freedom – MDX Minds

Dr Erica Howard and Dr Alice Donald, the authors of a new report published by the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, discuss the tension between religious freedom and LGBT rights and suggest that the solution lies in mediation not litigation.

The last few years have seen a number of high-profile cases where people refused to do certain parts of their job or to deliver goods or services because of their religious beliefs. There was the case of Andrew McClintock, who was a magistrate on a family panel, which makes decisions on child custody and residency. Mr McClintock did not want to give custody of children to same-sex couples. Then there was Lilian Ladele, who was a registrar who did not want to perform civil partnerships; and Gary McFarlane who was a relationship counsellor who did not want to counsel same-sex couples. The latter two cases went all the way to the European Court of Human Rights in Strasbourg. The case of the hotel owners, Mr and Mrs Bull, who refused to rent out a room to a same-sex couple in a civil partnership, was decided in the UK Supreme Court.

All these claimants were Christians who were motivated by their religious belief that homosexuality is against God’s law. All of them lost their cases.

Much media coverage of these cases emphasises a perceived clash between two fundamental human rights: the freedom of religion of the Christian individuals versus the right of lesbian, gay, bisexual and transgender (LBGT) people to equality and to be free from discrimination on the ground of their sexual orientation or gender reassignment. Such commentary is prone to invoke a broader clash between ‘religious’ and ‘secular’ worldviews, and to argue that Christianity is becoming marginalised in public life – even to the point of portraying the application of equality and human rights law as a form of religious persecution.

This view is disputed, not only by those of another, or no, religious faith, but also within and between different Christian traditions. For example, some Christians view the ‘marginalisation’ narrative as a response by a dominant, conservative Christian tradition to a loss of privilege. Public responses to high-profile cases may make conflicts between religion or belief and other interests appear more intractable or prevalent than they actually are – especially when understanding is reliant upon media reports or the views of lobby groups and is not also informed about the specific circumstances and legal reasoning in each case. Moreover, legal cases are not necessarily representative of common experience or a reliable indicator of the place of religion or belief (or specific religions or beliefs) in society.

Gay Rights are Human Rights - ep_jhu — Photo by ep_jhu

Human rights principles

Although cases of clashing rights may be rare, there is no doubting their contentiousness. Research which we have conducted for the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association proposes ways in which such clashes can be avoided or resolved. We base this approach on principles derived from human rights case law – principles that can be used in any situation where an apparent conflict might arise, not only within courts and tribunals but also in the wider public sphere.

We advocate that, wherever possible, differences should be negotiated outside the courts and that litigation should be avoided. This is based on our view that litigation does not resolve the apparent conflict but rather may make it worse because the adversarial character of a court case tends to magnify underlying tensions and differences. It polarises issues and puts parties in opposite corners, each stressing their own identities or characteristics.

No right to discriminate

The first principle we propose as a means to pre-empt or resolve tension is that of non-discrimination: this means that there is ‘no right to discriminate’. This principle is derived from a number of separate, though interlocking, provisions of international human rights law. In respect of claims for religiously-motivated refusals to provide goods or services to same-sex couples, courts have consistently held either that the requirement to provide goods and services to the public in a non-discriminatory way is not an interference with religious freedom, or that such interference is justified by the goal of combating discrimination.

Next is the principle of neutrality and impartiality, which means that public authorities are required to act in a neutral fashion between religions and between religious and non-religious forms of belief. This means that any protection or restriction should be generic and not focused on a particular religion or belief.

A further principle is that of respect for the right of others to believe. This is a key factor when assessing the necessity of any interference with the manifestation of a religion or belief; it establishes the duty of the state to create a ‘level playing field’ between different groups, including both those with religious or non-religious beliefs and those with no religion or belief, with one side being free to present their point of view, and the other to reject it. The principle may be summarised as ‘respecting the believer rather than the belief’.

It is important to avoid essentialising religions or beliefs or misattributing certain views or values to entire groups or communities

No right not to be offended

Next is the principle of pluralism and tolerance, which plays an important role in preserving democracy. It requires that religious adherents accept that their belief systems will be challenged. But the same applies to non-believers who have to tolerate manifestations of religion or belief which they might find unpalatable. There is no right not to be offended and the role of the state here is to encourage and promote tolerance.

Another important principle is that of proportionality. This means that, where the state interferes with a right, such as the right to freedom of religion, it must choose the least restrictive means possible and must strike a fair balance between the rights of the individual and the interests of the state, employer, public service provider or the rights and freedoms of others. Whether a restriction is proportionate depends on the facts of each particular case. This means that the outcome of an individual case cannot be used as a basis for making abstract determinations about competing rights.

Finally, there is the principle that there is – and should be – no hierarchy of rights. In situations of competing rights, the proportionality analysis is not a ‘zero sum’ game, in which a gain for one side necessarily entails a corresponding loss for the other; rather, it is one in which compromise may be required form both sides. In each instance, an attempt should be made to maximise each of the rights at stake and to ensure that none is inappropriately sacrificed.

