I.1 Of Charlie Hebdo and ‘The End of Blasphemy’?

The attacks on 7 January 2015 against editors and employers of satirical magazine Charlie Hebdo, killing twelve and wounding eleven persons, did not mark a new era in Western legal thinking on free speech and permissible exceptions. While not a watershed, the massacre is significant for many reasons. Notably, it was a large-scale ‘attack on free speech’ on Western soil. Charlie Hebdo’s director and cartoonist Stéphane Charbonnier, who was killed in the attack, was on al-Qaida’s hit list – a group with which the two gunmen identified themselves. Also, the event was soon followed by similar attacks ostensibly ‘avenging’ Western-style free speech, like the shooting, killing two and wounding five persons, that occurred on 14 February 2015 in Copenhagen, Denmark, at a public event called ‘Art, Blasphemy and Freedom of Expression’, involving, among other speakers, the Swedish artist Lars Vilks, who has gained notoriety since 2007 as a result of his drawings of Muhammad. Then on 3 May 2015 the Curtis Culwell Center attack was carried out – the first assault on US soil for which ISIS claimed credit; this time there were no fatalities other than the two gunmen, who did, however, wound a security officer before a SWAT team took them out. This conference centre hosted an exhibition of images of Muhammad as well as a Muhammad-drawing ‘contest’ – the winning cartoon, with the caption ‘You can’t draw me!/That’s why I draw you’, won US$12,500 – and featured speeches by critics of Islam including Pamela Geller and Geert Wilders.

These attacks largely functioned to augment most Western states’, politicians’ and legal scholars’ pro–free speech resolve, cumulating in the Je Suis Charlie mantra. Many Western jurisdictions in recent times have abolished blasphemy offences, and these events did nothing to foster their reintroduction – quite the contrary. There is some evidence, as the chapter on Norway in this volume, for instance, shows, that Charlie Hebdohas functioned as the final straw for some states to definitively strike the offence off their statute books.

That said, other states – where similar momentum was building to abrogate blasphemy laws – are currently experiencing second thoughts. Thus while Charlie Hebdo has not quite led to the reintroduction of blasphemy laws in ‘the West’, in some states the incident has contributed to a sense of fear that this point in history may not be the best moment for a largely symbolic decision on ‘the end of blasphemy’. It should be noted, though, that in such states this type of fear is typically part of a much larger and genuinely legal concern about equal protection under the law of non-dominant religions and their adherents. See, for example, the chapter on Denmark, which serves as an excellent case in point here.

This book investigates the status and tenability of blasphemy laws in Western jurisdictions. There is vast knowledge on non-Western blasphemy laws and their chilling effect on free speech as well as the way these laws have been used and abused to stifle undesirable dissident speech and unorthodox speech acts on the part of religious minorities.Footnote ¹ The discussion on Western blasphemy laws tends to trivialise their significance in two ways. First, they would be mere relics, largely dormant legal curiosities and, in any event, shortly to be a thing of the past. Second, Western legal doctrine would be virtually uniformly on the side of their complete abolition.

I.2 Of Double Standards

On the former point, this book takes as point of departure that ‘the West’ in fact is not quite as progressive on this point as often thought or portrayed. True, Western countries formed an outspoken front against the Defamation of Religion resolutions that aimed at imposing limits on offensive speech.Footnote ² These Resolutions, tabled by the Organization of the Islamic Conference (OIC) in the political organs of the United Nations, the UN General Assembly and the Human Rights Council, were rejected for threatening the core of the right to freedom of expression and the right to freedom of religion or belief. The latter right, legal scholarship also pointed out,Footnote ³ includes a right to manifest beliefs that may be heretical, defamatory or blasphemous to another person.

True, moreover, the twenty-eight (soon to be twenty-seven) European Union countries specifically take a firm position against blasphemy laws in their foreign policy vis-à-vis third countries. In the 2013 EU Guidelines on the promotion and protection of freedom of religion or belief the EU boldly announced that it will ‘at all appropriate occasions’ advocate the position ‘that laws that criminalize blasphemy restrict expression concerning religious or other beliefs; that they are often applied so as to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; and recommend the decriminalisation of such offences’.Footnote ⁴ While one may find this an admirable cause, what is problematic in terms of public diplomacy is that a number of EU states themselves still have blasphemy restrictions on their statute books.Footnote ⁵

