Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). Apostasy is necessarily comprised of material acts that have an external being. Such acts must make manifest, in a manner undeniable and without dissent, that one has called God Most High a liar, and the Prophet, peace be upon him, a liar by denying what he has brought to Islam….Belief, however, differs clearly from apostasy. For apostasy is a crime whose basic material elements are presented before a judge to decide whether it exists or not….But belief concerns what is in the interior of a human being’s self, belonging to his domain of secrecy. It is neither a matter of judicial probing, nor of investigation by people, but is to do with the relationship between the human being and his Creator. Apostasy is a breach of the Islamic order, at its highest degree and most valued foundations, through manifest, material actions. In positive law, it comes close to a breach of the order of the state or high treason. Apostasy is investigated by the judge or the mufti. However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of belief. But a breach of Islam can only be due to corruption in thought or the lure of material, sexual, or other worldly purposes. To combat this category [of desire] is not considered combat against freedom of belief, but rather the protection of belief from such vain, corrupt passions.

In distinguishing between apostasy as an “outer” material act and belief which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right to believe what one wants. It also includes maintaining the conditions under which religious belief can be sustained and cultivated. For the Court, this entails that belief be protected from the motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books to university students.) In other words, outer act and inner belief, though initially divided, come to be reconnected through a suspicion of motives of material interest or worldly power. In the context of the freedom of religious belief, it becomes imperative to determine whether acts or expressions of belief are genuinely religiously motivated. This presumes the power to pronounce upon and, if necessary, probe into the character of one’s private convictions. Here the defense of religious freedom promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious claims that should not count as spiritual are schemes cloaked in religious language in which the incentive to participate is financial self-interest and not spiritual development. … A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person’s engaging in the behavior she asserts is part of her religious exercise.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, the veil was deemed an obligation mandated by religious authorities, then it could be construed as potentially coercive and an impingement of religious freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’s investigation, Talal Asad notes that,

…not only [do] government officials decide what sartorial signs mean, but …they do so by privileged access to the wearer’s motives and will—to her subjectivity—and this is facilitated by resort to a certain kind of semiotics. A governmental commission of inquiry claims to bring private concerns, commitments and sentiments to the public sphere in order to assess their validity for the secular Republic, but it does much more than that. It constitutes meanings by drawing on internal (psychological) signs or external (social) signs, encourages certain desires and emotions at the expense of others.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior motives is a practice of suspicion becomes fully evident when it comes to Muslims in Europe and the U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure it takes. And this is the constant attempt to unmask ulterior motives of material interest and worldly power behind a range of otherwise ordinary (in this case, Muslim) practices and expressions of belief, in order to defend those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal a distinctive structure of legalized suspicion. On the one hand, private belief and public act/expression are made separate, but on the other, they are brought together in order to define and defend religious freedoms. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. It also shows how such religious freedom will never appear to be fully achieved, being entangled in its entirety within the dynamics of law’s suspicion and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

“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.

Last week, one of the two activists, Emdadur Choudhury, was found guilty under Section 5 of the Public Order Act of burning the poppies in a way that was likely to cause “harassment, harm or distress” to those who witnessed it, and was fined £50. The symbolic nature of the punishment aside, the Choudhury verdict invites immediate comparison with incidents of offense to Muslim religious sensibilities (from Rushdie to the Danish Cartoons and beyond), which, by and large, have not been suppressed by European legal institutions. While it is very tempting for Muslims, and those sympathetic to the situation of Muslims in Europe, to see a case like this as evidence of double-standards—Muslim speech is suppressed on grounds of injury to non-Muslims, while the reverse is not; speech injurious to secular affect is suppressed, while speech injurious to religious affect is not—this might also be an occasion for some general reflection on the problem of injurious speech in morally pluralist contexts. A case like this invites such reflection both for its similarities with and for its differences from the Jyllands-Posten and Lars Vilks cartoon affairs.

1) Europeans appreciate the concept of “moral injury.”