Ground rules

We suggest that conflicts can be avoided or minimised if both parties to a dispute follow a set of ground rules in negotiating solutions. These ground rules include that negotiations should be held with a willingness to engage in mediation and conciliation. Negotiations should be held in good faith and with openness and mutual respect to the other party’s point of view and to their right to express this view. There should be a willingness to listen to the other’s point of view and to reach pragmatic solutions. Both parties should work towards avoiding litigation wherever possible.

It is also important to avoid essentialising religions or beliefs or misattributing certain views or values to entire groups or communities, whether these are communities identified by their religion or belief, their sexual orientation or any other characteristic.

Overall, we suggest moving away from litigation as a means of resolving disputes and towards mediation, conciliation, arbitration and other non-litigation routes. This approach recognises the limitations of law in addressing complex questions of multiculturalism and social identity and the importance of finding pragmatic solutions wherever possible.

Middlesex University Senior Lecturer in Law David Keane and Professor of European Law Laurent Pech discuss the future of cartoons in the wake of the Charlie Hebdo attacks in France.

Article 11 of the 1789 French Declaration of the Rights of Man and of the Citizen recognises “the free communication of ideas and of opinions” as “one of the most precious rights of man”. Having regard to this venerated provision, the French Constitutional Court has constantly referred to freedom of expression as a particularly precious freedom since “its exercise is a condition of democracy and one of the guarantees of the respect of other rights and freedoms” (see judgment no. 84-181 DC). This understanding of freedom of expression is perfectly in line with the approach developed by the European Court of Human Rights and its understanding of freedom of expression as “one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfillment” (case of Handyside v. United Kingdom, 7 Dec. 1976).

It would be wrong, however, to think that European legal systems guarantee an absolute right to express oneself. Article 11 of the 1789 French Declaration makes this abundantly clear by providing that any citizen may “speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by law”. Since 1789, this approach may be said to broadly characterise the legal guarantee of freedom of speech and freedom of the press in Europe. This means that typically, freedoms usually covered by the label ‘freedom of expression’ are protected insofar as their exercise do not conflict with other fundamental rights or competing public interests.

The basic legal framework having been briefly described, we will now focus on the issue of how to balance freedom of expression, especially when it takes the form of cartoons, and respect for religious beliefs, an issue brought to the fore by the recurrent publication of cartoons of Muhammad by the French satirical newspaper Charlie Hebdo.

Freedom of expression versus respect for religious beliefs

In its leading case regarding freedom of expression, the European Court of Human Rights, whose case law is de facto treated as binding authority in France, held that ‘freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broad-mindedness without which there is no ‘democratic society'” (case of Handyside, previously cited).

These guiding principles have led the European Court of Human Rights to develop a very protective case law but it would be wrong to assume that all of the court’s guiding principles are favourable to freedom of expression. In particular, the court regularly stresses that the exercise of this right involves “duties and responsibilities”. This means, for instance, that statements that incite to hatred, discrimination or violence cannot benefit from the protection afforded by Article 10 of the European Convention of Human Rights. As noted by the Court in the case of Erbakan v. Turkey (6 July 2006), since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, “it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…”

French law can therefore as a matter of principle outlaw racist, anti-Semitic, or xenophobic statements and acts, including statements which incite to hatred, discrimination or violence against a group of persons by reason of their religion. The French satirical newspaper Charlie Hebdo itself has been subject to multiple criminal prosecutions on this basis since the publication was resurrected in 1992. The great majority of cases initiated by religious associations have however failed either on procedural or substantive grounds whenever the heart of the dispute concerned a cartoon representing a religious figure such as the Pope or Muhammad.

Before returning to the issue of the cartoons and the right of blasphemy, it is important to note that French courts have shown less reluctance to protect respect for religious beliefs in the situation where offensive advertising materials are displayed in public areas. When doing so however, French courts have made clear that they did not sanction the offensive advertising materials because they would offend traditional Christian iconography. What may be sanctioned under French law is, for instance, the public display of controversial posters if these posters can be construed as a form of particularly aggressive commercial advertising and/or a deliberate and gratuitous provocation from which one cannot escape due to their display in the public domain. The most recent case law however indicate an increasing reluctance of French higher courts to prohibit the public display of what may be reasonably described as distasteful representations of Catholic symbols (see e.g. the case law relating to the movie The People v Larry Flint by Milos Forman or the billboard placed by the French company Girbaud, which depicted a parody of The Last Supper by Leonardo da Vinci).

The European Court of Human Rights has however developed a more nuanced, some may say more conservative, set of principles. In the 1994 case of Otto Preminger v. Austria, which concerned the seizure of a movie following a complaint from the Roman Catholic Church, the Court accepted that believers “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”. It did however add an important proviso: provocative portrayals of objects of religious veneration must not be automatically tolerated as individuals are under an “obligation to avoid as far as possible expressions that are gratuitously offensive to others … and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”

The future of cartooning lies in breaking this cycle, and moving cartooning out of the self-defeating debate around freedom of expression and cartoons of the Prophet Mohammad

The Charlie Hebdo cartoons: should their publication have been sanctioned?

