May the state prohibit speech that deeply offends religious sensibilities? This issue has recently been a matter of intense controversy in both the Islamic and Western world. Much of the discussion, on both sides, has been inflammatory and deeply unhelpful, even counterproductive. This paper seeks to advance the discussion by analyzing and defending the approach suggested by international human rights law.
Although international human rights law is explicitly silent on the question of speech that is intended to be or is perceived as hostile to a religion, there is a clear body of law dealing with speech that fosters racial discrimination that can be used as a model. On this basis, prohibiting speech that provokes or incites religious discrimination, religious hatred, or religious violence is clearly within the bounds of international human rights law. Prohibiting speech because that speech is offensive to adherents of a religion is not.
If speech is to be free, it must be regulated only to prevent demonstrable serious harm to others that outweighs the harm to those whose speech is restricted. Crying fire in a crowded theater is a classic example. Prohibiting speech that incites religious violence clearly meets this test. The fact that some people find the speech offensive clearly does not.
The human right to freedom of religion does not guarantee that others respect one’s religion. States are obliged to permit the free choice and public exercise of one’s religion and to protect that choice and exercise. States are at liberty to give support to religion, either in general or to particular religions – so long as that support does not violate the human rights of others. To prohibit some speech on the basis of the religious sensibilities of one, some, or all religions restricts a fundamental human right for a non-human rights reason of insufficient weight.