A short-term victory for left-wing European authoritarians, a longer-term victory for right-wing ones. “If liberals insist that only fascists will defend borders,” said David Frum a few days ago about European immigration policy, “then voters will hire fascists to do the job liberals will not do.” The same principle likely applies to free speech, with the important caveat that fascists tend to lose their alleged interest in defending it the moment they finally have power.
The court’s decision is here and can be read in five minutes. Despite its brevity, there’s a lot of claptrap in service to a simple point: They’re worried about peaceful co-existence between Muslims and non-Muslims in Europe and, in the name of maintaining it, will privilege the religious sensitivities of the former over the latter’s right to criticize. Which side is more likely, for now, to cause “disorder” if it loses this debate, to borrow a word from the court’s ruling? Well, then, that’s the side that wins. For now.
The petitioner here had been fined several years ago for saying “[Muhammad] liked to do it with children” and “a 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not pedophilia?” She appealed on grounds of free speech. Held: The fine stands.
The domestic courts made a distinction between child marriages and paedophilia. In their opinion, by accusing Muhammad of paedophilia, the applicant had merely sought to defame him, without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty or that his other wives or concubines had been similarly young. In particular, the applicant had disregarded the fact that the marriage with Aisha had continued until the Prophet’s death, when she had already turned eighteen and had therefore passed the age of puberty…
The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis. Even if they were to be classified as factual statements, she had failed to adduce any evidence to that end. As to the applicant’s argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts. On the contrary, the Court had held that statements which were based on (manifestly) untrue facts did not enjoy the protection of Article 10.
Rather than admit that they’ll err on the side of criminalizing blasphemy of Islam in the name of preventing more “unpleasantness” of the sort that the Charlie Hebdo staff experienced a few years back, the court tries to parse the “pedophilia” claim finely enough that it can kinda sorta be called libel. If you rape your nine-year-old child “bride” but you also have sex with adult women, can you really be fairly called a “pedophile”? (Yes.) If your “primary sexual interest” in your nine-year-old victim is her beauty, not her age, is that “pedophilia”? (Yes.) Can you rightly be described as a “pedophile” if you rape that nine-year-old but maintain a relationship with her until she’s of legal age? (Yes.) I encourage any child molesters out there in the U.S. of A. who are accused of pedophilia because they happen to have just one nine-year-old “wife” to sue for defamation and present these arguments to a jury. Good luck with it.
The court does nod a few times at what’s really driving it, though, noting at one point that the prosecution “had pursued the legitimate aim of preventing disorder by safeguarding religious peace” and elsewhere that provocative language “capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society.” Big-picture they’re worried about jihadists on the one hand and National Front reactionaries on the other; where should the line on speech be drawn to produce the least possible amount of friction between the two, as best as the court can assess it? If they gag the reactionaries, maybe the jihadists will stay calm(er) and the reactionaries will accept being silenced in the name of social harmony! Once again: Good luck.
Europe is always a few years ahead of us in its advancements of “civilization,” but don’t worry. We’ll catch up.
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