Freedom of press and Human Rights Watch

A lot of local and regional blogs are talking about freedom of press these days. It is certainly an extremely important topic that should never be ignored. There is a saying that “only the press keeps democracy clean”. It hints at the tabloids in the western world that are often at odds with government – when investigating those in power of corruption, mismanagement and scandals.

While googling for the newest information about the state of freedom of press I came across this interesting international human rights law analysis from Human Rights Watch entitled “When Speech offends” in reference to the first printing of the cartoons and other events. The full text can be read at the HRW homepage but for easy reference the core part of the text is reproduced here. While I – for the time being and in light of an ongoing legal investigation – reserve my opinion on this matter I would really appreciate to get your reaction to this analysis.

“What does international human rights law tell us about the dispute over the cartoons?  
 
International human rights law cannot answer all questions raised about the cartoons. Human rights law obliges governments to protect religious freedom and religious minorities, but, as explained below, the cartoon controversy mostly concerns the limits imposed by human rights law, particularly the right to freedom of expression, on governments’ ability to suppress speech. In prohibiting governmental censorship of certain kinds of speech, human rights law does not suggest endorsement of that speech. Similarly, while the right to freedom of expression requires governments to allow speech that they and many others might find offensive, misguided, or even immoral, human rights law cannot answer the question of whether it was wise or proper for Jyllands-Posten and others to publish the cartoons. Nor can human rights law dictate the posture that governments should take toward the cartoons in their public comments-whether, for example, they should clarify that the content does not reflect official views or express their belief that it was unwise to have used the freedom of expression in this way. Rather, human rights law, in relevant part, speaks only to whether governments must permit such speech, regardless of whether they endorse the views expressed.  
 
The cartoons caused extreme offense to many Muslims-why should the right to freedom of expression protect such cartoons?  
 
The right to freedom of expression is a fundamental one, necessary to protect the exercise of all other human rights in democratic societies because it is essential for holding governments accountable to the public. Freedom of expression is particularly necessary with respect to provocative or offensive speech, because once governmental censorship is permitted in such cases, the temptation is enormous for government officials to find speech that is critical of them to be unduly provocative or offensive as well. The freedom to express even controversial points of view is also important for societies to address key political, social, and cultural issues, since taboos often mask matters of considerable public concern that are best addressed through honest and unfettered debate among those holding diverse points of view. Although international human rights law does impose certain limits on the right to freedom of expression (discussed below), the important functions served by that right require interpreting those limitations narrowly.  
 
Aren’t pictures as hateful as these properly considered “hate speech”?  
 
Not all speech that is hateful constitutes “hate speech” that must be prohibited under international human rights law. Advocacy of religious hatred can be suppressed only when it constitutes imminent incitement to unlawful acts of discrimination, hostility or violence. In addition, to constitute such incitement, the discrimination, hostility or violence must be urged or promoted by the speech in question. It is not incitement when opponents of speech or those who find the speech offensive use violence, since that would give censorship over any speech to those who are willing to employ violence to attack it. In this case, the main complaint against the cartoons is that they offend Islam, not that they have inspired acts of violence, criminal harassment or tangible discrimination against Danish or other Muslims. Speech that targets a religion for disrespect, as opposed to speech that targets believers for unlawful acts, is protected, however offensive it may be.  
 
Why not ban the cartoons as blasphemy?  
 
Many European nations still have blasphemy laws, although they are seldom enforced. Some of these laws prohibit blasphemy against only certain religions, such as Christianity. Such laws are clearly discriminatory and may reflect broader societal discrimination. Moreover, many of these laws should not be on the books at all. Although the European Court of Human Rights has upheld some of these laws, it is far from clear why certain religious beliefs should be protected from critical discussion or even ridicule when other political beliefs, aesthetic views, or cultural opinions are not. Freedom of expression is valuable for allowing broad public debate of any topic. It is wrong to exclude from that debate certain religious beliefs, because speech on these topics is about ideas, not incitement or even advocacy of violence.  
 
Isn’t it inconsistent for European governments to criminalize private speech that is anti-Semitic, including speech that denies the Holocaust, but refuse to criminalize the private publication of the cartoons, on free speech grounds?  
 