One of this book’s objectives, hence, is to investigate exactly how ‘dormant’ those laws are. Could they still be enforced, or is that impossible under reigning constitutional (case) law? What are the landmark cases (if any)? What type of penalties (if any) are imposed in blasphemy cases? In addition, we asked the authors of the comparative chapters on more (Finland, Germany, Greece, Italy and Poland) or less (Australia, Canada, Denmark, Ireland, United States) active blasphemy or religious defamation laws to engage with such questions as whether criminal investigations (if any) following criminal complaints cause a chilling effect in their own right and whether there exists (political or societal) momentum to abolish the offence. Yet further questions are what these laws aim to protect, religions, religious doctrines and/or persons. How is a breach of a blasphemy law determined? What type of mens rea (if any) is required? And so on.

A second objective is more historical: to unveil what were the precise forces and incentives behind recent legislative initiatives abrogating – oftentimes ancient – blasphemy laws. Was this inspired by developments in international law and/or developments of domestic constitutional law? Which political factions were in support or against the abolition? Has the offence been annulled altogether, or has it rather been replaced by new ‘speech offences’ – potentially offences that are deemed more international law compliant, like ‘incitement’ or ‘hate speech’ offences? To that effect, recent legislative choices and debates in the Netherlands, Norway and the United Kingdom have been scrutinized.

I.3 Of Fragmentation of International Law

On the point of compliance with international law, it must be pointed out that this body of law is highly fragmented, if not outright contradictory, as far as the issue of blasphemy is concerned. International standards and their interpretations on the tenability of blasphemy laws vary from organisation to organisation and even between organs of the same international organisation.

The European Court of Human Rights (ECtHR, the Strasbourg Court) of the Council of Europe consistently calls the freedom of expression a cornerstone of a democratic society and underscores that also, if not especially, ideas that ‘offend, shock or disturb’ are to be protected. Yet it is the Strasbourg Court that has gone out of its way to accommodate religious sensitivities and in fact has gone as far as to permit blasphemy(-style) restrictions in its (older) case law.Footnote ⁶ At the same time, other organs of the Council of Europe have repeatedly advised the annulment of blasphemy laws. Accordingly, the Council of Europe’s Parliamentary Assembly in 2007 considered that

The Assembly also notes the inherently discriminatory nature – the fact that they traditionally aim to protect dominant religions – of most blasphemy laws.Footnote ⁸ Accordingly, it urges the Committee of Ministers to review national law and practice in the member states of the Council of Europe ‘in order to decriminalise blasphemy as an insult to religion’.Footnote ⁹ An earlier parliamentary Assembly Resolution had already posited that ‘blasphemy laws should not be used to curtail freedom of expression and thought’.Footnote ¹⁰ Engaging with the 2005–06 Danish cartoons row, the Assembly realised that ‘[r]eactions to images perceived as negative, transmitted through books, films, cartoons, paintings and the Internet, have recently caused widespread debates about whether – and to what extent – respect for religious beliefs should limit freedom of expression. Questions have also been raised on the issues of media responsibility, self-regulation and self-censorship.’Footnote ¹¹ In the final analysis the Assembly concludes that

Thus the Danish cartoon row and recent free speech rows such as the one resulting from instalments of Charlie Hebdo that mock Muhammad pose a critical question to the Enlightened world: shield religious sensitivities from gratuitous insult or promote an unabridged freedom of speech ideal? While the Strasbourg Court has repeatedly opted for the former, the Parliamentary Assembly has repeatedly passionately pleaded for the latter.

The latter body’s views resonates with another Council of Europe organ, the Venice Commission, an advisory body composed of independent constitutional law experts. In its comprehensive report on the issue of Blasphemy, religious insult and incitement to religious hatred,Footnote ¹³ it concludes that ‘the offence of blasphemy should be abolished (which is already the case in most European states) and should not be reintroduced’.Footnote ¹⁴ Specifically, the Venice Commission held that it is not ‘necessary or desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component’.Footnote ¹⁵ Realising that this reference to accepted restrictions on free speech under international law is also not without its own complexity, it emphasised that

While regional human rights courts have under some circumstances permitted blasphemy laws, international monitoring bodies and independent experts have recently united in condemning such restrictions on freedom of expression. Specifically, the UN Human Rights Committee, overseeing State parties’ compliance with the UN International Covenant on Civil and Political Rights (ICCPR), stipulated in 2011 that ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’.Footnote ¹⁷ In the same General Comment the Committee expressed its concern that existing blasphemy or religious insult regulations typically discriminate between religions in that insults to some but not all religions tend to be covered by those laws.Footnote ¹⁸

