Hate Speech Laws and Blasphemy Laws: Parallels Show Problems with the U.N. Strategy and Plan of Action on Hate Speech

Emory International Law Review Emory International Law Review

Volume 35 Issue 2

2021

Hate Speech Laws and Blasphemy Laws: Parallels Show Hate Speech Laws and Blasphemy Laws: Parallels Show

Problems with the U.N. Strategy and Plan of Action on Hate Problems with the U.N. Strategy and Plan of Action on Hate

Speech Speech

Meghan Fischer

Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr

Part of the International Law Commons

Recommended Citation Recommended Citation

Meghan Fischer,

Hate Speech Laws and Blasphemy Laws: Parallels Show Problems with the U.N. Strategy

and Plan of Action on Hate Speech

, 35 Emory Int'l L. Rev. 177 (2021).

Available at: https://scholarlycommons.law.emory.edu/eilr/vol35/iss2/1

This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has

been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly

Commons. For more information, please contact law-scholarly-commons@emory.edu.

FISCHER_3.22.21 3/23/2021 4:02 PM

HATE SPEECH LAWS AND BLASPHEMY LAWS:

PARALLELS SHOW PROBLEMS WITH THE U.N. STRATEGY

AND PLAN OF ACTION ON HATE SPEECH

Meghan Fischer

BSTRACT

In May 2019, the United Nations Secretary-General introduced the U.N.

Strategy and Plan of Action on Hate Speech, an influential campaign that poses

serious risks to religious and political minorities because its definition of hate

speech parallels elements common to blasphemy laws. U.N. human rights

entities have denounced blasphemy laws because they are vague, broad, and

prone to arbitrary enforcement, enabling the authorities to use them to attack

religious minorities, political opponents, and people who have minority

viewpoints. Likewise, the Strategy and Plan of Action’s definition of hate speech

is ambiguous and relies entirely on subjective interpretation, opening the door

to arbitrary and malicious accusations and prosecutions.

The campaign gives cover to countries that want to continue their blasphemy

laws—under the guise of banning hate speech—with the endorsement of the

United Nations. Indeed, examples of enforcement of hate speech laws in

Indonesia, Russia, North Macedonia, and Denmark reveal that countries use

these laws, just as they use blasphemy laws, to punish the expression of minority

viewpoints.

This Article is the first to highlight the dangers posed to religious and

political minorities by the U.N. Strategy and Plan of Action on Hate Speech,

which will only become more influential within the United Nations and across

U.N. Member States the longer it is left unchecked. This Article shows human

rights advocates and Member States that support minority rights why they must

immediately denounce and call for the revocation of the campaign.

Legal Counsel, Global Religious Freedom, ADF International; J.D., Harvard Law School, 2011.

FISCHER_3.22.21 3/23/2021 4:02 PM

178 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

INTRODUCTION

In May 2019, United Nations Secretary-General António Guterres

announced a U.N.-wide campaign called the Strategy and Plan of Action on Hate

Speech.

The Strategy and Plan of Action is significant because it presented the

first-ever definition of hate speech at the international or U.N. level—one that is

vague and overbroad and opens the door wide to abuse, just as blasphemy laws

have done. Blasphemy laws are widely condemned at the United Nations and by

the international human rights community because they ban criticism of

religions, require subjective interpretation, and are prone to arbitrary

enforcement.

These laws are used to punish religious minorities and anyone

who questions or disagrees with the state-sponsored or majority religion, as well

as to suppress political opposition and to silence those who hold minority views.

The definition of hate speech in the Strategy and Plan of Action is vague,

subjective, and vulnerable to manipulation in ways that parallel blasphemy laws.

Indeed, hate speech laws are already being used to prosecute blasphemy and

quash minority viewpoints.

Further, some countries that have welcomed and

encouraged the U.N.’s campaign to combat hate speech have made obvious their

motivations to use hate speech laws similarly to protect religion and religious

feelings.

In the midst of the proliferation around the world of laws targeting

hate speech, the Strategy and Plan of Action is likely to draw serious attention

and impact the development of laws and policies on expression, especially in

countries that look to the United Nations for guidance and funding or that use

U.N. pronouncements as justification for their actions.

This Article serves as a call to U.N. Member States and others who care

about the rights of minorities to oppose the Strategy and Plan of Action on Hate

Speech, as well as to recognize that laws regulating speech require subjective

interpretation and are therefore able to be used to target religious minorities,

political opponents, and people who have minority viewpoints. The Article

examines the application of blasphemy laws in three countries, Indonesia,

Pakistan, and Russia, to illustrate how they restrict criticism of religion and are

United Nations Strategy and Plan of Action on Hate Speech, https://www.un.org/en/

genocideprevention/hate-speech-strategy.shtml. Guterres launched the Strategy and Plan of Action in June 2019.

Secretary-General António Guterres, Remarks at the Launch of the United Nations Strategy and Plan of Action

on Hate Speech (June 18, 2019), https://www.un.org/sg/en/content/sg/speeches/2019-06-18/un-strategy-and-

plan-of-action-hate-speech-remarks.

See infra Part I.B.

See infra Part I.A.

See infra Part II.

See infra Part III.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 179

targeted at people with unpopular or minority viewpoints. To elaborate on these

problems, the Article next presents U.S. Commission on International Religious

Freedom (USCIRF) and U.N. human rights entities’ criticism of blasphemy

laws, including their ambiguous elements and their arbitrary enforcement. It then

introduces the U.N. Strategy and Plan of Action on Hate Speech and evaluates

its definition of hate speech, which has striking parallels to blasphemy laws due

to its vague terms and vulnerability to abuse by biased authorities. The Article

then shows that while U.N. human rights entities have criticized vague and

subjective elements in restrictions on speech, their criticism is insufficient as

they fail to understand that these restrictions by their very nature are open to

abuse, in ways that parallel blasphemy laws. Examples of enforcement of hate

speech laws in Indonesia, Russia, North Macedonia, and Denmark confirm that

these laws are being used to punish the expression of minority viewpoints and

to harm political opponents, in the same ways blasphemy laws are used. Finally,

the Article evaluates the motives of those supporters of the Strategy and Plan of

Action on Hate Speech who are seeking tools comparable in outcome to

blasphemy laws, that is, additional legislative means to squash minority

viewpoints. Altogether, the U.N. Strategy and Plan of Action’s definition of hate

speech, the detailed hate speech cases, and the nefarious motives of certain

proponents of the Strategy and Plan of Action demonstrate that hate speech laws

are vulnerable to manipulation and are unlikely to protect religious, political,

and other minorities. Therefore, the Article concludes that the Strategy and Plan

of Action’s stated intent to protect minorities is misguided and in fact will lead

to further harm.

I. B

LASPHEMY LAWS AND THEIR CONDEMNATION BY THE

UNITED NATIONS

Blasphemy is commonly understood as insulting a religion, religious figure,

deity, or holy book. In 2017, USCIRF surveyed the world’s blasphemy laws,

which it defined as “provisions that sanction insulting or defaming religion and

seek to punish individuals for allegedly offending, insulting, or denigrating

religious doctrines, deities, symbols or ‘the sacred,’ or for wounding or insulting

religious feelings.”

The USCIRF survey found that as of July 2017, sixty-nine countries had

blasphemy laws, spread throughout the world, with 25.7% in the Middle East

and North Africa, 25.7% in Asia-Pacific, 20% in Europe, and 11.5% in the

JOELLE FISS & JOCELYN GETGEN KESTENBAUM, USCIRF, RESPECTING RIGHTS? MEASURING THE

WORLD’S BLASPHEMY LAWS 5 (JULY 2017) [hereinafter USCIRF 2017 BLASPHEMY LAWS SURVEY].

FISCHER_3.22.21 3/23/2021 4:02 PM

180 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Americas.

During coding for the project, Malta and Denmark repealed their

blasphemy laws,

and since publication, Greece,

Ireland,

Canada,

and New

Zealand

have repealed their blasphemy laws, signifying a trend of rejection

among liberal Western nations. Further, many Western nations that do have

blasphemy laws rarely enforce them, if at all.

Yet many governments do

enforce their blasphemy laws, most commonly to the detriment of religious

minorities, political opponents, and people with minority viewpoints.

Indonesia, Pakistan, and Russia each have enforced their blasphemy laws in

ways that cause serious harm to minorities. Cases from these countries,

presented next in Part I.A, exemplify the problems that the USCIRF survey

identified as common to blasphemy laws, which are detailed in Part I.B. United

Nations human rights entities, such as Special Rapporteurs and the Human

Rights Committee, have strongly rejected blasphemy laws, and their criticisms

are detailed in Part I.B alongside the corresponding USCIRF criticisms.

A. The Application of Blasphemy Laws

1. Indonesia

Indonesia’s blasphemy law, Article 156(a) of the Criminal Code, provides

for a punishment of up to five years’ imprisonment for the deliberate public

expression of feelings or commission of an act “a) which principally have the

character of being at enmity with, abusing or staining a religion, adhered to in

The report analyzes seventy-one countries’ blasphemy laws, but both Malta and Denmark had repealed

their blasphemy laws by the time of the publication of the report. Id. at 5.

Id.

Blasphemy to be Abolished in Greece Under New Criminal Code, HUMANISTS UK (June 17, 2019),

https://humanism.org.uk/2019/06/17/blasphemy-to-be-abolished-in-greece-under-new-criminal-code/.

Emma Graham-Harrison, Ireland Votes to Oust ‘Medieval’ Blasphemy Law, GUARDIAN (Oct. 27,

2018), https://www.theguardian.com/world/2018/oct/27/ireland-votes-to-oust-blasphemy-ban-from-constitution.

Ireland is the first country to have repealed its blasphemy law by referendum. Ireland, END BLASPHEMY LAWS,

https://end-blasphemy-laws.org/countries/europe/ireland/ (last updated July 14, 2020).

Canada Repeals Blasphemy Law, BC HUMANIST ASS’N (Dec. 11, 2018), https://www.bchumanist.ca/

canada_repeals_blasphemy_law.

Hon. Andrew Little, Blasphemous Liberal Law Repealed, NEW ZEALAND GOVERNMENT: RELEASES

(Mar. 5, 2009), https://www.beehive.govt.nz/release/blasphemous-libel-law-repealed.

The USCIRF survey only considered the laws as written, not as applied, and did not consider how often

they are applied, if at all. Blasphemy laws that are never enforced are nevertheless problematic and should be

repealed. “Dead letter” blasphemy laws can be resurrected if public opinion or political will changes. Further,

the mere existence of such laws lends credence to the idea that speech critical of religion should be prohibited.

These laws also legitimize blasphemy laws enforced in other countries. What’s Wrong With Blasphemy Laws?,

HUMANISTS INT’L: END BLASPHEMY LAWS, https://end-blasphemy-laws.org/whats-wrong-with-blasphemy-

laws.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 181

Indonesia; b) with the intention to prevent a person to adhere to any religion

based on the belief of the almighty God.”

Indonesia recognizes six religions:

Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism.

As radical Islamic groups have gained support and Indonesia’s tradition of

religious pluralism has waned, any teachings perceived as contrary to Islam

expose religious minorities to prosecution.

Human Rights Watch estimated in

October 2018 that there had been twenty-three convictions for blasphemy since

current President Joko Widodo took office in 2014, including six up to that point

in 2018, and 125 during the 2004–2014 presidency of Susilo Bambang

Yudhoyono.

Only one person charged with blasphemy has ever been

acquitted.

Christians, Shiite Muslims, Ahmadi Muslims, and Gafatar followers

are particularly vulnerable.

