When the liberty to freely express oneself is at odds with another's right to freedom of religion, we are confronted with the classic dilemma of choosing between two equally fundamental, constitutionally and internationally protected rights. The contours of the said two rights however, are far from clear. Whilst freedom of expression is not an absolute right, its limits are controversial. Equally, while it is undisputed that freedom of religion is an internationally protected human right enshrined in various international instruments, there is no comprehensive international treaty which addresses as its subject the content and extent of the right of freedom of religion, thus it is uncertain whether it entails the right to have one's religious faith and symbols protected from insult.
The unsettled boundaries of dispute arising from the clash between two fundamental rights have led to bitter tensions between freedom of expression and concerns to protect and respect religious sentiments. Religious communities feel outraged that their religious beliefs and sacred symbols are mocked, insulted, attacked or vilified. Aggrieved believers argue that "respect" for religious beliefs and symbols is fundamental to, and part and parcel of, the right of freedom of religion and that freedom of expression, although equally fundamental, is not without its limits. On the other hand, the authors and creators of these controversial works argue that any law seeking to restrict their works amounts to a violation of the sacrosanct right of freedom of expression, which is the bedrock of any democratic society.
These arguments require an exploration of the rationales underpinning the freedoms of expression and religion to determine the boundaries and limits of each of these rights. On the far right, the United States endows the freedom of expression with sacrosanct status, which can be limited only where there is a risk of imminent danger or physical harm to third parties or a threat of an imminent outbreak of violence. In marked contrast is the German model, where an individual's religious sentiments, dignity and identity are protected from scurrility and ridicule and any form of degrading speech against any religion is outlawed. Lying between these two extremes are the European Court of Human Rights and the Australian systems which have endeavored to strike a delicate balance between respect for religious sentiments and free speech. This paper will bring these perspectives to bear on the challenge of balancing the rights offreedoms of expression and religion.
Part I of this paper examines the content of the right to freedom of religion and whether it entails a right to protection from ridicule, scurrility, vilification and insults directed at one's religious teachings, symbols or beliefs from the perspective of international human rights law. Parts II and III review the approach of regional and national 'models of regulation' (the United States, Germany, the European Court of Human Rights, and Australia) to examine the unique experiences of these systems and the benefits, pitfalls and complexities inherent in legislating against speech or conduct which 'hurts' the sentiments of groups or individuals, who find their religious beliefs the subject of provocative, insulting, vilifying or offensive expressions. To end this 'clash' between secular libertarians and the faithful, this paper argues that a contextualized approach should be adopted in individual cases to carefully examine the value of the speech concerned, the 'harm' caused by it, and the position of the targeted individuals, group or community in that particular society and generally. It is only through such a contextualized consideration of the rights concerned, can an appropriate balance be struck to secure the interests concerned.
Puja Kapai & Anne S. Cheung,
Hanging in a Balance: Freedom of Expression and Religion,
Buff. Hum. Rts. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/bhrlr/vol15/iss1/2