For some analysts, often writing on this blog, the critical lesson to draw from the Danish cartoon controversy concerns how certain ethical and semiotic norms “fail to translate” across civilizational, ideological, and religious divides. Saba Mahmood, most notably, suggests “several reasons why the idea of moral injury I have analyzed remained mute and silent in the public debate over the Danish cartoons, key among them the inability to translate across different semiotic and ethical norms.” What idea of moral injury was at stake, for Mahmood, in the case of the Danish cartoons? It was about a

violation [that] emanates not from the judgment that the law has been transgressed but that one’s being, grounded as it is in a relationship of dependency with the Prophet, has been shaken. For many Muslims, the offense the cartoons committed was not against a moral interdiction but against a structure of affect, a habitus, that feels wounded. This wound requires moral action, but the language of this wound is neither juridical nor that of street protest because it does not belong to an economy of blame, accountability, and reparations. The action that it requires is internal to the structure of affect, relations, and virtues that predispose one to experience an act as a violation in the first place.

The idea of a satisfactory “translation” of the ethical norms is left conveniently vague. What would be evidence of a successful translation of ethical and semiotic norms? That Muslims are able to have speech they don’t like suppressed by European courts? Or that more people in the media and broader public sympathize with their injury and describe it accurately?

Either way, the “poppy case” casts some serious doubt on this analysis. The witnesses and judge in the Choudhury case employ, in fact, a language almost identical to that employed by Mahmood. Judge Riddle argued that, because the November 11, 1918, ceasefire has “huge significance” for Britons, burning poppies is “is behaviour that is bound to be seen as insulting.” (Read: many Britons have a “structure of affect, relations, and virtues that predispose one to experience an act as a violation in the first place.”) A witness, the grandson of a World War II soldier, reportedly “felt sick inside. It is something that means so much to me and to see what I believed to be a wreath of poppies fall to the ground—it is just despicable.” (Read: for this witness, “the offense the cartoons the burning of poppies committed was not against a moral interdiction but against a structure of affect, a habitus, that feels wounded. . . . His being has been shaken.”)

Thus, it seems that those invested in the idea that conflicts over speech and the sacred reveal some deep and troubling incommensurability—not over whether “blasphemous” speech ought to be prohibited by the law (Mahmood does not argue for this, unlike, say, Peter Danchin), but rather over the background presuppositions about what kinds of speech can injure, how they injure, and why—are not looking broadly or carefully enough at public and legal discourse in Europe. I cannot see much difference at all between how Mahmood characterizes the injury felt by (some) pious Muslims at the defamation of the Prophet and how Judge Riddle and his witness describe the injury felt by “typical, mild-mannered” Britons at the burning of poppies during a commemorative ceremony. Thus, Mahmood seems overhasty when she writes:

Muslims who want to turn this form of injury into a litigable offense must reckon with the performative character of the law. To subject an injury predicated upon distinctly different conceptions of the subject, religiosity, harm, and semiosis to the logic of civil law is to promulgate its demise (rather than to protect it). Mechanisms of the law are not neutral but are encoded with an entire set of cultural and epistemological presuppositions that are not indifferent to how religion is practiced and experienced in different traditions. Muslims committed to preserving an imaginary in which their relation to the Prophet is based on similitude and cohabitation must contend with the transformative power of the law and disciplines of subjectivity on which the law rests.

Let’s grant Mahmood, for the moment, the idea that Muslims are only interested in using the law to prevent or punish scandalous speech about Muhammad because they are “committed to preserving an imaginary in which their relation to the Prophet is based on similitude and cohabitation.” (I find this overly restrictive of the many motivations and moral reasons Muslims have voiced—at least since the Rushdie Affair—and quite artificial in its construction.) It seems that, at least if they were arguing before Judge Riddle, they would have no problem at all articulating their “conceptions of the subject, religiosity, harm, and semiosis,” for the language Mahmood uses is, in this case, the same as that of the secular court.

