From Volokh Conspiracy (with thanks to Will at THE OTHER NEWS):
Dr. Jogchum Vrielink (coordinator of the Centre for Discrimination Law at the University of Leuven, Belgium) passes this along: In Belgium a man was convicted for ‘racist hate speech’ because he publicly tore up a Koran, before the eyes of a group of Muslims. The case illustrates the need to protect free speech against those seeking to criminalise ‘Islamophobia’. On 8 June 2012 a man, identified as Arne S., participated in a demonstration organised by a radical right-wing political party, Vlaams Belang (‘Flemish Interest’), opposing the construction of a mosque in the Belgian coastal city of Ostend. In the aftermath of the demonstration S. tore up a Koran in the presence of a small group of Muslims, with whom he had exchanged words. The public prosecutor indicted S. for incitement to hatred, discrimination and violence on the basis of race and ethnic origin. The defendant’s attorney called for an acquittal, arguing that no infraction on the anti-racism legislation had occurred. The criminal court in Bruges convicted the man, however, on 11 March 2013. Due in part to the unfavourable criminal history of the defendant, the sentence was relatively severe, consisting of an effective prison sentence of four months and a fine of 600 euros. The court held that the facts were serious and testified to “a blatant lack of tolerance and a highly questionable attitude”. Terrorist! The ruling fits within a wider development in the legal world in general, and in Belgium in particular, of increased sensitivity to what is often referred to as ‘Islamophobia’. Another notable example of this trend, within Belgian case law, was the conviction, a few years ago, of an individual who, while drunk, had shouted “Terrorist!” at a sun-tanned, but Caucasian (!), snack bar owner, adding that the latter should “return to his own country”. The criminal court in Ypres regarded this too as racist incitement to hatred. The Centre for Equal Opportunities – a government institution responsible for enforcing the federal Belgian discrimination and hate speech legislation – welcomed this conviction at the time. A representative was quoted saying that the defendant “had targeted a man whom he thought was of foreign descent”, and that – as such – he had had “the intention to affect this person”. “Several people have been convicted for similar statements, but it remains a strong signal by the court”, the Centre’s representative concluded. On the political level too some are attempting to increase the legal sensitivity for ‘Islamophobia’. Senators Fauzaya Talhaoui and Bert Anciaux, for instance, introduced a draft resolution on 21 February 2013, aimed at the ‘the fight against Islamophobia’. Following the definition offered by the Runnymede Trust, the Senators understand ‘Islamophobia’ to entail the ‘strong presence’ of any of eight elements, including: ‘Islam as monolithic and static’; ‘Islam as inferior to the West and as barbaric, irrational and sexist’; and ‘Islam as violent, providing support to terrorism, and actively involved in a clash of civilisations’. Such ‘Islamophobic’ ideas, Talhaoui and Anciaux contend, “incite to discrimination and racism, and require unequivocal condemnation and judicial prosecution”. They argue that the police and that the office of the public prosecutor should be instructed to treat the issue as an absolute priority. Race vs. religion The judgement of the criminal court of Bruges appears to rise to the challenge set by the draft resolution. In doing so, it has several problematic aspects and implications though.[1] For starters, there is the fact that the legislation concerning racial hate speech is applied. The case involves tearing up a Koran, in the presence of Muslims, following a demonstration against the construction of a new mosque. This would primarily seem to involve the criterion ‘religion’ rather than ‘race’. While hate speech on the basis of religion is prohibited in Belgium as well, it is covered by a different provision (in separate legislation). Nevertheless, the court convicted S. on the basis of the prosecutor’s indictment under the anti-racism legislation. Exactly how the case would involve racial hate speech is not clarified in the ruling. This ‘racialization’, if you will, of what is considered ‘Islamophobia’ is a hazardous development as racist speech is traditionally accorded a lower degree of constitutional and human rights protection than speech concerning religions. The latter concerns people’s belief systems and ideas, which cannot and should not be insulated against criticism and attacks; at least not to the same extent as speech targeting someone’s racial characteristics. Treating ‘Islamophobic’ speech as racist speech under hate speech legislation serves to unduly limit and chill free speech, requiring public debate to tiptoe around religion, for fear of causing offence. Allowing hostile criticism, ridicule and even ‘desecration’ of religious tenets and beliefs is a necessary price of living in a free society. Constitutional Court An important further shortcoming of the Bruges court’s ruling is that it pays no heed to the restrictive interpretations that the Belgian Constitutional Court handed down in connection with the incitement provisions in both the antiracism and antidiscrimination legislation (See e.g. rulings 157/2004 (NL/Fr), 17/2009 (NL/Fr) and 40/2009 (NL/Fr)). The Constitutional Court held that, for the purposes of these provisions, incitement must be understood as actively urging or instigating third parties to effectively undertake hateful, discriminatory or violent action vis-à-vis the targeted persons or groups (excluding incitement to ‘mere’ negative attitudes or feelings from the scope of the hate speech provisions). Moreover, the Constitutional Court required the presence of a demonstrable, special intent: a deliberate, ill will to incite to the aforementioned behaviour. To the extent that tearing up a Koran does (and seeks to do) anything, taking into account the context of the case, it is mainly to taunt or ‘provoke’ the targeted group itself. Although this may not be morally commendable behaviour, it is not prohibited under the incitement provisions. The suspect does not seem to actively have encouraged third parties to foster hatred or engage in violence against Muslims, in any way. Symbolic speech Even regardless of the above, it is rather curious to qualify tearing up a book as a criminal offense; at least, if the book is one’s personal property. Legally speaking, you may tear up, shred, burn, dissolve or even eat any book you own. The fact that it here concerns a book that others regard as holy, does nothing to change this in principle. Quite the contrary even, since the destruction of the book in this case amounts to a form of ‘symbolic speech’, protected not only under someone’s property rights, but by the freedom of expression as well. Only legal systems that fail to take the separation of Church and State sufficiently seriously, regard causing damage to sacred books as a legitimate ground for legal prosecution. Of course, conversely, people have as much right to oppose and criticize the destruction of books, both by means of speech and through other (legal) modes of protest. What if the Koran belonged to someone else? Although the judgment remains silent on this point, the media accounts of the case had the defendant claiming that the Muslims had actually thrown the book at him, in order to hit him. Even in that (slightly bizarre) hypothesis, the culprit – it seems – can at most be charged with damaging someone else’s property, and not with incitement to religious hatred or violence (let alone racial hatred). Besides, that version of events also begs the question whether someone who knowingly throws his property at someone else’s head, thereby does not himself elicit any damage subsequently done to it. Do the context of the case and the personal history of the accused not serve to cast a different light on the analysis? After all, it did concern a member of a radical right-wing party, with a criminal record, who had just participated in a demonstration against the construction of a mosque. Although this might, again, make a moral difference, it changes little if anything from a legal point of view. All of the previous arguments apply regardless of the political background of the accused. Constitutional rights are there to protect right-wing nationalists as well. All the more so, since it would be virtually unimaginable that ripping up any other holy book than the Koran would lead to a similar legal response.[3] Rare attempts by Christians to have ‘blasphemous’ speech prosecuted under the discrimination legislation, have – for instance – consistently been rejected by Belgian courts; and rightly so. In that regard, the prosecution and conviction in this case seem to be driven, in part, by fear of reactions of the Muslim community. If anything can be considered ‘Islamophobia’, however, it is precisely this. GO READ THE WHOLE THING.