Religion and Freedom of Speech:

Portraits of Muhammad
Robert Post

On September 30, 2005, the Danish newspaper Jyllands-Posten solicited and published
twelve cartoons depicting the prophet Muhammad.1 By American standards, the car-
toons are prosaic. One is a child’s portrait of Muhammad in the desert; another shows
Muhammad’s face intertwined with Islamic symbols like the crescent and the star;
several poke fun at the Jyllands-Posten, calling the cartoons a “PR Stunt” and the jour-
nalists a “bunch of reactionary provocateurs.” Some contain ordinary, rather anodyne
satire.2 One shows Muhammad with a turban in the shape of a bomb; another con-
fuses Muhammad with St. Peter, portraying the prophet at the entrance to a cloud-filled
heaven facing a long line of suicide bombers saying, “Stop, Stop. We ran out of virgins.”
The consequence of publishing these cartoons has been truly dreadful. There have
been riots throughout the world. According to one estimate, 139 people have died.3 A
fatwa has been issued offering a million-dollar bounty for the death of the cartoonists.
Newspaper editors have been fired and imprisoned, newspapers closed, and an Italian
minister forced to resign for displaying the cartoons on his T-shirt. The Swedish foreign
minister was forced to resign for attempting to close a website that wished to display
the cartoons.
Islam contains a rich history of portraying the prophet Mohammed, but the modern
fundamentalist sects who now claim to speak for Islam assert that it is forbidden to pub-
lish any representation of Muhammad, or, in some versions, of any prophet recognized
by Islam. “Merely publishing the image of Muhammad is regarded as blasphemous
by many Muslims.”4 For this reason the violent riots protesting the publication of the
cartoons no doubt included numerous persons who were “undeniably outraged by what
they perceive as blasphemy.”5 The question I shall address in this paper is how the law
ought to respond to this outrage. How should the law mediate between the demands of
religious sanctity and freedom of speech?
This is a very narrow question, which concerns only the coercive power of the state.
It is quite distinct from the ethical issue of when and how one should speak. All that is
legally permitted is not ethically advisable. Carsten Juste, the editor-in-chief of Jyllands-
Posten, later said that “If I had known that the lives of Danish soldiers and civilians
would be threatened, if I had known that, as my finger hovered one centimeter above the
send button for publishing the drawings, would I have hit it? No. No responsible editor
in chief would have done.”6 Juste was plainly correct to distinguish legal right from
ethical propriety. Even if Jyllands-Posten were legally entitled to publish cartoons that
were offensive, provocative, and likely to lead to violence, it may have been ethically
inappropriate to do so. In this paper, I analyze only the question of legal right.

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 Portraits of Muhammad: Robert Post 73

In the United States this question could be easily and accurately answered by any first
year law student. Since 1940 our First Amendment has been held to protect from legal
sanction all religious polemic, even expression that aims deliberately and provocatively
to assault the religious sensibilities of the pious. “In the realm of religious faith, and in
that of political belief,” our Supreme Court has held,

sharp differences arise. In both fields the tenets of one man may seem the rankest
error to his neighbor. To persuade others to his own point of view, the pleader, as we
know, at times, resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of this nation
have ordained in the light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy.

The essential characteristic of these liberties is that under their shield many types of
life, character, opinion and belief can develop unmolested and unobstructed. Nowhere
is this shield more necessary than in our own country for a people composed of many
races and of many creeds.7
It is recognized that “a first great principle of consensus” in First Amendment doc-
trine is that “In America, there is no heresy, no blasphemy.”8 The American Constitution
protects speech in “public discourse,” which is to say speech about public figures or cir-
culating in the national media, that seeks intentionally to violate religious sensibilities
by causing emotional pain, distress, and outrage.
The American First Amendment, however, is unique. Alongside our commitment
to the death penalty, it stands as an outstanding exemplar of American constitutional
exceptionalism. In Europe, where the Danish cartoons were published, there is a long
history of regulating blasphemy, and as a consequence the question of subjecting the
cartoons to legal sanction is very much alive. It is that question that I shall analyze
in this paper, with particular emphasis on decisions of the European Court of Human
Rights, which set minimum European requirements for the suppression of religiously
provocative speech. There are of course many distinct justifications for protecting
freedom of speech,9 but because all European nations are committed to democratic
self-governance, I shall in this paper seek to explore the compatibility of blasphemy
regulation with the requirements of democracy.

I. Speech and Democracy

All agree that states aspiring to democratic legitimacy must extend some protection to
freedom of speech. The extent and nature of these protections will depend upon many
factors, including, most centrally, the meaning of democracy.
I begin with what I take to be the unobjectionable premise that democracy refers to
“the distinction between autonomy and heteronomy: Democratic forms of government
are those in which the laws are made by the same people to whom they apply (and for
that reason they are autonomous norms), while in autocratic forms of government the


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law-makers are different from those to whom the laws are addressed (and are therefore
heteronomous norms).”10
When we use this definition, we must immediately distinguish democracy from ma-
joritarianism, in which a majority of the people exercise control over their government.
Although it is frequently said “any distinct restraint on majority power, such as a prin-
ciple of freedom of speech, is by its nature anti-democratic, anti-majoritarian,”11 it is
plain that majorities can implement rules that are inconsistent with democracy, as for
example by voting a monarchy into office. Although majoritarianism may be intimately
associated with the practice of democracy, democracy is not defined by majoritarianism,
which is why it is intelligible to conclude that particular exercises of majoritarianism
are anti-democratic.
Democracy is distinct from majoritarianism because democracy is a normative idea
that refers to substantive political values,12 whereas majoritarianism is a descriptive
term that refers to a particular decision-making procedure. Essential to democracy
are the values that allow us to determine whether in specific circumstances particular
decision-making procedures are actually democratic. Governments, for example, do not
become democratic merely because they hold elections in which majorities govern. Such
elections are currently held in North Korea. To know whether these elections make North
Korea democratic requires an inquiry into whether these elections are implemented in a
way that serves democratic values. It is a grave mistake to confuse democracy with any
particular decision-making procedure, and thereby to fail to identify the core values
that democracy as a form of government seeks to instantiate.
Because these values are associated with the practice of self-determination, we must
ask what it means for a people to engage in the practice of self-governance. This
practice is often interpreted to mean that a people be made ultimately responsible for
governmental decisions, either by making such decisions directly or by electing those
who do. This is the view, for example, of Alexander Meiklejohn or Owen Fiss.13 But
this is an insufficient account of the practice of self-government. For reasons that I shall
explain, I think it preferable to say that the practice of self-government requires that a
people have the warranted conviction that they are engaged in the process of governing
themselves.14 The distinction is crucial, for it emphasizes the difference between making
particular decisions and recognizing particular decisions as one’s own. Self-government
is about the authorship of decisions, not about the making of decisions.
We can test this distinction by imagining a situation in which the people retain their
collective capacity to decide issues, but in which individuals within the collectivity
feel hopelessly alienated from these decisions. Suppose, for example, that in State X
citizens are provided with interactive computer terminals that they are required to use in
the morning to register their preferences about various issues. Each morning an agenda
for decisions (composed by an elected assembly) is presented on the terminal. The
citizens of State X must decide what color clothes should be worn; what menu should
be served for lunch and dinner; the boundaries of the attendance zones for the neigh-
borhood school; whether a stop sign should be placed at a local intersection; and so on.
Assume that citizens of State X can get from their computer whatever information they


