|HOME||Nov-Dec.2008 Featured Stories||Background Information||News On The Web|
Lawfare -- using the law courts to harass people who write or
speak negatively about Islam -- is another technique of intimidation
used by Islamists in countries where they are not yet strong enough to
be boldly assertive. They use a necessary component of democracy to
suppress democracy. It is one aspect of what has been termed
creeping sharia. Using an unlimited supply of money and taking
advantage of Western tolerance, muslims and their agents are
stealthily attempting to replace western law and culture with Islamic
sharia law. Brook Goldstein provides us with both details and
conclusions. It is not a pretty picture but it is important you be
aware of how Islamists are using democratic institutions to suppress
By kind invitation of Patrick Mercer MP, the Henry Jackson
Society hosted a discussion with Brooke Goldstein, Director of the
Legal Project at the Middle East Forum and Director and Founder of the
Children's Rights Institute, on 25th November in Committee Room 16,
House of Commons. Brooke Goldstein explored the phenomenon of Islamist
lawfare in the US, the UK and in Europe as well as the threat it poses
to democratic values such as freedom of speech and assembly
By kind invitation of Patrick Mercer MP, the Henry Jackson Society hosted a discussion with Brooke Goldstein, Director of the Legal Project at the Middle East Forum and Director and Founder of the Children's Rights Institute, on 25th November in Committee Room 16, House of Commons. Brooke Goldstein explored the phenomenon of Islamist lawfare in the US, the UK and in Europe as well as the threat it poses to democratic values such as freedom of speech and assembly
As a lawyer, filmmaker, journalist and human rights advocate, it appears to me a duty to speak with candor and deep concern about a current fundamental conflict between Western principles of democratic law on the one hand, and tactics of censorship and suppression of opinions and information that are being used today, in various jurisdictions by various parties, with the aim of silencing speech critical of radical-Islam, Islamist terrorism and its sources of financing.
Fortunately, we in the West have eliminated draconian blasphemy laws and have benefitted from an enlightenment and recognition that there are certain civil rights that are inalienable and deserve protection. We enjoy a historically unprecedented level of free speech and it is the product of men and women who have fought and paid in blood for this liberty. We measure our democracy by the right to criticize the government and the right to criticize religion is the cornerstone of the separation of church and state.
Over the past five centuries a chorus of enlightened voices has resonated with sound truth about the significance of free speech as an essential element of a free society and the dangers of censorship, and there is no shortage of famous quotations about this vital liberty. "I disapprove of what you say, but I will defend to the death your right to say it," from Voltaire, Heine observed that "where they burn books they will ultimately burn people" and Potter Stewart so rightly remarked that "Censorship reflects society's lack of confidence in itself. It is a hallmark of an authoritarian regime."
Yet in other areas of the world, we see a very different approach where countries that enforce strict censorship or blasphemy laws are typically the most oppressive regimes on the planet.
In Saudi Arabia persons arbitrarily accused of insulting Islam face beheading. In Sudan, police jail teachers for naming teddy bears Mohammad and execute reformers for holding "curious and unorthodox views of Islam." In Bangladesh and Belarus cartoonists, bloggers and editors are arrested for printing images of Mohammad or posting comments capriciously deemed insulting to Muslims. In such countries ruled by Sharia law and where political Islam holds sway, writers, thinkers, philosophers, activists, and artists are frequently and harshly denied their freedom of expression.
But, are we, in the West, isolated and protected from such castigation? Are Muslims in the West who advocate for reform of political Islam safe? Are authors who write about terrorism and its sources of financing shielded from unwarranted attacks? Are Western cartoonists who parody religion safe from arrest? Is anyone who speaks publicly on the threat of radical Islam safe from frivolous and malicious lawsuits designed to bankrupt, punish and silence them? Unfortunately, the answer is no.
Lawfare is defined as the use of the law as a weapon of war , or the pursuit of strategic aims through aggressive legal maneuvers. Traditionally, lawfare tactics have been used to obtain moral advantages in the court of public opinion, and to intimidate heads of state from acting out of fear of prosecution for war crimes. Al Qaeda training manuals instruct its captured militants to file claims of torture to reposition themselves as victims against their captors. The 2004 decision by the UN's International Court of Justice declaring Israel's security fence a crime against humanity, while pointedly ignoring the fact that the fence contributed to a sharp decline in terror attacks, is another example of lawfare aimed at public opinion.
Yet, lawfare has moved beyond gaining mere moral advantages over nation states and winning lawsuits against government actors. Over the past ten years, we have seen a steady increase in Islamist lawfare tactics directly targeting the human rights of North American and European civilians in order to constrain the free flow of public information about radical Islam.
