Symbols, Speech, and Security

Elizabeth A. Clark is Associate Director, International Center for Law and Religion Studies and Regional Advisor for Europe at the J. Reuben Clark Law School, Brigham Young University

I recently had the opportunity to be part of a panel at a conference sponsored by the International Association of Religion Journalists. I was particularly struck by how the difficult challenges journalists face in many parts of the world – prison terms, lawsuits, harassment by displeased religious or civic leaders – paralleled those of religious believers in their countries, particularly religious minorities. This similarity shouldn’t have been surprising. Research has shown a strong correlation between restrictions on religious freedom and decreased access to a large number of other fundamental rights and economic goods, including freedom of speech.[1] As Nobel-prize winning economist Amartya Sen notes, freedoms tend to come as “bundled commodities.”[2]

The overlap in protection of religion and speech rights is also intuitive because so much of religious belief and practice is tied up with forms of written, verbal, or nonverbal expression: holy texts, rituals, religious clothing, preaching, teaching, and peaceable sharing of religious beliefs with others, to name a few. Speech and expression are necessary to self-identify, to worship, to pass on beliefs to the next generation, and to manifest beliefs in religious practices. Theologian Paul Tillich elaborated a theory of religious symbols (which includes words and acts as well as things), where religious symbols represent and point to the Holy. [3]  He highlighted the uniqueness of a faith’s symbols, emphasizing their power and irreplaceability. A kippah, a liturgy, a book of scripture, or a traditional chant are simply not fungible with other forms of expression for religious believers. Restrictions on the ability of people of faith to use and share their powerful religious symbols—whether these are texts, images, acts, or objects—are deeply intrusive encroachments on religious freedom.

These forms of religious expression, however, remain under pressure throughout the world. One major source of current restrictions on freedom of religion and belief, including religious expression, is the by-product of state efforts to address security risks.  Between 2007 to 2017, for example, the number of countries where individuals were assaulted or displaced from homes in retaliation for religious activities, including preaching and other forms of religious expression considered offensive or threating to the majority faith, increased from 24% of countries to 40%.

But we, as a global community, have also made some progress. After years of intense debate over defamation of religion and the perceived competition between the state’s role in protecting against hate speech and its responsibility not to limit legitimate discussions of religious beliefs, a compromise U.N. resolution was adopted in 2011, followed by more concrete details in the 2013 Rabat Plan of Action. These both abandoned the concept of defamation of religion (an effort to protect belief systems as a whole from criticism), which brought with it vast potential for the state to stifle unwanted religious expression, in favor of state commitments to address religious intolerance through promoting the related rights to freedom of religion or belief, freedom of expression, and non-discrimination.

Blasphemy, apostasy, harm to religious feelings, and defamation of religion are unfortunately still the law in 94 countries. I’ve heard justifications of many of these laws in the name of security; the idea being that offensive comments about religion or expressions of unorthodox beliefs unnecessarily rile up the religious majority and lead to potential harm.

I agree that countries have an obligation under international law to prevent hate speech – Article 20.2 of the International Covenant on Civil and Political Rights, adopted in the wake of the Holocaust, states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” But this obligation doesn’t authorize states to limit non-traditional religious views in the name of security. The U.N. Human Rights Committee explained that this provision was designed to protect the rights of minority groups, not to allow them to be silenced.[4] The European Court of Human Rights has put it most simply: although it is true “that tension is created in situations where a religious or any other community becomes divided, . . . this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”[5]

Beyond blasphemy and other laws restricting religious speech in the name of protecting religion and religious feelings, states also restrict religious expression through the overbroad use of security to regulate other forms of religious expression (e.g., censorship, bans on the peaceable sharing of beliefs, and other limitations on based on deeming individual faith traditions as security threats), and states restrict expression by using facially neutral laws on expression in a discriminatory way.[6] At its worst, these overbroad and discriminatory restrictions are seen in China’s mass incarceration of Uighur Muslims, which the government has defended “as a means to combat terrorism and provide vocational training;” Russia’s ban on and criminal prosecution of the pacifist Jehovah’s Witnesses using an anti-extremism law; or censorship of religious materials in countries ranging from Saudi Arabia and Sudan to China, North Korea, and Laos. At a less extreme, but still problematic level are restrictions on or compulsion to wear religious dress, state dictation of the content of weekly religious sermons or preaching, and restrictions on new houses of worship because of ostensible security concerns. And the list could go on.