The UN Special Rapporteur on freedom of religion or belief, moreover, has called national blasphemy laws ‘counter-productive’.Footnote ¹⁹ In a recent report, the Special Rapporteur reiterated this by underscoring that ‘according to his experiences, blasphemy laws typically have intimidating effects on members of religious minorities as well as on critics or dissenters’.Footnote ²⁰ Therefore, he called on all parties to the ICCPR to repeal blasphemy laws.Footnote ²¹ Similarly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has recently issued a report expressing his concern about ‘anti-blasphemy laws, which are inherently vague and leave the entire concept open to abuse’.Footnote ²² He added that ‘international human rights law protects individuals and not abstract concepts such as religion, belief systems or institutions. … Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule.’Footnote ²³

Furthermore, the recently adopted Rabat Plan of Action,Footnote ²⁴ a worldwide endeavour by leading human rights experts, organised by the UN Office of the United Nations High Commissioner for Human Rights (OHCHR), also indicates that anti-blasphemy legislation does not qualify as acceptable limits on the right to freedom of expression. Specifically, the Rabat Plan states that blasphemy laws are

Consequently, the Rabat Plan of Action lists among its recommendations that ‘States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion’.Footnote ²⁶

In sum, as far as the UN treaty bodies and independent experts are concerned, there is no place for blasphemy bans under international law – a position that sharply contrasts with the (older) ECtHR case law. Yet within the UN we could previously discern fragmentation, too, due to the said resolutions that aimed at combating defamation of religion at the international and domestic levels. However, as a result of Western pressure, these resolutions have now been revamped into resolutions Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief,Footnote ²⁷ or the 16/18 approach, after the initial resolution of that type – an approach that may serve to bridge ‘the West’ and ‘the non-West’ as far as preferred legal and other approaches to ‘extreme speech’ are concerned.

I.4 Of ‘Western’ Legal Doctrine

A final objective of this book, then, is to show that blasphemy and its legal treatment within ‘Western’ legal doctrine is perhaps less monolithic than oftentimes portrayed. While none of the scholars brought together in this volume passionately defends blasphemy laws – in the final analysis, the authors in this volume reject them or at the very least are very concerned about their potential impact – these legal theory contributions do argue that traditional Western legal discourse against these laws still has a lot to answer for. Such critiques, among many other points, pose questions of desirability and/or viability, including basic conceptual queries, regarding the norms that are supposed to replace blasphemy prohibitions, like anti–hate speech standards. Are religious minorities sufficiently protected under the latter standards? And is it in actual legal practice truly possible to distinguish between verbal attacks on a religion and attacks on religious believers/groups?

Naturally, the book’s central discussion would not be balanced should there not also be a number of contributors fiercely rejecting any limits on free speech in the interest of ‘respect for religions’. While some authors in this volume present arguments on, for instance, why and how the ECtHR should reverse its blasphemy jurisprudence, others defend unabridged free speech from the original perspective of ‘democratic self-governance’.

This book primarily discusses the legal systems of the ‘Western world’, although this concept is far from clearly defined. If the term is actually used to designate the ‘West’, in other words Western European states (the United Kingdom, France, Germany, Austria, the Benelux states, etc.) and probably North America and Australia, then we can indeed find several similar tendencies in the way the legal systems of these countries address the issue of blasphemy. However, the exact legal approaches to blasphemy and the related jurisprudence of these countries are far from identical.

How the European and American approaches to freedom of speech are different is a cliché,Footnote ²⁸ and also within Europe the individual countries of Southern Europe, Central Europe and Eastern Europe have quite different legal approaches to dealing with blasphemy. For example, there is no blasphemy ban in the majority of the post-communist countries – with the exception of Poland, as discussed in this book. The primary reason for this is not that these legal systems organically and naturally developed this approach but rather that the inherent anti-religiousness of the communist system eradicated these bans from the Criminal Codes, and later, following the democratic political transitions, these bans were not re-imposed in most of the countries. This was not necessarily the result of a principled decision; rather, it signified the decreasing social importance of religious communities collapsing under the yoke of dictatorship. However, religious communities remained significant enough in certain Southern European countries (like they do in Poland), and hence their legal systems upheld the bans serving to protect them.Footnote ²⁹