The Islamist movement is that which seeks to impose tenets of Islam, and specifically Shari'a law, as a legal, political, economic, religious and judicial authority both in Muslim states and in the West. It is generally composed of two wings - that which operates violently, propagating suicide-homicide bombing and other terrorist activities, and that which operates lawfully, conducting a "soft jihad" within our media, government and court systems, through Shari'a banking and Sharia courts and within our school systems.
Both the violent and the lawful arms of the Islamist movement can and do work apart, but often, their work re-enforces each other's. For example, one tenet of Shari'a law is to punish those who criticize Islam and to silence speech considered blasphemous of its prophet Mohammad. While the violent arm of the Islamist movement attempts to silence speech by burning cars when Danish cartoons of Mohammed are published, by issuing fatwas against Salman Rushdie, by murdering film directors like Theo Van Gogh, by threatening authors like Ed Husain, and by forcing thinkers such as Wafa Sultan and Ayan Hirsi Ali into hiding, the lawful arm is skillfully maneuvering within Western court systems, hiring lawyers, taking advantage of "hate speech" and libel laws, and suing to silence its critics.
Islamist states, organizations and individuals with financial means have launched a "legal jihad," filing a series of malicious lawsuits, in North American and European courts, designed to punish and silence anyone who engages in discourse about Islam. The lawsuits are often predatory and undertaken as a means to intimidate, demoralize and bankrupt defendants. Claims are based on charges ranging from defamation to "Islamophobia," and have resulted in books being banned and pulped, in thousands of dollars worth of fines and in publishing houses and newspapers rejecting important works on counter-terrorism out of fear of being the next target.
By suing to impose penalties and gag orders on counter-terrorism experts, government officials, authors and the media, non-combatants who engage in Islamist lawfare are assuming critical support roles, whether intentionally or not, for violent operations that seek to establish principles Shari'a law in the West.
To illustrate this phenomenon and its effect, we must look to the facts on the ground, and examine country by country, case examples of Islamist lawfare in the West. You don't have to be an expert on any one country's laws to see that there is a common thread and purpose to these actions.
Let us begin in the US where researchers, police officers and politicians who expose the organizations and mechanisms behind terror-financing are being routinely intimidated.
One of the major proponents of Islamist lawfare in the US is the Washington-based Council on American Islamic Relations (CAIR), an unindicted co-conspirator in a terror financing case and self-described representative of the American Muslim population.
When former U.S. Congressman Cass Ballenger reported CAIR to the CIA and FBI as a "fundraising arm for Hezbollah," CAIR sued Ballenger for defamation. Fortunately, the Judge ruled the Congressman's statements protected speech made in the scope of his public duties.
The following year, CAIR instituted a 1.3 million dollar lawsuit against American blogger Andrew Whitehead, for maintaining the website Anti-CAIR-net.org, on which CAIR is described as an Islamist organization with ties to terrorist groups. After refusing Whitehead's discovery requests, seemingly afraid of what internal documents the legal process it had initiated would reveal, CAIR withdrew its claims against Whitehead and the case was dismissed by the court with prejudice.
In 2005, The Islamic Society of Boston (ISB) filed a lawsuit charging defamation against over a dozen defendants including the Boston Herald, FOX News, and noted counter-terrorism expert Steven Emerson who were targeted by ISB for publicly speaking about the Islamic Society's connections to radical Islam and for raising questions about the construction of its Saudi-funded mosque in Boston. A full two years after it had initiated the lawsuit, and just a few months after the discovery process into ISB's financial records had begun, ISB dropped its case and abandoned all of its claims against all of the defendants, without receiving any form of payment.
In line with the old adage that actions speak louder than words, the fact that both ISB and CAIR voluntarily abandoned their claims right before they would have been required, by court order, to turn over internal documents speaks volumes about whether the two Plaintiffs had ever intended to pursue their legal claims on their merit or had instead, intended to use the court system to intimidate the Defendants as well as other journalists, into not reporting on their activities.
This year, Bruce Tefft, a former CIA official and counter-terrorism consultant for the NYPD, was sued by a Muslim John Doe police officer for "workplace harassment" after Tefft sent out emails to a voluntary recipient list of police officers containing information about radical Islamic terrorism.
When Hassan Dai, a Muslim Iranian American, wrote an article illustrating how the National Iranian American Council (NIAC) was lobbying on behalf of Iran, he was sued by NIAC for defamation, and when Joe Kaufman a citizen activist held a lawful and peaceful ten person protest against the Islamic Circle of North American, he too was sued for harassment and defamation. These cases are currently ongoing.
