Some debates, it seems, simply do not disappear. The impassioned ongoing debates over freedom of speech and its limits provide a case in point. Rightly or wrongly, these are debates in which many Western ‘secular liberals’ have come to regard themselves as engaged in nothing less than a Kulturkampf against various threats to the freedom of expression, emanating first and foremost from religiously minded Muslims. This framing of the debate began with the Rushdie affair, in 1989, and has become, if anything, more prevalent since the cartoon crisis of 2005-2006. Indeed, it seems ever more evident that we face a future in Europe where the freedom of speech will be in constant tension and conflict with the freedom of religion and belief.
“Under what conditions does freedom of speech become freedom to hate?” Judith Butler recently asked. Here I will explore these issues in light of recent developments concerning the freedom of speech in Norway. I will argue that applying a cosmopolitan liberal approach to freedom of speech (i.e., along U. S. First Amendment lines) in a European context in which anti-Muslim and anti-immigration discourses are becoming ever more poisonous and pervasive risks underestimating the power dynamics inherent to the practice of free speech in contemporary Europe as well as overestimating the “mainstream” political and intellectual will to mobilize against the populist right-wing’s instrumentalized Islamophobia.
In an op-ed for The Guardian, Timothy Garton Ash recently argued that “for reasons both of free speech principle and political prudence,” Dutch politician Geert Wilders “should not be on trial for what he says about Islam.” Wilders, the leader of the Party for Freedom (PVV), is being prosecuted under Dutch hate speech regulations for his comparison of the Qur’an to Adolf Hitler’s Mein Kampf, and for referring to the former as “a fascist book.” In opting to indict Wilders, Dutch prosecutors, according to Garton Ash, are “guilty of blurring the line between attacking the believers and criticizing [their] beliefs.” He argues for instead moving the struggle against contemporary European populist articulations of xenophobia from “the court of law” to “the court of public opinion,” calling upon “mainstream politicians and intellectuals” to mobilize in defense of the liberal rule of law and equal rights of citizenship for all individuals.
Similarly, Andrew March has argued that in a Europe that is often discriminatory and imbalanced in its approach to Muslims citizens, “Muslim minorities in particular have a strong interest in “securing a more fundamentalist and formalist culture of defense of free speech.” Garton Ash’s and March’s motivations for advocating more free speech in response to hate speech are not identical. Whereas Garton Ash invokes the “slippery slope” argument (by which “a purpose to protect individual human beings” turns into a ban on criticizing “any belief”), March makes the valid point that religiously motivated speech has the same innate capacity to injure as non-religiously motivated speech, and that the religious therefore cannot claim any special privileges in regard to protection against injurious speech. The slippery slope argument, most famously articulated by Ronald Dworkin, holds that since free expression is a necessary condition of political legitimacy in any democratic society, we risk unduly interfering with political legitimacy and ultimately undermining democracy if free expression is curtailed. Dworkin is a strong and articulate defender of what may be characterized as contemporary U.S. First Amendment understandings of freedom of speech in their most absolutist incarnations. Yet the available evidence from liberal and democratic countries with hate speech legislation quite simply does not support the contention that such legislation paves the way for more wide-ranging restrictions on speech.
March and Garton Ash do, however, share certain basic assumptions. The first is that the distinction between speech directed against religion or belief of any sort and speech directed at individuals professing a particular religion or belief is easily identifiable. The second is what can be broadly defined as a desire to universalize, or at least to “Europeanize,” an understanding of the freedom of speech rooted in the U.S. First Amendment. Under U.S. First Amendment principles, as elaborated by the U.S. Supreme Court in the course of the twentieth century, the only legitimate restriction of speech pertains to any utterance functioning as an incitement to “immediate” violence against particular individuals, if and when the listening audience is in fact liable to act upon such speech. This interpretation of the constitutional protection of free speech is an outlier in global and comparative terms. But in light of legal, societal, and political developments in the past decade, on the national as well as the supra-national level, European states, and Scandinavian states in particular, seem more and more to be turning toward contemporary U.S. First Amendment understandings of the freedom of speech. For now, formal legal protections against various forms of racist, hateful, or discriminatory speech instituted as a result of international conventions remain in the statutes of numerous countries. Under these conventions, certain restrictions on free speech are permitted under the condition that they are “prescribed by law” and “necessary in a democratic society.” In Denmark, for instance, The Free Press Society’s Lars Hedegaard was recently prosecuted successfully for racist speech. In France, TV personality Éric Zummour was convicted under similar laws. But in Norway, hate speech legislation is more or less a dead letter. For laws that are merely symbolic and seldom, if ever, applied soon lose both their effectiveness and their legitimacy.