One of the most prominent blasphemy cases in the world, given the political

position of the defendant, the egregiousness of the charges, and the presence of

doctored evidence, is that of the ethnic Chinese and Christian former governor

of Jakarta, Basuki Tjahaja Purnama, known by the nickname Ahok. At a

campaign rally in September 2016, Ahok said to his Muslim supporters that a

verse in the Quran was being used to encourage Muslims not to vote for him.

Footage of the speech was heavily edited to make it look as if Ahok had been

disparaging the Quran.

Protests against Ahok drew hundreds of thousands of

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 54.

However, in 2017, the Indonesian Constitutional Court ruled for the first time that Indonesian citizens

could identify as followers of native faiths. Devina Heriyanto, Q&A: Indonesia’s Native Faiths and Religions,

JAKARTA POST (Nov. 14, 2017), https://www.thejakartapost.com/academia/2017/11/14/qa-indonesias-native-

faiths-and-religions.html.

See CHRISTIAN SOLIDARITY WORLDWIDE, INDONESIA: VISIT REPORT 10–23 MAY 2017, at 3 (2017)

https://www.csw.org.uk/2017/07/31/report/3648/article.htm; CHRISTIAN SOLIDARITY WORLDWIDE, INDONESIA:

PLURALISM IN PERIL 8–9 (2014), https://www.csw.org.uk/2014/02/14/report/179/article.htm [hereinafter

INDONESIA: PLURALISM IN PERIL].

Andreas Harsono, The Human Cost of Indonesia’s Blasphemy Law, HUM. RTS. WATCH (Oct. 25, 2018),

https://www.hrw.org/news/2018/10/25/human-cost-indonesias-blasphemy-law.

Kate Lamb, Jakarta’s Christian Governor to Face Blasphemy Trial Over Islam Insult Claim,

GUARDIAN (Nov. 16, 2016), https://www.theguardian.com/world/2016/nov/16/jakarta-christian-governor-to-

face-blasphemy-trial-over-islam-insult-claim.

INDONESIA: PLURALISM IN PERIL, supra note 16, at 83.

Public Prosecutor v. Basuki Tjahaja Purnama aka “Ahok,” COLUM. GLOB. FREEDOM EXPRESSION

(May 19, 2017) https://globalfreedomofexpression.columbia.edu/cases/public-prosecutor-v-basuki-tjahaja-purnama-

aka-ahok.

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

182 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Muslims,

and he was arrested for blasphemy and defaming Muslim leaders,

which is prohibited by Article 156.

At trial, members of the hardline Islam Defenders Front and the Anti-

blasphemy Forum spoke against Ahok.

Meanwhile, Ahok and several other

witnesses testified about his positive relationships with Muslims, from his

Muslim schooling to his Muslim friends to the pro-Muslim programs he

implemented as governor.

The prosecutors eventually dropped the blasphemy

charge due to lack of evidence, but the court nevertheless unanimously

determined in May 2017 that he had indeed committed blasphemy under Article

156(a) of the Criminal Code.

Prosecutors asked for a one-year sentence but the

court sentenced him to two years’ imprisonment, with the judge saying, “The

defendant feels no remorse. His action caused unrest, ‘hurt’ Islam and divided

Muslims and groups.’”

Gafatar, or Gerakan Fajar Nusantara, a religious group founded in 2012 that

takes its teachings from Islam, Christianity, and Judaism, has been a prominent

victim of the blasphemy law in recent years.

The Gafatar leader considers

himself a messiah and a prophet deserving the worship of the religion’s

followers, who often leave behind their families and join Gafatar communities,

prompting family members to report them missing and to retaliate against the

communities.

There have been attacks against Gafatar followers and looting

and destruction of their property, especially in January 2016.

Gafatar is

considered to be a reintroduction of another religious movement that had been

banned officially a decade earlier.

Because Gafatar is not one of Indonesia’s

official religions, its teachings are considered deviant.

Kathy Quiano & James Griffiths, Indonesia: 200,000 Protest Christian Governor of Jakarta, CNN

(Dec. 2, 2016), https://www.cnn.com/2016/12/02/asia/jakarta-indonesia-protest-ahok/index.html.

COLUM. GLOB. FREEDOM EXPRESSION, supra note 20, at 1.

Id.

Indonesia: Persecution of Gafatar Religious Group, HUM. RTS. WATCH (Mar. 29, 2016), https://www.

hrw.org/news/2016/03/29/indonesia-persecution-gafatar-religious-group.

Jewel Topsfield & Amilia Rosa, Indonesia Cracks Down on ‘Deviant Sect’ Gafatar After Village

Burned Down by Mob, SYDNEY MORNING HERALD (Jan. 26, 2016), https://www.smh.com.au/world/indonesia-

cracks-down-on-deviant-sect-gafatar-after-village-burned-down-by-mob-20160125-gmdj11.html.

Marguerite Afra Sapiie, Gafatar is Heretical: MUI, JAKARTA POST (Feb. 3, 2016), https://www.

thejakartapost.com/news/2016/02/03/gafatar-heretical-mui.html; Indonesia: Persecution of Gafatar Religious

Group, supra note 28.

Ainur Rohmah, Indonesia: Leaders of ‘Deviant’ Religious Group Jailed, ANADOLU AGENCY (Mar. 7,

2017), https://www.aa.com.tr/en/asia-pacific/indonesia-leaders-of-deviant-religious-group-jailed/765891.

Topsfield & Rosa, supra note 29. The Indonesia Ulema Council, the country’s top Muslim clerical

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 183

Due to these allegedly deviant teachings, its founder, president, and vice-

president were arrested in May 2016 on charges of blasphemy under Article

156(a) of the Criminal Code.

In March 2017, a Jakarta court sentenced two

leaders to five years in prison, and a third to three years.

The judge claimed the

trial proved the men “tarnished one of the religions in Indonesia deliberately in

public[.]”

Several new blasphemy cases arose in 2019.

Meanwhile, Indonesia is set

to increase the scope of its blasphemy law to cover several more elements,

including: “defaming a religion, persuading someone to be a non-believer,

disturbing a religious ritual or making noise near a house of worship, and

insulting a cleric while leading a ritual,” as well as “stealing religious artifacts

and damaging a house of worship,” both of which are already criminal

offenses.

2. Pakistan

Pakistan, which has Islam as its official state religion,

is perhaps the most

notorious country in the world for enforcing blasphemy laws, especially given

recent cases that have received significant media attention.

Although ninety-

six percent of its 210.8 million people are Muslim, there is a significant number

of religious minorities.

Those identifying as Shia constitute fifteen to twenty

percent of the Muslim population,

and as estimated by the government in 2014,

there are 1.4 million Hindus, 1.3 million Christians, 126,000 Ahmadis, 34,000

body, issued a fatwa in February 2016 stating that Gafatar is heretical and not consistent with Islam, and

accordingly that any persons considering themselves Muslim involved in the movement should repent and leave.

Sapiie, supra note 30.

Indonesia: Blasphemy Sentences are an Injustice that Must be Reversed, AMNESTY INT’L (Mar. 7,

2017), https://www.amnesty.org/en/latest/news/2017/03/indonesia-blasphemy-sentences-are-an-injustice-that-

must-be-reversed.

Rohmah, supra note 31.

Id.

Andreas Harsono, Indonesian Woman Tried for Blasphemy Over Mosque Incident, HUM. RTS. WATCH

(Oct. 11, 2019), https://www.hrw.org/news/2019/10/11/indonesian-woman-tried-blasphemy-over-mosque-incident.

Andreas Harsono, Indonesia to Expand Abusive Blasphemy Law, HUM. RTS. WATCH (Oct. 31, 2019),

https://www.hrw.org/news/2019/10/31/indonesia-expand-abusive-blasphemy-law.

PAKISTAN CONST. art. 2.

See, e.g., Salman Masood, American Accused of Blasphemy is Killed in Pakistan Courtroom, N.Y.

TIMES (July 30, 2020), https://www.nytimes.com/2020/07/30/world/asia/pakistan-blasphemy-killing-american.

html; Shumaila Jaffery, Asia Bibi: Pakistan’s Notorious Blasphemy Case, BBC (Feb. 1, 2019), https://www.bbc.

co.uk/news/resources/idt-sh/Asia_Bibi.

U.S. DEP’T OF STATE, PAKISTAN 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT 3–4 (2020),

https://www.state.gov/reports/2019-report-on-international-religious-freedom/pakistan/ [hereinafter DOS 2019

PAKISTAN IRFR].

Id. at 4. These numbers are considered by these minorities to be deliberately underestimated. Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

184 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Bahai’is, 6,000 Sikhs, and 4,000 Parsis.

In 2018 and 2019, Pakistan was

designated as a “Country of Particular Concern” by the United States

Department of State due to deteriorating religious freedom conditions, including

its enforcement of its blasphemy laws.

The Centre for Social Justice reported that from 1987 to 2017 there were

1,549 cases of blasphemy against Muhammad or desecration of the Quran: 720

accused were Muslim; 516 Ahmadi, whom Pakistan considers non-Muslims;

238 Christian; 31 Hindu; and 44 unknown.

The National Commission for

Justice and Peace, a Pakistani Non-governmental Organization (NGO),

estimates similar numbers.

Seventy-five people in those cases were killed by

the police or by mobs.

From January to December 2018, there were eighteen

new blasphemy cases, most of them in the Punjab province, according to the

Pakistan Human Rights Commission.

USCIRF reported in its 2020 annual

report that it knew of at least forty individuals at the time serving life sentences

or sentenced to death for blasphemy.

The U.S. Department of State reported in

its 2019 International Religious Freedom Report that at least eighty-four people

were imprisoned on blasphemy charges at the time.

Many of Pakistan’s blasphemy cases are founded on false allegations or

allegations with no evidence and with consistent denial by the accused of

wrongdoing.

Blasphemy allegations frequently lead to mob violence, and

many never go to court because mobs kill or seriously injure the accused,

U.S. DEP’T OF STATE, PAKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT 4 (2019),

https://www.state.gov/reports/2018-report-on-international-religious-freedom/pakistan/.

Press Statement, Michael R. Pompeo, U.S. Sec’y of State, United States Takes Action Against

Violators of Religious Freedom (Dec. 20, 2019), https://www.state.gov/united-states-takes-action-against-

violators-of-religious-freedom; Pakistan Joins US List of Worst Religious Freedom Violators, WORLD WATCH

MONITOR (Dec. 13, 2018), https://www.worldwatchmonitor.org/2018/12/pakistan-joins-us-list-of-worst-religious-

freedom-violators.

Jaffery, supra note 39.

Long Read: The Forgotten Faces and Hidden History of Pakistan’s Blasphemy Laws, FREEDOM OF

RELIGION OR BELIEF IN FULL: A BLOG BY CSW (Sept. 18, 2019), https://forbinfull.org/2019/09/18/long-read-

the-forgotten-faces-and-hidden-history-of-pakistans-blasphemy-laws [hereinafter Long Read].

Jaffery, supra note 39.

HUM. RTS. COMM’N OF PAK., STATE OF HUMAN RIGHTS IN 2018 71 (2019), http://hrcp-web.org/

hrcpweb/wp-content/uploads/2019/04/State-of-Human-Rights-in-2018-English-1.pdf [hereinafter HUM. RTS.

COMM’N PAK.].

U.S. COMM’N. ON INT’L. RELIGIOUS FREEDOM, 2020 ANNUAL REPORT 32 (2020) https://www.uscirf.

gov/publications/2020-annual-report [hereinafter USCIRF 2020 ANNUAL REPORT].