2) Is it “religious pain,” or merely “Muslim pain,” about which Europeans are insufficiently concerned?

Poppies are not Prophets, though. Is the Choudhury case, perhaps, evidence that, after all, the “secular nomos” of Europe is unfairly and arbitrarily biased against religious habitus, insofar as it protects citizens from the exact same kind of moral injury only when it is performed against secular signs and not religious ones? As Talal Asad has written, because Western societies do impose some restrictions on speech, “it seems probable that the intolerable character of blasphemy accusations in this kind of society derives not so much from their attempt to constrain as from the theological language in which the constraint is articulated.”

Perhaps. This would require some direct apples-to-apples comparison, though. For example, have there been attempts to use Section 5 of the Public Order Act (leaving aside even the “Incitement to Religious Hatred” section) to prosecute acts of desecration of religious symbols combined with “persistently shouting abuse or obscenities at passers-by . . . within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question” that have been summarily dismissed by similar courts on the grounds that the desecration of religious symbols cannot cause “harassment, harm or distress,” or that any that is caused is either inconsequential or deserved? Certainly, there is nothing in the language of the ordinance that would exclude religious pain from consideration, and, in fact, the law includes special consideration for “religiously aggravated offence.”

I do not mean to suggest that there is no problem of imbalance or discrimination in Europe. Far from it. Rather, I mean to ask: When does a public or a legal discourse that does not accord Muslims all the protection or consideration they want evince a problem related to the distinctly secular nature of European public norms and discourses? Those interested in exploring whether secularism is part of the problem have not only to give a better account of what a successful translation of norms would be, or what Muslims and other religious subjects are due in a pluralist society, but also, and primarily, to consider how much of what is going on in public debates about offensive speech is evidence of a particular antipathy or anxiety surrounding Muslims. Before insisting that in cases like the Danish cartoons there is a distinct kind of pain that modern secular societies simply can’t wrap their heads (or hearts) around (an explanation made quite unlikely by the language in the Choudhury case), we would do well to remember that Western publics these days often have a hard time taking seriously Muslim pain of any kind.

This phenomenon is widely appreciated, and I do not need to belabor it here. But I do want to suggest that, while Europeans’ anxieties about Muslims are often bound up in their anxieties about religion in the public sphere, and while Europeans often misuse the secular license to insult religion as an alibi for creating a hostile environment for citizens of Muslim cultural backgrounds, not every act of exclusion or hostility towards Muslims in Europe is evidence of a secular failure to provide sufficient space for multiple ethical norms to thrive. To see only secular failures (while refusing to imagine the space that secularism leaves open for the resolution of ethical conflicts) is no less a piece of dogmatism than the insistence of those who regard “secular failure” as a contradiction in terms.

3) The materiality of utterances matters.

But let us concede that in the British court’s willingness to punish a Muslim for injuring patriotic Britons, we have prima facie evidence of secular hypocrisy. Still, we must be careful. At stake was a not a general ban against burning poppies, or a ban against printing cartoons of burned poppies (or of soldiers burning in hell), but a direct physical encounter. As a fairly unimaginative American liberal habituated into a stringent defense of political speech, I would have preferred not to see Choudhury fined for this form of political expression, even if fairness and decency would permit the police to remove him from the scene at the time. However, not only is a £50 fine a relatively symbolic punishment; it is a fine, not for some general transgression against a sacred national symbol, but rather for a public disturbance.

A surprising lacuna in much academic writing, outside of legal studies, about popular incidents such as the controversy around Rushdie’s The Satanic Verses and the Danish cartoon affair is the failure to explore the materiality of speech. It is more common to explore interpretations of the utterances as such—what they mean, why they injure, why they were produced—rather than the ways in which the same utterance, in terms of brute content, can take on quite different ethical and social meanings when uttered in different material forms and in different physical contexts. Obviously, I do not flatter myself by thinking that I am correcting a general mistake on our part. Of course, we know that the “N-word,” when spoken by whites, is not the same as when spoken by blacks, and that the word spoken by a white actor on a stage is not the same as the word spoken by a white schoolteacher to a black student, and so on.

