There is no such thing as offending your religion!
People cannot change their skin colour or national origin or ethnicity (characteristics known as ‘immutable’ by the US courts), but is possible to change their religious beliefs. This difference means that an extreme speech attacking one’s race is an attack on a person’s unchangeable characteristic and thus goes to the core of his identity, while an attack on one’s religion is, however important to him, merely a belief that he chose to adopt.
Louis Liaw, Loyar Burok
To start things off, John Stuart Mill explains in his ‘On Liberty’ that each opinion is important as each somehow contains a portion of truth, regardless of how out of norm or foolish it may initially sound, and it is only by collision of adverse opinions that the real truth can be found. It is the reconciliation, he says, and combination of opposite opinions with capacious and impartial adjustments that will only lead to correctness.
“the peculiar evil of silencing the expression of an opinion is that it is robbing the human race… If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error. (76)”
Freedom of expression and its close linkage to the process of democracy is the reason why it is guaranteed in many salient documents such as the European Convention of Human Rights, the first amendment of the Constitution of the United States of America and also Article 10 of the Constitution of Malaysia.
Freedom of expression is not limited to popular opinions — if it was, it would be pretty much pointless — but also protects opinions which are out of norm. For example, in the case of Handyside v United Kingdom, the European Court of Human Rights held that pluralism and real democracy demands the protection of expression that are not only inoffensive but also those that offend, shock or disturb the state or the public.
However, when can freedom of expression, despite its importance, still be limited, for reasons such as safety of the State? How can freedom of expression be reconciled with the potential threats of extreme opinions?
On this, US law practices the Viewpoint Neutrality principle, whereby the State is unbiased to any viewpoint and protects all speeches, regardless of its extremeness except “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” [Brandenburg v. Ohio, 395 U.S. 444 (1969) para 447]. This principle was displayed in the Skokie, Illinois march, where the State allowed a neo-Nazi party to hold a procession in a Jewish residential area in the name of freedom of assembly and freedom of speech.
In contrast, the European Court of Human Rights (and European countries) permit exceptions to the principle of Viewpoint Neutrality, as they allow prohibition on racist, anti-Semitic, or similar forms of derogatory speech that do not explicitly advocate lawless conduct.
Referring to the Viewpoint Neutrality doctrine, Jeremy Waldron, a professor of law from NYU supports the European regime, believing it as a step to protect ethnic and racial groups from abusive publication likely to incite hostility or discrimination against them or bring them into public contempt. He writes that a multiracial, multi-ethnic and pluralistic society is not something that should be taken for granted, but is a recent and fragile achievement deserving of protection. This is probably the most common argument from the Malaysian — “we are protecting racial harmony”.
Alexander Tsesis, a professor from Loyola University Chicago argues that “it is too dangerous to wait until there is an emergent threat“. He argues that history has shown that bigoted and racist speech is instrumental in paving the way for massive crimes against minorities, such as the Holocaust, thus “it is better to nip [such crimes] in the bud” with hate speech laws. This view echoes those of William Schabas, a law professor from Middlesex University who claims that a well-read genocider will know that at the early stages of planning a massive crime, his or her money is better spent not on purchasing weapons but on acquiring radio transmitters and a photocopy machine.
However, the ‘better safe than sorry’ line of argument has been regarded as sweeping too broadly. For example, while holocaust denial (a type of speech deemed deserving of restriction by the professors above) is anti-Semitic and extreme, there is a whole range of even harsher and more racist speech that will never bring about a prohibition, and which if indeed so prohibited would uncontroversially be deemed to be an illegitimate incursion on free expression. Examples of anti-Semitic writing penned by reputable writers such as Luther, Voltaire, Kant, and Wagner exert as much or more anti-Semitic feelings (Kant, for example, labels Palestinians as cheaters in his Anthropology) than the works of Holocaust deniers.
In the context of Malaysia, while Dr Mahathir’s The Malay Dilemma and recent speeches inciting racial disharmony such as ‘Chinese tsunami’, and Ibrahim Ali’s typical racist slanders remain unprosecuted or banned, we see a couple being arrested and charged for a photo and Teresa Kok being accused of being seditious for a video parody.
While some may be distressed by some statements or actions, others may just ignore or even mock the speaker. Looking back at Malaysia, how many are actually so offended by that bak kut teh photo that it would lead them to violence or cause disharmony, and how many actually just viewed the couple as juvenile and ignorant? Is there a genuine fear that the parody video would provoke violence and massive crimes, and must therefore be restricted and the speaker arrested?
The argument for preventive measures can only be taken seriously if it can safely be assumed that all, or the vast majority of, the members of the community will experience the same emotional distress when encountering the alleged ‘hate speech’. In these examples, that assumption is probably unwarranted.
In a nutshell, reasons to restrict speech that doesn’t directly advocate violence are not entirely convincing. The below will further elaborate why it makes even less sense to restrict speech when it is related to religion.