DOS 2019 PAKISTAN IRFR, supra note 40, at 10.

See generally Pakistan: Accusations of Blasphemy Continue to Endanger Lives, AMNESTY INT’L (Aug.

25, 2020), https://www.amnesty.org/en/latest/news/2020/08/accusations-of-blasphemy-in-pakistan-continue-to-

endanger-lives/.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 185

whether the allegations were true or not.

One blasphemy defendant was shot

dead in the courtroom during his blasphemy hearing in July 2020.

Lawyers

and judges handling blasphemy cases are often threatened by extremists.

Further, seventy-five percent of respondents in Pakistan hold the view that

“blasphemy laws are necessary to protect Islam in our country.”

Only six

percent believe that “blasphemy laws unfairly target minority communities.”

Pakistan has a number of broad and easily manipulable provisions

criminalizing various types of blasphemy, including but not limited to

“outraging” or “wounding” “religious feelings” by “insulting” religions or

religious beliefs and using “derogatory remarks,” whether intentional or not,

toward Islam’s Prophet Muhammad.

Possible punishments include life

imprisonment or even death.

In November 2010, Asia Bibi became the first woman in Pakistan to be

sentenced to death for blasphemy when she was convicted of insulting Islam’s

Prophet Muhammad under Section 295-C of the Penal Code.

In June 2009, she

USCIRF 2020 ANNUAL REPORT, supra note 48, at 33; HUM. RTS. COMM’N PAK., supra note 47, at 42;

Long Read, supra note 45.

Masood, supra note 39.

HUM. RTS. COMM’N PAK., supra note 47, at 42.

PEW RSCH CTR., THE WORLD’S MUSLIMS: RELIGION, POLITICS AND SOCIETY 199 (2013),

https://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society-overview.

Id.

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 75–76. Relevant provisions read in full:

295-A [Deliberate and malicious acts intended to outrage religious feelings of any class by

insulting its religion or religious beliefs]

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class

of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults

the religion or the religious beliefs of that class, shall be punished with imprisonment of either

description for a term which may extend to ten years, or with fine, or with both. . . .

295-C [Use of derogatory remarks, etc., in respect of the Holy Prophet]

Whoever by words, either spoken or written, or by visible representation or by any imputation,

innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet

Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall

also be liable to fine.

298 [Uttering words, etc., with deliberate intent to wound religious feelings]

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters

any word or makes any sound in the hearing of that person or makes any gesture in the sight of

that person or places any object in the sight of that person, shall be punished with imprisonment

of either description for a term which may extend to one year or with fine, or with both.

Id.

More Than Six Months After Acquittal, Asia Bibi Finally Allowed to Leave Pakistan, MORNING STAR

NEWS (May 8, 2019), https://morningstarnews.org/2019/05/more-than-six-months-after-acquittal-asia-bibi-

FISCHER_3.22.21 3/23/2021 4:02 PM

186 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

was working as a farm laborer when she took a drink of water before giving it

to her Muslim co-laborers.

The women became angry because they considered

it unclean for a non-Muslim to share with Muslims and an argument ensued.

The women said that Bibi spoke offensively about the Prophet Muhammad.

village cleric accused her of blasphemy and she was beaten by a mob.

She

allegedly confessed to blasphemy while being beaten, but there was no evidence

Bibi said or did anything that could conceivably fall within the blasphemy law.

Her trial sparked violence, and two government officials who defended her and

called for revision of the blasphemy laws were murdered.

In October 2018, the Supreme Court of Pakistan acquitted Bibi due to lack

of evidence, prompting immediate protests that she be put to death.

After eight

years on death row she was taken to Karachi and kept in hiding until she was

able to escape to Canada in May 2019.

Bibi’s story received widespread media attention, especially beginning in

2011, after Salman Taseer, the governor of the Punjab province, Pakistan’s

largest, was murdered for defending Bibi and pursuing a presidential pardon for

her.

Shortly thereafter, Shahbaz Bhatti, a Christian member of the Prime

Minister’s Cabinet who advocated for an end to blasphemy laws, was

murdered.

Christian organizations and human rights NGOs advocated for her

release and pressured the government of Pakistan, especially through media and

signature campaigns, creating an international spotlight on the tangible harms of

blasphemy laws.

finally-allowed-to-leave-pakistan [hereinafter More Than Six Months After Acquittal]; Jaffery, supra note 39.

More Than Six Months After Acquittal, supra note 58.

Id.

Jaffery, supra note 39.

More Than Six Months After Acquittal, supra note 58.

Id.

Jaffery, supra note 39.

More Than Six Months After Acquittal, supra note 58.

‘I am in my home with my kids’: Asia Bibi Speaks out About Her New Life in Canada, GLOB. NEWS

(Aug. 6, 2020), https://globalnews.ca/news/7251880/asia-bibi-canada-interview; Diaa Hadid, Pakistan’s High

Court Acquits Asia Bibi, Christian Woman On Death Row For Blasphemy, NPR (Oct. 31, 2018), https://www.

npr.org/2018/10/31/662417349/pakistan-acquits-asia-bibi-christian-woman-on-death-row-for-blasphemy.

‘I am in my home with my kids’: Asia Bibi speaks out about her new life in Canada, supra note 67;

Hadid, supra note 67.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 187

3. Russia

It is not just Muslim-majority countries that have blasphemy laws. Russia,

which is sixty-five percent Russian Orthodox Christian and seven percent

Muslim, with varying estimates of the number of Protestants and Roman

Catholics,

has increasingly restricted the freedom of religion of religious

minorities. Although officially secular, the government has a close relationship

with the Russian Orthodox Church and has passed several laws that aim to

protect the Church.

The U.S. Department of State has placed Russia on a

Special Watch List for its “severe violations of religious freedom,”

and

USCIRF considers Russia to be among the worst religious freedom violators,

placing it on its Tier 1 list of Countries of Particular Concern.

Russia enacted a law in 2013 in response to the punk rock group Pussy Riot’s

performance of an obscene song in the largest Russian Orthodox church.

The

band’s members were convicted of a different offense, “hooliganism,” in a trial

that garnered international attention.

Blasphemy was already a civil offense,

but the 2013 amendment to Article 148 of the Criminal Code criminalized

“[p]ublic actions expressing overt disrespect for society and committed for the

purpose of offending the religious feelings of believers,” with possible

punishments including compulsory labor or imprisonment for up to three

years.

The law has led to widespread self-censorship by the media, such as avoiding

reporting on activities that portray the Russian Orthodox Church in a negative

U.S. DEP’T OF STATE, RUSSIA 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT 3 (2020),

https://www.state.gov/reports/2019-report-on-international-religious-freedom/russia/ [hereinafter DOS 2019

RUSSIA IRFR]; Kremlin Official Says Protestantism Among Russia’s Traditional Religions, RFE/RL (Oct. 31,

2017), https://www.rferl.org/a/russia-protestantism-traditional-religion-kiriyenko/28826783.html; Oksana

Kuropatkina, Protestants in Russia: An Active Minority, NEW EASTERN EUROPE (Oct. 12, 2017), https://

neweasterneurope.eu/2017/10/12/protestants-russia-active-minority.

Paul Coyer, Un(Holy Alliance): Vladimir Putin, the Russian Orthodox Church and Russian

Exceptionalism, FORBES (May 21, 2015), https://www.forbes.com/sites/paulcoyer/2015/05/21/unholy-alliance-

vladimir-putin-and-the-russian-orthodox-church/?sh=b23bbb27d5b5. See generally Russia Archives at Forum

18, http://www.forum18.org/archive.php?country=10 for archived news.

Press Statement, Michael R. Pompeo, supra note 43.

USCIRF 2020 ANNUAL REPORT, supra note 48, at 80.

Pussy Riot v. Russia, COLUM. GLOB. FREEDOM EXPRESSION (Aug. 17, 2012), https://

globalfreedomofexpression.columbia.edu/cases/pussy-riot-vs-russia/; Ekaterina Buchneva, Index on

Censorship, Russia: Blasphemy Law Has Aided the Growth of Religious Censorship, INDEX (Nov. 13, 2015),

https://www.indexoncensorship.org/2015/11/blasphemy-law-has-resulted-in-growth-of-religious-censorship-

in-russia.

Pussy Riot v. Russia, supra note 74.

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 84–85.

FISCHER_3.22.21 3/23/2021 4:02 PM

188 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

light, avoiding the depiction of non-Orthodox religious symbols, and avoiding

the use of euphemisms that involve religious terms.

There have been numerous

criminal cases under the law, with convictions resulting in fines and suspended

sentences.

The first criminal blasphemy case was against Viktor Krasnov in 2014 after

he wrote on social media that “God doesn’t exist.”

Two men filed a complaint

with the authorities, leading to a charge against Krasnov of “insulting religious

[] feelings.”

Krasnov lost his business after authorities seized his work laptop

and placed him in a mental institution after a judge determined that a sane person

would not insult the Orthodox Church.

In February 2017, the charges were

dropped after the statute of limitations ran out.

Krasnov’s lawyer believes that

the two alleged victims, who apparently testified in court about their

religiosity—after being forced to appear against their will—were part of a

government plan to garner convictions under the new law.

Russian NGO SOVA Center for Information and Analysis regularly reports

on cases under Article 148(1),

including the case of anarchist Dmitry Litvin,

who in September 2019 was found guilty by an Irkutsk magistrate court of

“insulting the feelings of believers” for posting an “anti-Christian meme[] . . . –

an image of an indecent gesture with a church on the background.”

The court

sentenced him to 100 hours of community service, but due to the statute of

limitations released him from his sentence.

In another case, in May 2017 a

district court in Belgorod sentenced a twenty-two-year-old woman to a fine of

15,000 rubles for posting on social media various photographs, including some

of her “lighting up a cigarette from a candle in an Orthodox church.”

Another

Buchneva, supra note 74.

USCIRF 2020 ANNUAL REPORT, supra note 48, at 85.

Daria Litvinova, Like, Share, Convict: Russian Authorities Target Social Media Users, MOSCOW TIMES

(Mar. 10, 2016), https://www.themoscowtimes.com/2016/03/10/like-share-convict-russian-authorities-target-

social-media-users-a52114.

Id.

Carl Schreck, Holy Slight: How Russia Prosecutes for ‘Insulting Religious Feelings’, RADIO FREE EUR.

RADIO LIBERTY (Aug. 15, 2017), https://www.rferl.org/a/russia-prosecuting-insults-to-religious-feelings/2867

8284.html.

Litvinova, supra note 79.

For several posts mentioning Article 148, see SOVA CTR. FOR INFO. & ANALYSIS, https://www.sova-

center.ru/en/ (search entire site field for “article 148”).

Misuse of Anti-Extremism in September 2019, SOVA CTR. FOR INFO. & ANALYSIS (Oct. 10, 2019),

https://www.sova-center.ru/en/misuse/news-releases/2019/10/d41559.

Id.

Maria Kravchenko, Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2017, SOVA

CTR. FOR INFO. & ANALYSIS (Apr. 24, 2018), https://www.sova-center.ru/en/misuse/reports-analyses/2018/04/

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 189

guilty verdict involved twenty-year-old Anton Ushachev, who wrote “insulting

graffiti” on a church fence.

Even though the church said it was “just nastiness,”

rather than a serious crime, a city court in Tatarstan sentenced him to 320 hours

of community service because he acted “with the purpose of insulting the

religious feelings of believers,” as well as for vandalism under Article 214(1) of

the Criminal Code.

As he had spent more than six months in custody, he did

not have to serve the sentence.