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believe is relevant for their votes, including information about the likely views of other
citizens.
Imagine, further, that State X has no public discourse. There are neither newspapers
nor broadcast media. The state bans political parties and associations. It proscribes
public demonstrations and prohibits individuals from publishing their views to other
citizens. Each citizen must make up his or her mind in isolation. Decisions in State X,
however, are made on the basis of the majority vote of the collectivity, and all individuals
are henceforth required to comply: to wear blue, or to serve chicken for lunch, or to
attend a particular school, or to stop at the local intersection. Individuals in State X feel
completely alienated from these decisions. They do not identify with them and instead
feel controlled and manipulated by the external force of the collectivity.
Would we deem State X an example of a society that engages in self-determination?
Although in State X the people retain their ability, “as a collectivity, to decide their
own fate,”15 which is to say to make decisions by majority rule, I very much doubt that
we would characterize State X as a democracy. We are much more likely to condemn
it as a dystopian tyranny. Rousseau long ago diagnosed the reason for this condem-
nation: collective decision-making is merely oppressive unless there is some internal
connection between the particular wills of individual citizens and the general will of
the collectivity.16
It is implausible to claim, as Rousseau might be thought to claim, that there can exist
a complete identity between the particular wills of individual citizens and the general
will of the democratic state. It is enough that individual citizens can recognize in that
general will the potentiality of their own authorship.17 When this occurs, collective
decision-making is democratic because it is experienced as self-determination. But
when citizens feel alienated from the general will, or from the process by which the
general will is created, voting on issues is merely a decision-making mechanism, a
mechanism that can easily turn oppressive and undemocratic.
It follows that the value of democracy can be fulfilled only if there is continual
mediation between collective self-determination and the individual self-determination
of particular citizens.18 If democracy requires that citizens experience their government
as their own, as representing them, they must experience the state as in some way
responsive to their own values and ideas. How is this theoretically possible under
modern conditions of diversity, when the citizens of a state are heterogeneous and
disagree with each other? The focus of analysis must shift from specific state decisions
to the process by which these decisions are authorized. Citizens must experience that
process as responsive to their own values and ideas.
Modern democracies conceive this process in terms of communication. They seek
to make the decisions of the state responsive to public opinion, and to protect freedom
of speech so that citizens can participate in the formation of public opinion. They
hope that the opportunity freely to participate in forming public opinion will allow
citizens to experience their government as their own, even if they must live in common
with citizens who hold diverse views and otherwise disagree. That is why in the United
States we say that the First Amendment, which is anti-majoritarian, is nevertheless “the


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guardian of our democracy.”19 Hans Kelsen, speaking of democracy, puts the matter
this way:

A subject is politically free insofar as his individual will is in harmony with the
“collective” (or “general”) will expressed in the social order. Such harmony of the
“collective” and the individual will is guaranteed only if the social order is created
by the individuals whose behavior it regulates. Social order means determination
of the will of the individual. Political freedom, that is, freedom under social order,
is self-determination of the individual by participating in the creation of the social
order. . . .

The will of the community, in a democracy, is always created through a running

discussion between majority and minority, through free consideration of arguments for
and against a certain regulation of a subject matter. This discussion takes place not only
in parliament, but also, and foremost, at political meetings, in newspapers, books, and
other vehicles of public opinion. A democracy without public opinion is a contradiction
in terms.20
A democracy must protect the communicative processes by which its citizens work
toward an “agreement” that is “uncoerced, and reached by citizens in ways consistent
with their being viewed as free and equal persons.”21 Of course, under conditions
of modern heterogeneity, actual agreement is impossible, so the notion of agreement
functions merely as a “regulative idea” for the formation of public opinion. If we use
the term “public discourse” to refer to the communicative processes by which public
opinion is formed, we can say that public discourse continuously but unsuccessfully
strives to mediate between individual and collective self-determination to produce “a
common will, communicatively shaped and discursively clarified in the political public
sphere.”22
In a modern democracy, therefore, citizens are free to engage in public discourse so
as to make the state responsive to their ideas and values, in the hope that even if the state
acts in ways inconsistent with those ideas and values, citizens can nevertheless maintain
their identification with the state. Freedom of speech is thus a necessary condition of
democratic legitimacy, but not a sufficient condition. If the state prevents citizens from
participating in public discourse when they would otherwise desire to do so, the state
loses democratic legitimacy with respect to those citizens, for it prevents them from
attempting to make public opinion responsive to their views.
The Danish cartoons of Muhammad that we are considering are plainly part of public
discourse.23 They concern matters of intense public controversy. When Danish author
Kåre Bluitgen complained that he could not find an artist brave enough to illustrate his
forthcoming children’s book about the life of Muhammed, the culture editor of Jyllands-
Posten decided to test the “fear of violence from Islamic radicals” by inviting members
of the Danish Cartoonist Society to depict their interpretations of the Prophet.24 As
Kurt Westergaard, author of the “incendiary but dignified drawing” of Muhammed
with a bomb-shaped turban that “has become the metonym for the whole controversy,”
subsequently explained in an interview: “The cartoon is not directed against Islam as a


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whole, but against the part of it that obviously can inspire violence, terrorism, death and
destruction.”25 Fear of these aspects of Islam is relevant to matters of important public
policy, like immigration. If public policy is to be directed by an intelligently informed
public opinion, and if citizens are to feel that public policy is potentially responsive
their views, they must be free to express and discuss their perspectives on the matters
satirized in the Jyllands-Posten cartoons.

II. The Suppression of Blasphemy

It follows that if free speech is to serve the value of democratic legitimation, the Danish
cartoons ought to be immune from legal censorship. This conclusion, however, is merely
the beginning of analysis. We must ask whether there are state interests that might
nevertheless justify suppression of the cartoons. In the context of the cartoons, there
are three such interests that have been advanced: the suppression of blasphemy, the
protection of religious groups, and the prevention of discrimination. I shall discuss
each of these in turn.
The state has an interest in suppressing blasphemy insofar as it has an interest in
protecting the respect properly due to God.26 Samuel Johnson defined blasphemy as “an
offering of some indignity unto God himself.”27 English law made blasphemy a crime
based upon “the plain principle that the public importance of the Christian religion is
so great that no one is allowed to deny its truth.”28 In 1841 the English Commissioners
on Criminal Law reported “that the common law of England punishes as an offence any
general denial of the truth of Christianity, without reference to the language or temper
in which such denial is conveyed.”29
About the middle of the nineteenth century, British blasphemy law began to evolve.
Instead of protecting the respect due to God, it sought to protect the feelings and
sensibility of religious groups. In 1883, for example, Lord Coleridge explained that
whatever the “old cases” may have said “the mere denial of the truth of Christianity is not
enough to constitute the offence of blasphemy.”30 He defined the crime of blasphemous
libel instead as the publication of communications “calculated and intended to insult
the feelings and the deepest religious convictions of the great majority of the persons
amongst whom we live.” The point of blasphemy was altered to prevent “outrages
to the general feeling of propriety among the persons amongst whom we live.”31 “If
the decencies of controversy are observed, even the fundamentals of religion may be
attacked without the writer being guilty of blasphemy.”32
This is essentially the status of the crime of blasphemous libel in Britain today.33
The crime prohibits “any contemptuous, reviling, scurrilous or ludicrous matter re-
lating to God, Jesus Christ or the Bible,” but provides that opinions hostile to Chris-
tianity may be expressed in a “decent and moderate” manner.34 I trace this develop-
ment in order to emphasize the distinction between a state interest in protecting the
respect due to God, and a state interest in protecting the feelings and religious con-
victions of religious groups. I shall address the former in Section II, and the latter in
Section III.