This book also outlines that, although there are identifiable common tendencies, no such thing as a unified European or Western approach exists in terms of the legal interpretation of blasphemy. Though these identifiable trends point towards the direction of removing restrictions, the absolute disappearance of blasphemy bans on the continent will nevertheless apparently be a long process, if it ever takes place at all. At the same time, certain types of blasphemous opinions will remain subject to restriction due to other types of bans (such as the regulation against hate speech or discrimination). As Jeremy Patrick puts it:

However, it is interesting to see how the appearance of radical Islam in the Western world influenced the age-old debate over upholding or abolishing the ban on blasphemy. When, after the Charlie Hebdo attack Pope Francis stated that ‘if a friend of his insulted his mother, the friend should expect the Pope to punch him’Footnote ³¹ he, through this analogy, actually criticised those expressing blasphemous opinions, even though he certainly did not declare that the insult must be retaliated against using legal means or express any sympathy with the terrorists. Although nowadays public discourse usually focuses on the question of the legal perception of blasphemy primarily in relation to Islam, it is clear that one should also take Christianity into account when addressing these issues. A number of European countries are in a situation in which they have to reconcile the occasional appearance of Muslim radicalism with the vastly greater masses of peaceful Muslim citizens and at the same time come to terms with their own Christian heritage with the aim of creating a legal and social set of norms guaranteeing the dominance of individual freedom, including free expression and freedom of religion and other, non-religious worldviews. This is not an easy task by any means. The legal perception of blasphemy constitutes only a relatively narrow segment of this huge set of problems but one that perfectly showcases the nature of the possible clashes between the secular state and religions, the arguments and counter-arguments underlying state decisions and the centuries-old development of freedom of expression in the Western world.

One of the important conclusions of the book is made in terms of the role of the legal system: while the cases discussed in this book tend to focus on important, identity-defining issues of social morality – and for many the question of protection of religions squarely falls into this category – ethical norms can provide more effective and reassuring solutions than the legal rules that theoretically can be enforced (and which were created by their very nature with the intention of being enforced). Hence, when the law remains silent in connection with blasphemy, it does not necessarily mean the approval or encouragement of insulting or offending others but mostly a recognition that the imposition of legal bans is not the most effective way of enhancing peaceful coexistence or to conduct our public debates and resolve our mutual disagreements.

I.5 Of Structure

This volume is composed as follows:

Part I – The case of Charlie Hebdo. The first part sets the scene by engaging with what functioned as the main hook for this book: Charlie Hebdo. ‘Charlie Hebdo’ is debated in the broad sense, including: Charlie Hebdo the magazine that functions as a notorious outlet for mockery of religion; the historical judicial proceedings brought against this magazine precisely over its use of free speech; and the Charlie Hebdo incident, that is the tragedy of January 2015 and especially its significance for free speech debates in Europe. Naturally, then, we start our journey in France, the crime scene of the massacre. Guilhem Gil neatly embeds the discussions surrounding the offensive cartoons and other speech acts of this magazine within France’s legal system and within France’s history of notorious blasphemous publications. Gil also presents the legal proceedings that involved Charlie Hebdo. As the courts in these proceedings held, the protected boundaries of free expression were not overstepped by the magazine’s cartoon artists, as those touched upon a debate of public interest and could not be labelled as insulting to an extent that would require restricting free expression. In France, blasphemous opinions themselves are not restricted by legal means, whereas insults which target an individual or a group of individuals because of their religious affiliation can be. Neville Cox, subsequently, engages with the type of cartoons published by Charlie Hebdo and broadens the discussion by posing and addressing the question of how to judge the arguments in favour or against the legitimacy of blasphemy and defamation of religion laws made both before and after the events of January 2015. Cox builds the argument that while Western states may mostly be eliminating the crime of blasphemy, they cannot do so claiming that blasphemy is not inherently wrong just like hate speech is inherently – morally – wrong. While he agrees that in the final analysis there is no place for the offence in Western liberal democracies, the legal argumentation against this crime currently adopted by Western commentators is flawed.