These blasphemy prosecutions reveal the Russian government’s attempts, at

various levels, to protect the Russian Orthodox Church, the de facto state church,

from any criticism and to suppress any secularist protests.

B. United Nations Condemnation of Blasphemy Laws

Blasphemy laws unambiguously violate Article 18 on freedom of religion

and Article 19 on freedom of expression of the International Covenant on Civil

and Political Rights (ICCPR), which U.N. human rights officials and entities

have emphasized in strong terms. The right to freedom of religion necessitates

freedom of expression,

given that a fundamental component of the freedom of

religion is the “freedom, either individually or in community with others and in

public or private, to manifest [one’s] religion or belief in worship, observance,

practice and teaching.”

This includes being able, both privately and publicly,

to evaluate, question, and criticize other faiths’ truth claims and teachings, as

well as their leaders, deities, and prophets.

Blasphemy laws inherently restrict this fundamental freedom. The USCIRF

project canvassed blasphemy laws from seventy-one countries and found that all

deviate from international law on freedom of expression.

Ninety-four percent

of these States “criminaliz[e] the expression of opinions that may be counter to

d39253.

Maria Kravchenko, Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2018, SOVA

CTR. FOR INFO. & ANALYSIS (Apr. 24, 2019), https://www.sova-center.ru/en/misuse/reports-analyses/2019/04/

d40937.

Id.

See Ahmed Shaheed (Special Rapporteur on Freedom of Religion or Belief), Rep. of the Special

Rapporteur on Freedom of Religion or Belief, U.N. Doc. A/HRC/40/58 (Mar. 5, 2019) [hereinafter Shaheed,

2019 Report]; Heiner Bielefeldt (Special Rapporteur on Freedom of Religion or Belief), Report of the Special

Rapporteur on Freedom of Religion or Belief, U.N. Doc. A/HRC/31/18 (Dec. 23, 2015) [hereinafter Bielefeldt,

2015 Report].

International Covenant on Civil and Political Rights (ICCPR) Art. 18(1), opened for signature Dec.

19, 1966, 999 U.N.T.S. 171.

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 17.

FISCHER_3.22.21 3/23/2021 4:02 PM

190 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

a religion or belief” and the laws in ninety-two percent of these States could

“impede on religious discourse.”

In criticizing blasphemy laws, Frank La Rue,

former U.N. Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression, emphasized that the right to freedom of

religion does “not include the right to have a religion or belief that is free from

criticism or ridicule.”

Rather, “the right to freedom of expression includes the

right to scrutinize, debate openly, make statements that offend, shock and

disturb, and criticize belief systems, opinions and institutions, including

religious ones[.]”

Blasphemy laws impermissibly restrict the subject matter of speech. Special

Rapporteur on Freedom of Religion or Belief Ahmed Shaheed has framed

blasphemy laws as “giv[ing] States licence to determine which conversations on

religion are admissible and which ones are too controversial to be voiced.”

The

Human Rights Committee, the body charged with monitoring States’

implementation of ICCPR, emphasized in General Comment No. 34 on the

interpretation of Article 19 that “blasphemy laws[] are incompatible with the

Covenant” when they are “used to prevent or punish criticism of religious

leaders or commentary on religious doctrine and tenets of faith.”

The

Committee has told individual States, both Western and non-Western, in their

concluding observations to repeal blasphemy laws, such as with Ireland in

Id. at 23. The coders determined that only two States’ laws, Germany and Israel, permissibly limited

expression under international law standards. Id. This is presumably because they limit certain expression related

to the Holocaust.

Frank La Rue (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion

and Expression), Rep. of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of

Opinion and Expression, ¶ 53, U.N. Doc. A/67/357 (Sept. 7, 2012) [hereinafter La Rue, 2012 Report].

Id.

Ahmed Shaheed (Special Rapporteur on Freedom of Religion or Belief), Interim Report of the Special

Rapporteur on Freedom of Religion or Belief, ¶ 28, U.N. Doc. A/72/365 (Aug. 28, 2017).

U.N. Hum. Rts. Comm., General Comment No. 34: Article 19: Freedoms of Opinion and Expression,

¶ 48, U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011).

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 191

2014,

Kuwait in 2016,

100

Italy in 2017,

101

Pakistan in 2017,

102

Bahrain in

2018,

103

Lebanon in 2018,

104

and Mauritania in 2019.

105

Another trend the USCIRF survey identified is that blasphemy laws “contain

ambiguous or indefinite language and often fail[] to specify intent, enumerate

the acts prohibited, or place limits on the forum for prohibited acts.”

106

La Rue

called them “inherently vague” and “open to abuse.”

107

This ambiguity allows

for subjective interpretation, dependent on personal beliefs, religious views, and

cultural norms, of what constitutes blasphemy. Former Special Rapporteur on

Freedom of Religion or Belief Heiner Bielefeldt, in calling for the repeal of

blasphemy laws,

108

recognized this concern: “[s]ubjective feelings of

offensiveness [] should never guide legislative action, court decisions or other

State activities.”

109

This ambiguity also opens the door to abuse because authorities can impose

any interpretation of what constitutes blasphemy on the accused. No country

except for Canada, which has since repealed its blasphemy law, met USCIRF’s

requirements for adequate “statutory language limiting the governmental

authority’s ability to interpret the meaning of the word ‘blasphemy.’”

110

In other

words, every country that currently has a blasphemy law gives leeway to the

authorities to determine what constitutes blasphemy. This is inherently arbitrary

and leads to abuse in many ways. Authorities can choose to favor a particular

belief system, to appease potential voters, or to attack political opponents.

U.N. Hum. Rts. Comm., Concluding Observations on the Fourth Periodic Report of Ireland, ¶ 22, U.N.

Doc. CCPR/C/IRL/CO/4 (Aug. 19, 2014).

100

U.N. Hum. Rts. Comm., Concluding Observations on the Third Periodic Report of Kuwait, ¶¶ 38–41,

U.N. Doc. CCPR/C/KWT/CO/3 (Aug. 11, 2016).

101

U.N. Hum. Rts. Comm., Concluding Observations on the Sixth Periodic Report of Italy, ¶¶ 38–39 U.N.

Doc. CCPR/C/ITA/CO/6 (May 1, 2017).

102

U.N. Hum. Rts. Comm., Concluding Observations on the Initial Report of Pakistan, ¶¶ 33–34, U.N.

Doc. CCPR/C/PAK/CO/1 (Aug. 23, 2017) [hereinafter Concluding Observations on the Initial Report of

Pakistan].

103

U.N. Hum. Rts. Comm., Concluding Observations on the Initial Report of Bahrain, ¶¶ 51–54, U.N.

Doc. CCPR/C/BHR/CO/1 (Nov. 15, 2018).

104

U.N. Hum. Rts. Comm., Concluding Observations on the Third Periodic Report of Lebanon, ¶¶ 45–

46, U.N. Doc. CCPR/C/LBN/CO/3 (May 9, 2018).

105

U.N. Hum. Rts. Comm., Concluding Observations on the Second Periodic Report of Mauritania,

¶¶ 42–43, U.N. Doc. CCPR/C/MRT/CO/2 (Aug. 23, 2019).

106

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 24.

107

La Rue, 2012 Report, supra note 95, ¶ 53.

108

Bielefeldt, 2015 Report, supra note 91, ¶ 84.

109

Id. ¶ 61.

110

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 24.

FISCHER_3.22.21 3/23/2021 4:02 PM

192 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Blasphemy laws do not have a requirement of tangible harm that would

provide even a limited check on malicious, arbitrary, or even fabricated

prosecutions, like that of Asia Bibi of Pakistan or of Ahok of Jakarta. Because

there is no need for evidence of tangible harm, people often allege blasphemy to

settle scores with neighbors over property disputes or to avenge their families, a

common problem that the Supreme Court of Pakistan acknowledged in October

2015 and Amnesty International detailed in a 2016 report on blasphemy cases in

Pakistan.

111

Moreover, blasphemy laws provide cover to religious extremists

who wish to attack anyone who does not follow the majority religion. This

ultimately weakens any religious harmony supporters of blasphemy laws argue

the laws promote.

In banning the criticism of religions, religious leaders, and religious

doctrines, blasphemy laws represent an attempt to give rights to religions and

ideas, but the premise of the human rights project is that it is humans who have

rights. The Universal Declaration of Human Rights, the first universal

articulation of human rights after the formation of the United Nations,

recognizes that “the foundation of freedom, justice and peace in the world” is

the “recognition of the inherent dignity and of the equal and inalienable rights

of all members of the human family.”

112

Ahmed Shaheed, Special Rapporteur on

Freedom of Religion or Belief, stated that blasphemy laws are used “to uphold

State-sponsored religion or truth claims (existing even in States that do not

formally identify with one religion).”

113

Instead of protecting individuals, they

“target political dissidents, humanists, non-believers or any religious thinker

who expresses different theological views than the State-sponsored religion.”

114

Shaheed unequivocally called for their repeal “as a matter of priority.”

115

Finally, many blasphemy laws lack a requirement of mens rea, or intent, on

the part of the wrongdoer to commit the supposed wrong.

116

In 2017, USCIRF

found that only thirty-four percent of countries with criminal blasphemy laws

require this element.

117

Shaheed pointed out that blasphemy is usually a “strict

111

AMNESTY INT’L, “AS GOOD AS DEAD”: THE IMPACT OF BLASPHEMY LAWS IN PAKISTAN 9 (2016).

112

G.A. Res. 217 (III) A, preamble, Universal Declaration of Human Rights (Dec. 10, 1948) (emphasis

added).

113

Ahmed Shaheed (Special Rapporteur on Freedom of Religion or Belief), Report of the Special

Rapporteur on Freedom of Religion or Belief, ¶ 83, U.N. Doc. A/HRC/37/49 (Feb. 28, 2018).

114

Id.

115

Id.

116

See generally USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 24; Ahmed Shaheed (Special

Rapporteur on Freedom of Religion or Belief), Report of the Special Rapporteur on Freedom of Religion or

Belief, ¶ 40, U.N. Doc. A/HRC/34/50 (Jan. 17, 2017) [hereinafter Shaheed, 2017 Report].

117

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 24.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 193

liability offence[,]” meaning there is no requirement of intent.

118

Laws without

a mens rea requirement can be arbitrarily applied, including punishment of

expression that is merely perceived, rather than intended, as blasphemy, making

baseless and malicious prosecution easier. However, the inclusion of intent in

blasphemy laws does not negate the fact that they impermissibly restrict freedom

of expression and freedom of religion for the other reasons outlined above.

Regardless of whether they require intent, blasphemy laws violate human rights.

In summary, USCIRF and U.N. human rights entities have recognized that

blasphemy laws’ restrictions on the rights to freedom of expression and freedom

of religion are impermissible for several reasons as they:

 restrict the subject matter of speech, including criticism of religions;

 are ambiguous and therefore give authorities the power to determine

which expressions are blasphemous, which allows them to target

religious minorities, political opponents, and those with minority

viewpoints;

 require no tangible harm, thereby enabling false accusations that

cannot be disproven;

 protect religions and beliefs rather than individuals; and

 punish expression no matter the intent of the speaker.

C. Advocacy at the United Nations for Support of Blasphemy Laws

While the U.N.’s Special Rapporteurs and Human Rights Committee, all of

whom are put forth by the United Nations as independent human rights experts

who represent the voice of the U.N. on specific topics,

119

have opposed

blasphemy laws, other parts of the United Nations are Member State-driven,

118

Shaheed, 2017 Report, supra note 116, ¶ 40.

