Qur’an on toilet-paper rolls and distribute them to newspapers
and Muslim religious authorities. What most people might have taken as a silly
joke (or mere stupidity) cost its originator a suspended twelve-month prison sen-
tence and 300 hours of compulsory community work. The perpetrator had the
misfortune to be judged in 2006, when the scandal of the Danish sketches
depicting the prophet Muhammad was in full swing. Under the pressure of
events and a related official protest by the Republic of Iran, the German court
felt obliged to issue a ruling of a punitive nature.
So severe a penalty for such a mindless act may cause surprise and legal or
political indignation. It is part of the sway of recent proposals and trends to
revive the provisions of blasphemy in European countries (a side effect of the
wider trend towards a law of “zero tolerance” in order to terrorise and ultimately
annihilate opponents and dissidents). Such a measure is obviously deprived of
justification in a constitutional state.
Half a century earlier, on the other side of the Atlantic, the US Supreme Court
issued an injunction against projection of the motion picture Il miracolo by
Roberto Rossellini, featuring Anna Magnani and Federico Fellini. The motion
picture presented the sad story of a half-witted peasant woman who thought she
was the Virgin Mary and was impregnated by a stranger whom she took to be
Joseph, exposing herself to social ridicule and exclusion. According to its direc-
tor, the film was of a mystic nature and was clearly inspired by Christendom.
But this failed to convince the Vatican or the Catholic ministers of New York.
It was no accident that among the first who hastened to voice their understanding for Muslims
in the affair of the Danish sketches were the leaders of the occupation forces in Iraq: Bush and Blair.
Ph. Lenhard, “Blasphemie und Alltag”, Konkret, No. 2 (2006), p. 21.
See D. Christopoulos, “The incongruity of penalizing blasphemy. On the reactions of the Muslim
world against the Danish sketches”, in the newspaper Avgi (24 February 2006) [ . Χριστόπουλο ,
“Το απρόσφορο τη ποινικοποίηση τη βλασφηµία . Για τι αντιδράσει µουσουλµανικού κόσµου
για τα δανικά σκίτσα”, Η Αυγή]; on the lack of political and crime-preventive grounds of the penal
operation of blasphemy, see D. Dimoulis, “Arguments for repealing offences against religious
peace” (Επιχειρήµατα για την κατάργηση των αδικηµάτων κατά τη θρησκευτική ειρήνη ) (2005),
www.hlhr.gr/papers/dimoulis0.doc. See also D. Dimoulis, “Blasphemy, a feudal remnant in
religious state” in P. Dartvelle et al., The Right to Blasphemy, Black List, Athens, 2000, pp. 42-45
(∆. ∆ηµούλη , «Βλασφηµία: µια φεουδαρχική επιβίωση στο θρησκευόµενο κράτο » σε: Π. Ναρτβέλ,
Φ. Ντενί, Γ. Ρόµπιν, σε: . ηµούλη (επιµ.), ικαίωµα στη βλασφηµίa).
Blasphemy, insult and hatred
Following strong and persistent protests by the latter, the state’s Censure Board
designated the picture as sacrilegious and caused the required permission of
projection to be revoked.
When the Supreme Court examined the case in 1952, it ruled that the state law
that permitted the censorship of sacrilegious pictures was incompatible with the
federal constitutional provisions on freedom of speech. It held that: “It is not the
business of government in our nation to suppress real or imagined attacks upon
a particular religious doctrine, whether they appear in publications, speeches,
or motion pictures.”
There should be nothing original about this ruling. A state adhering to its con-
stitutional provisions in its respect for freedom of speech and proclaiming its
religious neutrality cannot meddle in private disputes about whether someone
offended the metaphysical views of another. If certain legal limits are infringed,
the provisions protecting honour and reputation apply, giving grounds for com-
pensation and eventually criminal liability. Beyond that, the state ought not to,
and may not, interfere in the private sphere by telling people what they may or
may not say or who is allowed to say what.
Comparison of the two cases implies once more that, in fact, the law is what
judges decide. Had a different judge, state of affairs or religion been involved,
the ruling would probably also have turned out differently. The legally and politi-
cally infuriating ruling of the German court is nevertheless very appealing to
common sense. A man who makes toilet paper of a religion’s sacred texts in pub-
lic may perhaps not deserve imprisonment but surely ought to be reprimanded, if
not given a good thrashing, as common sense would have it.