Part II – The right to blaspheme. The second part of the book focuses on the ‘right to blaspheme’. The controversial nature of blasphemy in 2017 in the West is perfectly illustrated in this seemingly unambiguous section of the book: Mark Hill and Russell Sandberg’s chapter entitled ‘The right to blaspheme’ should not be read as a fierce condemnation of English-style blasphemy offences. In fact, their point is that blasphemy laws and a right to blaspheme are not mutually exclusive. Seeing how very specific the blasphemy offence under (former) common law was, they argue that having the offence in place in actual fact served to carve out the contours of the concomitant right to blaspheme. Thus blasphemy offences and a right to blaspheme are clearly related notions, but it would be an oversimplification, these authors argue, to conclude that they are fully inversely correlated, as though a right to blaspheme exists by virtue of abolishing blasphemy offences. Also, in many places where blasphemy offences have been abolished, the offence has been replaced with largely overlapping religious (group) defamation offences. Typically, rather than a transition from an era of blasphemy laws to a post-blasphemy state, we ought to speak of an era of discriminatory blasphemy laws protecting the state religion transitioning to an era where different religions are protected against punishable verbal attacks. Ian Cram, on the contrary, firmly warns against factions in Europe that fight against what they perceive as militant secularism. Those factions perceive political equality agendas as marginalizing if not persecuting religion, especially Christianity. The decline of blasphemy laws is perceived by these groups as yet another example of secular-political-correctness-gone-mad, and possibly, if given a chance (like Ireland did in 2009), those factions would not hesitate to reintroduce laws forcing respect for religious, especially Christian, feelings. By way of prelude to the comparative part of the book, Cram briefly engages with a number of active blasphemy bans in Europe. Furthermore, Cram develops a strong argument against former Archbishop Williams’s argument for legal protection from insult. Engaging with the views of Machiavelli, Cram then develops a self-governance perspective, concluding that a priori outlawing expression critical of Christianity (or another dominant religion at stake) comes at the great cost of undermining liberty-enhancing self-government.

Part III – On Western legal discourse against blasphemy laws. The third part brings together a number of contributions that challenge the definitiveness and/or fierceness of Western legal discourse against blasphemy laws. Peter Cumper envisages but at the same time critiques a number of potential reforms to blasphemy laws. Overall, in the West there seems to be a discernible move away from anti-blasphemy and towards anti–hate speech/incitement. This move raises the threshold for interfering with free speech and may be applauded from a freedom-of-expression approach; it does, however, raise a number of doctrinal questions.Footnote ³² In his chapter on possible reforms, Cumper asks the pertinent question whether anti-incitement is a desirable approach and, if so, how, then, to conceptualize ‘hate speech’ or ‘incitement’? This contains the sub-question if it is truly possible to distinguish between verbal attacks on religion and attacks on religious believers/groups (Richard Moon, elsewhere in the book engages with that same question in the context of applicable anti–hate speech laws in force in Canada) and whether being able to make that distinction is ultimately necessary to enforce anti-incitement laws. Another meta-critique on Western legal doctrine in this area comes from Robert Kahn, who illustrates the point that the difference between the West and ‘the rest’ over blasphemy is not just a clash of civilizations; there are also important substantive differences. Closely analysing Pakistan’s blasphemy laws reveals that the latter type of law is in actual fact more draconian than many Western modalities of blasphemy laws. As a matter of public diplomacy, then, it is advisable to redirect the fight against blasphemy laws in those states from outrage at the existence of such laws per se to seeking changes of the law so as to make them comply better with such requirements and safeguards as mens rea, public harm criteria and so on. John Knechtle, like Cumper, aims to define and distinguish the several and sometimes overlapping notions of speech restriction, namely blasphemy, defamation of religion and hate speech. He ultimately advocates for a greater appreciation for cultures, religions and legal systems that ‘see the sacred and communal beyond the individual and seeks to protect those interests’, not in order to re-establish already long gone blasphemy laws in Western states but to better understand differing concepts of freedom and dignity. Completing this section, in his assessment of (the legitimacy of) blasphemy laws, András Koltay makes a number of legal analogies, including with Holocaust denial restrictions and hate speech restrictions. Koltay concludes that blasphemy restrictions are untenable to the extent that they protect churches or religions from insult. If and to the extent that these restrictions protect individuals, there may be some rationale for retaining them; however, ultimately such protection is best sought through the ethical promotion of responsible speech rather than through the legal insistence thereof.