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Even today there exist blasphemy laws that seek to protect the sacred by enforcing
the respect due to God. Pakistan, for example, prescribes the death penalty for anyone
who “by any imputation, innuendo, or insinuation, directly or indirectly, defiles the
sacred name of the Holy Prophet.”35 One teacher at a medical college was prosecuted
for speculating that Muhammad’s parents might not have been Muslims. Pakistani
Christians are particularly vulnerable to legal sanction.
Some who claim that the Danish cartoons ought to be legally suppressed argue that
they are blasphemous because they disrespect God or Muhammad, his Prophet. King
Abdullah of Jordan, for example, announced that “With all respect to press freedoms,
obviously anything that vilifies the Prophet Muhammad, peace be upon him . . . needs
to be condemned.”36 A communiqué from the Organization of the Islamic Conference
(OIC), a group comprised of the world’s 57 Muslim nations, denounced the “desecration
of the image of the Holy Prophet Muhammad in the media.”37 A Hamas legislator
proclaimed that “We are angry – very, very, very angry. . . . No one can say a bad word
about our prophet.”38
The question is how a state interest in safeguarding the respect due to God and his
prophets can be reconciled with the freedom of speech necessary to serve the function
of democratic legitimation. There is an obvious and immediate contradiction between
keeping public discourse open to all opinions and excluding from public discourse those
who would deny what a particular religion regards as sacred. With respect to those who
do not share the religious beliefs protected by a particular blasphemy law, and who
are therefore expelled from public discourse, the state is rendered heteronomous. The
state loses democratic legitimacy with respect to those who do not believe in the truths
protected by a law of blasphemy.
This loss in democratic legitimacy may be acceptable if a state does not aspire
democratically to govern those of differing religious beliefs. But most modern states
define their jurisdiction in terms of a geographical territory that includes persons of
many different beliefs. To the extent democratic legitimacy is important with respect
to persons who do not share the beliefs enshrined in a state’s blasphemy law, any such
loss of democratic legitimacy should be unacceptable.

III. The Protection of Religious Groups

It is no doubt for something like this reason that British blasphemy law evolved in the
middle of the nineteenth century, changing from a law designed to protect the sacred
into a law designed to protect religious groups. British law was (and is) anomalous,
because it protects the religious feelings of only one religious group, Anglicans.39 But
this justification for suppressing speech, if allowed its natural extension, would justify
a non-discriminatory prohibition on all speech that offends the religious feelings of
any religious group. Many states currently have laws of this kind. Oriana Fallaci, for
example, was charged with the crime of blasphemy in Italy because her attacks on Islam
“offend a religion acknowledged by the state, by defaming those who profess it.”40


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This form of blasphemy law was considered in 1993 by the European Court of Human
Rights in the case of Otto Preminger Institute v. Austria. Austrian law imposed criminal
penalties on anyone who, through behavior “likely to arouse justified indignation,
disparages or insults a person who, or an object which, is an object of veneration of
a church or religious community established within the country, or a dogma, a lawful
custom or a lawful institution of such church or religious community.”41 Austrian
authorities had invoked the statute to justify the seizure of a film, Liebeskonzil, that
offensively satirized Christian beliefs, portraying “God the Father . . . both in image
and in text as a senile, impotent idiot, Christ as a cretin, and Mary Mother of God as a
wanton lady.”42
In upholding the seizure, the European Court of Human Rights invoked “the right
of citizens not to be insulted in their religious feelings by the public expression of
views of other persons.” It reasoned that “in extreme cases the effect of particular
methods of opposing or denying religious beliefs can be such as to inhibit those who
hold such beliefs from exercising their freedom to hold and express them,” and it
accordingly held that “provocative portrayals of objects of religious veneration . . . can
be regarded as malicious violation of the spirit of tolerance, which must also be a feature
of democratic society.”43
The logic of the court was essentially that persons have a right not to be insulted
in their religious beliefs because offense of this kind inhibits the right to practice a
religion. Something like this rationale was evident in the controversy over the Dan-
ish cartoons. The OIC denounced the cartoons as offending “hundreds of millions
of Muslims around the world” and as “meant to disturb and infuriate Muslims.” For
this reason, OIC argued, the cartoons “could not be considered as an innocent behav-
ior falling within the scope of freedom of expression in which everyone believes.”44
Ayatollah Ali Khamenei condemned the cartoons for “insulting the beliefs of 1.5 billion
Muslims.”45 Doudou Diene, the United Nations Special Rapporteur on Contemporary
Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, urged
that the United Nations “treat cases such as the Danish cartoon situation . . . as a debate
on the balancing of two rights, freedom of expression and freedom of religion.”46 The
Rapporteur is reported as stating that “the cartoons are absolutely insulting” and that
“beliefs should not be humiliated under the veil of freedom of expression.”47
If suppressing speech in order to protect the sacred is flatly inconsistent with freedom
of speech insofar as it excludes from public discourse those who would dispute the
state’s conception of the sacred, so suppressing speech in order to protect the sensibility
of religious groups is also inconsistent with freedom of speech because it excludes
from public discourse those whose convictions are offensive to religious groups. The
European Court of Human Rights offered several arguments for attempting to ameliorate
this contradiction.
The first was to claim that a “spirit of tolerance . . . must . . . be a feature of democratic
society.”48 This strategy strikes me as inadequate. The toleration required by democracy
refers to action. Democracy demands that we refrain from acting toward each other
in ways that are inconsistent with the social order. We must not riot or murder in


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defense of our beliefs. We must allow others peacefully to practice their beliefs. But
democracy does not require toleration in the sense that persons must abandon their
independent evaluation of the beliefs and ideas of others. Democracies encompass
groups that dislike and even detest each other, sometimes on religious grounds.49 To
the extent that democracy suppresses my expressions of disapproval or condemnation
for the actions of groups that I dislike, it excludes me from the formation of public
opinion.
A second strategy adopted by the European Court of Human Rights for minimizing
the anti democratic consequences of suppressing religiously offensive speech was to
assert that speech critical of religious beliefs may be suppressed only if it is “gratuitously
offensive to others” and thus does “not contribute to any form of public debate capable of
furthering progress in human affairs.”50 This argument turns on the distinction between
“gratuitous” offense and other forms of offense. We must thus ask when offense is
merely “gratuitous” and hence not necessary for public debate.
Consider the example of Dr. Wafa Sultan, a Syrian-American psychiatrist who was
raised a Muslim but who has strongly denounced the violence associated with Mus-
lim fundamentalism. She has characterized recent controversies as “a clash between
barbarity and rationality.” Sultan has since been denounced by Muslim clerics “as an
infidel” who has “done Islam more damage than the Danish cartoons mocking the
Prophet Muhammad.” An Egyptian professor of religious studies charged that “she
had blasphemed against Islam, the Prophet Muhammad and the Koran.” Sultan “has
received numerous death threats.”51
Sultan’s remarks are clearly offensive. But are they gratuitously offensive? They
refer to the same issues of violence and sectarianism as do the Danish cartoons. They
equally stereotype Muslim attitudes and actions. Sultan’s denunciations are probably
more offensive than the cartoons because they are more reasoned, comprehensive, and
hard-hitting. But should the law regard them as “gratuitous”? To do so would of course
turn the law into an instrument for excising any opinion that a religious group might
deem offensive. For the reasons I have already discussed, this is not compatible with
the use of freedom of speech to establish democratic legitimation.
There is a hint in the European Court of Human Rights decision that the concept of
“gratuitous” offense refers to the style of speech rather than to its substance. Speech like
Sultan’s can offend religious groups and nevertheless receive protection as contributing
to public debate if it is sober and rational. But speech that is expressed in an offensive
manner, like Liebeskonzil (or perhaps the Danish cartoons), is not deemed to contribute
to public debate. This is essentially the position of contemporary British blasphemy
law, which permits anything to be said, so long as “the decencies of controversy are
observed.”52
Insofar as this is the position of the European Court of Human Rights, it necessarily
follows that the Court was incorrect to invoke “the right of citizens not to be insulted in
their religious feelings by the public expression of views of other persons.” This position
assumes that citizens must tolerate insults from speech that is sober and rational, like
Sultan’s, but that citizens do not have to tolerate insults that flow from a certain style


