete accusations levelled against immigrants and Jews specifically, including this passage:
Every day, immigrants rob, rape and kill Norwegians, every day, our people and country is pillaged and destroyed by the Jews, who suck our country dry for riches, replacing it with immorality and un-Norwegian thoughts.Footnote 72
This strongly ‘textual’ reasoning, under which the surroundings of the specifically offensive speech were not considered relevant to the overall offense, generated considerable public debate in Norway. Later adjustments to the section, including symbols as aspects of speech (2003) and expanding the scope of the offense to cover non-public acts (2005), make future rulings along these lines unlikely.
In 2003, the Boot Boys ruling became the subject of a formal complaint submitted by the Jewish communities in Oslo and Trondheim and the Norwegian Anti-Racist Centre to the United Nations Committee on the Elimination of Racial Discrimination. The complaint alleged that the ruling violated articles 4 (obligation to prohibit hate speech) and 6 (available remedies) of ICERD. In its opinion, handed down in 2005, the Committee found the reasoning in the Supreme Court decision to be in violation of both articles, having failed to properly address the ‘exceptionally/manifestly offensive character’ of speech in the case.Footnote 73 The state was advised to take measures that would ensure that similar statements could not find protection under the freedom of expression in the future.
In 2007, the Supreme Court handed down its decision in the Vigrid case, where the leader of a fringe right-wing organization was charged with hate speech targeting Jews in a newspaper interview from 2003. In its assessment of the scope of hate speech legislation, the court cited a proposition issued by the parliamentary constitutional committee following the Boot Boys decision, observing that the threshold for conviction appeared to be ‘somewhat high’. Additionally, the court observed that the statements in question specifically intimated concrete measures against Jews, delivered in a format that left little room for interpretation in any other direction, confirming the conviction of the court of first instance of forty-five days’ unconditional imprisonment.Footnote 74 Although the conviction may indicate a minor course correction from Boot Boys in the direction of a lowered bar for racist hate speech, the Court took great care to differentiate between the subject matter in the two cases, finding the hate speech in Vigrid to be more explicit and unequivocal than the speech in Boot Boys. The Court has not heard any cases on religious hate speech since its finding in Vigrid.Footnote 75
Throughout its hate speech jurisprudence, the Norwegian Supreme Court has distinguished between utterances targeting or derived from religions, ideologies and political opinions, which it has unequivocally considered to be protected by the freedom of expression, and expressions targeting specific individuals and social groups, which it has found, with notable exceptions, to be in violation of the prohibition against hate speech. Several hate speech cases feature offensive depictions of different religions that the court has identified as relevant to the scope of the blasphemy section, but none have met the public interest requirement, added to the section in 1973. Notably, the public interest clause was introduced explicitly to provide prosecutorial authorities with a legal basis to dismiss claims of blasphemy,Footnote 76 an intention that appears to have been successful.
Another limitation to the freedom of expression influencing the function and role of the blasphemy section is the ban on defamation, to which the 1902 Penal Code dedicated an entire chapter (Sections 246–254), but which under the restructuring of the legal framework following the introduction of the 2005 Penal Code has been moved to the civil ‘Act relating to compensation in certain circumstances’, thereby purging the last remnants of one of the core principles of ancient Norwegian penal law from the books. While litigation under the sections criminalizing defamation in the modern era has mostly concerned the veracity of media reports, the 2009 Bookseller of Kabul decision touched upon the nexus between defamation and religion.Footnote 77
In the case, the Supreme Court considered whether claims of defamation by an Afghan bookseller against a Norwegian author should be tried under Afghan or Norwegian legislation. Although the claimant explicitly specified that the alleged violations concerned privacy and not religion, the Court observed that violations of privacy, which targeted the ‘emotional and mental plane’, were largely conditioned by culture, morals and religion.Footnote 78 Although this analysis played no decisive role in the decision, which concluded that the information about Afghan law by the claimant was insufficient to be applicable to the case, it intimates the continued existence of the by now mostly watered down and abandoned correlation between defamation and religion, with the latter constituting an important condition for the interpretation of the former.