Sometimes Americans wrongfully targeted are able to take advantage of Anti-SLAPP statutes, the acronym being Anti-Strategic Litigation Against Public Participation. Anti-SLAPP statutes have been enacted in several, but not all, US states and are aimed at preventing lawsuits designed to hinder legitimate public dialogue.
Such was the case when American author Matthew Levitt and Yale Press were sued by KinderUSA for Levitt's book Hamas, in which Levitt describes KinderUSA as a charitable front for terror financing. In response to the lawsuit, Levitt and Yale Press instituted a counter-claim based on California's Anti-SLAPP statute arguing that KinderUSA's suit was a disguised attempt at wrongfully intimidating them into silence. Shortly after the counter-claim was filed, KinderUSA mysteriously dropped its lawsuit.
More disturbing however, are the examples of parties sued for reporting on official U.S. government investigations into terrorist activities, or for formally appealing to government authorities to conduct investigations into suspected illegal activity. Parties targeted in this vein include The New York Times, which, in 2001, reported on the US Government's investigation of the Global Relief Foundation and was subsequently sued ; The Wall Street Journal which, in 2002, reported on the monitoring of Saudi bank accounts and was also sued ; and the Anti-Defamation League which, in 2002, was sued for libel for requesting a government investigation into a public school superintendent accused of teaching religion in violation of separation of church and state.
Even though such lawsuits often fail in the US, the victims targeted still lose in time and money spent defending their rights and the cumulative effect of these suits, combined with the looming threat of future lawsuits, has created a detrimental chilling effect on the exercise of free speech within the US, and has raised the cost of public dialogue about the war on terrorism. Islamist lawfare has also sparked a wave of self-censorship, with publishing houses going as far as hiring security experts to assess the potential for violent reactions in the Muslim community to printed words.
Most recently, Random House Publishing Group pulled a fiction novel entitled The Jewel of Medina by American journalist Sherry Jones about the Prophet Mohammad's child bride. The publishing house feared the book would be seen as offensive to some in the Muslim community and "incite acts of violence." When a UK publisher subsequently picked up the novel there was an attempted firebombing at his London home.
Outside the US, in Europe and Canada Islamist lawfare is achieving a higher degree of success.
UK courts, due to the nature of your libel laws, long arm jurisdiction, and "hate speech" legislation, have proved more friendly jurisdictions for parties who want to restrict the dissemination of material drawing attention to radical Islam and terror financing.
A major player on this front is Khalid bin Mahfouz, a wealthy businessman who resides in Saudi Arabia and who has been accused by numerous parties of financially supporting Al Qaeda. A notable libel tourist, Mahfouz has sued or threatened to sue more than 30 publishers and authors in British courts, including several Americans, whose written works have linked him to terrorist entities. Faced with the prospect of protracted and expensive litigation, a heavy burden of proof on the Defendant, notoriously generous libel awards and the ability to recover costs, the majority of people who are merely threatened with lawsuit by Mahfouz, regardless of the merit of their works, have issued apologies and retractions, while some have also paid fines and "contributions" to his charities.
In 2007, when Mahfouz threatened to sue Cambridge University Press for publishing the book Alms for Jihad, by Robert Collins and J Millard Burr, Cambridge Press immediately capitulated, offered a public apology to Mahfouz, took the book it once stood by out of print, pulped the unsold copies, and made the outrageous demand that libraries all over the world remove the work from their shelves.
As the saying goes, if you want to read a good book, look to the inquisitioner's list of banned material.
Right after the US publication of Rachel Ehrenfeld's book entitled Funding Evil, Mahfouz sued Ehrenfeld for defamation because she too had written about financial ties between him and terrorist entities. The allegations against Ehrenfeld were heard by a UK court despite the fact that neither Mahfouz nor Ehrenfeld resides in England, while the court asserted jurisdiction over her merely because approximately 23 copies of Funding Evil were sold online to UK buyers via Amazon.com. Unwilling to travel to England or to acknowledge the authority of English libel laws over herself and her work, Ehrenfeld lost on default and was ordered to pay heavy fines, apologize, and destroy her books all of which she refused to do.
In response to Ehrenfeld's case, the New York State legislature and the Federal government unanimously passed the Libel Terrorism Protection Act and the Free Speech Protection Act respectively, which operate to nullify foreign libel judgments from jurisdictions with less protections for free speech then granted under the US Constitution.
