By Austin Dacey
In the discourse of human rights, impiety is no longer understood as an affront to a sacred entity but to a human entity. Blasphemy is personal. Under existing human rights treaties, the prevailing legal model of personal blasphemy is “religious hatred.” Roughly speaking, laws against religious hatred or religious hate speech tend to draw from one of two traditions: the public order tradition, which emphasizes the harassing and provoking nature of religious insult, or the group defamation tradition, which emphasizes the denigration of believers’ reputation or standing in society.
Both traditions have their moral foundation in a principle of equal respect for individuals. So, they can appear to be the more enlightened, quasi-secular descendents of pre-modern, theological blasphemy. They can pass muster with the liberal-minded. However, the “religious hatred” standard of personal blasphemy is in some ways more problematic than its more religious predecessors.
The act of theological blasphemy can be defined fairly precisely in terms of the religious doctrines or practices it is designed to protect. Personal blasphemy in its public order version instead makes the act hinge on the subjective experiences of shock, disgust, indignation, or outrage in the hearer or viewer. Absent any reliable, objective, interpersonal measure of these feelings, judges are left with broad discretion to interpret the intentions and propriety of expression.
At the height of the outcry over the controversial Indian literary anthology Angarey in April 1933, two of the contributors, Mahmud uz-Zafar and Ahmad Ali, responded to their critics with an editorial entitled “In Defense of Angarey: Shall We Submit to Gagging.” They express their dismay at the “furious and unintelligent abuse and even threats of violence” coming from some segments of the religious community and they defend their fellow authors. Sajjad Zahir, they say, has written
a criticism and a satire of the current Moslem conceptions, life and practices. His attack is directed primarily against the intolerable theological burden that is imposed from childhood upon the average Moslem in this country—a burden that leads to a contortion and a cramping, an internal torture of the inquisitive or speculative mind and vital vigorous body, of both man and woman.
For her part, Rashid Jahan, drawing on her practical experience as a medical doctor,
portrays vividly the ghastly plight of the woman behind the pardah. . . . The standard criticism leveled against the book so far, is in our opinion extraordinarily low . . . bears out the judgement of the authors that present-day Moslem society is ignorant, rotten and decaying.
Strong words. Were they printed today, they might themselves invite a charge of defamation of the group “Muslims.” In his 2009 Oliver Wendell Holmes Lectures at Harvard University, Jeremy Waldron characterized acts of group defamation as
assaults upon the dignity of the persons affected—“dignity,” in the sense of their basic social standing, the basis of their recognition as social equals and as bearers of human rights and constitutional entitlements…Philosophically we may say that dignity is inherent in the human person—and so it is. But as a social and legal status it has to be upheld and maintained by society and the law…
Here is an equality-based argument for the criminalization of hate speech as group defamation. A just society is committed to demonstrating equal respect for all persons. This does not only mean that the state must refrain from according more respect to some citizens over others. The state must also take what steps it can to ensure that citizens themselves treat each other with equal respect. The denigration of a group—in the extreme, descriptions of its members as vermin or filth—constitutes a denial by some persons of equal standing to others.
Notice that this equality-based argument attempts to sidestep the matter of feelings—both the feelings of outrage in the victim and feelings of animus in the speaker. Defamation is an act, as Catharine MacKinnon puts it, “a special kind of discriminatory practice, a verbal form inequality takes.” By intervening to prevent hate speech, the state is combating discrimination that directly impinges on citizens’ exercise of their rights and participation in the democratic process.
Few would disagree that citizens have a responsibility to recognize each other’s equal moral standing. However, opponents of hate speech laws contend that there is no evidence to suggest that the state can successfully bring about this ethical behavior by the force of law. Bigotry is flourishing across Europe, for example, despite its robust hate speech laws.The American constitutional scholar Robert Post has explored a more fundamental problem with the group defamation standard. When the state intervenes on behalf of an individual victim of defamation, the identity of the victim is not in question. By contrast, religious identities are not scientific facts but social categories that are open to moral contestation and re-negotiation. By taking up the cause of some (usually self-appointed) representative of the aggrieved community, the state implicitly lends its authority to some idea of what counts as an authentic member of the community. Was the Angarey authors’ speech damaging to Muslims’ standing? That depends on whether one thinks, among other things, that the practice of purdah is essential to the practice of the faith. Without that assumption, denigration of purdahis not necessarily denigration of all Muslims.
Often it is the most vulnerable or marginalized within the community that have the most urgent stake in contesting and re-negotiating the meaning of the identity. In a just society, such questions should not be decided by the state but should be worked out by individuals in the public and cultural space.
Despite these problems, the new discourse of personal blasphemy may already be a permanent fixture in secular liberal democracies. Where its theological predecessor went extinct, this discourse has survived and spread by appealing to the core democratic value of equality.
Austin Dacey is a representative to the United Nations for the International Humanist and Ethical Union. He is the author of The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights and The Secular Conscience: Why Belief Belongs in Public Life. His writings have appeared in the New York Times, USA Today, and Dissent. In 2010, he created The Impossible Music Sessions, a forum in New York City for artists who cannot perform publicly due to censorship, political intimidation or cultural pressure.
With support from the Henry R. Luce Initiative on Religion and International Affairs.
 Catharine Mackinnon, Women’s lives, men’s laws (Cambridge, Mass.: Harvard University Press, 2007), 321.