Indeed, we all know that certain things are better not written or said. This state-
ment undermines absolute liberalism and the theory of total state abstention by
indicating a need to draw lines and produce arguments to justify them.
it more explicitly, disapproval of censorship does not do away with the real need
to set restrictions on speech.
The above discussion implies that the liberal claim for freedom of speech is
fraught with problems. The liberal position ignores the need to set limits and,
by decrying censorship in general, fails to engage in the crucial and difficult
discussion of who is responsible for setting limits and on what grounds. As we
saw, one particular type of command of silence has to do with sacredness. A
Joseph Burstyn Inc. v. Wilson, 343 U.S. 495. On the content of the film, see www.imdb.com/
Joseph Burstyn Inc. v. Wilson, 343 U.S. 505.
The US Supreme Court affirms: “The Constitution says that Congress (and the States) may not
abridge the right to free speech. This provision means what it says. We properly read it to permit
reasonable regulation of speech-connected activities in carefully restricted circumstances.” (Tinker et al. v. Des Moines, 393 U.S. 513). This comment illustrates the inefficacy of absolute liberal-
ism but also a lack of will on part of the court to define what is “reasonable” and which are the
“circumstances” of censorship.
Conference on Art and Sacred Beliefs: from Collision to Co-existence
politically dominant group prohibits utterances of a certain kind in order to pro-
tect what it considers as sacred and holy, that is, in order to assert its power over
those wishing to question the order of things. The outcome in normative terms
is ex-ante and ex-post censorship. It is by understanding the rationale of censor-
ship in individual cases that we are able to evaluate it and then take a stance
with regard to its purpose.
The comparative study of various jurisdictions indicates significant differences in
the degree and requirements of protection against blasphemy.
We no longer
encounter laws threatening blasphemers with having their tongues and lips
pierced as decreed by Louis IX in 1263, causing even the Pope to protest.
is also a fact that the gradual secularisation of government leads to a retreat of
In some countries indeed, courts have exhibited a degree of courage that was
lacking in the legislature and have found the laws on blasphemy to be counter
to the constitution. By such means, they allowed application of the common rules
restricting freedom of expression in the religious domain, instead of the excep-
tional censorship mechanism of blasphemy. This has been the case in the USA
in recent decades, with a series of rulings gradually extending the borders of
freedom of speech and thus preventing trials for offending religion.
development took place in Italy in 2000 when, after some hesitation in the case
law, the Constitutional Court found the criminal offence against “state religion”,
which protected only the Catholic Church, to be counter to the constitution.
Internationally too, it appears that sentences are being reduced and legislation is
becoming more liberal, though this is only a rough guess for we lack clear data,
and flare-ups about the occasional scandal may still occur. Despite all this, a ban on
offending the divine by word or art still applies in many countries, which amounts
to recognising the divine as an independent constitutional-legislative value, as older
juridical texts point out.
This is what contemporary legal debate and court rulings
try to conceal, with constructions on the protection of honour or religious peace, in
their effort to find liberal grounds to justify the ban of blasphemy.
But this is only a subterfuge aiming to justify what cannot be justified in liberal
terms – the protection of the divine in officially secularised states – and to issue
A. Cabantous, Histoire du blasphème en Occident, XVIe-XIXe siècle. Paris: Albin Michel,
1998, F. Hildesheimer, “La repression du blasphème au XVIIIe siècle” in J. Delumeau (ed.), Injures et blasphèmes, Paris: Imago, 1989, pp. 63-81.
A. Cabantous, Histoire, p. 58.
Ibid., pp. 150-2.
Levy L., Blasphemy. Verbal Offense against the Sacred, from Moses to Salman Rushdie, Chapel
Hill, NC: University of North Carolina Press, 1995, pp. 522-33.
See references in Hildesheimer, “La repression du blasphème au XVIIIe siècle”, pp. 63-4.
For criticism of these opinions, see Dimoulis, “Blasphemy, a feudal remnant in religious state”,
Blasphemy, insult and hatred
decisions finding favour with Christian lobby groups. For instance, if we accept
the reasoning of the European Court of Human Rights to the effect that a ban
on screening a film that would scandalise the Christian Catholic majority of
the inhabitants of Tyrol
aims to protect religious peace and the honour of the
said Catholics, we will also have to ban anything that might be in the nature of
aggravating terrorists in order to ward off their violent reactions. In other words,
in view of the protest of an oversensitive person (who in this case pays the
cinema ticket only to be scandalised!), we will have to curtail the exercise of an
entire series of other people’s rights and at the same time adopt a set of rules
penalising any challenge to the views and convictions of other social groups,
ending up with a society of generalised censorship.
