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The 2018 EU Holding that a Country Can Make It a Crime to Criticize Islam (E.S. v. Austria)

October 26th, 2018 Leave a comment Go to comments

Reading the decision, this is even worse than it sounds at first. Much worse. It is not about blasphemy, but, as I think the statute actually says, about disparagement of Islam; that is, it’s not about the manner in which the idea was expressed, but the idea itself. Also, it wasn’t about public offense; it was about a small private meeting (though open to the public, if the public wanted to attend) that a hostile journalist attended in order to cause trouble.

As you will see reading the excerpt from the decision below, the real problem the court sees is that the defendant “had suggested that Muhammad was not a worthy subject of worship” (a bit odd, given that in Islam he isn’t worshipped). It isn’t clear whether criticizing him for child marriage would have been ok, tho the case says that in general criticizing child marriage is okay. That depends on whether truth is a defense in EU law. The court holds, in any case, that someone can’t be a pedophile if they continue to have sexual relations with the child after the child turns eighteen— or, at least stay married to them even though the husband marries many other, younger, women too.

And this poorly reasoned and poorly written decision was unanimous. This, in a case which was clearly controversial and important, and on its main holding, not some secondary point.

(As opposed to other unanimous decisions which have poor reasoning and writing precisely because they unanimous—- the holding is so obvious that the judges let a clerk write it and don’t read what they’re signing, I think. I bet that was the case with the infamous (to civil procedure experts) 2006 Ebay v. MercExchange decision in which the court seems to have accidentally confused the standard common four criteria for preliminary injunctions from common law (yes, I know it’s equity) with what criteria to use for permanent injunctions. See the 2012 Xolumbia Law Review THE SUPREME COURT’S ACCIDENTAL REVOLUTION? THE TEST FOR PERMANENT INJUNCTIONS, Mark P. Gergen,* John M. Golden** & Henry E. Smith***.]

“Two of the seminars were held on 15 October and 12 November 2009, with around thirty participants at each. One of the participants was an undercover journalist working for a weekly journal, N.

The Regional Court found that the above statements essentially conveyed the message that Muhammad had had paedophilic tendencies. It stated that the applicant was referring to a marriage which Muhammad had concluded with Aisha, a six-year old, and consummated when she had been nine. The court found that by making the statements the applicant had suggested that Muhammad was not a worthy subject of worship. … Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha had already turned eighteen and had therefore passed the age of puberty. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements.” https://hudoc.echr.coe.int/eng#{“itemid”:[“001-187188”]}

In contrast, the 1994 Otto Preminger case in Austria was a true blasphemy case, which I wouldn’t object to, though libertarians still would. It was about suppression of a movie (no fine or prison time, it seems) shown for the express purpose of offending Christians as deeply as possible:

“21. The play portrays God the Father as old, infirm and ineffective, Jesus Christ as a “mummy’s boy” of low intelligence and the Virgin Mary, who is obviously in charge, as an unprincipled wanton. Together they decide that mankind must be punished for its immorality. They reject the possibility of outright destruction in favour of a form of punishment which will leave it both “in need of salvation” and “capable of redemption”. Being unable to think of such a punishment by themselves, they decide to call on the Devil for help.”

In addition, Austria allowed the showing, repeatedly, of the play on which the movie was based. And the court split 6 to 3 on upholding the Austrian law. https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57897”]}

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