But this obvious category of ethical analysis in the realm of speech acts is too often overlooked by those broadly sympathetic to the idea of religious injury. Speech acts are, of course, always acts. They always do something. But some are more act-like than others; some do what they do more immediately and physically, with much less dependence on the agency of their recipient or target. Most obvious are instances of direct harassment or intimidation. Here, the political concern is first with public space and how it can be transformed into a zone of hostility or menace. Furthermore, it is important here to analyze the different kinds of public space available as sites of speech: schools, walls in ethnic neighborhoods, highway overpasses, bus stops, public squares, etc.

The same act can thus vary wildly, not only in terms of threat and intimidation, but also in terms of political statement, when performed in different spaces. Claiming a common space like a school through hostile speech should be considered a more aggressive act than spray-painting the identical message on a wall. Both are acts of hostility towards a group, but the first goes out of its way to “claim” a space that is not only supposed to be safe and common to all members, but that is also supposed to be dedicated to the mission of advancing inclusion and guaranteeing the acquisition of primary skills and resources. Hate speech towards Jews, Muslims, or African-Americans is vile everywhere, but it is easy to see how it is even worse in schools or Congressional hearing rooms than at lunch counters. Along these lines, for me, the Swiss minaret referendum poster portraying niqabed women and missile-like minarets disrupting the Swiss flag—plastered over walls and bus stops throughout the common public space—was a much more aggressive and hostile form of political speech than, say, the ostensibly more “blasphemous” Satanic Verses or Danish cartoons.

Because of the more physical nature of these kinds of speech, it is probably not as crucial what the subjective content of the utterance is. Whether or not Rushdie’s use of the name “Mahound” in a dream sequence in a postmodern novel is a direct assault on the Prophet Muhammad, spray-painting this over walls in a Muslim neighborhood, or at a school with many Muslim children, is clearly an act of hostility, if not intimidation. Unlike dense novels or obscure right-wing Danish newspapers, this is an act that seeks to force itself into the physical world of a target, giving him or her no choice to ignore it.

Thus, take a blasphemous cartoon in the culture section of a newspaper. It is clear that this kind of physical context could have been less offensive, but also much more so. A cartoon produced by journalists writing for a private paper is clearly much more public than one on an obscure website or in some arcane niche magazine. But in terms of a distinctly public statement, it is clearly less odious than when it was reproduced and worn by an Italian minister on a t-shirt. As a physical act, it is clearly more intrusive and insidious than words which one has to rummage through a novel in a language one understands to find, but far less so than the Swiss minaret poster. Similarly, a threat to burn the Qur’an as a media event on your own private church property is doubtless a less-than-welcome intervention into national and global multi-cultural politics, but it is also slightly less of an affront to public order than would be threatening to do so outside of a mosque after Friday prayers. And so on.

I doubt very much that I am saying anything original or insightful here, and, needless to say, I am not insisting than all pious Muslims adopt the distinctions I am drawing. But the weakness of many arguments, in my opinion, for even voluntary self-restraint in such cases as the Rushdie and Danish cartoon affairs is not that they fail to show why Muslims may have been injured, but that they fail to show why the relationship between the authors of this injury and all persons liable to be injured—all Muslim fellow citizens of a country, all Muslims of Europe, and Muslims anywhere on the globe—commands a generalized ethics of self-restraint.

This is not to say that understanding the ethico-religious imaginaries of our fellow citizens is not a crucial component of responsible citizenship. But it is to say that attaining this understanding does much less work for us than some have suggested. Given the capacity of speech about the Virgin Mary or the Prophet Muhammad to injure, what we need is not an ethos of speaking in public but many such ethoi. Speaking as a novelist, as an artist, as a cartoonist, as a government minister, as a public school teacher, as a candidate for Congress, as a professor at a private university, as a guest in someone’s home or place of worship, as a friend, as a doctor, or as a newspaper editor are all quite different roles, and each will require a different ethics of speech.

