One must be protected, the other actively discouraged
Sometime in June of this year, a bigoted California individual produced a low-budget film titled ‘Innocence of Muslims’, which (reportedly) portrays Muslims as violent and immoral, and specifically makes blasphemous slants against the Prophet Muhammad (PBUH). The film was screened at some Hollywood theater, and subsequently, clips from it started to appear on YouTube (dubbed in Arabic). Naturally, in a sequence of events that has become all too familiar in the recent past, street protests against this expression of religious bigotry and hatred erupted across the Muslim world.
While the Obama Administration has admonished the film for its social and political consequences, many in the US claim that the film was a permissible exercise of their constitutional guarantee of ‘freedom of expression’.
Let’s get the obvious out of the way first: we must all condemn this film, and the sentiment it depicts, with all our vociferous might. Such actions, by anyone in any part of the world, are barbaric to the fabric of human and religious sentiments.
Now, keeping politics and religion aside, the key legal question then becomes: do constitutional freedoms extend as far as debasing someone else’s religious sentiments?
Let’s start with an analysis of the American jurisprudence on the issue. In the US, the First Amendment protects freedom of speech and exercise of religion. But unlike the claims of those who defend this blasphemous film, these freedoms are not unfettered. They, for example, cannot be used as protection against inciting violence. And a clear demonstration of this principle can be found in the case of Chaplinsky vs New Hampshire (315 U.S. 568 (1942)). Justice Murphy of the United States Supreme Court, writing for the majority, held that “fighting words” are not protected by free speech. This, in the court’s opinion, includes words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Such words “are no essential part of any exposition of ideas, and are of such slight social value sass a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”. As a result, these fall outside the protection of the First Amendment. Now who, in their rightful mind, can argue that (in the current geo-political paradigm) this film and its contents do not constitute “fighting words” towards the Muslim world?
Even in case the protection of free speech is awarded at the fringes to people who are, for all intents and purposes, simply employing hateful behavior, the United States Supreme Court has held in R.A.V. v. City of St. Paul (505 U.S. 377 (1992)) that expression of certain ideas (through speech or actions) “can be banned because of the action it entails”, even if the ideas expressed are protected under the First Amendment. Thus, if for no other reason (or religious sentimentality), then simply because of the violent consequences of making such a film, the same is not protected under the United States Constitution.
In Pakistan, we have drafted our Constitution more carefully than others. Our freedom of speech and express clause (Article 19 of the Constitution), guarantees every citizen “the right to freedom of speech and expression” including press, subject to certain restrictions including anything that denigrates “the glory of Islam”. I say we have drafted this constitutional provision carefully, because we have not protected anti-religion speech… only anti-Islam speech. In essence, we have impliedly given ourselves the constitutional right (per the freedom of speech clause) to deface or insult any (and every) other religion; but should any religious minority say something back to our faith, it will be a constitutional violation.
This implied constitutional protection (in Article 19) for hate-speech against religious minorities not only violates Article 20 of the Constitution (freedom of religion), but also militates against Article 14 (dignity of man). Speaking against some religious minority’s deeply held beliefs (which frequently happens during religious rallies and fanatic sermons in our land) necessarily demeans that minority, and is an offence against their human dignity. In a world where the inherent worth of a human being is fast becoming the focus of fundamental rights discourse, human dignity has taken its seat in the ‘basic human rights’ across the international community, and is being interpreted liberally. Our legal and judicial philosophy must also embrace a broad interpretation of this right to include a protection of religious sentiment.
As this saga continues to unfolds, I pray that we do not demean ourselves in the process by indulging in the same sort of religious offence and abhorrence that the producer of this film indulged in. While using all our resources to bring the culprits to justice, already provided within the law, I hope that we do not take law into our own hands. After all, the Quran itself bears a warning to this idea: “Do not curse the idols they set up beside Allah, lest they blaspheme and curse Allah, out of ignorance.” (Surah 6, verse 108).
Dead wrong. Giving privilege to religious ideas is the blueprint for a society stuck in the dark ages.
It’s impossible to commit “blasphemy” against something that doesn’t exist. Freedom to criticise, dissent from and mock religion is essential in enabling people to grow out of its childish mythologies, and build prosperous and free nations.