In 2014, the correlation between religion and defamation was explored from another direction, as the Kristiansand City Court handed down its decision in a suit for defamation under Section 247 of the 1902 Penal Code brought by Arne Tumyr, the former leader of the organization Stop the Islamization of Norway (SIAN) against a local imam.Footnote 79 According to Tumyr, the imam made defamatory statements about him during an interview with the Norwegian public broadcaster NRK, in which the Imam observed that Tumyr ‘bases his work on racism, hate, propaganda and lies. He is never willing to listen to others, and therefore, we cannot have a dialogue or debate with him’.Footnote 80
The crux of the issue was whether various statements made by Tumyr in the public sphere about Islam could be considered racist, hateful, propaganda or untruthful, or if they, as Tumyr maintained, painted an accurate portrait of the religion of Islam, in which case the statements of the imam would be manifestly untrue and therefore liable to prosecution for defamation. The Court found the Imam’s characterisation of Tumyr to be ‘mostly true’ and therefore well outside the scope of prohibited defamations.Footnote 81 The court found Tumyr’s statements about Islam to represent a ‘manifestly unbalanced and stereotypical attitude towards all Muslims’ and acquitted the imam, observing the paradox that Tumyr retorted to defamatory metaphors of Islam as a ‘cancerous tumour’ during a trial in which he accused the imam of defamation.Footnote 82
Taken together, the gradual decline of legislation on defamation and the concurrent increase in sanctions against hateful speech represent the broader socio-legal trends that gradually made the blasphemy ban untenable. Increasing religious pluralism, including a significant rise in non-religion, has led to a greater acceptance of criticism against powerful religious doctrines while also sparking heightened social tensions that have given rise to increased hate crimes.
21.6 Charlie Hebdo
Directly following the terrorist attacks against the French satirical magazine Charlie Hebdo in Paris on 7 January 2015, the Norwegian debate on blasphemy was reinvigorated. The day after the attacks, an op-ed in the largest Norwegian daily, Verdens Gang, pointed to the poor handling of the 2006 cartoon controversy by the Norwegian government and the controversial 2009 proposal to ban ‘qualified attacks on religions’ as evidence of the victimisation of Islam opening up a space for destructive and violent reactions to criticism.Footnote 83 In the following days and months, the public reaction oscillated between calls for the final abolition of the Norwegian ban, which was still technically in effect, and comparisons between the important role of the freedom of expression in the West vis-à-vis the many bans on blasphemous expressions in Muslim-majority countries around the world.
On 10 February 2015, these two perspectives came together, as a draft amendment was presented to Parliament to remove the section ahead of schedule as a direct response to the attacks:
The attack on the French satirical magazine Charlie Hebdo in January 2015 was a direct attack on both the freedom of the press and the freedom of expression. Although the blasphemy section does not legitimize violence, the continued existence of the ban on blasphemy in the views of the sponsors of this amendment, underpins the idea that religious expressions and symbols should be granted special protection against expressions ... Historically, religion has been a considerable source of power, and in many societies and cultures, religion is still very influential. Therefore, religion could and should be open for criticism, in the same ways as other powerful sectors of society.Footnote 84
On 29 May 2015, Parliament unanimously decided to finally discontinue Section 142 of the Norwegian 1902 Penal Code, thereby ending a nearly 1,000-year-old tradition of protecting religious sentiments from ridicule and defamation.
21.7 Concluding Remarks
The long arc of legal history of the Norwegian ban on blasphemous offenses offers a striking imagery, with the ban moving from the periphery in the first, fleeting references to penal sanctions against religious violations in the canonical chapter of the earliest written laws of Norway to the centre of attention via the violent upheavals during the Reformation and the increasingly draconian measures introduced by the absolutist state and back to the periphery again with its gradual dissolution in the wake of social secularisation and religious pluralism in the modern era.
The prime mover in this back and forth has been the gradual rise of the modern nation state, whose earliest iterations in Norway developed in close interaction with canon law imported from continental Europe, inheriting many of its principles and punishments. With the shattering of European Christian unity during the reformations of the sixteenth century, the state became ever more watchful of the orthodoxy underpinning its divine claim to power, turning blasphemous offenses into the highest, most egregious forms of treason. As punishments meted out for blasphemous offenses were dramatically reduced with the growth of the liberal state in the nineteenth century, the ban was gradually transformed from a powerful protective measure to uphold state power to one among a host of general rights held by all individuals. In the twentieth century, the ban was primarily symbolic in nature, as the expansion of its protection to all religions effectively inaugurated the gradual decline in its applicability. Within a legislative framework based on the equality of all religions, bans on blasphemy quickly became untenable, as attested to by its turbulent final years of existence, where reform efforts where launched mere weeks after the first indications that other religions than the majority might call on the protection for their own beliefs.
As Yvonne Sherwood has observed, blasphemy – like comedy – is all about timing and direction.Footnote 85 When acts of blasphemy carried the sentence of beheading in the seventeenth century, it was because they were perceived as attacks directed at the very foundations of the political order, reminiscent of the motivations behind contemporary prohibitions against blasphemy in countries like Pakistan and Afghanistan. As the nature of that political order and its relation to divine sanction changed dramatically over the following centuries, blasphemous expressions were robbed of their primary sense of direction and purpose and became unhinged, as their determination and recognition became radically context dependent. In a Norway increasingly marked by religious pluralism, regulations of hate speech targeting people for their religious identities or beliefs represents a considerably more relevant and contextually sensitive tool to negotiate potential limitations of the freedom of expression than the ban on blasphemy.
