Hugh Fitzgerald: Does Europe Still Have Free Speech? (Part One)

“Insulting Prophet Muhammad not ‘free speech,’ ECtHR rules,” Daily Sabah, October 25, 2018:

The European Court of Human Rights ruled Thursday [October 22] that an Austrian woman’s criminal conviction and fine for her statements accusing the Prophet Muhammad of pedophilia did not breach her right to free speech.

The woman, named only as ES by the court, had held seminars on Islam in 2008 and 2009 for the far-right Freedom Party (FPO) where she discussed the prophet’s marriage to his wife Aisha, a child at the time, and implied that he was a pedophile.

An Austrian court convicted her of disparaging religious doctrines in 2011 and fined her 480 euros (548 dollars), a judgment that was upheld on two appeals.

Stating that the court had found that “the applicant’s statements had been likely to arouse justified indignation in Muslims” and “amounted to a generalization without factual basis”, the ECtHR said that the woman’s comments could not be covered by the freedom of expression.

ES’ statements “were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages,” the ECHR held, adding that the moderate fine imposed on her could not be considered disproportionate.

The Austrian courts had drawn a distinction between pedophilia and child marriage, which was also a common practice historically in European ruling families….

Did ES (Elisabeth Sabaditsch-Wolff) “disparage religious doctrines”? No, though she had a perfect right to do so. In this episode she did not discuss Islamic doctrine, but only Muhammad’s life, and only one aspect of that life. To wit, she noted that in the most respected hadith, Sahih Bukhari, Muhammad is reported as having consummated his marriage to Aisha — that is, had sexual intercourse with her — when he was 54 years old and she was nine years old. The Austrian courts that heard her case before it reached the European Court of Human Rights attempted to suggest that Muhammad’s marriage to Aisha was no different from that of the child marriages that centuries ago were made between members of European dynasties, with boys and girls of more or less equal age, between 10 and 13 years old. But those were “marriages” between two children; sexual relations were not contemplated for many years. Muhammad, on the other hand, was 54 when he consummated his marriage to nine-year-old Aisha. That was not a marriage “between children,” but what any reasonable person today would call an example of pedophilia. And that is exactly what Elisabeth Sabaditsch-Wolff called Muhammad’s behavior. She also said that because Muhammad was for Muslims the Perfect Man and Model of Conduct, his behavior was not rejected, but emulated by Muslims. Child brides are thus not uncommon in the Muslim world; some Muslim countries set no lower age limit on brides. Ayatollah Khomeini himself married his wife when she was ten years old, and when he came to power, one of his earliest acts was to reduce the marriageable age of girls to nine years.

The European Court said the applicant’s statements had been “likely to arouse justified indignation in Muslims” and “amounted to a generalization without factual basis.” Sabaditsch-Wolff’s characterization of Muhammad’s behavior may have aroused Muslim “indignation,” but was that indignation necessarily “justified”? When did the European Court become the mouthpiece of Muslims, in deciding that ES’s remark was indeed “likely to arouse justified indignation”? Did she say anything that was untrue in describing Muhammad as a “pedophile”? In the Western world, we should have no trouble characterizing Muhammad’s behavior with Aisha as “pedophilia.” The European Court does not exist to placate Muslims, but to uphold freedom of speech. Or rather, it used to exist for that purpose.

Freedom of speech is never absolute. If it includes “hate speech” directed at members of a race or religion, it can be banned. In American constitutional law, speech that calls for imminent lawless violence (the Supreme Court’s Brandenburg Test), can be banned. ES’s speech was not “hate speech” directed at all Muslims. She did not call for any kind of violence. It was factually correct. But the European Court showed that fear is what guided its decision — the fear that outraged Muslims might become violent when Muhammad is criticized.

The Court said — and this is quoted from the original decision — that it has “ l’obligation d’assurer la coexistence pacifique de toutes les religions et de ceux n’appurtenant à aucune religion, en garantissant la tolérance mutuelle.” The Court has “the obligation to ensure the peaceful coexistence of all religions, and of those who have no religion.” That was never before the Court’s duty. It was always supposed to uphold freedom of speech, not to keep the peace by making sure nothing was said that could offend a particular religion. But that is what the Court has decided is more important: avoiding anything the might upset Muslims and cause them to become violent. By the same reasoning, the European Court would have upheld the banning of Charlie Hebdo’s cartoons, and the cartoons published by Jylllands-Posten.

The European Court of Human Rights claims that ES’s remarks about Muhammad’s marriage to Aisha “amounted to a generalization without factual basis.” Without a factual basis? The generalization had to do with ES’s claim that Muhammad was a pedophile, and that other Muslims have followed his example. But after all, one might argue, he had other wives, none of them were children, and Khadija was even older than Muhammad. Can we really call someone a “pedophile” just because he has one wife who is nine years old?

Nor should we generalize about other Muslims. But is it wrong of ES to have noted the some Muslims may have felt they were justified in emulating the example of Muhammad? Haven’t they? Haven’t child marriages — meaning that the girls are younger than 18 — been permitted in many Muslim states? In Iran, Afghanistan, Pakistan, Bangladesh, Saudi Arabia? How many would constitute a “factual basis” for the statement that some Muslims justify their own marriages to very young girls by referring to the example of Muhammad?

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