119

Special Rapporteurs are appointed by the Human Rights Council and members of human rights treaty

bodies are appointed by States parties to the treaties. Their roles include reviewing and commenting on Member

States’ human rights obligations, laws, and policies. See, e.g., Special Procedures of the Human Rights Council,

OHCHR, https://www.ohchr.org/EN/HRBodies/SP/Pages/Introduction.aspx; Human Rights Treaty Bodies,

OHCHR, https://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx. However, they are considered

independent and are not held accountable, which means they often make pronouncements that are not agreed to

by a large number of Member States, particularly on social issues. See, e.g., Meghan Grizzle Fischer, The Rise

of Faux Rights: How the UN Went From Recognizing Inherent Freedoms to Creating Its Own Rights, ADF INT’L

(2017), https://adfinternational.org/resource/the-rise-of-faux-rights. Their reports, concluding observations, and

recommendations are often presented as official positions of the United Nations, however unrepresentative they

are of the Member States’ positions.

FISCHER_3.22.21 3/23/2021 4:02 PM

194 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

such as the General Assembly and its subsidiary Human Rights Council.

120

Every year the Council is filled with countries that enforce blasphemy laws.

121

Not only do Member States such as Indonesia, Pakistan, and Russia have and

enforce domestic blasphemy laws, they have advocated for support for these

laws at the international level through their membership in the Council.

122

From 1999 to 2010, the Council’s failed predecessor

123

and the Council

passed an annual non-binding resolution on the defamation of religions,

originally introduced by Pakistan on behalf of the Organisation of Islamic

Cooperation (OIC), with the goal of protecting Islam from criticism.

124

The first

resolution expressed “deep concern at negative stereotyping of religions[]” and

“concern at any role [of the media in inciting] acts of violence, xenophobia or

related intolerance and discrimination towards Islam and any other

religion[.]”

125

The resolution then called on States to legislate against “hatred,

discrimination, intolerance and acts of violence, intimidation and coercion

motivated by religious intolerance[.]”

126

Given the context, this can be

understood as any such acts against religions and not just persons. The repeated

passage of the resolution for over a decade effectively signaled an endorsement

of individual Member States’ efforts to punish and ban blasphemy.

Yet Western Member States increasingly opposed the resolution.

127

In 2010,

the resolution passed with only twenty votes in favor—including Indonesia,

Pakistan, and Russia—and seventeen against, with eight abstentions.

128

As a

compromise between the OIC and Western Member States, the resolution was

120

The Human Rights Council comprises forty-seven U.N. Member States who serve staggered three-year

terms. Welcome to the Human Rights Council, OHCHR, https://www.ohchr.org/EN/HRBodies/HRC/Pages/

AboutCouncil.aspx.

121

For example, 2020 members include Italy, Pakistan, Qatar, and Somalia, which are on USCIRF’s 2017

list of the top ten countries with the worst blasphemy laws, as well as Afghanistan, Austria, Bahrain, Bangladesh,

Eritrea, Germany, Indonesia, Libya, Mauritania, Nigeria, the Philippines, Poland, Spain, and Sudan, which have

blasphemy laws enforced to varying degrees. Current Membership of the Human Rights Council for the 14th

Cycle, 1 January–31 December 2020, OHCHR, https://www.ohchr.org/EN/HRBodies/HRC/Pages/

CurrentMembers.aspx.

122

See supra Part I.A.1–3.

123

The Human Rights Council replaced the failed Commission on Human Rights in 2006. See Welcome

to the Human Rights Council, supra note 120.

124

While the subject was defamation of religions, the initial draft resolution title was “Defamation of

Islam.” U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., U.N. Doc. E/CN.4/1999/L.40 (Apr. 20, 1999) (draft

resolution). Further, the only named religion in the first resolution was Islam. Comm’n on Hum. Rts. Res.

1999/82, U.N. Doc. E/CN.4/RES/1999/82 (Apr. 30, 1999).

125

U.N. Off. of the High Comm’r for Hum. Rts., Defamation of Religions, ¶¶ 1,3, U.N. Doc.

E/CN.4/RES/1999/82 (Apr. 28, 1999).

126

Id. ¶ 4.

127

See Human Rights Council Res. 13/16, U.N. Doc. A/HRC/RES/13/16, ¶ 21 (Apr. 15, 2010).

128

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 195

replaced in 2011 with Resolution 16/18 on Combating Intolerance, Negative

Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence

and Violence Against, Persons Based on Religion or Belief.

129

Resolution 16/18

denounces harm caused not to religions but instead to individual persons by acts

named in the title of the resolution.

130

It continues to pass every year at the

United Nations under different resolution numbers and with slightly varying

language.

131

Despite the stated shift in focus from protecting religions to protecting

persons, Resolution 16/18 and subsequent resolutions have continued the

emphasis on limiting freedom of expression, even if couched in language of

tolerance. The very title of the resolution names the vague, undefined acts that

the resolution suggests Member States should restrict, including negative

stereotyping, stigmatization, and discrimination, and the resolution emphasizes

as positive the OIC Secretary General’s call for States to “[s]peak[ ] out against

intolerance, including advocacy of religious hatred that constitutes incitement to

discrimination, hostility or violence.”

132

Given these vague terms, each Member

State essentially interprets the resolution however it wants. For example, at a

Council session, the United States lauded that the new resolution brought

international consensus that intolerance is best tackled not by restricting speech

but by allowing more of it.

133

Meanwhile, Pakistan said at the same session that

the resolution speaks to the issue of the exploitation of freedom of expression

“to incite hatred against any religion and violence against its followers.”

134

That

is, in Pakistan’s view, the resolution condemns defamation of and blasphemy

against a religion, just like the previous defamation of religions resolution.

Resolution 16/18 led to the creation of the Istanbul Process, through which

the OIC, the European Union, the United States, and individual governments—

many of them supporters of blasphemy laws, such as Pakistan

135

—gather to

129

Human Rights Council Res. 16/18, U.N. Doc. A/HRC/RES/16/18 (Apr. 12, 2011).

130

Id.

131

Human Rights Council Res. 43/34, U.N. Doc. A/HRC/RES/43/34 (June 22, 2020).

132

Human Rights Council Res. 16/18, U.N. Doc. A/HRC/RES/16/18, ¶ 5(e) (Apr. 12, 2011).

133

Jacob Mchangama, A Questionable Victory for Free Speech, NAT’L REV. (Mar. 4, 2013), https://www.

nationalreview.com/2013/03/questionable-victory-free-speech-jacob-mchangama; Statement by Pakistan on

behalf of the OIC at the High Level Panel on the VDPA (Feb. 25, 2013), http://humanrightsvoices.org/assets/

attachments/documents/11232_oic_march2013_Pakistan.pdf [hereinafter Statement by Pakistan].

134

Statement by Pakistan, supra note 133.

135

Pakistan was set to host the meeting in 2020, but it did not take place, likely due to restrictions

surrounding the coronavirus pandemic. Naveed Siddiqui, Pakistan to Host Istanbul Process Meeting on

Countering Religious Tolerance Next Year, DAWN (Nov. 18, 2019), https://www.dawn.com/news/1517453/

pakistan-to-host-istanbul-process-meeting-on-countering-religious-intolerance-next-year.

FISCHER_3.22.21 3/23/2021 4:02 PM

196 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

discuss how to implement the resolution’s murky terms.

136

Given the

participating States, it is difficult to imagine that proposed solutions in this

relatively closed-door process embrace freedom of expression.

The rejection of the defamation of religions resolution and the subsequent

embrace of Resolution 16/18, which still urges Member States to restrict

expression, reflect the unpopularity in the West of prohibiting blasphemy but at

the same time the desire of many countries to prohibit speech that they do

consider problematic. Yet it is not just the Member State-driven Human Rights

Council that has emphasized the supposed need to tackle “hate speech.” Leading

the charge is the head of the United Nations, who has started a hate speech

campaign

137

that inevitably will bolster the countries that seek to effectively

continue their blasphemy laws.

II. T

HE UNITED NATIONS’ PROBLEMATIC CAMPAIGN AGAINST

“HATE SPEECH”

While it strongly rejects blasphemy laws for violating freedom of expression

and freedom of religion, the United Nations, across multiple bodies, agencies,

and special rapporteurs, has embraced limiting these freedoms through other

means: preventing, countering, and even prohibiting what it calls hate speech.

138

Contending that these means will help minorities, the United Nations has

overlooked the stark reality that efforts to restrict hate speech in fact have put

these minorities in grave danger.

The United Nations and its various entities have passed resolutions and

issued documents on hate speech, although there has not been a unified approach

to hate speech. In July 2019, the General Assembly passed its first-ever

Resolution on Promoting Interreligious and Intercultural Dialogue and

Tolerance in Countering Hate Speech.

139

Adama Dieng, the Secretary-General’s

Special Advisor on the Prevention of Genocide, is devoted to spreading the idea

that hate speech leads to genocide. He shared, “We have to bear in mind that

words kill. Words kill as bullets.”

140

Special Rapporteurs have lamented the rise

136

What is the Istanbul Process?, ARTICLE 19 (Sept. 12, 2016), https://www.article19.org/resources/un-

hrc-6th-session-of-istanbul-process-focuses-on-practical-measures-to-implement-un-hrc-resolution-16-

18/#:~:text=The%20Istanbul%20Process%20is%20a,violence%20against%2C%20persons%20based%20on.

137

Hate Speech ‘On Notice’ as UN Chief Launches New Plan to ‘Identify, Prevent and Confront’ Growing

Scourge, UN NEWS (June 18, 2019), https://news.un.org/en/story/2019/06/1040731.

138

See, e.g., United Nations Strategy and Plan of Action on Hate Speech, supra note 1.

139

G.A. Res. 73/28, U.N. Doc. A/RES/73/328 (July 31, 2019).

140

United Nations, Words Kill as Bullets., FACEBOOK (July 1, 2019), https://www.facebook.com/

unitednations/videos/2069836236456392.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 197

of hate speech,

141

and the Special Rapporteur on the Freedom of Expression

released a report in October 2019 calling for countries and companies to better

regulate online hate speech.

142

The Human Rights Committee has rebuked States

that it alleges have not combatted hate speech sufficiently, such as Norway,

143

Lithuania,

144

the Czech Republic,

145

and Portugal,

146

and has called for the

introduction of hate speech laws.

147

A. The Problematic U.N. Strategy and Plan of Action on Hate Speech

Most prominent—and most damaging—among U.N. hate speech initiatives

is the U.N. Strategy and Plan of Action on Hate Speech, launched by U.N.

Secretary-General António Guterres in May 2019 without any consultation with

Member States.

148

The Strategy and Plan of Action proffered the first-ever

international definition of hate speech—one that puts minorities at substantial

risk as it blesses, in the name of the United Nations, a model of hate speech laws

that are applied in the same ways as blasphemy laws.

As a document that bears the stamp of approval of the Secretary-General,

the Strategy and Plan of Action on Hate Speech will likely provide guidance,

however misguided, to States that look to the United Nations for policy

recommendations. Desperately needed funding is often attached to the adoption

of U.N.-recommended policies and U.N.-sponsored programs, prompting

countries to do what U.N. entities tell them to do.

149

Indeed, the document

141

Joint Open Letter on the Concerns About the Global Increase in Hate Speech, OHCHR, https://www.

ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25036&LangID=E.

142

David Kaye (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion

and Expression), Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of

Opinion and Expression, U.N. Doc. A/74/486 (Oct. 9, 2019) [hereinafter Kaye, 2019 Report].