The character of racism in Norway shifted significantly in the course of the 1990s, in line with developments elsewhere in Western Europe. The racism of biological markers was replaced by various forms of cultural racism, and overt anti-Semitism became anathema while more or less subtle forms of Islamophobia became palatable. It is noteworthy in this context that the figure of “the Muslim” as an embodied threat to everything from freedom of speech to gender equality and from gay rights to the sustainability of the welfare state means that Islamophobia in contemporary Norway has wide cross-sectional and cross-political purchase. Even overtly xenophobic and racist organizations in Norway now claim on their websites to be opposed to all forms of racism and xenophobia, and merely to be engaged, rather, in a “critique of Islam” and efforts to ‘stop the “Islamization of Norway.” With the tacit support of Norway’s political, legal, and intellectual elites, racism is narrowly construed as relating only to biological markers of difference.
In principle, more free speech and more open access to various media means an increased potential for Muslims to respond to popular stereotypes and stigmatization. And it is, in fact, by no means unusual for young Norwegian Muslims to do so. But to do so under current circumstances requires very thick skin indeed. In interviews with me, young Norwegian Muslims active in the mediated public sphere very often report receiving abusive and threatening letters and emails. At the same time, mainstream liberal editors, who act as gatekeepers to major media outlets, often have their own scripts requiring those who get privileged access to visible positions in the mediascape to play particular roles—specifically the heroic “secular feminist Muslim” and the vilified “conservative Muslim,” or, in other words, the Muslim woman in need of freedom (from “Islam”), and the Muslim man denying her freedom (in the name of “Islam”). “Power speaks only to power,” in J.M. Coetzee’s words, and to be able and permitted to express oneself in public does not entail actually being heard.
Furthermore, many Norwegian mainstream—and supposedly liberal—editors cast themselves as “critics of Islam”—some to the extent of regularly recommending Islamophobic “Eurabia literature” of various kinds to their readers. Their Kulturkampf against the threats to freedom of speech emanating from ‘Islam’ often invoke the 3.0 percent of Norway’s population that is of Muslim background as a stand-in for this generalized other. In these editors’ constant clamor to be at the forefront of the heroic struggle for the freedom of speech, the editorial restraint of mainstream media in the U.S. is often virtually absent. In a reversal of Enlightenment creeds, it is now the powerful rather than the powerless that the freedom of speech is expected to protect. Many of these editors have also expended much energy on attempts to publicly discredit and discourage use of the term Islamophobia in Norway in recent years. It was not entirely coincidental, then, that, in 2009, Norway’s technocratic and influential Foreign Minister, Jonas Gahr Støre, described the very concept of Islamophobia as “substanceless rant.”
In early January, 2011, the secular feminist Hege Storhaug, of Human Rights Service (HRS), in an op-ed in the mainstream liberal-conservative newspaper Aftenposten, by far the most influential newspaper in Norway, compared Muslims in prayer during a demonstration at Oslo’s University Square the previous year to “quislings.” Not to be outdone, Kent Andersen, a board member of the Oslo section of the populist-right wing Progress Party (PP), on a personal blog some weeks later, compared Islam to Nazism, and rhetorically asked his readers whether they thought that there could be “moderate Muslims”—as if there were ever “moderate Nazis.” The implication of such analogies, as Ian Buruma suggested in a 2009 New York Times op-ed, is that those who happen to believe in the Qur’an are like Nazis, and that an “all-out war against them” would therefore be legitimate. This is where Garton Ash’s approach would seem to run into some difficulties, for it is hard to see Storhaug and Andersen’s declamations as anything other than speech that deliberately blurs the line between a legitimate critique of Islam and hateful speech targeting individual Muslims. Andersen works in marketing, and, like Storhaug, has close links to some of the Progress Party’s most influential MPs. Once the Progress Party was on the fringes of Norwegian politics, but since 2003 it has governed the capital, Oslo, in a two-party alliance. In the parliamentary elections of 2009, the PP got a record 22.9 percent of the vote. Established in 1973 as an anti-taxation and anti-bureaucratic party, the PP first discovered the popular appeal of anti-Muslim and anti-immigration rhetoric in 1987.