Before addressing the controversial publication of cartoons featuring Muhammad by Charlie Hebdo, it may be worth recalling that cartoons have been historically understood in France as a legitimate form of social and political expression, which should be extensively protected as they tended to primarily mock the powerful or the Catholic Church, in a country known for its anti-clericalism. There is however a darker side to cartoons, which is not always properly acknowledged. For instance, anti-Semitic cartoons have been prevalent throughout the 20th century in Europe and it cannot be said therefore that cartoons are always innocent.

That said, let us return to the key issue of whether French law could have been relied upon to sanction the publication of the cartoons featuring Muhammad. Two main legal options are available for those who may view any cartoon as offensive for religious reasons: it may be argued that the relevant cartoon amounts to ‘hate speech’ against a group of persons on the grounds of their religion or measures to limit the public display of the controversial issue may be sought on the basis of the case law developed for movie posters or adverts that can be construed as offensive. It would be however (legally) fruitless to argue that a cartoon amounts to blasphemy – the action or offence of speaking sacrilegiously about God or sacred things – or an attack on religious morality or faiths, which cannot however be punished in French law since 1791 and 1881 respectively.

This means, in a nutshell, that cartoons which may be deemed offensive by people of a certain faith may only be successfully prosecuted in France where one can demonstrate that the cartoon under dispute amounts to incitement to hatred against a group of persons on ground of their religion. Other European countries are however free to adopt a different approach without having to be too fearful of the potential intervention of the European Court of Human Rights. For instance, in the 2005 case of İ.A. v Turkey, a majority of the Court upheld the prosecution of a novelist whose book The Forbidden Phrases contained, in the Court’s description, “an abusive attack on the Prophet of Islam”. One may also recall that in the 2008 case of Leroy v. France, the European Court approved the applicant’s conviction in France for complicity in condoning terrorism, following the publication of a drawing which concerned the attacks of 11 September 2001.

While it is not certain what the European Court would decide if it were to adjudicate on a cartoons case such as the ones published by Charlie Hebdo, one may at least argue that at present the European standard, to the extent that it is represented by the European Convention on Human Rights, does not prohibit prosecutions for religiously offensive expression.

The future of cartooning

The impressive free speech demonstrations that took place in the aftermath of the Charlie Hebdo attacks were to some extent surprising from a purely legal point of view. Freedom of expression has indeed never been protected extensively in France. For instance, French courts have indeed been known for extensively protecting privacy and reputation and for being quite deferential when public authorities relied on public order considerations to prosecute a speaker. This had led to multiple judgments of the European Court of Human Rights finding France in breach of Article 10, the provision of the European Convention of Human Rights which guarantees freedom of expression.

The Parliamentary Assembly of the Council of Europe has also regularly asked France to revise its legal framework and in particular its law of 29 July 1881 in the light of the Court’s case law as it was of the view that French courts did not sufficiently protect statements or allegations which are made in the public interest (see e.g. Resolution 1577 (2007), Towards decriminalisation of defamation). A recent piece of legislation adopted by the French Parliament on 14 November 2014 and its application post-attacks further demonstrates the limited, some may say, hypocritical, nature of the new self-professed devotion for free speech. In a nutshell, the French criminal code was amended (see new Article 421-2-4) to make it significantly easier to prosecute any public condoning or glorification of terrorist acts. On the basis of this new provision, multiple judgments have sentenced defendants to jail sentences of up to seven years, even in situations where, in our view, the disputed statements could have been reasonably construed as political speech, however offensive or shocking the statements may have been in a context of extra national sensitivity following the murderous and terrorist attacks against Charlie Hebdo, the French police and members of the Jewish community.

Looking beyond the widespread and arguably, disproportionate use of this new criminal provision at a time where the right to offend is publicly celebrated in France – the expression double standard comes to mind – what for the future of cartooning?

Following the Danish cartoons controversy, the United Nations began an initiative called Cartooning for Peace (see Falco’s example above). That initiative continues, spearheaded by Plantu, the cartoonist for Le Monde. At the first discussion involving the Cartooning for Peace forum, the Palestinian cartoonist Baha Boukhari said that he could measure freedom in every Arab country by how many cartoonists they have. He added that he found it fascinating that cartooning, which he described as a language without words, was now added to the languages of the United Nations. There are further possibilities from the world of graphic novels. Authors such as Joe Sacco are contributing to human rights reporting in graphic format, seen in works such as Safe Area Gorazde, Sacco’s graphic depiction of UN intervention in the Yugoslav wars. France is at the forefront of such innovation, with bandes dessinées authors such as Jean-Philippe Stassen leading greater intervention by the world of cartoons, comics and graphic novels in situations involving human rights violations by which such authors can act in a reporting capacity. In the human rights sphere, an entire art form has been confined to a narrow band of cartoons, with tragic consequences for the cartoonists and wider society that has always needed them. The future of cartooning lies in breaking this cycle, and moving cartooning out of the self-defeating debate around freedom of expression and cartoons of the Prophet Mohammad.

This blog post offers an abridged version of the paper published in Spanish by Professor Laurent Pech and Dr David Keane under the title ‘Libertad de expresión, viñetas y blasfemia en Francia’ in Foreign Affairs Latinoamérica, Volume 15, Issue 2 (2015).