While governments have a legitimate need to protect against public disturbance and harm,[7] and can use this as a ground for limiting freedom of religion or belief when done in a proportionate and necessary way, international norms explicitly list freedom of religion or belief as a right that states may not completely derogate from for other security reasons, even in times of national emergency.[8] Why is freedom of religion or belief so crucial that it may not be encroached on for national security reasons? The answer is well-explained in the new OSCE/ODIHR Policy Guidance on Freedom of Religion or Belief and Security Policy, which articulates the understanding that a comprehensive view of security doesn’t frame freedom of religion or belief and security as competing rights “but recognizes them as complementary, interdependent and mutually reinforcing objectives that can and must be advanced together.” Research has documented how increased religious restrictions, even in the name of security, are most often counterproductive, simply leading to increased persecution and social hostilities.[9] The opposite is also true: recognizing and protecting the right for those of  all faiths to express and share their deepest and most powerful religious symbols increases security by welcoming all religious believers into a national community, who in turn bring with them great potential to contribute to society and to help create a stable and resilient community.[10]

 [1] Brian J. Grim and Roger Finke, The Price of Freedom Denied (CUP 2010), 205, 206.

[2] Amartya Sen, Development as Freedom (Knopf 1999).

[3] Paul Tillich, The Essential Tillich: An Anthology of the Writings of Paul Tillich (Scribner 1987), 41.

[4] United Nations Human Rights Committee General Comment No. 22 (48)  (Article 18) Adopted by the U.N. Human Rights Committee on 20 July 1993. U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in U.N. Doc. HRI/GEN/1/ Rev.1 at 35 (1994). See also the Report of the Special Rapporteur for Freedom of Religion or Belief, (UN Doc. E/CN.4/2001/63 (2001).

[5] Serif v. Greece (ECHR, App. No. 38178/97, 14 Dec. 1999), para. 53.

[6] See General Comment No. 34 (Article 19) Adopted by the U.N. Human Rights Committee on 21 July 2011, reprinted in U.N. Doc CCPR/C/GC/34 at para. 46, 48.

[7] In contrast to ordre publique, or national policy, international documents use “la protection de l’ordre,” terminology suggesting concrete public disturbance and disorder. Carolyn Evans, Freedom of Religion under the European Convention of Human Rights (OUP 2001), 150; Manfred Nowak & Tanja Vospernik, Permissible Restrictions on Freedom of Religion or Belief, in Lindholm, Durham and Tahzib-Lie, Facilitating Freedom of Religion or Belief: A Deskbook (Springer 2004), at 152-53 & n. 23.

[8] ICCPR, Article 4. The official UN Human Rights Committee’s commentary notes that “Restrictions are not allowed on grounds not specified [in Article 18’s protections of freedom of religion or belief], even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security.  Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.  Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.” United Nations Human Rights Committee, General Comment No. 22 (48) on Article 18, adopted by the U.N. Human Rights Committee on 20 July 1993, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994), para. 8.

[9] Brian J. Grim and Roger Finke, “Religious Persecution in Cross-National Context: Clashing Civilizations or Regulated Religious Economies?” 72 American Sociological Review 633, 652 (August 2007); see generally Brian J. Grim and Roger Finke, The Price of Freedom Denied (2011).

[10] Brian Grim and Roger Finke have explored the “virtuous cycle” and positive pro-social benefits that with increased protection of religious freedom brings. See Brian J. Grim and Roger Finke, The Price of Freedom Denied (2011).

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