Human Rights Watch recognizes that the tragedy of the Holocaust is the historical context in which laws banning Holocaust denial were adopted in several European countries, as well as in Israel. We also acknowledge that, by more rigorously enforcing these laws, some governments have sought to underscore the seriousness with which they view the danger posed by right-wing extremists and others who deny such events. Such laws were also motivated by a desire not to exacerbate the suffering of Holocaust survivors living in these countries. As noted above, however, prohibiting speech, such as Holocaust denial, that is offensive or distressing to some religions or minorities, while tolerating speech that is offensive or distressing to others, is a clearly discriminatory practice and raises legitimate questions about double standards.  
 
As Human Rights Watch stated in 1995, we believe that all such laws, regardless of the religions or minorities they seek to protect, disproportionately restrict the protected right to freedom of expression. We are mindful that there are different perspectives on what is permissible and prohibited speech, but we base our position on a strong commitment to freedom of expression as a core principle of human rights and our conviction that objectionable speech is best met with contrary speech, not censorship. We also believe that governments can best counter offensive speech by fulfilling their obligation to take positive measures to protect minorities and to make clear that they reject all forms of discrimination.  
 
Prohibiting denial of the Holocaust may be popular politically, but Human Rights Watch is also concerned that over the long run, such measures are not effective to counter bigotry, and may even be counterproductive. Draconian bans may turn bigots into victims, driving them underground and creating a more attractive home for those who are drawn to such groups.  
 
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Why can’t the cartoons be banned as potentially harmful to public safety or the rights of Muslims?  
 
Freedom of expression may be limited to protect public safety and the rights of others, but such limitations must be strictly “necessary” in a democratic society. Banning provocative speech rarely meets that test. In the case of the cartoons, any threat of violence by protesters should be contained through traditional law enforcement means. In some countries where protests have turned violent, however, officials seem to have tolerated the unlawful behavior-a disregard of their responsibilities that makes it all the more inappropriate to blame the original cartoons for ensuing unrest. A society built on respect for freedom of expression and the value of robust debate should, wherever possible, meet offensive speech with more speech-denunciations, objections, explanations-rather than censorship in the name of public safety.  
 
As for the rights of Muslims, the cartoons in no sense impede Muslims’ right to freedom of religion. Religious freedom means that all people have the liberty to adopt the religious beliefs (or non-beliefs) of their choosing and to worship and, as much as possible in a democratic society, live their own lives in accordance with those beliefs. However, freedom of religion does not give anyone the right to impose his or her religious beliefs on others. That Muslims find the depictions of the Prophet Mohammed objectionable does not give them the right under international human rights law to insist that others abide by their views. Muslims, like all others, are free to state their religious objections and to press for more respectful treatment, but they are not entitled to censor the expression of others in the name of their own religious freedom.  
 
Why shouldn’t the government hold editors responsible for publishing such offensive material?  
 
Editors should be held responsible for what they decide to publish-but by their readers, communities, or employers, not their governments. Under the right of freedom of expression, a government cannot impose its views of what is fit to publish except in very limited cases as described above.  
 
 
Should we consider newspapers that reprinted the cartoons even more culpable of provoking outraged response than Jyllands-Posten since by then it was clear how offensive the cartoons were?  
 
Newspapers that reprinted the cartoons may have done so for many reasons-giving their readers a first-hand opportunity to judge the cartoons themselves, showing solidarity with the Danish newspaper, provoking further controversy, or even reflecting hatred toward Muslims. However, it is not clear that any newspaper intended to incite or caused unlawful acts against Muslims. Republishers of material that is protected should enjoy the same protection from state retaliation as the original publisher. That said, many have legitimately questioned the editorial judgment of those that republished the cartoons in the context of global violence and protest. Nonetheless, international human rights law still protects their decision to republish.  
 
Don’t Muslims and everyone offended by the cartoons have the right to protest them?  
 
Human rights law protects the right to peacefully protest offensive speech, just as it protects the right to utter provocative or offensive speech. Governments have a duty to make peaceful protest possible, by respecting the right of individuals to assemble, express outrage, organize boycotts, and engage in other peaceful acts. Governments also have a duty to protect the public from protests that turn violent, to take appropriate action against specific threats against the life and property of others, and to reaffirm their own duty to avoid discriminatory speech and actions.  
 
Are governments held to a higher standard for speech than private persons?  
 
Government officials have free-speech rights as well, but they also have a parallel responsibility, beyond that of an ordinary citizen, to protect the welfare, lives and rights of the people of their nation, and to combat discrimination and intolerance. As a matter of these other responsibilities, governments should be especially careful not to speak in a way that encourages violence, discrimination or hatred because that would breach their core obligations to maintain a peaceful, open, and tolerant society. “