143

U.N. Hum. Rts. Comm., Concluding Observations on the Seventh Periodic Rep. of Nor., ¶¶ 16–17,

U.N. Doc. CCPR/C/NOR/CO/7 (Apr. 25, 2018).

144

U.N. Hum. Rts. Comm., Concluding Observations on the Fourth Periodic Rep. of Lith., ¶¶ 11–12, U.N.

Doc. CCPR/C/LTU/CO/4 (Aug. 29, 2018).

145

U.N. Hum. Rts. Comm., Concluding Observations on the Fourth Periodic Rep. of Czechia, ¶¶ 16–17,

U.N. Doc. CCPR/C/CZE/CO/4 (Dec. 6, 2019).

146

U.N. Hum. Rts. Comm., Concluding Observations on the Fifth Periodic Rep. of Port., ¶¶ 14–15, U.N.

Doc. CCPR/C/PRT/CO/5 (Apr. 28, 2020).

147

See U.N. Hum. Rts. Comm., Concluding Observations on the Seventh Periodic Rep. of Nor., ¶ 2, U.N.

Doc. CCPR/C/NOR/CO/7 (Apr. 25, 2018); U.N. Hum. Rts. Comm., Concluding Observations on the Fourth

Periodic Rep. of Lith., ¶ 2, U.N. Doc. CCPR/C/LTU/CO/4 (Aug. 29, 2018); U.N. Hum. Rts. Comm., Concluding

Observations on the Fourth Periodic Rep. of Czechia, ¶ 2, U.N. Doc. CCPR/C/CZE/CO/4 (Dec. 6, 2019); U.N.

Hum. Rts. Comm., Concluding Observations on the Fifth Periodic Rep. of Port., ¶ 2, U.N. Doc.

CCPR/C/PRT/CO/5 (Apr. 28, 2020).

148

United Nations Strategy and Plan of Action on Hate Speech, supra note 1.

149

See, e.g., ELYSSA KOREN, THE UNITED NATIONS AND THE ILLICIT PROMOTION OF ABORTION 28–32

(2019), https://adfinternational.org/resource/the-united-nations-population-fund-and-the-illicit-promotion-of-

FISCHER_3.22.21 3/23/2021 4:02 PM

198 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

identifies the United Nations’ key commitments on combatting hate speech, one

of which is aiding Member States in policy development.

150

Presumably, policy

development will be based on the definition of hate speech outlined in the

Strategy and Plan of Action, so evaluating the definition is critical.

Under the Strategy and Plan of Action,

the term hate speech is understood as any kind of communication in

speech, writing or behaviour, that attacks or uses pejorative or

discriminatory language with reference to a person or a group on the

basis of who they are, in other words, based on their religion, ethnicity,

nationality, race, colour, descent, gender or other identity factor.

151

This definition has strong and troubling parallels to the elements common to

blasphemy laws. Like blasphemy laws, it covers a wide array of expression: “any

kind of communication in speech, writing or behaviour”

152

could encompass

nearly everything every person says, does, or writes, no matter the venue or

whether public or private. Spoken or written speech can include anything from

a private conversation in a home, to private religious instruction at a church, to

a social media post, to even a piece of legislation.

Despite the common recognition that the ambiguous language in blasphemy

laws opens the door to abuse,

153

this U.N. campaign appears to have little regard

for this problem. For example, there is no clear standard by which to measure

which speech is “pejorative” and “discriminatory,” allowing a person with

minority political opinions to be arrested and prosecuted for a “discriminatory”

statement about a political figure, simply because it is politically expedient for

the authorities to do so.

154

Likewise, the terms pejorative and discriminatory

require subjective interpretation by alleged victims, observers, members of the

community, or authorities. The sharing of a sincerely-held religious viewpoint

that questions or criticizes another religious tenet could be considered hate

speech because it is understood as a pejorative opinion about the holder of those

religious views, just as the speech might be prosecuted as blasphemous.

abortion (discussing the practice whereby UNFPA, a UN agency, manipulates Member States to change their

policies and positions to receive funding).

150

Id. at 5.

151

United Nations Strategy and Plan of Action on Hate Speech, supra note 1, at 2.

152

Id.

153

What’s Wrong with Blasphemy Laws?, END BLASPHEMY LAWS, https://end-blasphemy-laws.org/

whats-wrong-with-blasphemy-laws/.

154

“Pejorative” and “discriminatory,” for example, are two words used in the United Nations Strategy and

Plan of Action on Hate Speech, supra note 1, at 2 that are not clearly or adequately defined.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 199

While the U.N. definition is so vague that it is impossible to ascertain exactly

what is classified as hate speech, its provision of a list of several

characteristics—“religion, ethnicity, nationality, race, colour, descent, gender or

other identity factor”—essentially serves as a list of topics not to be referenced

in a pejorative or discriminatory manner, with the inclusion of religion the most

concerning for religious minorities.

155

Blasphemy laws similarly regulate the

topics that may be discussed. The inclusion of “other identity factor[s]” as

possible discrimination grounds includes every conceivable characteristic and

every way a person identifies him- or herself, making any expression perceived

as critical or uncharitable subject to being classified as hate speech.

Additionally, while in theory this list is presented as a list of limitations on what

can be classified as hate speech, classifying speech as hate speech necessarily

requires subjective interpretation and therefore can include anything deemed

pejorative or discriminatory.

Like blasphemy laws, the U.N. definition of hate speech has no requirement

of tangible harm; it requires only subjective interpretation of its terms. Without

the need for tangible harm, it is easy to make false accusations and to prosecute

or convict someone for malicious reasons. The United Nations’ idea of hate

speech could be used as a weapon against religious minorities, political

opponents, and those with minority viewpoints in the same way as blasphemy

laws. This is demonstrated by the evidence outlined in Part II from countries that

employ hate speech laws.

There is also no requirement of intent in the definition. Unintentional actions

or statements that are misperceived or misinterpreted by an alleged victim or

even by a third party are included. The lack of a requirement of intent in

blasphemy laws makes them prone to arbitrary enforcement, and the same is true

of this hate speech definition. Under the Strategy and Plan of Action, what

matters is solely the perspective of an alleged victim, third party, police officer,

prosecutor, or judge. This is not easily remedied, as an intent element would be

difficult to define given the subjective nature of the concept of hate speech.

Finally, the definition lacks a requirement of incitement that is found in

ICCPR Article 20(2),

156

although as with the inclusion of intent, the inclusion of

155

See id.

156

See ICCPR, supra note 92, art. 20(2). This also highlights the fact that UN human rights entities and

Member States use many different terms that do not entail the same kinds of speech or thresholds for regulation,

but that are often used interchangeably, or are understood differently by different entities and States, muddling

any understanding of what is being discussed, such as “hate speech”—which often entails a very low threshold

for restricting speech—incitement to hatred, and advocacy of hatred. Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

200 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

ICCPR’s incitement element would not render it acceptable.

157

Article 20(2)

states, “Any advocacy of national, racial or religious hatred that constitutes

incitement to discrimination, hostility or violence shall be prohibited by law.”

158

Article 20(2) is often cited as the basis for hate speech legislation. It is one of

the most debated provisions in international human rights law,

159

especially

given its unclear terms, its drafting history,

160

and its inconsistency with the

strong presumption in the ICCPR in favor of freedom of expression.

Article 19(2) guarantees a broad right to freedom of expression: “Everyone

shall have the right to freedom of expression; this right shall include freedom to

seek, receive and impart information and ideas of all kinds, regardless of

frontiers, either orally, in writing or in print, in the form of art, or through any

other media of his choice.”

161

Restrictions on this right must be limited,

according to Article 19(3), to those that “are provided by law and are necessary:

(a) For respect of the rights or reputations of others; (b) For the protection of

157

The blasphemy law analysis above does not discuss incitement because incitement is more commonly

associated with hate speech laws, but blasphemy law supporters often argue that blasphemy laws are needed to

combat incitement to discrimination, hostility, or violence under ICCPR Article 20(2). USCIRF 2017

BLASPHEMY LAWS SURVEY, supra note 6, at 6.

158

ICCPR, supra note 92, art. 20(2).

159

For example, the United States objected to the language of Article 20 and only agreed to prohibit

incitement to imminent violence. Its reservation states “[t]hat article 20 does not authorize or require legislation

or other action by the United States that would restrict the right of free speech and association protected by the

Constitution and laws of the United States.” United States Reservations, Chapter 4 ICCPR (June 8, 1992),

https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND#EndDec.

Other governments, such as Australia, Belgium, Luxembourg, and Malta, noted that their readings of Article 20

take into account the right to freedom of expression under Article 19. See Chapter 4 ICCPR https://treaties.un.

org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND#EndDec and scroll to the

individual countries to see Australia Reservations, Belgium Declarations, Luxembourg, Malta Reservations.

160

According to Jacob Mchangama,

When the current wording of Article 20 was put to a vote in the Third Committee of the General

Assembly, it was adopted with 52 votes in favor, nineteen against, and twelve abstentions. Those

in favor were primarily the communist states of Eastern Europe, as well as non-Western countries

with very questionable human rights records[.] The nineteen countries that voted against included

almost all Western liberal democracies—such as the United States, United Kingdom, Canada,

Australia, New Zealand—the five Nordic countries, the Netherlands, and Ecuador, Uruguay,

Japan, Malaysia, and Turkey. Eighteen countries (including the U.S.) entered reservations to

Article 20 upon ratification. The voting record reveals the startling fact that the

internationalization of hate-speech prohibitions in human rights law owes its existence to a

number of states where both criticisms of the prevalent totalitarian ideology as well as advocacy

for democracy were strictly prohibited. Moreover, the grandiose arguments these states advanced

in favor of Article 20 seem—at best—highly disingenuous considering the systematic official

propaganda of the communist states.

Jacob Mchangama, The Sordid Origin of Hate Speech Laws, HOOVER INST. (Dec. 1, 2011), https://www.hoover.

org/research/sordid-origin-hate-speech-laws.

161

ICCPR, supra note 92, art. 20(2).

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 201

national security or of public order (ordre public), or of public health or

morals.”

162

The Human Rights Committee explained that Article 20(2), as a

restriction on the freedom of expression guaranteed in Article 19(2), “must

conform to the strict tests of necessity and proportionality[,]”

163

meaning that it

must be narrowly interpreted.

164

The definition of hate speech in the Strategy

and Plan of Action clearly is not narrow and clearly does not conform to strict

tests of necessity and proportionality. Yet adding a requirement of “incitement

to discrimination, hostility or violence” would not solve this problem. Although

in theory it would create a higher threshold for hate speech than what is laid out

in the Strategy and Plan of Action, the vague terms of discrimination and

hostility, which are low thresholds for regulation of speech,

165

still would

remain, and still would allow for arbitrary enforcement by biased authorities.

166

A broad reading of Article 20(2), one that gives authorities leeway to

discriminate against minority viewpoints, is not compatible with the ICCPR.

162

ICCPR, supra note 92, art. 19(3).

163

U.N. Hum. Rts. Comm., Gen. Comment No. 34: Art. 19: Freedoms of Opinion & Expression, supra

note 98, ¶¶ 22, 50.

164

According to the Rabat Plan of Action, which was developed by Special Rapporteurs,

Article 20 of the Covenant requires a high threshold because, as a matter of fundamental

principle, limitation of speech must remain an exception. Such threshold must take into account

the provisions of article 19 of the Covenant. Indeed the three-part test (legality, proportionality

and necessity) for restrictions also applies to cases involving incitement to hatred, in that such

restrictions must be provided by law, be narrowly defined to serve a legitimate interest, and be

necessary in a democratic society to protect that interest. This implies, among other things, that

restrictions are clearly and narrowly defined and respond to a pressing social need; are the least

intrusive measure available; are not overly broad, so that they do not restrict speech in a wide or

untargeted way; and are proportionate so that the benefit to the protected interest outweighs the

harm to freedom of expression, including with respect to the sanctions they authorize.