Mohammad Sawalha, president of the British Muslim Initiative and a man who, according to a recent BBC documentary, coordinated funding for the EU designated terror group Hamas, recently launched a libel suit against the British blog Harry's Place, for accurately translating what may have been a mistranscription of an al Jazeera interview during which Sawalha allegedly referenced the "Jewish evil" in Britain. When Al-Jazeera amended the term to "Jewish lobby," Harry's Place responsibly reported the change in an update. Sawalha, an activist for the anti-semetic and hateful terrorist organization Hamas, is apparently objecting to the implication that he is "anti-Semitic and hateful".
Saudi billionaire and businessman Mohammed Jameel, likewise took advantage of UK courts and sued the Wall Street Journal for libel over an article which reported about the Saudi Arabian authorities monitoring of bank accounts, including apparently Jameel's, for evidence of supporting terrorism. Fortunately the British court, articulating the Reynolds doctrine, overturned Judge Eady, the same judge in Ehrenfeld's case, and held the article to be one of public importance and published responsibly.
And, as I am sure everyone here is aware, Policy Exchange is currently being sued for publishing a report on the availability of extremist literature in British mosques. Both the North London Central Mosque, from which the jailed radical preacher Abu Hamza gave sermons, and the Al-Manaar Muslim Cultural Heritage Centre in west London are reportedly pursuing libel actions against the think-tank and its director of terrorism and security Dean Godson. Al-Manaar is denying the authenticity of receipts from books allegedly purchased from them, while Muhammad Abdul Bari, secretary general of the Muslim Council of Britain and chairman of the East London Mosque which was also mentioned in the report, claims he has no authority over what is sold in his mosque's bookshop. In the meantime Policy Exchange reports that the Muslim researchers who conducted the undercover investigation into the mosques have gone into hiding for fear of violent reprisals.
When British television channel 4 broadcast part one of an expose of radical Islam in UK mosques, which showed extremist Imams engaging in anti-democratic rants and inciting the murder of British soldiers, the station was attacked by the West Midlands police force which accused the station, not the radical Imams, but the station of "damaging community relations" and reported Ch 4 to the Broadcasting Standards Commission, who attempted unsuccessfully, to prosecute them for 'racial hatred.'
When Christian Revelation Television hosted a guest speaker who expressed his opinion that Islam was not a religion of peace, OfCom judged the station to have violated Rule 4.1 of their Code, a vague and ambiguous law requiring broadcasters of religious programs to steer away from material that "exploits the susceptibilities of religious audiences," whatever that means. Revelation TV, instead of defending their right to free speech, groveled apologetically at the charge that they may have offended anyone. Ironically, Anjem Choudary an English-Muslim lawyer, Islamist and founder of two Islamist organizations designated and banned as terrorist groups by the British government, agreed with the guest speaker and stated this month at a Public gathering that "Islam is not a religion of peace, it is a religion of submission." I wonder why he isn't being charged with hate speech against Islam.
This past June, a police community support officer ordered two Christian preachers to stop handing out gospel leaflets in a predominantly Muslim area of Birmingham. The evangelists were threatened with arrest for committing a "hate crime" by spreading their Christian message and telling Muslims youth to leave Islam, and were told they risked being beaten up if they returned."
In 2001 Australia introduced a "universal blasphemy law," which was then used to prosecute two Christian pastors, one of which had sought asylum and fled to Australia from Pakistan, where he had been accused of blasphemy against Islam. The pastors were sued by the Islamic Council of Victoria, because their sermons compared Christianity's treatment of women to the treatment of females under Islamic law, and in the opinion of an undercover Muslim who heard the sermon, Islam was as less favorable. The Australian Judge ruled that the pair had vilified Islam, in a way that was "hostile, demeaning and derogatory to Muslim people and their god Allah," and ordered the pair to apologize for the comments or face a three year jail sentence. Refusing to apologize, the ministers appealed and after a four year legal battle the ruling against them was finally overturned.
Canada, with its "human rights" commissions, joins the list of countries whose laws are being used to attack the free speech rights of non-Muslim authors and activists. Section 13 of the Canadian Human Rights Act bans material that is deemed "likely to expose persons to hatred or contempt," Such ambiguity in what was probably a well-meaning, yet democratically incompatible and short-sighted law, has enabled a wave of "human rights" complaints before the Commissions against outspoken critics of Islamist terrorism and their publishers. What is particularly disturbing about Section 13 "hate speech" laws is that the court costs of any one Plaintiff who files a section 13 complaint are entirely subsidized by the government, while the defendants are left to endure the financial burden of litigation alone. This is a rule that, on its face, obviously encourages frivolous litigation. Moreover the CHRC has had a one hundred percent conviction rate on section 13 charges.
