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Hate speech or offensive speech: the human rights and wrongs of “Innocence of Muslims”

A still from “Innocence of Muslims”.

Protests have erupted across the Middle East in response to a trailer for an obscure US-made film posted on YouTube, Innocence of Muslims. Those protests seemed to turn deadly in Libya. However, it seems now that those killings (of US embassy staff including the Ambassador) were probably perpetrated as part of a terrorist attack rather than by a mob outraged over the movie. Nevertheless, anti-film protests were ugly in Cairo, and anger over the film still has the potential to cause severe public disorder.

The film describes Islam as a “cancer”, and trailer scenes depict the prophet Muhammed “as a buffoon, suicidal, gay, lascivious and condoning of pedophilia”. Given the outrage generated in parts of the Muslim world over previous episodes, such as the publication of the Satanic Verses, the Danish cartoons controversy, and instances of Koran burning, there seems little doubt that this film was designed to enrage. In which case its makers got the reaction they were looking for.

In this post, I wish to examine some of the human rights issues at stake over the publication of this movie. In particular, is its publication protected under international human rights law or is it perhaps prohibited?

Was the US obliged to ban the film as ‘hate speech’?

Clearly, the publication of the movie is a manifestation of freedom of expression. This right is protected under international law, but it is not an unqualified right. Indeed, the International Covenant on Civil and Political Rights demands the prohibition of certain types of speech, namely “hate speech”, in Article 20(2), which reads:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Was the US, the place of publication of the film, obliged under the ICCPR to ban this film as hate speech? The answer is no.

I query whether the film is in fact hate speech. Please note that my comments below are based on descriptions of its content, as I have not viewed it.

Hate speech is classically viewed as speech which incites violence against the group that is targeted by the relevant speech. For example, Nazi ravings against Jews incited violence and murder against Jews, and broadcasts on Radio Mille Collins in Rwanda in 1993 incited genocide against Tutsis (and moderate Hutus).

Innocence of Muslims is extremely provocative and it foreseeably provoked religious violence. However, it is doubtful if it could be said to have foreseeably incited religious violence against Muslims by non-Muslims. At this point in time, I am aware of no such incidents (though the question of whether something is foreseeable is different to the question of whether it actually happens). Instead, subsequent events have followed the trend of previous like episodes: the relevant publication offends some Muslims in some countries so much that it provokes violence by those Muslims against others, including other Muslims and non-Muslims. That is, the foreseeable violence is by a small radical component of the victimised group, rather than by people against that group. Therefore, I would argue that the movie is not hate speech.

In any case, the US has entered a “reservation”, indicating that it is only bound by Article 20 to the extent allowed under its Constitution, which contains free speech protections much stronger than those in the ICCPR. Indeed, most instances of hate speech are constitutionally protected in the US. Reservations are like opt-out clauses. A State’s right to make reservations to treaties is not unlimited, but I believe the US’s reservation to Article 20 is valid.

Could the US ban the film as a ‘necessary’ limitation of free speech?

Under Article 19(3) of the ICCPR, freedom of expression can be limited even if it does not amount to hate speech, for example in circumstances where it is necessary to protect public order, national security, or the rights of others. Given the foreseeability of violence, the US would have been permitted under international law to censor the movie (though an interesting legal question arises from the fact that the foreseeable violence is outside rather than inside the US). However, the US is free under Article 19(3) to censor or not to censor. Of course, for reasons mentioned above, it is probably prohibited from doing so under its Constitution.

Does the publication of the film breach any other human right?

Are there any countervailing human rights which might indicate that the US should have censored the movie? There is no issue of the film inhibiting freedom of religion: Muslims are not hindered in practising their religion due to its release. Such an effect might have arisen indirectly if the film was well respected and influential in the non-Muslim world, but that is hardly the case.

The film has clearly caused extreme hurt and offence. While the denigration of one’s religion is unpleasant, there is no human right not to be offended.

A sound case could perhaps be raised that the film may foreseeably lead to injuries and deaths of people caught up in riots, thus raising issues regarding the rights to security of the person and life. (It is not clear that anybody has died because of this movie, if one assumes that the Benghazi attack was essentially unrelated).

This is a thorny issue. Should speech be banned because a tiny extremist minority might foreseeably react violently? If so, unreasonable reactions and sensitivities are being rewarded.

On the other hand, it is clearly reckless to publish material (or perform an act such as Koran-burning) when one should be able to anticipate the very real harm that could be caused to others caught up in subsequent riots. In that respect, I am not perturbed that YouTube has taken the film clip off its site.

In conclusion …

In Egypt, the Muslim Brotherhood has called for peaceful protests against the film on Friday. Certainly, peaceful protests (against anything) are permitted under human rights law as a manifestation of freedom of assembly. Perhaps the Brotherhood is attempting to orchestrate a peaceful outlet for the undoubted passions inflamed by the movie. However, the call for protests confers a status upon the film that it does not remotely deserve, and we must hope that the protests do not get out of hand. Even if one thinks the film should have been banned from the outset, riots and violence are not a justified or proportionate response.

Finally, it is incumbent upon the authorities in Egypt, and across the Muslim world, to do all they can to counter pernicious misinformation which is designed to manufacture even greater outrage over such offensive publications. It should be made clear, for example, that the film is not sponsored or endorsed by the US government, but is rather the work of fringe bigots.

Certainly, publications once limited to one country now spread around the world quickly, digitally and virally. The potential for a publication in one State to generate mayhem in another is greater than at any other period in history. But while the film would undoubtedly be banned in Muslim countries, they cannot demand that the US (or Denmark, or any other country) alter its constitutional and free speech values to accord with their own.

P.S. Things have moved on considerably since I posted the above article on Thursday Australian time. My latest thoughts on this matter are at: http://castancentre.com/2012/09/15/the-innocence-of-muslims-rights-responsibilities-and-cultural-and-political-impositions/