Part IV – European Court of Human Rights and blasphemy. The next part of the book presents a critical assessment of ECtHR’s jurisprudence in this area. Tom Lewis gives a concise overview of the Court’s case law regarding blasphemy and the criticism of religious leaders. He argues that since 2006 the ECtHR has slowly shifted its position with regard to expression that is insulting to objects of religious veneration. This led to pro–free speech decisions in cases in which religious leaders were criticised in public. The author admits that this shift can be considered as being ‘irreversible’ only once a proper blasphemy case involving such provocative expression is litigated before it and decided in favour of freedom of expression. That future ‘proper’ blasphemy case may be the Pussy Riot case. Jeroen Temperman analyses Pussy Riot’s ‘Punk Prayer’, the performance of which in a Moscow cathedral resulted in harsh penalties for members of this protest group. He argues that the content and performance of the song can be considered both religious – feminist religious speech contributions on matters of religious orthodoxy – and political – anti-establishment speech, with the establishment consisting of the Putin regime, the Russian Orthodox Church and especially the liaison between the latter – speech. Accordingly, Pussy Riot’s activist art falls squarely within the category of protected speech under international free speech standards. Russia’s conviction of the members of the punk group over allegations of ‘hooliganism motivated by religious hatred’ shows, according to Temperman, how religious speech offences can be abused by states to stifle speech that is deemed undesirable by secular and/or ecclesiastical authorities.

Part V – Active blasphemy/religious defamation laws. This part of the book deals with – more or less – ‘active’ blasphemy and defamation of religion laws, covering Finland, Germany, Greece, Italy and Poland. Interestingly, as explained by Tuomas Äystö, while in the past typically artists and anti-church leftists were the main ‘perpetrators’ under the Finnish criminal legislation against ‘breaches of the sanctity of religion’ – which is occasionally enforced today – currently right-wing politicians, bloggers or other public figures appear to be most liable under Finnish blasphemy prohibitions. In his contribution on the German defamation-of-religion offence, Matthias Cornils criticizes laws in this jurisdiction that ban certain content per se since such content is alleged, by the legislator, to amount to direct harm (i.e. a form of ‘viewpoint discrimination’ in the US legal system). Blasphemy laws, according to Cornils, are also problematic inasmuch as they are overly preoccupied with the response of the target group. In this way, even the most heinous form of defamation could go unpunished if directed at a relaxed, self-confident audience, whereas even the most benign satirical remark or the most delicately put critique could be banned as a result of disruptions of the peace by hyper-sensitive targets. Indeed, many contemporary blasphemy laws are enforced irrespective of questions about the precise risks the target group is under. In Italy, we learn from the chapter by Cristiana Cianitto, the blasphemy ban was abolished; nevertheless, Italy’s inclusion in this part of the book is still merited. The law still prohibits different forms of defamation of religion, norms that are, albeit infrequently, applied. Illustrating the threshold of these defamation standards, she argues that the cartoons of Charlie Hebdo would never had led to prosecutions under Italian law. By contrast, Effie Fokas shows that Greece’s blasphemy law is arguably one of the most active ones in Europe, regularly leading to prosecutions and penalties, including in recent times. Delving into a number of these recent cases, Fokas also points to increasing domestic and international momentum to abolish the offence. Specifically, Greek artists and activists are mobilising to raise concerns with the domestic authorities and international human rights organisations about the chilling effect of these laws. Finally, this section contains a chapter by Joanna Kulesza and Jan Kulesza on Poland, analysing the ambiguity of the text of this blasphemy regulation and the wide powers of discretion the law grants to prosecutors and Polish judges. As the authors argue, the numerous criminal proceedings initiated by Polish authorities create some kind of chilling effect as regards offensive opinions related to religious matters.