U.N. Hum. Rts. Comm., Ann. Rep. of the U.N. High Commissioner for Hum. Rts., Add.: Rep. of the U.N. High

Commissioner for Hum. Rts. on the Expert Workshops on the Prohibition of Incitement to Nat’l, Racial or

Religious Hatred, ¶ 18, U.N. Doc. A/HRC/22/17/Add.4 (Jan. 11, 2013) [hereinafter Rabat Plan of Action].

165

International freedom of expression expert Jeroen Temperman performed a textual analysis of Article

20(2) and found that “the threshold of the provision is very high indeed. This provision requires that legal

prohibitions are in place to deal with qualified types of extreme speech; that is, only extreme speech that incites

adverse responses—‘discrimination’, ‘hostility’ or ‘violence’—by others against a target group is to be banned.”

JEROEN TEMPERMAN, RELIGIOUS HATRED AND INTERNATIONAL LAW: THE PROHIBITION OF INCITEMENT TO

VIOLENCE OR DISCRIMINATION 164 (2016). But he then drew attention to the lack of definitions of the terms in

the article, as well as the widely varying legal thresholds of the terms “discrimination,” “hostility,” and

“violence,” and suggested that “violence” has the highest and clearest threshold of the three, and therefore is a

less problematic standard for incitement laws than the others. Id. at 186–90.

166

Incitement to violence, on the other hand, is a much clearer standard with a high threshold. See id. at

186–89. Prohibiting incitement to violence is in line with U.S. constitutional jurisprudence, that only incitement

to imminent unlawful action—violence—can be prohibited. See Brandenburg v. Ohio, 395 U.S. 444 (1969).

FISCHER_3.22.21 3/23/2021 4:02 PM

202 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

In summary, the definition of hate speech in the U.N. Strategy and Plan of

Action has strong parallels to blasphemy laws, and the same criticisms of

blasphemy laws apply. “Hate speech” under the United Nations’ new and

influential initiative covers a wide array of expression; limits expression related

to religion and a limitless number of characteristics; is open to abuse because it

is ambiguous and necessarily relies on the subjective interpretations of partial

authorities, alleged victims, and third parties of what is pejorative or

discriminatory; facilitates false accusations because it does not require any

tangible harm; and lacks an intent requirement, which makes arbitrary and

abusive enforcement easier.

B. Special Rapporteurs’ Criticism of Vague Hate Speech Restrictions

The definition of hate speech in the U.N. Strategy and Plan of Action is

severely lacking, and it is alarming that it may serve as the basis for policy

recommendations to countries looking to implement speech restrictions. Several

Special Rapporteurs have identified problems with vague terms in hate speech

laws

167

and would likely condemn any laws that regulate hate speech as defined

in the Strategy and Plan of Action.

Months before Guterres launched the Strategy and Plan of Action, the

Special Rapporteur on Freedom of Religion or Belief, Ahmed Shaheed, warned

that hate speech laws can be used as blasphemy laws, especially when developed

and applied using “an uncritical approach” and “formulated in vague terms.”

168

He stated that hate speech laws that “limit the subject matter of free speech,

rather than contextual assessments to decide whether violence is imminent or

whether there is intent to incite discrimination or hostility through free

speech . . . are often applied to reinforce the dominant political, social and moral

narrative and opinions of a given society,” and therefore are used “against the

very minorities those laws have been designed to protect.”

169

Likewise, the

Rabat Plan of Action on the prohibition of advocacy of national, racial or

religious hatred that constitutes incitement to discrimination, hostility or

violence recognizes, “[t]he broader the definition of incitement to hatred is in

domestic legislation, the more it opens the door for arbitrary application of the

laws.”

170

167

See generally Shaheed, 2019 Report, supra note 91; Bielefeldt, 2015 Report, supra note 91.

168

Shaheed, 2019 Report, supra note 91, ¶ 33.

169

Id.

170

Rabat Plan of Action, supra note 164, ¶ 15. The Rabat Plan of Action was initiated by the Office of the

High Commissioner for Human Rights, the top human rights official of the U.N. Secretariat, and was developed

with the contributions of several Special Rapporteurs. Id., Appendix.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 203

Shaheed suggested that this problem could be avoided with the use of more-

difficult-to-meet standards and “explicit” definitions of the terms found in

ICCPR Article 20(2).

171

As shown above, the United Nations does not come

close to meeting this recommendation in its Strategy and Plan of Action on Hate

Speech, as it does not even use the terms in Article 20(2).

David Kaye, current Special Rapporteur on Freedom of Expression, pointed

out in his 2019 report on online hate speech that the definition of hate speech in

the U.N. Strategy and Plan of Action on Hate Speech has no place in legal

prohibitions since it falls short of ICCPR Article 20(2).

172

Meanwhile, in a 2015 report, Heiner Bielefeldt, then-Special Rapporteur on

Freedom of Religion or Belief, recognized the serious problems “vaguely

defined” incitement laws—a term used for hate speech laws—cause religious

minorities: they “open[] the way to arbitrary application of such laws, often to

the disadvantage of those who would actually need protection from incitement

to acts of hatred, including members of religious minorities, dissenters, critics,

converts, atheists and others.”

173

The Rabat Plan of Action also laments that “members of minorities are de

facto persecuted, with a chilling effect on others, through the abuse of vague

domestic legislation, jurisprudence and policies.”

174

C. The Insufficiency of Special Rapporteurs’ Criticism

While Special Rapporteurs have criticized vague hate speech definitions,

they have failed to recognize that even hate speech legislation that follows their

caveats is not enough to protect minorities from being punished. Shaheed’s

warning is insufficient because he fails to acknowledge the inherent subjectivity

of the “contextual assessments” he argues should replace subject matter-focused

171

Shaheed, 2019 Report, supra note 91, ¶ 34. Shaheed suggested States use definitions of ICCPR Article

20(2) terms from the non-binding Camden Principles on Freedom of Expression and Equality: hostility is

“‘intense and irrational emotions of opprobrium, enmity and detestation towards the target group’”; advocacy

“requir[es] an intention to publicly promote hatred towards the target group”; and incitement “should refer to

statements about national, racial or religious groups that create an imminent risk of discrimination, hostility or

violence against persons belonging to those groups.” Id.

172

Kaye, 2019 Report, supra note 142, ¶¶ 19–20. Even the ICCPR article 20(2) standard still suffers from

the inevitable problems of subjectivity that arise with any hate speech restriction laws that go beyond incitement

to imminent violence. The United States placed a reservation on article 20(2) at the time of its ratification of the

ICCPR because it was unlikely to comport with the free speech requirements of the First Amendment of the U.S.

Constitution.

173

Bielefeldt, 2015 Report, supra note 91, ¶ 64.

174

Rabat Plan of Action, supra note 164, ¶ 11.

FISCHER_3.22.21 3/23/2021 4:02 PM

204 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

restrictions, and the “explicit” definitions he suggests, while a higher bar than

that of the Strategy and Plan of Action, also rely on subjective ideas, such as

“intense and irrational emotions.”

175

The Rabat Plan of Action also suggests that “robust” definitions are

necessary, but fails to acknowledge the subjectivity of determining what

constitutes “hatred” and “hostility.”

176

No matter how strictly defined a hate speech law is, it still relies on entirely

subjective interpretation about whether a certain expression should be classified

as hate speech, and it does not require tangible harm. It is problematic for anyone

to be in the position to make such a subjective interpretation, but it is especially

easy for someone who is not well-meaning to abuse this power to enforce a hate

speech law to similar effect as the enforcement of blasphemy laws. The Rabat

Plan of Action calls for “a competent, independent and impartial tribunal[,]”

177

while Bielefeldt, the former Special Rapporteur on Freedom of Religion or

Belief, and La Rue, the former Special Rapporteur on Freedom of Expression,

recognized the problems with drawing lines, and so claimed that “[a]n

independent judiciary and respect for the rules of due process are therefore

essential preconditions when prohibiting certain forms of expression.”

178

But

there are no truly independent arbiters when it comes to making such subjective,

culturally-weighted interpretations as to whether an expression amounts to hate

speech. Indeed, Bielefeldt and La Rue acknowledge that subjectivity is inherent,

yet they do not conclude that it calls into question the prudence of restricting

freedom of expression in this way.

179

Meanwhile, Kaye suggested that “States and companies should combat” the

“attitudes” identified in the Strategy and Plan of Action on Hate Speech “with

education, condemnation and other tools,”

180

but this suggestion legitimizes the

vague definition of hate speech. Means like education and public condemnation

will likely move public opinion even closer to the idea that the expression of

certain views—such as those perceived by the government or dominant

companies as blasphemous, offensive, or hateful—is impermissible. This is

particularly dangerous in communities in which religious or political minorities

are persecuted.

175

Shaheed, 2019 Report, supra note 91, ¶ 33.

176

Id. ¶ 21.

177

Rabat Plan of Action, supra note 164, ¶ 31.

178

Heiner Bielefedlt & Frank La Rue, OHCHR Expert Workshops on the Prohibition of Incitement to

National, Racial or Religious Hatred: Expert Workshop on the Americas 13 (Oct. 12–13, 2011).

179

Id.

180

Kaye, 2019 Report, supra note 142, ¶ 19.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 205

Given U.N. Special Rapporteurs’ strong—although insufficient—criticism

of unclear hate speech laws, the U.N. Secretary-General’s weak definition of

hate speech in the Strategy and Plan of Action is particularly negligent. Some

countries will look to the United Nations for policy guidance and earnestly adopt

legislation that is vague and overbroad and restricts freedom of expression to the

detriment of minorities. Others will capitalize on the United Nations’ weak

definition of hate speech to punish the expression of minority viewpoints. In

both instances, the United Nations will have abdicated its responsibility to

adhere, at a minimum, to the standards set by its own human rights experts.

III. T

HE APPLICATION OF HATE SPEECH LAWS AND PARALLELS TO

BLASPHEMY LAWS

Indeed, many States already have adopted hate speech laws and used them

in parallel ways to blasphemy laws, disproportionately harming religious

minorities, political opponents, and people with minority viewpoints. They will

be encouraged by the United Nations’ weak definition of hate speech. These

countries claim that they are banning language that targets and hurts minorities

in particular, but in reality, hate speech laws are enforced in ways that punish

minorities, just as with blasphemy laws. Examples from Indonesia, Russia,

North Macedonia, and Denmark show that the Strategy and Plan of Action’s

tacit endorsement of hate speech legislation as a means to protect minorities

from harm is misguided and in fact extremely dangerous, since it is those very

minorities who are frequently targeted with enforcement of the laws.

A. Indonesia

Indonesia has used its Law No. 11 of 2008 on Information and Electronic

Transaction (“the ITE Law”) to punish perceived blasphemy.

181

Article 28(2) is

written as a hate speech provision because of its focus on “inflicting hatred or

dissension”:

Any Person who deliberately and without authority disseminates

information with intention for inflicting hatred or dissension on

individuals and/or certain groups of community based on ethnic

groups, religions, races, and inter-groups (SARA) shall be punished

by a maximum imprisonment of six years or a maximum fine of IDR

[1,000,000,000,000] (one trillion Rupiahs).

182

181

INDONESIA CRIMINAL LAW UPDATE, INDONESIA’S LEGAL FRAMEWORK ON HATE SPEECH 8 (2018),

https://icjr.or.id/indonesias-legal-framework-on-hate-speech/.