Anti-Muslim and anti-immigration discourse has long been part of the political mainstream in Norway—effectuating what the late Tony Judt described as a “social democracy of fear.” Norway’s governing Labor Party has managed to remain in power, in a tripartite alliance of the center-left, by taking ever more stringent measures on immigration and integration, thus echoing the PP’s policies, if not their rhetoric, in recent years.
As a direct result of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) of 1966, Norway introduced a racism paragraph (135 (a)) into its penal code in 1970. In its current formulation, the racism paragraph may be used to penalize public utterances or symbols of a hateful or discriminatory nature based on attributes such as skin color, national or ethnic origin, religion or belief, or homosexual orientation and lifestyle. In spite of numerous racist incidents during the 1970s and ’80s, the paragraph was never much used. As a result of public utterances he made during a march in the small Norwegian town of Askim, in 2000, Terje Sjølie, a Norwegian member of Boot Boys, a neo-Nazi gang, was charged under the racism paragraph. In his speech, Sjølie proclaimed that “every day, immigrants rob, rape and kill Norwegians.” One year later, a gang of Boot Boys brutally stabbed to death Benjamin Hermansen, a fifteen-year old boy of mixed Norwegian-African parentage, in a southeastern suburb of Oslo. Hermansen’s murderer had been present at the march in Askim the previous year. On an extremely cold winter evening 40,000, Norwegians took part in a commemorative anti-racism march dedicated to Hermansen and his family; it was the largest demonstration ever held in the Norwegian capital. Nevertheless, in 2002, a divided Norwegian Supreme Court acquitted Sjølie of the charges brought under the racism paragraph. The Court’s majority argued that the freedom of speech overrode the right to protection from hateful and discriminatory speech. Various Norwegian civil society organizations appealed the Supreme Court’s verdict to the UN’s ICERD Committee. In 2006, the ICERD Committee found the verdict in the Sjølie case to be in violation of ICERD articles 4 and 6. Norwegian state officials have repeatedly asserted to the European Commision against Racism and Intolerance (ECRI) that the Sjølie verdict would now be inconceivable. Yet, with the exception of the Norwegian Supreme Court’s 2008 conviction of Norwegian Neo-Nazi Tore Tvedt for having declared in a 2003 tabloid newspaper interview that Jews were “parasites whom we must cleanse,” there have been no successful legal prosecutions under the racism paragraph in Norway in recent years. Charging and prosecuting Norwegian citizens on the basis of hate speech against Muslims—as the Dutch and the Danish have recently done in the Wilders and Hedegaard cases—now seems relatively inconceivable.
Freedom of speech debates are often construed by free speech proponents and opponents as a zero-sum game—that is, it is assumed that one either is, or ought to be, for or against free speech. Here I must make clear that I am inclined neither to support blasphemy laws nor to defend the dubious concept of “defamation of religion.” Exempting the beliefs and practices of people whose beliefs and practices happen to differ from my own is not a way of demonstrating respect or treating others as equals. The public sphere is an impure place, and so it must be. The current “fetishism of law” makes many attribute the most magical of effects to the mere letter of the law. It is an open question, however, whether the law is an appropriate instrument in the regulation of expression. For, in plural and heterogeneous societies, it is doubtful that any Rawlsian “duty of civility” can be instilled through law, and the emergence of various largely unregulated social media on the web makes it even less likely.
When restrictions on racist, discriminatory, and hate speech were introduced in Europe, in the aftermath of World War II, it was because European political and intellectual elites had come to the conclusion that there had to be some such restrictions in place in order to prevent “fighting words” from turning into “fighting actions.” It is hard to see that when Islam is compared to Nazism, and ordinary Muslims to Nazis, it constitutes a mere “critique of religion” rather than hate speech. The last racially motivated murder in Norway took place in 2008, when a Norwegian-Somali Muslim father of six, Mahmed Jamal Shirwac, was killed. There is solid evidence from Germany to India and from Rwanda to Bosnia that fighting actions are usually preceded by fighting words. Even though history does not repeat itself, in the current circumstances, it would be prudent to uphold a modest defense of European restrictions on hate speech.