Those summoned to appear before the Commissions include Maclean's magazine, award-winning author Mark Steyn, and noted Canadian lawyer and blogger, Ezra Levant. The complaints against Maclean's and Steyn were initiated by the Canadian Islamic Congress (CIC) and based on Maclean's' re-publication of excerpts from Steyn's book entitled America Alone, which argues against acts of capitulation to radical Islam and which the CIC argued was "flagrantly Islamophobic." Nearly a year after the complaints were filed, the Canadian Human Rights Tribunal held that the complainants did not meet their burden of establishing that the article had actually exposed them to acts of hatred.
Levant was likewise hauled before the Commissions on charges of "hate crimes" against Muslims after re-publishing the Danish Cartoon of Mohammad in the now defunct Western Standard Magazine. Though the charges against him were eventually dropped the outcome could hardly be considered a "win" for free speech, as the court, which admitted that it had no jurisdiction to try the issue, nonetheless went on to condemn the cartoons as anti-Muslim. In Levant's own words, he remains unsatisfied by the judgment, "[b]ecause he hasn't been awarded his freedom of the press, rather he simply had a government censor reluctantly approve of what he said, which is a different thing altogether."
Meanwhile, costs incurred by bloggers defending against even the most frivolous of lawsuits are considerable enough that the Media Bloggers Association recently introduced blogger insurance, to provide online authors with adequate legal protection against attacks.
Denmark actually has a blasphemy law, which hasn't been used since the 1930s, and which states that anyone who "publicly offends or insults a religion" could receive a four month jail term. In February 2006, after a series of Danish cartoons sparked violent protests around the world and killed approximately 50 people, a coalition of Islamic groups filed a lawsuit against the Danish newspaper that published the cartoons alleging libel of Islam. While the lawsuit was thrown out by the Copenhagen court, which believed freedom of expression was more important than supporting a prohibition against blaspheming a religion, several Islamists were caught plotting to kill Kurt Westergaard, one of the cartoonists.
Dutch authorities on the other hand, actually arrested the cartoonist Gregorius Nekschot for the criminal offense of "publishing cartoons which are discriminating for Muslims and people with dark skin."
Yet, the most frightening predicament of all is that of Dutch politician, filmmaker and founder of the Freedom Party, Geert Wilders. After releasing a ten-minute self-produced film about radical Islam entitled "Fitna," Wilders has found himself wound up in a litany of "hate speech" litigation, one such suit filed by a radical Imam featured in the film, who is demanding fifty five thousand Euros in compensation for his hurt feelings. Ironically, the film's narrative is primarily comprised of quotes from the Koran and scenes of Imams inciting hatred and preaching death to Infidels.
More disturbing is the fact that the State of Jordan, most likely acting as a stalking horse for the Organization of the Islamic Conference, and one day after the bombing of the Danish embassy in Pakistan, has issued a an extradition request for Wilders' to stand in Jordan for blasphemy of Islam, a crime for which Shaaria law declares the penalty to be death. Jordan has also requested that Interpol become involved should the Netherlands refuse to turn Wilders over.
The Dutch parliament is taking the extradition request very seriously, and has shut out Wilders from any multi-lateral negotiations. As a precaution, Wilders no longer travels abroad unless he can obtain a diplomatic letter from the destination state promising he won't be extradited. At present, Wilders lives under looming death threats complemented by the threat that any day, Interpol may issue a warrant for his arrest.
If Jordan indeed succeeds in extraditing a democratically elected official to stand trial in a non-democratic country for speech made in the scope of his duties while educating his constituents vis-à-vis their national security, all under the guise of blasphemy of Islam, what kind of precedent would be set? As much as the Islamists wish to punish Wilders, there is no question that his case is a dry run for bigger game. How long until some convenient court in an OIC nation decides to find another government official guilty of 'blasphemy' and demands their extradition?
National lawfare efforts are being complemented with similar International efforts to outlaw the blasphemy of Islam as a crime against humanity. Islamist organizations such as the Muslim World League are calling for the establishment of an independent commission to take action against parties who defame their Prophet Mohammed, and at the Dakar summit, taking legal action against parties who slander Islam was a key issue debated at length, with the final communiqué adopted by the Organization of the Islamic Conference denouncing the "rise in intolerance and discrimination against Muslim minorities." The Islamic Conference of Foreign Ministers at its thirty-fourth session in Islamabad, in May 2007, condemned the "growing trend of Islamophobia" and emphasized "the need to take effective measures to combat defamation."