Part VI – Dormant blasphemy laws. In contrast, the next section focuses on what we call ‘dormant’ blasphemy laws, that is criminal law provisions against blasphemy that are, though formally still in place, not enforced in recent times. The objective is to unveil and understand the legal-political discourse successfully maintaining this salient status quo. Some six weeks after the Charlie Hebdo shootings the Danish government officially announced its intent not to pursue the long-debated abolition of the blasphemy offence. This Danish exceptionalism, Lars Grassmé Binderup and Eva Maria Lassen describe, has complex roots in a combination of fear of violent reactions to religious insult and genuine efforts to protect minority religions, especially Danish Muslims. The decision to retain the criminal blasphemy law also cannot be seen separately from the fact that Denmark was host to the infamous Muhammad cartoons controversy (2005–2006). Yet as a direct result of this policy, Denmark is out of line with those Nordic states that have recently abolished similar laws and with international developments too. In the latter regard, of particular salience is the historical visit and actual reprimands by the UN Special Rapporteur on freedom of religion or belief who expressed concerns that Danish state practice might be cited by repressive regimes with a view towards legitimizing their own draconian blasphemy laws. Exactly how dormant the Danish blasphemy law is can be debated: while the latest successful prosecution dates back considerably, in a peculiar recent twist, Binderup and Lassen explain, the law has found a second life. The blasphemy offence is, peculiarly, mainstreamed with the Danish Alien Act, potentially affecting the entry into Denmark by foreign blasphemers. Cornils’s point, highlighted earlier, that blasphemy laws place too much emphasis on the potential offence taken by the target group of blasphemous speech acts is perfectly illustrated by reference to Irish blasphemy law, which, since its recent updates, uses the words ‘outrage among a substantial number of the adherents of that religion’ as part of its legal definition (Article 36 of the Irish Defamation Act 2009). While Ireland’s 2009 updates and amendments to its blasphemy law are anachronistic when considered in the light of Western trends, Tarlach McGonagle explains how this blasphemy law is, uniquely, constitutionally entrenched. While most lights are on green to launch an abolition process – numerous domestic law commissions and experts have advised the law’s abolition, and the same goes for international human rights monitoring bodies – Ireland’s criminal blasphemy provision can only be tackled once the Constitution is amended, for instance through a referendum on the very issue of abolishing the blasphemy law. McGonagle warns that as long as this does not happen, this blasphemy provision might very well have a chilling effect on free speech despite its infrequent application and in any event may lead to finger pointing by states that are criticized by Western states over their blasphemy prohibitions. Turning to Canada, Moon describes that an English-style ‘blasphemous libel’ offence is still on the Canadian statute books. However, any attempt at enforcing it would probably be futile in the light of contemporary constitutional free speech guarantees. Canada, like England and a number of other European states, instead has moved towards embracing anti–hate speech laws at both the national and at the provincial levels. Next Moon deconstructs the Canadian counterpart to Western right-wing discourse known as ‘Muslim Tide’ literature. The Canadian proponent (Steyn), like a number of European right-wing politicians and commentators, predicts and rages against the Islamization of the West. Engaging with that particular discourse, Moon argues that the distinction – typically made in Western extreme-speech jurisprudence and scholarship – between verbal attacks on religious groups/individuals and attacks on religions (or their doctrines) per se is oftentimes problematic. What Muslim Tide proponents in fact do is attribute what is an extreme or literal interpretation of religious doctrine by a fringe group to the overall religious group, ignoring internal discussion, disagreement or nuance. This concern does not, in Moon’s final analysis, mean that we ought to seek proscription of (intemperate) criticism of religion. Not only is such an offence not neutrally enforceable by a secular state, any such enforcement would come at great costs – for such an attempt would stifle important criticism of public aspects of religion. Also in what are now states of the United States of America, as Russell Weaver explains, under British colonial rule blasphemy bans were common ground. Some relics of those offences can in actual fact still be found in the criminal codes of some US states. However, any attempt at enforcing such offences is bound to run counter to the US Constitution, if not under the non-establishment clause, then under the free speech clause. Strictly theoretically, a blasphemy restriction could be upheld if the speech act happens to amount to ‘fighting words’ too. That said, even fighting-words restrictions are oftentimes struck down in court nowadays. In any event, blasphemy restrictions tend to amount to both ‘content-based’ and ‘viewpoint-based’ restrictions on speech and are hence untenable. In Australia, Helen Pringle describes, a set of common law and statutory law offences are applicable, as she illustrates by delving into the relevant case law. This case law, however, dates back so long that many Australians might not even realize their free speech is – formally – subject to blasphemy restrictions. Making a case for their full annulment, she does engage with the Australian legal notion that was gaining some traction: ‘religious vilification’. The initial case law gives reason for concern inasmuch as this offence might be seized upon to protect religious orthodoxies (i.e. blasphemy restriction through the back door). Yet, Pringle argues, should this offence become interpreted in ways that link it inextricably to anti-discrimination laws, also meaning that speech acts could only amount to vilification in the event the harm of discrimination is proven, there may be some genuine use for these laws. Otherwise, they should be subjected to the same concerns and criticisms that are lashed at blasphemy laws.