In the final analysis (despite appearances to the contrary), in order to speak
convincingly against censorship and make an ideologically robust and realistic
case for free art, it does not suffice to be liberal-minded. It requires a theoretical
and ideological stance of opposition and resistance to a specific power scheme
that imposes public devotion, one that controls and scares people away from
thinking about the divine and, by extension, about the secular authorities that
represent it and draw their power from this representation.
This is what the general liberal imperative of freedom of speech cannot (or cares
not to) understand and that is why it is at a loss when asked to set criteria for
censorship. It makes no sense to be in favour of freedom of expression solely
as a matter of principle. There are specific power structures in whose interest
it is to silence certain kinds of discourse in particular domains: we can only be
against such power structures. And this is what those who have reasons to resist
are doing. In other words, the crux of the matter in the prohibition of blasphemy
and the protection of freedom of art consists in the social antagonism between
asymmetric social forces. With the outcome remaining open …
Otto-Preminger-Institut, 20 September 1994, n. 56, Revue trimestrielle des droits de l’homme,
1995, p. 464.
In legal terms, the Court’s ruling confuses the operation of fundamental rights as imperatives of
state abstention from the individual’s sphere of freedom with the obligation of the state to intervene in
third-party rights that encroach on other individual rights. The Court converted the religious freedom of
Catholics into an obligation for Catholics to respect it, under threat of public punishment, thus revers-
ing the roles of state and citizens. See also F. Rigaux, “La liberté d’expression et ses limites”, Revue trimestrielle des droits de l’homme, 1995, pp. 408-10.
Is there such a thing as an “ethic of responsibility” for artists? First of all, let us
recall the causal relationship between freedom and responsibility, which is based
on the dialectic between individual freedom and the rights and freedoms of others.
Limits on freedom of expression
It is in this context that the International Covenant on Civil and Political Rights
and the European Convention on Human Rights restrict both freedom of expres-
sion and freedom of religion and belief, in the light of the need to respect others’
rights and freedoms. Article 18 of the Covenant says:
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in public
or private, to manifest his religion or belief in worship, observance, practice and
2. No one shall be subject to coercion which would impair his freedom to have or
to adopt a religion or belief of his choice.
Article 18 of the Universal Declaration of Human Rights is even more explicit
in this respect, stating that freedom of religion also includes the “freedom
to change [one’s] religion or belief”. On the subject of freedom of expression,
Article 19 of the Covenant is also clear:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art or through any other
media of his choice.
Accordingly, like every other citizen, artists have the right to express themselves,
impart their ideas and publish their works. However, Article 19 goes on to say
that the exercise of these freedoms
carries with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and are
For the respect of the rights or reputations of others;
5. Whose responsibility? The case of Iran
Former Teheran barrister, President of the Defenders of Human Rights Center (DHRC) in Iran, Vice-President of the International Federation for Human Rights (FIDH)
Blasphemy, insult and hatred
For the protection of national security or of public order, or of public health or
Article 10 of the European Convention on Human Rights imposes similar restric-
tions on freedom of expression, but states that such measures must be prescribed
by law and must be “necessary in a democratic society”. This stipulation is
central to our discussion, because freedom of expression is the cornerstone of
Accordingly, the Parliamentary Assembly of the Council of Europe reaffirmed in
its Resolution 1510 of 28 June 2006 “that there cannot be a democratic society
without the fundamental right to freedom of expression”, recalling the case law
of the European Court of Human Rights in Strasbourg as follows:
[freedom of expression] is not only applicable to expressions that are favourably
received or regarded as inoffensive but also to those that may shock, offend or dis-
turb the state or any sector of the population.
In respect of blasphemy, it is true that on several occasions the European Court
of Human Rights has adopted a liberal interpretation consistent with that of the
Council. In the case of Handyside v. United Kingdom, the Court handed down
this decision on 7 December 1976:
Freedom of expression constitutes one of the essential foundations of [a democratic
society]; it is applicable ... also to [ideas] that offend, shock or disturb.
The Strasbourg judges have not always confirmed this approach, however, and
one example is the case of Otto-Preminger-Institut v. Austria. Following an applica-
tion from the Catholic Church against the screening of a film by Werner Schroeter,
Council in Heaven, the film was confiscated in accordance with a decision by the
Innsbruck Regional Court. The projection company lodged an application with the
Strasbourg Court. In a judgment of 20 September 1994, the Court, referring to
the phrase “duties and responsibilities” set out in Article 10.2 of the Convention,
held that, in order to keep the peace and safeguard religious freedom, states have
to protect religious beliefs from improper and “gratuitously offensive” attacks. The
Strasbourg judges consequently rejected the complainant’s application.