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or manner of speech that is condemned as intrinsically offensive.53 The question is

how the law should distinguish between styles of speech that are intrinsically offensive
and styles of speech that are inherently protected.54 If freedom of speech is to serve its
function of democratic legitimation, any such distinction must be drawn in such a way
as to minimize damage to public debate.
This suggests that the distinction cannot be drawn simply on the basis of the beliefs
of discrete religious groups. What any given religious group finds offensive is a matter
of contingent history. Before the European religious wars of the seventeenth century,
Catholics found deeply offensive the mere existence of Protestants in their community,
and vice versa.55 It would seem that the law cannot transparently apply the beliefs of
religious groups without becoming entangled in endless and insoluble contradictions.
More importantly, the beliefs of particular religious groups may be more or less
compatible with the maintenance of the kind of public sphere required for democratic
legitimation. One religious group might experience any negative reference to its found-
ing Prophet as intolerably offensive; another might find outrageous and blasphemous
any aspersion on the character of its religion or of its followers. As religious groups
experience subjects for public discussion and commentary admissible or inadmissible,
the public sphere could shrink in ways that are incompatible with democracy.56
The distinction between speech that is consistent with “the decencies of controversy”
and speech that is unacceptably offensive, therefore, must be drawn by reference to so-
cial norms of dialogue that are endorsed by a democratic state, in part because they
are deemed compatible with the function of democratic legitimation. It follows that
if a state’s interest in the protection of religious groups is to be rendered compatible
with freedom of speech, the state must at a minimum distinguish between “gratuitous”
and “non-gratuitously” offensive speech on the basis of general secular principles that
protect all members of society and reflect universally applicable standards of civil-
ity. Speech cannot be suppressed merely because it is inconsistent with the religious
principles of particular sects.
It does not follow that a democratic state cannot discipline public discourse by
enforcing basic norms of civility. European states typically possess laws that prohibit
outrageous, indecent, or offensive forms of speech that violate social norms and thereby
convey insult, infringe upon honor, or violate dignity. It is clear, however, that although
such laws purport to enforce civility norms that are universally shared, they in fact
express the mores of dominant groups. During debates 76 years ago in the British
Parliament about the revision of blasphemy law, for example, it was well recognized
that “what it really comes to is that, where opinions are strongly held by an educated
man, those opinions will be expressed in a way which the law cannot touch, while those
expressed by an uneducated man, simply because he is uneducated, will come under
the penalties of the law.”57
American law differs in this regard. In America, by contrast, the First Amendment is
interpreted to create a “marketplace of communities” as well as a marketplace of ideas.58
The First Amendment thus precludes the state from imposing the norms of any one


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particular community onto the common space of public discourse, which is the arena in
which all communities must compete for the allegiance of public opinion. Respect for
the equality of diverse communities underlies the American constitutional conclusion
that civility norms, which always reflect the view of some particular community, may
not be used to regulate speech within public discourse.59 As a consequence, the First
Amendment regards “one man’s vulgarity” as “another’s lyric.”60
European states, by contrast, are more normatively hegemonic than America, and are
therefore more comfortable enforcing civility norms that distinguish permissible from
impressible speech. Hate speech is commonly regulated in Europe. The suppression of
speech that is deeply offensive to religious groups is sociologically and theoretically
analogous to the suppression of speech that is deeply offensive to racial groups. But
whereas in the latter context it is plain that law must ultimately define the boundaries
of permissible speech on the basis of civility norms that a secular state is prepared to
endorse as its own, in the context of blasphemy there is the suggestion that these norms
might be established simply by religious values. This is untenable, for the reasons
I have suggested, and as a consequence the European Court of Human Rights was
incorrect to uphold the censorship of Liebeskonzil on the ground that the “unwarranted
and offensive” nature of the film was to be determined merely by reference to the
“religious beliefs” of “the overwhelming majority of Tyroleans,” who were Roman
Catholic.61
This conclusion, of course, rests on the priority of using freedom of speech to
maintain democratic legitimacy. The conclusion does not follow if a state does not
especially prize such legitimacy, or if it believes that the need “to ensure religious
peace”62 trumps in particular circumstances the necessity of democratic legitimation,
or if a state’s population overwhelmingly shares religious norms so that the state is
indifferent to losing democratic legitimacy among religious minorities.

IV. The Prevention of Discrimination

A third theme that emerges from the controversy surrounding the Danish cartoons does
not concern the protection of religion or religious sensibilities, but instead focuses on
the prevention of discrimination.63 This theme is explicit in Doudou Diene’s response
to the cartoons. The UN Special Rapporteur linked the publication of the cartoons to
“the development of Islamophobia” and to racial discrimination. He asserted that the
cartoons “illustrated the increasing emergence of the racist and xenophobic currents in
everyday life.” 64 Those who condemned the cartoons argued that they were “a new sign
of Europe’s growing ‘Islamophobia’” because they reinforced “a dangerous confusion
between Islam and Islamist terrorism.”65 Civil rights lawyers in Denmark argued that
there ought to be “a balance here between freedom of speech and the right not to be
subjected to racial discrimination.”66
States have a significant interest in prohibiting and preventing discrimination against
Muslims. This objective is distinct from the interest in prohibiting and preventing speech
that Muslims find offensive. Prohibiting discrimination means, in the first instance,