Most recently, the OIC successfully lobbied the United Nations' Human Rights Commission to enact Resolution 7/19, a document that turns the concept of "human rights" into an instrument of Orwellian thought control. The Resolution makes reference to the Durban Declaration, and expresses the intent "to complement legal strategies" aimed at criminalizing the defamation of religion. The Resolution "urges States to provide adequate protections against acts of…discrimination," and prohibits "the dissemination of racist and xenophobic ideas." Note that it is ideas that are prevented here, not published words but defamatory thoughts against religion which the United Nations is attempting to ban.
The Resolution further expresses its "deep concern at the attempts to identify Islam with terrorism, violence and human rights violations." What are the chances that this provision will be applied to those who behead journalists in the name of Islam, or to terrorist groups that call themselves 'Islamic Jihad'? Signatories to Resolution include China, Egypt, Indonesia, Malaysia, Pakistan, Saudi Arabia and Sri Lanka and while there is no religious freedom in these countries they are apparently asking the world to listen to their message of religious tolerance.
Just two days after debate about Sharia law was deemed "Islamophobic" at by the UN, a man was sentenced to death for "blasphemy" in Pakistan by a Sharia court. And when the Danish Embassy was attacked by terrorists in Pakistan, the Pakistani ambassador suggested that this was deserved while the Pakistan ambassador to Norway equated, "blasphemous" to "acts of terrorism."
Resolution 7/19 is an attempt to establish a body of international law to be used in the future against heads of state who speak out against radical Islam as a threat to national security. So, instead of Muslim states unilaterally seeking the extradition of a Geert Wilders or Islamists relying on national hate speech laws, they can now employ UN mechanisms to force politicians to abide by a standard of 'sensitivity' to Islam defined solely by Islamists themselves.
The European Center for Law and Justice, a not for profit public interest law firm submitted an engaging report to the UN High Commissioner arguing, correctly, that freedom of religion does not entail carte blanche freedom to practice your religion absent criticism. In fact, it argued correctly that Resolution 7/19 is itself a violation of international law undermining the inalienable human right to free speech, especially on matters of important public concern such as religion and national security.
Even outgoing UNHR Commissioner Louise Arbour has raised concerns about debates on Sharia law and Islamism becoming "taboo" stating that the UN "should be, among other things, the guardian of freedom of expression," not the opposite.
To conclude, the cases I took the time to mention today reflect but a fraction of the same battle: free speech of Americans and other Westerners being placed under siege by Islamists and we must take a step back assess this trend, and look at the larger picture here.
Of course I recognize that there is no such thing as the absolute freedom to speak, and that there are indeed legitimate constraints on speech such as obscenity, defamation or incitement to immediate violence, yelling fire in a crowded theatre, and it is perfectly legitimate for anti-hate laws to be used to increase the punishment for crimes that are racially motivated.
BUT, when hate speech laws are so selectively applied, when they are interpreted too liberally, or written too ambiguously, when they are used to criminalize satire or opinion or to punish merely what is offensive to some, or when hate speech laws are used as a guise to enforce punishment of blasphemy, then they are being used to infringe the rights of the speaker who is neither afforded any type of due process or equal protection under the law. Why do we have legislation governing how we speak about subjects such as religion or race when the same speech police turn a blind eye to the violence, foul language and sexual references broadcast on our TV sets daily, this is legal inconsistency.
There is also the danger that hate speech laws provide a slippery slope downwards towards criminalizing legitimate actions and dialogue, and the reality is that the Muslim community has nothing to gain from supporting the censorship of debate about Islam, for if a cartoon depicting Mohammad is "hate speech" now, how much longer until the Koran gets the same treatment? If authoring cartoons of Mohammad or airing a program that criticizes Islam is illegal now, what legal ramifications will a citizen incur if they own a copy of a book that reprints offensive cartoons, or if they download the television program from the internet?
And why should only religion enjoy this protected status against offense, why stop there? How about equal protection under the law for atheists? How about books that deny creationism and espouse the big bang theory, what if a devout Christian or Jew finds that insulting? Why not just make racism in general a crime? Why not make being anti-French or anti-American worthy of defamation status? How about the thousands of other religions in the world? How about the Hindu idol worshippers or the Hindus that worship elephants? Or scientology as a religion, can I criticize scientology or even have an opinion about it? And what about amongst Muslims themselves: Shiite vs Sunni? Are we entitled to an opinion about how women are treated under Sharia law? Can I be sued for stating the FACT that the Islamist Taliban was anti-women?