It will be worthwhile for Mosems to calmly read upon the history of its founder, the conquests, the marriages and the spread of Islam, especially the manner by which it did, to the East. History seaks for itself and truth cannot be suppressed, however unpleasant it might be
As usual an exellent thought provoking article but having a non legal mind i am confused. You quote a ruling from 1942. I wonder if the previous President Bush or former PM Blair paid any heed to it? They outmatched each other in villyfying Islam as a religion. In Scandinavia too first the freedom of speech was regarded as absolute but after the recent Anders Breivik,s murderous attack there is a subtle movement from absolute to showing sensitivity to others beliefs. The media too appears to show self restraint though it is still quite open. It is better as you demostrate to fight the battle with pens rather than guns. Only the irrational take on the latter and make the former suffer. I am indeed impressed by your knowledge of Quran which i am afraid i was taught by a whip wielding Maulvvi whom i never understood . Thank you for making my day.
I have a question for the Muslims who do not live in the US:
Are you the real Muslims or the Muslims who live in the US? Are the Muslims who live in some of the most corrupt and uneducated nations the real Muslims or the ones who live in the more advanced society of the US? Is it because the Muslims in the US, who do not react violently , are the true muslims or the ones who live in some of the most under developed societies?
doesn't know what he is talking about – a confused person
He is not confused at all. His question is genuine. Why don,t you answer ?Pakistanis live in a closed box and do not suffer the trials and tribulations others suffer abroad. I don.t have the answer but understand the dilemma. I often ask. the same question myself.
Dear Dr, how can he answer when he is not even able to understand the question that was put forward. That is the problem with Muslims of the third world, they cannot even understand simple things but their leaders like Imran Khan compare blasphemy with Holocaust. I am afraid his/her question was rhetorical, anyone with an oz of wisdom knows what he/she is driving at , except people like abbas. Just look at the tone of this response, full of himself.
I would still be disturbed by the implication that perhaps people who live in a more economically progressive society have more right to give an opinion that counts. Though I am certainly not in favor of the protests either. But an obvious answer to the question is perhaps Muslims in the US have vested economic interests, or may be they do not actually enjoy freedom of speech, and that is why they do not protest.
Respecting the view point of the author. I would like to differ with the statement "Now, keeping politics and religion aside". This is were the problem for the Muslims and thereby their thought process starts. Muslims cannot separate any functions of their lives from Deen (Islam is not a only a religion- It is a code of life). The basis of what we think and do has to be the Islamic teachings ( Quran and Sunnah-has to be very well analysed and than acted upon). As in the present world we think in the manner the author ( and most of us) do e.g Free speech, constitution, American and Pakistan jurisprudence, etc. thereby, we end up making the basis of a topic including Deen / religious oriented in the way we want and the confusion starts. If the basis is as I have tried to explain is based on the actual teachings of Deen – the confusion would not arise and even if it does it would be very easy to sort out as the primary basis would be the Quran and Sunnah and not the types mentioned above.
As a passing remark regarding "fighting the battle with pens rather than guns". I support your approach but differ that it should be only the Pen. It should be depending upon the situation. And I donot think the present conditions where countries such as Pakistan, Iraq, libya, Afghanistan,etc etc are under attack should be only using the pen
Saad, I agree with your fighting words analysis that if fighting words are not protected, then blasphemy shouldn't be protected either. However, in a free society, I think that all free speech (short of the yelling "fire" scenario), including fighting words, should be protected. It is time that we realize that we, as humans, are above being reactionary animals that were made to fight due to words. We must live our lives in composure and diligence, because the blasphemers are not ever going to go away and their words shall have no control over us. I know that this is an unrealistic, lofty goal in today's very religious world, but I think that protecting all free speech will set a precedent that violence due to even the most arousing speech is never protected. Otherwise, we will continue to see violence justified as an involuntary reaction to blasphemy, and mark my words – the sicko's on the internet have just begun; you haven't seen anything yet.
I think I know the reason why Muslim world is now known for violent extremists and not intellectuals who discover cures for diseases and go to the out limits of knowledge, the reason is they allow religious fanatics to intimidate them and influence main stream media and public policy and laws, where as in the developed world such religious fanatics are treated with contempt and ridicule and no one takes them seriously. Until people of Pakistan start to treat Imran Khan and people like him as a joke and not as their savior, I am afraid these kind of barbaric protests and loss of lives and properties will continue to happen.
The Chaplinsky case was about words spoken face-to-face; you can't apply it to a recorded film, because you have to seek out and purposely watch the film. The RAV case struck down a law against cross-burning.
The best argument against this film being illegal under US law is that the filmmaker has in custody for violating parole for several days, but the only charges connected with the film are allegations of his lying to authorities about his part in making the film, not whether the film itself constitutes fighting words or hate speech or anything else. He was in prison for bank fraud, and lying to the police (about anything) is a violation of his parole.
I second him by writing my article on the same line
http://www.pakistantoday.mbt.pk/2012/12/15/commen…
I second him by writing my article on the same line
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