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forbidding conduct that discriminates. Preventing discrimination, however, might also

mean altering the social conditions that cause discrimination. Among these conditions
are a fear and dislike of Muslims, which is now captured by the term “Islamophobia.”
It is not implausible to conclude that speech that promotes Islamophobia is causally
connected to discrimination. The nature and strength of this causal connection is a
question of contingent, historical fact.
In America the First Amendment would prevent the state from prohibiting speech
for this reason. Content-based restrictions on speech cannot be imposed on the ground
that the speech might cause a future harm unless the speech “is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action.”67
This severe restriction is deemed necessary because a more lax causal connection
would invite the government to use the pretext of a causal connection in order to
prohibit speech. Classic historical examples of this abuse were statutes prohibiting the
advocacy of Communist doctrine on the ground that such speech might cause a future
revolution.
European states have on the whole allowed speech to be prohibited on the basis of
far looser causal connections between speech and potential future harms. This may be
because the legitimacy of European states is typically far more secure than that of the
American state, which is constantly battling a deep libertarian streak in the American
character. In America it is uniformly said that the “people” are sovereign; in Europe it is
more common to say that the “nation” or the “republic” is sovereign. The consequence
is that in the United States, as distinct from Europe, the government is continuously
deprecated as at the sufferance of the people. The demand for democratic legitimation
in the United States is consequently more persistent and insistent than in Europe, and
so restrictions on public discourse are correspondingly more disfavored.
Nevertheless, even in Europe the European Court of Human Rights has held that
there are some restrictions on the capacity of member states to prohibit offensive racist
remarks,68 although there might be some connection between such remarks and subse-
quent racial discrimination. National courts in Europe typically impose a requirement
of proportionality on such regulation, which means that states must show that the harm
of discrimination cannot be ameliorated by means other than the suppression of pro-
tected speech. Such alternative means might include educational initiatives about the
nature of Islam, affirmative efforts to insure that Muslims receive adequate access to
jobs, housing, health care, and food, the regulation of offensive speech that is not public
discourse (such as speech in the workplace or in schools), and so on.
Assuming that these conditions are satisfied, there still remains the question of
the kind of speech that a state might properly prohibit in the interest of preventing
racial discrimination, and whether the Danish cartoons would qualify for proscription.
Some of the cartoons do invoke stereotypic criticisms of Islam. They comment on
Islamic repression of women; on the use of Islamic fundamentalist doctrines to foster
violence; on the fear of violent reprisal for publishing criticisms of Islam.69 These
are ideas that have been and will be used by those who would discriminate against
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But they are also ideas about real and pressing public issues. The relationship between
Islam and gender is a lively and controversial question. Fundamentalist Islamic violence
is a public worry throughout Europe. Fear of reprisal for crossing Islamic taboos is
omnipresent, as can be seen in the recent contretemps about a German production of
Mozart’s opera Idomeneo.70 To cut off all public discussion of real and pressing public
issues would be unthinkable. And if such issues are to be discussed, the expression of
all relevant views must be protected.
How to draw the line between protected expression and speech that can be suppressed
because it is likely to cause discrimination is thus a difficult and complex issue. The
most obvious way to make this distinction would be to rely on the traditional difference
between hate speech and ordinary expression, a difference that is incorporated into
the positive law of many countries, like France and Germany.71 French author Michel
Houellebecq, for example, was recently charged with violating France’s Pleven Law,
which prohibits words that “provoke discrimination, hatred or violence against a person
or group of people” on account of ethnicity, nationality, race, or religion. Houellebecq
had called the Koran “mediocre” and had asserted that “The dumbest religion, after
all, is Islam.” He was acquitted on the ground that his comments “constituted mere
criticism of Islamic doctrine.”72
Measured by this standard, the Danish cartoons seem to me rather far from legally
prohibited hate speech. They take a position on issues of obvious public moment, but
they do not advocate discrimination or oppression or violence; they do not threaten;
they do not use racist epithets or names; they do not attack individuals; they do not
perpetuate an obvious untruth; they do not portray Muslims as without human dignity.
They may exacerbate stereotypes and exaggerations, but that is not the same as hate
speech. That is simply the nature of most ideas.

NOTES
I am grateful for the unflagging assistance of Abha Khanna. The original version of this paper was
first presented at the fourteenth annual conference on “The Individual vs. the State” at the Central
European University in 2006, and is intended for publication in a forthcoming volume edited by
András Sajó, tentatively entitled Free Speech and Religion: The Eternal Conflict in the Age of Selective
Modernization.
1. The cartoons, along with much useful information about the controversy, can be seen at
http://www.zombietime.com/mohammed image archive/jyllands-posten cartoons/.
2. The cartoons are certainly a good deal less vicious and racist than the anti-
Semitic cartoons that routinely appear in the Arab press, see, e.g., Major Anti-Semitic Motifs
in Arab Cartoons, http://www.jcpa.org/phas/phas-21.htm; Cartoons From the Arab World,
http://www.tomgrossmedia.com/ArabCartoons.htm, or the anti-Semitic, anti-Holocaust cartoons re-
cently solicited by Iran. See http://www.irancartoon.com/. Not to be outdone, the Israeli based
Dimona Comix has announced its own anti-Semitic cartoon context, http://drawn.ca/2006/
02/14/israeli-anti-semitic-cartoon-contest/, proclaiming that “We’ll show the world we can do the
best, sharpest, most offensive Jew hating cartoons ever published! No Iranian will beat us on our
home turf!” See http://www.boomka.org/.
3. See http://www.cartoonbodycount.com/.
4. Craig Smith and Ian Fisher, “Temperatures Rise over Cartoons Mocking Muhammad,” New
York Times, Feb. 3, 2006, A3.


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5. “Silenced by Islamist Rage,” New York Times, Feb. 25, 2006, A14. It is clear that the riots
have also been fomented in part by secular anti-western Arab governments, like Syria, and by Islamic
extremists seeking to discredit moderate Arab governments. In an astute discussion of the cartoons,
which includes their only reproduction in the American print media, cartoonist Art Spiegelman
observed that “the most baffling aspect of this whole affair is why all the violent demonstrations
focused on the dopey cartoons rather than on the truly horrifying torture photos seen regularly on
Al Jazeera, on European television, everywhere but in the mainstream media of the United States.
Maybe it’s because those photos of actual violation don’t have the magical aura of things unseen, like
the damn cartoons.” Spiegelman, “Drawing Blood: Outrageous Cartoons and the Art of Courage,”
Harper’s 312, no. 1873 (June 2006): 47. Spiegelman noted that “none of the millions of protesters
saw any of the images. It was enough to be told that insult was intended. The Jyllands-Posten could
have saved the $129 it paid to each of its twelve cartoonists and simply printed a front-page headline
in 64-point type that shouted ‘Yo’ Prophet Wears Army Boots!’” (46).
6. Quoted in Alan Cowell, “Cartoons Force Danish Muslims to Examine Loyalties,” New York
Times, Feb. 4, 2006, A3.
7. Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).
8. H. Kalven, A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row,
1988), 7 (emphasis in original).
9. For a good summary of the major positions, see Frederick Schauer, Free Speech: A Philo-
sophical Enquiry (Cambridge: Cambridge University Press, 1982).
10. Norberto Bobbio, Democracy and Dictatorship: The Nature and Limits of State Power, tr.
Peter Kennealy (Cambridge: Polity, 1989), 137.
11. Schauer, Free Speech, 40–41.
12. On democracy as a substantive value, see Frank Michelman, Brennan and Democracy
(Princeton: Princeton University Press, 1999).
13. See, e.g., Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the
People (New York: Harper & Bros., 1948).
14. The concept of a “warranted conviction” is meant to signify that a subjective conviction
of self-government is not a determinative and preclusive condition for the realization of democratic
values. The conviction must withstand scrutiny, which means that it must always be open to third
parties to attempt to convince a citizen that his or her experience of self-government is delusory.
15. Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power
(Boulder: Westview, 1996), 37–38.
16. Jean-Jacques Rousseau, The Social Contract, tr. Maurice Cranston (Harmondsworth:
Penguin, 1968), 58–62. Ironically, Rousseau seemingly contemplated that the general will would
be formed through just such an alienated process as I have sketched. “From the deliberations of a peo-
ple properly informed, and provided its members do not have any communication among themselves,
the great number of small differences will always produce a general will and the decision will always
be good” (73). This suggests that Rousseau may have had a finer grasp of the analytic prerequisites
of democracy than of the sociological dynamics necessary for its realization.
17. For a full explication of this argument, see Robert Post, “Meiklejohn’s Mistake: Indi-
vidual Autonomy and the Reform of Public Discourse,” University of Colorado Law Review 64
(1993).
18. I have elsewhere argued that “[t]he essential problematic of democracy . . . lies in the rec-
onciliation of individual and collective autonomy.” Post, Constitutional Domains: Democracy, Com-
munity, Management (Cambridge: Harvard University Press, 1995), 7. For a full discussion, see
Post, “Between Democracy and Community: The Legal Constitution of Social Form,” in Democratic
Community: Nomos XXXV, ed. John W. Chapman and Ian Shapiro (New York: NYU Press, 1993),
178–79.
19. Brown v. Hartlage, 456 U.S. 45, 60 (1982).
20. Hans Kelsen, General Theory of Law and State, tr. Anders Wedberg (New York: Russell
& Russell, 1961), 285–88.
21. John Rawls, “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public
Affairs 14 (1985): 229–30.