What focusing on the possible conflict between secular and religious moral imaginaries fails to advance is this understanding of reasonable ethical obligations arising from how we speak in different contexts of power and moral responsibility. The authors of moral injury are usually not unaware of the capacity of speech to injure. The Danish cartoons were not accidental acts of injury; the protagonists deliberately set out to make a statement about religious attachments (not beliefs) being fair game. Would they have gone after the Prophet Muhammad if they were unaware that this was a soft spot? Exploring the genealogy of some so-called “non-Protestant” religious subject does not actually fill in any gaps in such cases. Thus, what those interested in “fostering greater understanding across lines of religious difference” need to show is not why Muslims are injured by this but not that, but rather why and when not injuring Muslims qua pious religious subjects is a moral desideratum regardless of what other views about the social world we want to express.

4) Muslims, as much as any social group, have a strong interest in robust protections for speech.

Suppose, though, that there is a seriously skewed playing field for European Muslims in the area of offensive speech. Whether anti-Muslim or anti-religious sentiment is to blame for the differential protection of Muslim speech and non-Muslim speech in Europe, instances like the Choudhury case remind us that advocating for more stringent protections for speech (pace Stanley Fish and others who have drunk the oil) is not evidence of some embarrassingly “non-neutral” or civilizationally particularist ideological prejudice, but something in which the religious generally, and Muslim minorities in particular, have a strong interest.

To put it most bluntly: while there is no denying that Muslims and other religious subjects are often injured by speech (whether intentionally and gratuitously or merely as collateral damage from some form of social commentary), there is also no denying that the religious often wish to injure through speech. Two recent cases—the Westboro Baptist Church case in the U.S. and the burning poppy case in the UK—provide timely examples of this. And this, more than any genealogy of the subject (religious or otherwise) or archaic conception of the public/private divide, is what grounds the right to blaspheme or injure the religious: that the religious, too, often wish to injure through speech. We should be consistent and defend their right to do so, limiting ourselves to narrow, restrained, and equitable uses of public order justifications for restrictions on speech (which ought to include harassment, intimidation, and threats).

But beyond the fact that certain fundamental interests shared in equal measure by the religious and the secular generally—what Joshua Cohen has identified as the expressive, deliberative, and informational interests—are secured by stringent protections of expressive liberty, I believe that Muslim minorities in particular have a strong interest in securing a more fundamentalist and formalist culture of defense of free speech. For which community, in present times, is more likely than Muslims to be the victim of courts and legislatures that see political expression as a luxury that can give way to any political or security expediency? It is, above all, Muslim speech that is liable to be labeled dangerous, harmful, and excitable—whether through the widening restrictions on “material support for terrorism” supported by the US Supreme Court in Holder v. Humanitarian Law Project, the shameful manufactured outrage over the Park 51 cultural center, or the Choudhury poppy burning case.

The idea that free speech, even when “abused” to transgress against the sacred (whether secular or religious), is some arbitrary, sectarian value that is unjustified to the religious is a piece of sophistry that masquerades as a defense of an embattled religious minority but, in fact, undermines their long-term interests in Western societies. Of course, we often wish to suppress the speech of others, and, of course, we often believe that some symbols or entities really are sacred and ought not to be violated (unlike those fake idols that others hold sacred). But the fact that people are often unhappy with the protections they get in this or that case proves absolutely nothing. It is a strange exercise in hollow, content-free formalism, which holds up mere disagreement or dissatisfaction as evidence of profound arbitrariness or ideological bias. Of all thriving religious communities in the West, the most pious segments of the Muslim community seem as interested as any and more interested than most in their expressive liberties—to preach Islam (da‘wa), to bear witness to Muslim truths and values, to denounce Western imperialism, to protest against sexual moralities and theories of human origins that they oppose, and to construct new material and virtual moral communities. Some of what issues from these quarters injures me immediately and offends me profoundly. That is exactly as it should be.