Furthermore, who sits in judgment of what is offensive and hateful and what is not? 40% of American Muslims think that 9/11 was as inside job, should we arrest them for inciting hate against the victims' families? When John Lennon famously said that the Beatles were more popular than Jesus, should he have been arrested? How about a Muslim who converts to Christianity, is he too guilty of intentionally spreading contempt of Islam? What if as a Jewish woman I am offended by the burka? What if as a Muslim I am offended by puppy dogs, does a billboard depicting puppy dogs intentionally erected in front of a Muslim home constitute hate speech?
In 2006 when hundreds of people peacefully demonstrated in Trafalgar Square to stand up for free speech, the Muslim Council of Britain's was an alarming threat, warning that "Britain will have to deal with up to two million Islamic terrorists unless there is an end to 'demonizing' of Muslims." The Islamist organization called the Party of Liberation, a group whose goal is to combine Muslim countries in a unitary Islamic state ruled by Islamic law and which has a considerable presence in England, declared that "Freedom of opinion allows the calls for ideas that encourage immorality among women, vice, profanity, and corruption," and that "it is not allowed for Muslims to adopt the freedom of opinion which the Capitalists call for." Are these the organizations and individuals who should be empowered to bring causes of action and rule the dialogue about what is defamatory hate speech against Islam?
Hate speech laws short of incitement to immediate violence are by their very nature all encompassing, arbitrary and capricious, and put the rights of religions ahead of individual liberties. The due process problem is that there is no objective standard by which to measure what is illegal a person will never know if what they are saying is allowed or not until someone later finds it to be offensive. A democracy must only enforce laws by which citizens know in advance how to govern their actions or we will live in a state of fear, oppression and self-censorship.
And even when the law requires an "intention" element to convict someone of incitement to hate, this does not lessen the problem but increases it by forcing a judge to do the impossible, speculate into the internal deliberations of the speaker what if the Defendant claims that she intended to provide political commentary, not create offence, is this enough then to get someone off the hook? Who's to say that the intention was genuine?
Also hate speech laws do not automatically eliminate racism, or hatred, and they do not miraculously promote mutual respect between communities. Despite decades of Holocaust education and holocaust denial laws in Austria, 29% of voters cast their ballot for the heirs and admirers of National Socialism. You can burn the books but you can't burn the idea, and we must trust our citizenry to sort through these issues via the marketplace of ideas, where the best weapon against a bad idea is a good one. Hopefully there will come a time when we all live in a world where we all love each other but in the meantime we must not treat our citizens like fools and children and censor all hateful remarks, could you imagine what would ensue if we jailed everyone who uttered a remark that was offensive or hateful? Because such laws taken to their full extreme would empty the streets and fill our jails.
And how about age limits? Are we going to put children in jail for making racial slurs in the schoolyards?
Moreover, the goals of those who seek to apply hate speech laws to persons talking about terrorism or radical Islam are not to increase the peace, the opposite, their goal is to subvert discussion and knowledge about a very real danger and to undermine democratic values. When people violently demonstrate against a cartoon of Mohammad they are not defending religious equality but are demanding that the world accept that they alone have the sole right to victim status. How can Iran or a Muslim newspaper in Belgium legitimately protest the publication of a caricature depicting Mohammad by calling for submissions for holocaust denial and anti-Semitic cartoons? What does that say about their intentions? The actions of Islamists who engage in lawfare against speech critical of Islam offer a great rebuttal to those who see Islamism as compatible with democracy. It is important that we speak out against abuses against women and children and against innocent people that occurs at the hands of Islamist states?
Islamists behead innocent journalists in the name of Islam. Islamists teach the virtues of martyrdom and do so to their children so that they inspire children to become martyrs, Islamists strap bombs to children in Pakistan and blow them up by remote control, these Islamists are killing their women and children and because of these laws I cannot even condemn it because of the fact that this is done in a religious context? Do I even have to stand here and tell you why this is illogical? How can societies improve themselves if they can be criticized and how dare we remain and enforce silence about the abuses that are happening under the guise of Islam.
Banning speech critical of religion is a step backwards, and banning speech about radical Islam and Islamist terrorism is a step towards legitimizing violence committed in the name of Islam.
Secular laws must be designed to protect the free exercise of religion not blasphemy and a distinction must be drawn between for example, harassing someone on their way to pray and standing on a soap box and insulting Judaism, Christianity or Islam.
Let us not forget that without the abolishment of blasphemy laws, western society would have never discovered that the earth was round or that human beings are more than 5,000 years old.