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22. Jürgen Habermas, The Theory of Communicative Action, tr. Thomas McCarthy
(Cambridge, MA: MIT Press, 1987), 81.
23. Exactly how to draw the boundaries of public discourse is complex and complicated matter.
For a discussion, see Robert Post, “The Constitutional Concept of Public Discourse: Outrageous
Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell,” Harvard Law Review 103
(1990): 667–84
24. Craig Smith, “Adding Newsprint to the Fire,” New York Times, Feb. 5, 2006, 5. A New York
Times columnist has characterized the “callous and feeble cartoons” published by Jyllands-Posten as
“cooked up as a provocation by a conservative newspaper exploiting the general Muslim prohibition
on images of the Prophet Muhammad to score cheap points about freedom of expression.” Michael
Kimmelman, “A Startling New Lesson in the Power of Imagery,” New York Times, Feb. 8, 2006, E1.
25. Quoted in Spiegelman, “Drawing Blood,” 48. Spiegelman shrewdly observes of this cartoon
that “the irate artist successfully discharged himself of the political cartoonist’s duty to bring matters
to a head. If the drawing had simply not appeared under the rubric of ‘Muhammad’s Face,’ it would
have been more immediately seen to specifically represent the murderous aspect of fundamentalism,
the one that . . . made this drawing a self-fulfilling prophecy” (48–49).
26. For a discussion, see Robert Post, “Cultural Heterogeneity and Law: Pornography,
Blasphemy, and the First Amendment,” California Law Review 76 (1988). In England, blasphemy was
a common law crime. It was one of the four branches of criminal libel, the other three being obscenity,
sedition, and defamation. See J.R. Spencer, “Criminal Libel – A Skeleton in the Cupboard,” Criminal
Law Review (1977). All four branches of libel sought to ensure that speech did not violate established
norms of respect and propriety. The particular province of blasphemy was to prevent disrespect toward
God, which according to Blackstone could be manifested “by denying his being or providence; or by
contumelious reproaches of our Saviour Christ.” William Blackstone, Commentaries (1769), vol. 4: 59.
27. Samuel Johnson, A Dictionary of the English Language (1756). Benjamin Norton Defoe
defined blasphemy as “vile or opprobrious Language, tending to the Dishonour of God.” Defoe, A
Compleat English Dictionary (1735).
28. James Fitzjames Stephen, A History of the Criminal Law of England (1883), vol. 2: 475.
The English law of blasphemy was successfully used to prosecute individuals for publishing such
works as Thomas Paine’s Age of Reason (471–73), Rex v. Williams, Howell’s St. Tr. 26 (K.B. 1797):
653; Rex v. Carlile (Richard), St. Tr. N.S. 1 (1819): 1387; Shelley’s poem ‘Queen Mab,’ Regina v.
Moxon, St. Tr. N.S. 4 (1841): 693; and the popular Discourses of an early Deist, a minister and Fellow
of Sydney Sussex College at Cambridge, which urged that the miracles reported in the New Testament
be interpreted allegorically, rather than literally. See Rex v. Woolston, Eng. Rep. 94: 112, Barn. K.B.
1 (1729): 162.
29. Commissioners on Criminal Law, Sixth Report (1841), 83.
30. Regina v. Ramsay and Foote, Cox C.C. 15 (1883): 231, 236.
31. Regina v. Bradlaugh, Cox C.C. 15 (1883): 217, 230, 231.
32. Ramsay and Foote, 238.
33. Regina v. Lemon, 1979 App. Cas. 617.
34. Wingrove v. United Kingdom, Eur. H.R. Rep. 24 (1996): 1, 7.
35. For a discussion, see Donna E. Arzt, “Heroes or Heretics: Religious Dissidents under
Islamic Law,” Wisconsin International Law Journal 14 (1996).
36. David E. Sanger, “Bush Urges Nations to End Violence; Rice Accuses Syria and Iran,”
New York Times, Feb. 9, 2006, A14.
37. Hassan M. Fattah, “At Mecca Meeting, Cartoon Outrage Crystallized,” New York Times,
Feb. 9, 2006, A1.
38. Craig S. Smith and Ian Fisher, “Temperatures Rise Over Cartoons Mocking Muhammad,”
New York Times, Feb. 3, 2006, A3.
39. R. v. Chief Metropolitan stipendiary Magistrate ex parte Choudhury, W.L.R. 3 (1990):
986; Anthony Chase, “Legal Guardians: Islamic Law, International Law, Human Rights Law, and the
Salman Rushdie Affair,” American University Journal of International Law and Policy 11 (1996):
419–20. On February 16, 2006, Britain enacted the Racial and Religious Hatred Act of 2006, which