Accordingly, in its preliminary report on blasphemy of 23 March 2007, the
Venice Commission emphasised that, in a democratic society, freedom of
expression includes “the right for an individual to impart to the public controver-
sial views”. With reference to Article 9 of the European Convention on Human
Rights, however, the Venice Commission also notes that freedom of expression
weighed against the need to allow others the enjoyment of their right to respect for
their religion and beliefs as well as against the general interest to preserve public
order (including “religious peace”).
Conference on Art and Sacred Beliefs: from Collision to Co-existence
Article 18.3 of the International Covenant on Civil and Political Rights lays down
similar restrictions in respect of freedom of religion:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health
or morals, or the fundamental rights and freedoms of others.
Against this backdrop, Article 20 of the Covenant prohibits “any propaganda
for war” and “any advocacy of national, racial or religious hatred that consti-
tutes incitement to discrimination, hostility or violence”.
It may be noted that religious insults and incitement to religious hatred are pro-
hibited as related offences. However, criticism of religious beliefs must not be
regarded as an attack on the “rights or reputations of others” as referred to in
Article 19.3 of the Covenant. In its judgment of 31 January 2006 in the case of
Giniewski v. France, the European Court of Human Rights held that criticisms of
doctrine do not necessarily “contain attacks on religious beliefs as such”.
Likewise, the Parliamentary Assembly of the Council of Europe notes in Reso-
lution 1510 that, on the one hand, religious communities are allowed to “defend
themselves against criticism or ridicule in accordance with human rights legislation
and norms”, but, on the other hand, the culture of “critical dispute and artistic free-
dom has a long tradition in Europe and is considered as positive and even neces-
sary for individual and social progress”, considering that “only totalitarian systems
of power fear them”. Lastly, the Assembly emphasises that “critical dispute, satire,
humour and artistic expression should, therefore, enjoy a wider degree of freedom
of expression and recourse to exaggeration should not be seen as provocation”.
It must be recognised that most protests and demonstrations against freedom of
expression or artistic freedom, protests which are often violent and aggressive,
are organised by extremist and even fanatical groups, or states that respect
neither freedom of expression nor freedom of belief. The organisers of such
mass rallies have a good understanding of crowd psychology and use religious
beliefs for political ends.
Iranian hostility to freedom of expression
The fatwa against Salman Rushdie, author of The Satanic Verses, issued by the
Ayatollah Khomeini in February 1989, was a political act from the outset. The
novel had not yet been translated into Persian or Arabic when the fatwa was
issued, so Khomeini, who did not speak any foreign languages, could not have
read it. The fatwa consequently did not comply with sharia law, since Khomeini
could not have given his verdict (fatwa) with sincerity. Moreover, the legitimacy
of such a death sentence, pronounced against a citizen of a UN member state
by a Supreme Leader who was also the head of another UN member state, is
Blasphemy, insult and hatred
The international community has misunderstood, if not wilfully ignored, the polit-
ical and legal nature of the Iranian state. In fact, the Islamic Republic of Iran is a
theocratic oligarchy in which the enjoyment of rights and freedoms is conditional
on subscribing to an official Islamist ideology justified by divine right.
The right to govern, legislate and judge, for instance, is conferred by the cler-
ical authorities, whom the Constitution designates as the supreme branch of
power, placing them above the executive, legislative and judiciary. This prin-
ciple, known as Velayat-e-Faqih (‘transcendence of the religious leader’), is the
cornerstone and basis of the regime’s legitimacy.
Paradoxically, the Constitution of the Islamic Republic of Iran also provides for a
president of the republic, elected by universal suffrage, and a parliament whose
members are elected by the same means.
Provision is also made for a Guardian Council, comprising six religious leaders
appointed by the Supreme Leader, to “supervise” presidential and parliamen-
tary elections. In fact, this Council selects both presidential and parliamentary
candidates in advance, on the basis of purely political and religious criteria,
and publishes a list of approved candidates. That shortlist is submitted to univer-
sal suffrage, and the people consequently have no other choice.
Notwithstanding this pre-election purge, the president elected by the people
must then be “appointed” by the Supreme Leader in order for his election to be
valid. The president is therefore merely the head of government, answerable to
parliament, while the head of the executive is the Supreme Leader, who enjoys,