Opinions are neither truth nor fact, they are opinions and without the ability of a society to proliferate opinions, without a diversity of opinions, both the good and the bad to chose from, to think through and determine what is right and what is wrong, we lessen our capacity as a race to move forward intellectually and we become the opposite of free thinkers, we become slaves to big brother. The cost of broad and ambiguous hate speech laws will always outweigh the benefits.
Also a distinction has to be made between opinions about religion on the one hand, and incitement to hatred or violence against adherents to that religion, not every opinion expressed about Islam is incitement to hatred against Muslims! This incitement to hatred standard is being construed so broadly that it is encompassing literally anything or anyone comment by a non-Muslim about Islam and any such comment is automatically deemed anti-Muslim. Hate speech laws, rather than risking unpleasant judgment about facts and issues, deny the right to comment altogether
We must work to draw a finer line between what is acceptable and what is not, what is protected opinion and satire and what is truly incitement to violence against a religious group. And we must put an end to the double standard, where hate speech laws are being used against non Muslims who speak against Islam but it's perfectly ok for the artist Mapelthorpe for example to exhibit piss Christ in a gallery in England.
Muslims have every right to peacefully protest the Danish cartoons as much as the Danes have the right to publish them and call for the radical Islamist world to adhere to standards of moral consistency and universal human rights, this is the double-edged sword of free speech. Of all the rights and privileges that we enjoy, the right not to be offended is not one of them and negative opinions about one faith is not automatically incitement to hatred against those who adhere to it.
Personally, I'm offended by this type of censorship and I am truly afraid of what the future will look like if we continue down this path. In ten years will I be able to stand before you and give the talk that I just gave? What kind of political failure are we witnessing that we need to censor cartoons and talk shows about religion?
The fact of the matter is that libel laws and hate speech laws are being used to silence rational and legitimate dialogue about religion, and that democracies should not be bending over backwards or punishing its citizens to prove to that we are not anti-Islam and to reward illegitimate cries of victimization.
BUT unfortunately Islamist lawfare is beginning to limit and control public discussion of Islam, particularly as it pertains to comprehending the threat posed by Islamic terrorist entities. As such, the Islamist lawfare challenge presents a direct and real threat not only to our civil rights, but also to our national security.
By silencing dialogue about religion, terrorism and the role of Islam or any religion for that matter in secular society, we are making it easier for radical elements to achieve their goals by robbing our societies of the ability to discuss real threats and by stifling our own intellectual powers to fight it.
The correlation between the decay in eloquence and the decline of political liberty is undeniable. And we must not give up our freedoms so easily. The true imperialists are those who seek to impose their perception on others, through violent or legal means, and who seek to conquer and subjugate contradictory points of view.
We are in a new phase of a very old war against religious dogma and radical Islam and the Obvious elephant in the room is that the majority of incitement to racial hatred and violence is coming from the Islamic world, yet it is those who are brave enough to point that fact out, to point out the fact that the West is engaged in a conflict with theocratic totalitarian and fascist ideologies and regimes, who are then targeted for 'spreading hatred' for those regimes and violent ideas.
John F Kennedy once said "we are not afraid to entrust the people with unpleasant facts, foreign ideas, alien philosophies and competitive values for a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its own people."
Common sense must prevail. If the US and UK are going to fight for anything together, let it be that.
From the summary provided prior to Goldstein's talk:
"The violent Islamist movement has been well documented in Britain in recent years given its role in terrorism. Less well known however is a complementary non-violent wing, dedicated to the same goals, but which operates lawfully, conducting soft jihad via our media, government, court and school systems. Critics of Radical Islam have been silenced by terrorist tactics carried out by the violent wing, but also by the lawful arm skillfully hiring lawyers and suing to silence opposition, using malicious lawsuits in Western courts to punish those who engage in public discourse about Radical Islam. Owing to the nature of the British judicial system and libel laws, this Radical Islamist lawfare has enjoyed particular success here, with a number of high profile cases restricting freedom of speech. Given the irony of the situation whereby the British legal system is being used against the UK by a militant force looking to overturn it, do we now need to update our libel laws to counter the Islamist threat and uphold the basic civil and human rights that our liberal democracy is based upon?"
This essay appeared 25th November 2008 on the Henry Jackson Society
Brooke Goldstein, a practicing attorney, is Director of the Legal Project at the Middle East Forum and Director and Founder of the Children's Rights Institute. She is an Adjunct Fellow at the Hudson Institute and the 2007 recipient of the E. Nathaniel Gates Award for Outstanding Public Advocacy.
This essay appeared 25th November 2008 on the Henry Jackson Society
|HOME||Nov-Dec.2008 Featured Stories||Background Information||News On The Web|