One must be protected, the other actively discouraged
Sometime in June of this year, a bigoted California individual produced a low-budget film titled ‘Innocence of Muslims’, which (reportedly) portrays Muslims as violent and immoral, and specifically makes blasphemous slants against the Prophet Muhammad (PBUH). The film was screened at some Hollywood theater, and subsequently, clips from it started to appear on YouTube (dubbed in Arabic). Naturally, in a sequence of events that has become all too familiar in the recent past, street protests against this expression of religious bigotry and hatred erupted across the Muslim world.
While the Obama Administration has admonished the film for its social and political consequences, many in the US claim that the film was a permissible exercise of their constitutional guarantee of ‘freedom of expression’.
Let’s get the obvious out of the way first: we must all condemn this film, and the sentiment it depicts, with all our vociferous might. Such actions, by anyone in any part of the world, are barbaric to the fabric of human and religious sentiments.
Now, keeping politics and religion aside, the key legal question then becomes: do constitutional freedoms extend as far as debasing someone else’s religious sentiments?
Let’s start with an analysis of the American jurisprudence on the issue. In the US, the First Amendment protects freedom of speech and exercise of religion. But unlike the claims of those who defend this blasphemous film, these freedoms are not unfettered. They, for example, cannot be used as protection against inciting violence. And a clear demonstration of this principle can be found in the case of Chaplinsky vs New Hampshire (315 U.S. 568 (1942)). Justice Murphy of the United States Supreme Court, writing for the majority, held that “fighting words” are not protected by free speech. This, in the court’s opinion, includes words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Such words “are no essential part of any exposition of ideas, and are of such slight social value sass a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”. As a result, these fall outside the protection of the First Amendment. Now who, in their rightful mind, can argue that (in the current geo-political paradigm) this film and its contents do not constitute “fighting words” towards the Muslim world?
Even in case the protection of free speech is awarded at the fringes to people who are, for all intents and purposes, simply employing hateful behavior, the United States Supreme Court has held in R.A.V. v. City of St. Paul (505 U.S. 377 (1992)) that expression of certain ideas (through speech or actions) “can be banned because of the action it entails”, even if the ideas expressed are protected under the First Amendment. Thus, if for no other reason (or religious sentimentality), then simply because of the violent consequences of making such a film, the same is not protected under the United States Constitution.
In Pakistan, we have drafted our Constitution more carefully than others. Our freedom of speech and express clause (Article 19 of the Constitution), guarantees every citizen “the right to freedom of speech and expression” including press, subject to certain restrictions including anything that denigrates “the glory of Islam”. I say we have drafted this constitutional provision carefully, because we have not protected anti-religion speech… only anti-Islam speech. In essence, we have impliedly given ourselves the constitutional right (per the freedom of speech clause) to deface or insult any (and every) other religion; but should any religious minority say something back to our faith, it will be a constitutional violation.
This implied constitutional protection (in Article 19) for hate-speech against religious minorities not only violates Article 20 of the Constitution (freedom of religion), but also militates against Article 14 (dignity of man). Speaking against some religious minority’s deeply held beliefs (which frequently happens during religious rallies and fanatic sermons in our land) necessarily demeans that minority, and is an offence against their human dignity. In a world where the inherent worth of a human being is fast becoming the focus of fundamental rights discourse, human dignity has taken its seat in the ‘basic human rights’ across the international community, and is being interpreted liberally. Our legal and judicial philosophy must also embrace a broad interpretation of this right to include a protection of religious sentiment.
As this saga continues to unfolds, I pray that we do not demean ourselves in the process by indulging in the same sort of religious offence and abhorrence that the producer of this film indulged in. While using all our resources to bring the culprits to justice, already provided within the law, I hope that we do not take law into our own hands. After all, the Quran itself bears a warning to this idea: “Do not curse the idols they set up beside Allah, lest they blaspheme and curse Allah, out of ignorance.” (Surah 6, verse 108).