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Religious Hatred Laws: Protecting Groups or Belief?

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Abstract

This article examines the issues raised by recent legislation proscribing incitement to religious hatred. In particular, it examines how far arguments for prohibiting racist hate speech apply also to the prohibition of religious hate speech. It identifies a number of significant differences between race and religion. It also examines several questions raised by the prohibition of religious hate speech, including the meaning and scope of religious identity, why that identity should receive special protection, and whether protection should be directed to religious groups as groups or to their individual members. The central argument of the article is that the distinction between protecting religious groups from vilification and protecting their beliefs and practices from criticism—a distinction on which the British Government placed great emphasis in defending its legislation—is unsustainable. That conclusion is supported by the reasoning of the European Court of Human Rights in cases in which it has upheld the curtailing of freedom of expression for the sake of protecting religion.

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Notes

  1. Terrorism Act 2006, s 1.

  2. By the Race Relations Act 1965, s 6.

  3. Public Order Act 1986, s 17.

  4. Ibid, s 29J, inserted by Racial and Religious Hatred Act 2006, Sch 1.

  5. Public Order Act 1986, s 5.

  6. This is the view both of Hare (2009) and Goodall (2007).

  7. By the Criminal Justice and Immigration Act 2008, s 79.

  8. Hansard Official Report, HC Debates, vol 435, col 673. Shortly before this statement, Dominic Grieve, MP, then the Shadow Attorney-General, had objected that there is no real distinction between an attack on a group and abuse of its belief: col 672.

  9. Handyside v UK (1976) 1 EHRR 737.

  10. But see the European Court’s decisions discussed in the final section of this essay.

  11. Hustler Magazine v Falwell 485 US 46, 54 (1988).

  12. For statements of the ‘public discourse’ arguments for freedom of speech, see Post (1991) and Dworkin (2009).

  13. See Post (2007).

  14. See Northern Ireland (Public Order) Order 1987, art 9. Incitement to religious hatred has been an offence in Northern Ireland since the Prevention of Incitement to Hatred (Northern Ireland) Act 1970.

  15. In R v Chief Metropolitan Magistrate, ex parte Choudhury [1991] 1 QB 429 the Divisional Court ruled that the offence did not extend to religions other than Christianity, and that it would be wrong for the court to widen it to protect them.

  16. In some circumstances, anti-Muslim speech might be caught by the racist speech offence, for example, where the targeted Muslims came from part of Asia: see the Scottish case, Wilson v PF [2005] HCJAC 97, discussed by Goodall (2007).

  17. See Frontiero v Richardson 411 US 677 (1973), holding that legislative classifications based on immutable characteristics such as sex should be subject to strict scrutiny and consequently hard to defend under the Equal Protection Clause of the Fourteenth Amendment.

  18. See text at n. 4 above.

  19. For full discussion of these complex arguments from a legal perspective, see Post (1991).

  20. Post (1991).

  21. Goodall (2007), and see Modood (2003).

  22. Ignatieff (2005). Unlike the authors of most essays in Appignanesi (2005), Ignatieff considers that religious feelings should be legally protected against insults and other expressions of disrespect.

  23. In a notorious speech in July 1948, Aneurin Bevan MP described the Tories as ‘lower than vermin.’ The Conservatives reacted correctly by setting up a Vermin Club, membership of which was a matter of pride.

  24. See text at n. 3 above.

  25. Criminal Justice and Immigration Act 2008, s. 74.

  26. Public Order Act 1986, s. 29A.

  27. S 74(7). This is the equivalent of the Crime and Disorder Act 1998, s. 28, at issue in Norwood v DPP [2003] EWHC 1564 (Admin), where the Divisional Court upheld the conviction of a defendant for creating religiously aggravated alarm by the display of a poster in his flat window with the words. ‘Islam out of Britain’, and displaying a photograph of the Twin Towers in flames with a Crescent and Star.

  28. See Goodall (2007).

  29. Public Order Act 1986, ss. 4–5.

  30. For a discussion of blasphemy in the context of the Danish cartoons controversy, see Post (2007).

  31. See s. 1 of this essay.

  32. Hare (2006) considers and rejects this argument.

  33. Art 10. Convention arguments are considered in Sect. “The Protection of Belief under the ECHR” of this essay.

  34. That was the context for the famous case when the US courts declined to ban a Nazi party March in Skokie, Illinois, a Jewish suburb of Chicago: Collin v Smith 578 F2d 1197 (1978).

  35. See, for example, the essay by Philip Pullman (2005).

  36. Public Order Act 1986, s 5.

  37. See Post (1991).

  38. I am less sure about the position in Scotland, while in Northern Ireland it may still be the case that religious hate speech can be experienced as emotionally damaging to particular individuals.

  39. Unsworth (1995) has made this point when exploring the difficulties in extending blasphemy laws to protect different religious communities.

  40. (1994) 19 EHRR 34.

  41. ÌA v Turkey (2007) 45 EHRR 30.

  42. Ibid, paras 29–30.

  43. See Barendt (2007).

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  1. Faculty of Laws, University College London, Bentham House, Endsleigh Gardens, London, WC1H 0EG, UK

    Eric Barendt

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  1. Eric Barendt
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Barendt, E. Religious Hatred Laws: Protecting Groups or Belief?. Res Publica 17, 41–53 (2011). https://doi.org/10.1007/s11158-011-9142-6

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