Part VII – Recently abrogated blasphemy laws. The next part of the book is more historical in nature and focuses on a number of Western countries that in recent times have abolished their blasphemy laws. As indicated, developments under international law, occasionally amounting to express calls upon states to repeal their blasphemy laws, tend to be relevant here. Also apart from such specific urgings, developments under international law aimed at the conceptualization of high(er)-threshold speech offences like hate speech or incitement flowing from international human rights treaties – notably the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination – seem to have inspired states to do away with low-threshold speech offences like blasphemy. Helge Årsheim describes in his chapter on Norway that this state explicitly engaged with its international anti–hate speech obligations to raise the bar of domestic speech offences, a development that strongly contributed to the end of anti-blasphemy legislation in that country. Interestingly, the Charlie Hebdo massacre functioned as a catalyst in getting the offence annulled. In the Netherlands, as outlined by Esther Janssen, after the judiciary had already rendered the offence virtually impracticable, the offence did manage to remain – albeit in a dormant capacity – on the statute books for many years due to confessional political parties’ interest in its symbolic meaning. In place for more than eighty years, in 2014 the offence was deemed by a majority of parliament to be contrary to the present-day ramifications of such constitutional and international standards as freedom of expression and religion, equality and state neutrality. Erica Howard, in turn, describes how the English blasphemy offence became abolished and replaced with incitement-to-religious-hatred offences. While she concludes that the current speech offences accord better with international human rights standards, it remains striking that the ECtHR never expressly reproached England over its blasphemy laws. Ivan Hare denies that UK blasphemy laws ever had any sound legal justification – this in contrast with Hill and Sandberg’s claim – and firmly warns against the re-introduction of an English blasphemy offence even if that offence would be a more egalitarian one (i.e. no longer discriminate between different faiths in terms of protection).

Part VIII – The future of blasphemy laws? The final section of the book reflects on the future of blasphemy (laws) and brings together a few – admittedly very selective – recommendations. After years of alienating fights at the United Nations over the controversial notion of ‘defamation of religions’, ‘East’ and ‘West’ ultimately united by way of embracing a new paradigm in the form of the ‘16/18 process’ (2011–today), named after the Human Rights Council’s resolution on ‘combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion or belief’. In their UN-oriented account, Marc Limon, Nazila Ghanea and Hilary Power describe how initial momentum swiftly gave way to renewed concern: due to widely diverging views amongst UN member states on the precise scope, meaning, interpretation and application of 16/18, its actual implementation today leaves a lot to be desired. Also, incidents like the Charlie Hebdo attacks tend to sharpen the differences over the desired relationship between freedom of expression and religious discrimination, incitement and intolerance rather than unite states on these matters. That all said, these three authors show that we ought not to shelve 16/18. They describe in detail what progress is made – for example, in the form of best state practices in the areas of promotion of counter-speech by political or religious leaders in the face if intolerant (speech) acts, inter-religious dialogue and combating incitement – and how compliance with the spirit of 16/18 can be strengthened. Turning from the global to the very local, the chapter by Andrew Hambler demonstrates that harassment laws can in theory be a useful tool for protecting certain religious sensitivities, especially in the context of a workplace, if the harassed person can be considered a member of the ‘captive audience’. However, according to the author, employment judges in the UK may provide less protection under this doctrine than might be anticipated. The main reason for this is that the religious individual is expected to display a very high level of tolerance, lest their claims be rendered unreasonable. Also according to the judiciary (Hambler focuses mostly on the UK), profanities invoking Christ or God nowadays may be considered as being in common usage; thus availing of these profanities is emptied of any religious significance and therefore harassment laws cannot be applied to them. As Hambler argues, this reasoning demonstrates a fundamental lack of empathy with the situation of the religious actor. Finally, the chapter by Brett Scharffs perfectly resonates with the momentum discernible within international legal benchmarks that insist that rather than being overly preoccupied with legal (notably criminal law) approaches to speech offences, if we wish to tackle the root causes of intolerance, we should invest in so-called positive measures. Indeed, more useful perhaps than Western legal discourse’s obsession about where to draw the line between protected and prohibited speech about religion is the consideration that any anti–extreme speech toolbox ought to include non-judicial approaches, including policies to promote counter-speech that may de-escalate contentious situations caused by offensive and controversial speech.Footnote ³³ Scharffs appeals directly to all the key players of the offensive-speech relationship: the speaker, the target group and the different audiences, including the speaker affinity group and the victim affinity group. Through all options open to them in terms of actions or inactions, these players can help escalate or de-escalate a hostile or volatile situation caused by an offensive or hateful speech act. Thus rather than paying lip service to the mantra of ‘positive measures’, Scharffs breaks down concretely what we all, in our different capacities and roles, can do in the face of volatile situations caused by controversial speech.