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provides that “A person who uses threatening words or behaviour, or displays any written material
which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred” (§29B).
The Act defines “religious hatred” to mean “hatred against a group of persons defined by reference to
religious belief or lack of religious belief” (§29A). The Act thus prohibits threats that stir up religious
hatred against any religious group, not merely Anglicans.
40. Margaret Talbot, “The Agitator: Oriana Fallaci Directs Her Fury Against Islam,” The New
Yorker, June 5, 2006, 61.
41. Otto Preminger Institut v. Austria, Eur. H.R. Rep. 19 (1994): §25; citing §188 of the Austrian
Penal Code.
42. Ibid., §16; quoting the judgment of the Austrian Regional Court.
43. Ibid., §48, 47, 47. In a subsequent decision, the European Court of Human Rights upheld
British censorship of a film showing a Catholic saint in a state of sexual ecstasy. Wingrove v. United
Kingdom, Eur. H.R. Rep. 24 (1996): 7. The Court’s reasoning, however, was far less substantive than
in Otto Preminger Institut. The Court turned its decision on the conclusion that “a wider margin of
appreciation is generally available to the Contracting States when regulating freedom of expression
in relation to matters liable to offend intimate personal convictions within the sphere of morals or,
especially, religion” (§58):
Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform
European conception of the requirements of ‘the protection of the rights of others’ in relation
to attacks on their religious convictions. What is likely to cause substantial offence to persons
of a particular religious persuasion will vary significantly from time to time and from place to
place, especially in an era characterised by an ever growing array of faiths and denominations.
By reason of their direct and continuous contact with the vital forces of their countries, State
authorities are in principle in a better position than the international judge to give an opinion
on the exact content of these requirements with regard to the rights of others as well as on
the ‘necessity’ of a ‘restriction” intended to protect from such material those whose deepest
feelings and convictions would be seriously offended.
But see Affaire Giniewski c. France, Judgment of January 31, 2006.
44. Patrick Goodenough, “Growing Anger over Mohammed Cartoons,” CNS News, Jan. 3,
2006, http://www.cnsnews.com/ForeignBureaus/Archive/200601/FOR20060103b.html.
45. Quoted in Nazila Fathi, “Contest for Cartoons Mocking the Holocaust Announced in
Tehran,” New York Times, Feb. 8, 2006, A10. Dr. Abdulaziz Othman Altwaijri, Director Gen-
eral of the Islamic Educational, Scientific and Cultural Organization, called for “enacting an in-
ternational law incriminating offences to religions and prophets” because of the need “to rein-
force tolerance among the followers of the divine religions, the aim being to remove the causes
that lead to hatred and discrimination and contribute to stirring up conflicts among civilizations
and cultures” (“At the Congress of Imams and Rabbis in Seville, ISESCO Director General calls
for: Abidance by a pact of honour among the followers of the divine religions,” Feb. 20, 2006,
http://www.isesco.org.ma/English/press/viewpage.asp?Lien=999699998). Two months previously
Altwaijri had called upon the Danish Center for Culture and Development “to protest in the manner
you deem appropriate against this newspaper as well as against every other information means in your
country that damages the image of Islam and Muslims, following in that the policy of tolerance that re-
jects the contempt of religions and the profanation of religious sanctities in which believe a billion and
a third people on this earth” (http://www.isesco.org.ma/English/press/viewpage.asp?Lien=9996992).
46. Press Release, “Special Rapporteur on Racism tells Committee that Racism and Racial
Discrimination Are on the Upswing,” Mar. 7, 2006, http://www.unhchr.ch/huricane/huricane.nsf/
view01/5F30A01100D70D67C125712A006FBE18?opendocument.
47. Quoted in Hasan Cucuk, “UN: Denmark Acted Irresponsibly in Cartoon Crisis,” Zaman
Online, Mar. 19, 2006, http://www.zaman.com/?bl=international&alt=&trh=20060319&hn=31079.
This Turkish paper quotes Diene to the effect that the “defense that freedom of speech is limitless
contradicts international rules. There is a great need to establish a balance between freedom of speech
and freedom of faith. This publication explicitly shows a lack of understanding and emotion for
believers. The newspaper also helped Islam and terror to be likened.” See also “The Volokh Conspiracy,


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Another U.N. Official Demanding Speech restrictions, and faulting Denmark for Protecting Speech
Too Much,” available at http://volokh.com/posts/1142989233.shtml.
48. Otto Preminger Institut, §47. Recently the Court attempted to explained this principle of
tolerance as requiring the Court in prosecutions for blasphemy to weigh “the conflicting interests of
the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public
his views on religious doctrine, on the one hand, and the right of others to respect for their freedom
of thought, conscience and religion, on the other hand” (§55). Case of İ.A v. Turkey, 13 September
2005, §27. In İ.A. the Court upheld the blasphemy conviction of a novelist for publishing a novel that
contained this paragraph: “Look at the triangle of fear, inequality and inconsistency in the Koran; it
reminds me of an earthworm. God says that all the words are those of his messenger. Some of these
words, moreover, were inspired in a surge of exultation, in Aisha’s arms. . . . God’s messenger broke
his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual
relations with a dead person or a live animal” (§13).
49. The European Court of Human Rights implicitly recognized this principle in Kokkinakis v.
Greece, Judgment of 19 April 1993, which struck down a Greek law prohibiting proselytism, by which
was “meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person
of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by
any kind of inducement or promise of an inducement or moral support or material assistance, or by
fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety”
(§16). The European Court of Human Rights held that “a distinction has to be made between bearing
Christian witness and improper proselytism. The former corresponds to true evangelism, which a
report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential
mission and a responsibility of every Christian and every Church. The latter represents a corruption or
deformation of it. It may, according to the same report, take the form of activities offering material or
social advantages with a view to gaining new members for a Church or exerting improper pressure on
people in distress or in need; it may even entail the use of violence or brainwashing; more generally,
it is not compatible with respect for the freedom of thought, conscience and religion of others” (§48).
50. Otto-Preminger Institut, §49. In İ.A v. Turkey, the Court explained that freedom of speech
“carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, may
legitimately be included a duty to avoid expressions that are gratuitously offensive to others and
profane (see, for example, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series
A no.295-A, pp. 18–19, § 49, and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003-IX). This being
so, as a matter of principle it may be considered necessary to punish improper attacks on objects of
religious veneration (ibid.)” (§24). See also Case of Murphy v. Ireland, March 12, 2003, ¶65.
51. “We have not seen a single Jew blow himself up in a German restaurant. We have not
seen a single Jew destroy a church. We have not seen a single Jew protest by killing people. . . . Only
Muslims defend their beliefs by burning down churches, killing people and destroying embassies.
This path will not yield any results.” Quoted in John M. Broder, “For Muslim Who Says Violence
Destroys Islam, Violent Threats,” New York Times, Mar. 11, 2006, A1. Sultan continued, “The clash
we are witnessing around the world is not a clash of religions or a clash of civilizations. . . . It is a
clash between a mentality that belongs to the Middle Ages and another mentality that belongs to the
21st century. It is a clash between civilization and backwardness, between the civilized and primitive,
between barbarity and rationality.”
52. The British distinction between style and substance is meant to maintain the openness of
public debate. See, e.g., Jones, “Blasphemy, Offensiveness and Law,” British Journal of Political
Science 10 (1980): 142–43:
The intention behind the distinction is plain. Granted that it is possible to distinguish manner
from matter, a law restricting only forms of expression need not prevent the assertion of any
substantive point of view. The usual conflict between freedom of opinion and prevention
of offense is therefore largely avoided. . . . The failing of the matter-manner distinction is
that it supposes that statements are capable of more or less offensive formulations which are
nevertheless identical in meaning. The manner of an assertion is treated as though it were so
much verbal wrapping paper whose features had no bearing upon the content of the parcel.


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In certain cases this assumption may not be unjustified. . . . More often, however, manner and
matter are so integrally related that it is impossible to distinguish the offensive manner from
the offensive matter of a statement.
Even the European Court of Human Rights has recognized the ultimate difficulty in any effort to
enforce a hard distinction between the style and substance of speech. See, e.g., Jersild v. Denmark,
Eur. H.R. Rep. 19 (1994): §31: “The Court recalls that Article 10 protects not only the substance of
the ideas and information expressed, but also the form in which they are conveyed.”
53. In Case of İ.A v. Turkey, the Court upheld a blasphemy prosecution because “the present
case concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive
attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism
of religious doctrine within Turkish society, which is deeply attached to the principle of secularity,
believers may legitimately feel themselves to be the object of unwarranted and offensive attacks
through the following passages: ‘Some of these words were, moreover, inspired in a surge of exultation,
in Aisha’s arms. . . . God’s messenger broke his fast through sexual intercourse, after dinner and before
prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal’” (§29).
54. In England in the nineteenth century, Lord Denman sought to draw this distinction in
this way: “[U]pon the question whether it is blasphemous or out I [make] this general observa-
tion . . . namely, that the question is not altogether a matter of opinion, but that it must be, in a great
degree, a question as to the tone, and style, and spirit, in which such inquiries are conducted. Because,
a difference of opinion may subsist, not only between different sects of Christians, but also with
regard to the great doctrines of Christianity itself; and . . . even discussions upon that subject may be
by no means a matter of criminal prosecution, but, if they be carried on in a sober and temperate
and decent style, even those discussions may be tolerated, and may take place without criminality
attaching to them; but that, if the tone and spirit is that of offence, and insult, and ridicule, which leaves
the judgment really not free to act, and, therefore, cannot be truly called an appeal to the judgment,
but an appeal to the wild and improper feelings of the human mind, more particularly in the younger
part of the community, in that case the jury will hardly feel it possible to say that such opinions, so
expressed, do not deserve the character [of blasphemy] affixed to them in this indictment.” Regina v.
Hetherington, St. Tr. N.S. 4 (1841): 590–91.
55. Consider, for example, Oliver Cromwell’s famous directive regarding religious liberty to
the Catholics in Ireland: “As to freedom of conscience, I meddle with no man’s conscience; but if you
mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the
power of the Parliament of England prevails shall that be permitted.” Quoted in McDaniel v. Paty,
435 U.S. 618, 631 n.2 (1978) (J. Brennan. concurring).
56. As an historical matter, toleration in the Christian West only began “when the advocates of
competing religious orthodoxies failed to impose their doctrines and standards on the population at
large,” so “that they began to accept, reluctantly at first, an ideology which legitimated the reality cre-
ated by their own failures.” Steve Bruce, A House Divided: Protestantism, Schism, and Secularization
(London: Routledge, 1990), 99–100. It has thus been said that “Religion, any religion, is the enemy
of liberal democracy as long as it has not been defanged and privatized. Religion, any religion, is
quite explicitly about election and exclusion.” Benjamin Beit-Hallahmi, “The Return of Martyrdom:
Honour, Death and Immortality,” in Religious Fundamentalism and Political Extremism, ed. Leonard
Weinberg and Ami Pedahzur (London: Frank Cass, 2004), 32.
57. Parl. Deb., H.C. (5th Ser.) 234 (1930): 535 (remarks of Mr. Kingsley Griffith); see also 499:
“We have writers to-day who can commit the offence of blasphemy with impunity, if the offence of
blasphemy is an attack on the Christian religion. There are men like Sir Arthur Keith, Mr. H. G. Wells,
Mr. Bertrand Russell, Mr. Aldous Huxley and others who are able to attack the Christian religion
without any danger whatever of their being prosecuted, while poor men, expressing the same point
of view more bluntly and crudely, expose themselves to fine and imprisonment. That is a thoroughly
unsatisfactory state of the law. After all, if one concedes the right to attack religion . . . one has to
concede to the people who care to do this thing the right to choose their style of doing it. Different
styles are needed for different circumstances and different audiences. I do not suppose the kind of
style that would go down in a select circle in the West End would be effective amongst the democracy
of the East End” (remarks of Mr. Thurtle); see also 558 (remarks of Mr. Lansbury).

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58. Post, “The Constitutional Concept of Public Discourse,” 634–35.

59. See Robert Post, “Community and the First Amendment,” Arizona State Law Journal 29
(1997).
60. Cohen v. California, 403 U.S. 15, 25 (1971).
61. Otto-Preminger Institut, §56, see also §52. The conclusion in text must have formed the
basic premise of the reasoning of the European Court of Human Rights own judgment in Kokkinakis v.
Greece, on the not implausible assumption that the Greek Orthodox Church, which is the “the dominant
religion in Greece” (quoting the Greek Constitution of 1975), found the proselytism protected by
the Court to be “morally reprehensible.” Kokkinakis, §17; quoting the judgment of the Supreme
Administrative Court of Greece in Symvoulio tis Epikratias.
62. Ibid., §56.
63. See, e.g., Ruti Teitel, “No Laughing Matter: The Controversial Danish Cartoons Depicting
the Prophet Mohammed, and Their Broader Meaning for Europe’s Public Square,” Findlaw, Feb. 15,
2006, http://writ.news.findlaw.com/commentary/20060215 teitel.html.
64. “Special Rapporteur on Racism tells Committee that Racism and Racial Discrimination
Are on the Upswing.”
65. Craig S. Smith and Ian Fisher, “Temperatures Rise Over Cartoons Mocking Muhammad,”
New York Times, Feb. 3, 2006, A3.
66. Alan Cowell, “More European Papers Print Cartoons of Muhammad, Fueling Dispute with
Muslims,” New York Times, Feb. 2, 2006, A12.
67. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
68. Jersild v. Denmark, Eur. H.R. Rep. 19 (1994).
69. One cartoon shows Muhammad with a slit covering his eyes in front of two women who
are covered everywhere by a veil except for a slit over their eyes; another Muhammad with a turban
in the shape of a bomb; a third shows the cartoonist frightened at the thought of drawing a portrait of
Muhammad.
70. See Judy Dempsey and Mark Landler, “Opera Canceled Over a Depiction Of Muhammad,”
New York Times, September 27, 2006, A1:
A leading German opera house has canceled performances of a Mozart opera because of security
fears stirred by a scene that depicts the severed head of the Prophet Muhammad, prompting a
storm of protest here about what many see as the surrender of artistic freedom. The Deutsche
Oper Berlin said Tuesday that it had pulled ‘‘Idomeneo’’ from its fall schedule after the police
warned of an ‘‘incalculable risk’’ to the performers and the audience . . .Political and cultural
figures throughout Germany condemned the cancellation. Some said it recalled the decision of
European newspapers not to reprint satirical cartoons about Muhammad, after their publication
in Denmark generated a furor among Muslims.
The Deutsche Oper Berlin has since rescheduled the opera.
71. For a discussion, see Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A
Comparative Analysis,” Cardozo Law Review 24 (2003).
72. See Susannah C. Vance, “The Permissibility of Incitement to Religious Hatred Offenses
under European Convention Principles,” Transnational Law and Contemporary Problems 14 (2004):
202–03. Houellebecq quoted in Sara Rimensnyder, “Sins of the Author: Hate and Free Speech,”
Reasononline, Dec. 2002, http://reason.com/0212/ci.sr.sins.shtml.

Robert Post is David Boies Professor of Law at Yale Law School. He is the author
of Constitutional Domains: Democracy, Community, Management (1995) and the co-
author (with K. Anthony Appiah, Judith Butler, Thomas C. Grey, and Reva Siegel) of
Prejudicial Appearances: The Logic of American Antidiscrimination Law (2001). He
is the editor of many volumes, including Civil Society and Government (with Nancy
Rosenblum, 2002), Race and Representation: Affirmative Action (with Michael Rogin,
1998) and Censorship and Silencing: Practices of Cultural Regulation (1998).


C 2007 The Author. Journal compilation 
C 2007 Blackwell Publishing Ltd.