182

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

206 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Amnesty International reported in 2014 that Indonesian authorities are

increasingly turning to this law in blasphemy cases because it provides greater

penalties than does Article 156(a) of the Criminal Code.

183

The ITE Law is not

included in USCIRF’s 2017 investigation of the world’s blasphemy laws,

presumably because the text of Article 28(2) does not say anything about

insulting religions, deities, or sacred things, but its enforcement shows that it is

a blasphemy provision masquerading as a hate speech provision. Indonesia’s

plan to expand its blasphemy law

184

reflects increasing pressure to punish

disfavored religious speech, which makes this hate speech provision all the more

dangerous, as its use to punish perceived blasphemy is likely to increase.

In May 2018, Abraham Ben Moses, a convert to Christianity from Islam,

was sentenced to four years in prison and ordered to pay a fine for violating

Article 28(2) of the ITE Law.

185

Abraham, a Christian cleric, would record

conversations online with an anonymous taxi driver, and in one video uploaded

to Facebook he quoted the Quran and attempted to convince the driver to convert

to Christianity, leading the police to arrest him in December 2017.

186

Sebastian Joe bin Abdul Hadi, a Muslim who, according to a hardline

Islamist group, posted insulting statements about Islam on Facebook, was

convicted under both the ITE law hate speech provision and the blasphemy

law.

187

At trial, Sebastian Joe invoked the Indonesian Constitution’s guarantee

of the right to freedom of religion, but in November 2012 the court sentenced

him to four years’ imprisonment for blasphemy under Criminal Code Article

156(a).

188

A few months later, a high court added a year to his sentence for

“disseminating information aimed at inciting religious hatred or hostility” under

Article 28(2) of the ITE Law.

189

Alexander An was charged with the same provision under the ITE law and

blasphemy under Article 156(a) of the Criminal Code.

190

He had posted on his

personal Facebook page and on an atheist group’s Facebook page about how he

did not believe in God, as well as statements perceived to be insulting Islam and

183

AMNESTY INT’L, PROSECUTING BELIEFS: INDONESIA’S BLASPHEMY LAWS 13 (2014), https://www.

amnesty.org/en/documents/ASA21/018/2014/en/ [hereinafter PROSECUTING BELIEFS].

184

Harsono, supra note 37.

185

Man Sentenced to Four Years in Prison for Religious Defamation, JAKARTA POST (May 7, 2018),

https://www.thejakartapost.com/news/2018/05/07/man-sentenced-to-four-years-in-prison-for-religious-

defamation.html.

186

Id.

187

PROSECUTING BELIEFS, supra note 183, at 20.

188

Id. at 21.

189

Id.

190

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 207

the Prophet Muhammad.

191

He was threatened by a mob after his colleagues

distributed his postings.

192

In June 2012, he received a sentence of 2.5 years’

imprisonment and a fine for violating the ITE law, with the court chiding him

for violating the constitution’s alleged requirement of believing in God because

of his atheistic views.

193

B. Russia

Russia’s 2013 criminalization of blasphemy through insulting religious

feelings has resulted in fines and suspended sentences, but it is Russia’s hate

speech law that is primarily deployed to punish expression perceived as

blasphemy, especially on social media posts.

194

Until the end of 2018, Article

282 of Russia’s Criminal Code criminalized

actions aimed at the incitement of hatred or enmity, or the abasement

of the dignity of a person or a group of persons on the basis of sex,

race, nationality, language, origin, attitude to religion, or affiliation

with any social group, in public or with the use of mass media,

including the Internet.

195

Penalties for “incitement of hatred” ranged from a fine of 300,000–500,000

rubles to imprisonment for up to five years to compulsory labor for up to four

years.

196

In late December 2018, President Vladimir Putin signed a law changing

the first offense under this article to an administrative offense; criminal penalties

would now apply only after a second offense of the same nature.

197

According to USCIRF, Russia’s “anti-extremism” legislation, including the

hate speech law, has the aim of giving “Russian law enforcement agencies

generous leeway to exert influence over unwelcome religious trends,” including

“suspicious” or “unusual religious practices or principles inconvenient for the

state (for example, refusal to serve in the military)”; Muslims are a common

191

Id.; Joe Cochrane, Embrace of Atheism Put an Indonesian in Prison, N.Y. TIMES (May 3, 2014),

https://www.nytimes.com/2014/05/04/world/asia/indonesian-who-embraced-atheism-landed-in-prison.html.

192

PROSECUTING BELIEFS, supra note 183, at 21; Cochrane, supra note 191.

193

PROSECUTING BELIEFS, supra note 183, at 21.

194

Carl Schreck, Another Russian Faces Criminal Probe Over Social-Media Memes, RADIO FREE

EUR./RADIO LIBERTY (Aug. 3, 2018), https://www.rferl.org/a/russian-faces-criminal-probe-social-media-

memes/29410323.html. Often charges are brought under both Article 148 on blasphemy and Article 282 on hate

speech.

195

Putin Signs Law Partially Decriminalizing Article 282 of Russian Criminal Code on Extremism,

INTERFAX (Dec. 28, 2018), https://interfax.com/newsroom/top-stories/21714/.

196

DOS 2019 RUSSIA IRFR, supra note 70, at 5.

197

Putin Signs Law Partially Decriminalizing Article 282 of Russian Criminal Code on Extremism, supra

note 195.

FISCHER_3.22.21 3/23/2021 4:02 PM

208 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

target.

198

A 2018 USCIRF report on Russia’s anti-extremism activities and their

impact on freedom of religion includes a number of examples of criminal

charges and convictions under Article 282.

199

For example, 21-year-old activist

Maxim Kormelitsky was sentenced in May 2016 to one year in prison for

“inciting religious hatred” for a social media post criticizing the practice of

jumping into cold water on Epiphany, a common Orthodox practice,

accompanied by crude language and mockery.

200

Kormelitsky was a former

member of an opposition party.

201

In August 2016, Russian blogger Ruslan Sokolovsky filmed himself playing

the popular smartphone game Pokémon Go in a Russian Orthodox church; in the

video, which he posted to YouTube alongside several other videos, he swore and

stated it was easier to find Pokémon in the church than Jesus.

202

He was arrested

and ultimately given a suspended sentence of 3.5 years for both “insult[ing] the

religious feelings of believers” under Article 148(2) of the Criminal Code and

“inciting religious hatred” under Article 282.

203

In July 2017, his sentence was

reduced to two years and three months,

204

yet he was placed on an official list of

terrorists and extremists.

205

Amnesty International Russia’s director pointed out that Sokolovsky was

targeted for political reasons, not because of his insensitive religious comments,

as the authorities learned of him only once he publicly began criticizing the

legislation on insulting religious believers.

206

He emphasized, “With

Sokolovsky’s conviction, the Russian authorities send a strong message to

anyone who wants to challenge the country’s grotesque ‘blasphemy’ law. Make

198

MARIA KRAVCHENKO, INVENTING EXTREMISTS: THE IMPACT OF RUSSIAN ANTI-EXTREMISM POLICIES

ON FREEDOM OF RELIGION OR BELIEF 3 (USCIRF, 2018).

199

Id.

200

Id. at 31–32; HUM. RTS. WATCH, ONLINE AND ON ALL FRONTS: RUSSIA’S ASSAULT ON FREEDOM OF

EXPRESSION 63 (2017), https://www.hrw.org/report/2017/07/18/online-and-all-fronts/russias-assault-freedom-

expression [hereinafter ONLINE AND ON ALL FRONTS].

201

ONLINE AND ON ALL FRONTS, supra note 200, at 63.

202

Id. at 60–62; Carl Schreck, Colleagues Defend Russia’s ‘Pokemon Go’ Blogger Listed Alongside

‘Terrorists and Extremists,’ RFE/RL (July 17, 2017), https://www.rferl.org/a/russia-clleagues-defend-pokenon-

blogger-extremist-terrorist/28620930.html; Russian Pokémon Go Blogger Convicted of Inciting Religious

Hatred After Playing Game in Church, TELEGRAPH (May 11, 2017), https://www.telegraph.co.uk/news/

2017/05/11/russian-pokemon-go-blogger-convicted-inciting-religious-hatred.

203

ONLINE AND ON ALL FRONTS, supra note 200, at 60.

204

Russian Pokémon Go Blogger Has Sentence Reduced, MOSCOW TIMES (July 7, 2017), https://www.

themoscowtimes.com/2017/07/07/pokemon-58330-a58330.

205

Schreck, supra note 202.

206

Russian Youtuber Convicted of Blasphemy After Playing Pokémon Go in a Church, AMNESTY INT’L

(May 11, 2017), https://www.amnesty.org/en/latest/news/2017/05/russian-youtuber-convicted-of-blasphemy-

after-playing-pokemon-go-in-a-church.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 209

no mistake, this is neither piety nor a genuine effort to protect the freedom of

religion in Russia[.] This is another assault on freedom of expression.”

207

Eighteen-year-old student Alexander Razhin was sentenced under Article

282 to correctional labor in 2016 for posting on social media about the

cancellation of a Marilyn Manson concert due to Orthodox pressure, which

allegedly “humiliated the dignity” of Russian Orthodox Christians.

208

Publisher

Boris Obraztsov was sentenced under Article 282 to a fine in 2011 for “using

mass media to humiliate the dignity of a group of people on the basis of their

attitude toward religion” after publishing a commentary critical of the Russian

Orthodox Church and religious people.

209

C. North Macedonia

In North Macedonia,

210

where as of the 2002 census sixty-five percent of the

2.1 million people are Orthodox Christian and thirty-three percent are Muslim,

the Macedonian Orthodox Church-Ohrid Archbishopric has a close relationship

with the government and receives special treatment, including funding and the

free use of public properties.

211

The Macedonian Constitution names five

religious groups and states that other religious groups have rights,

212

but the

government has continued to deny registration and legal status to several smaller

religious groups, including the Serbian Orthodox Church, in violation of a

judgment from the European Court of Human Rights.

213

Religious affiliation and

ethnicity are correlated, as are religious affiliation and political affiliation.

214

In 2009, Asma Jahangir, then-U.N. Special Rapporteur on Freedom of

Religion or Belief, criticized a vague article in the Macedonian Criminal Code

criminalizing “hate speech,” in Jahangir’s words.

215

Article 319 criminalized,

207

Id.

208

KRAVCHENKO, supra note 198, at 31.

209

Id. at 28.

210

In February 2019, Macedonia changed its name to North Macedonia. Stephanie Halasz et al.,

Macedonia Officially Changes Name to North Macedonia, Drawing Line Under Bitter Dispute, CNN (Feb. 13,

2019), https://www.cnn.com/2019/02/13/europe/north-macedonia-name-change-intl/index.html.

211

U.S. DEP’T OF STATE, NORTH MACEDONIA 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT 2, 7

(2020), https://www.state.gov/reports/2019-report-on-international-religious-freedom/north-macedonia/ [hereinafter

DOS, NORTH MACEDONIA 2019 IRFR].

212

MACED. CONST., Amendment VII(1).

213

DOS, NORTH MACEDONIA 2019 IRFR, supra note 211, at 5.

214

Id. at 2.

215

Asma Jahangir (Special Rapporteur on Freedom of Religion or Belief), Rep. on Freedom of Religion

or Belief, Addendum: Mission to the Former Yugoslav Republic of Macedonia, ¶¶ 47–48, U.N. Doc.

A/HRC/13/40/Add.2 (Dec. 28, 2009).

FISCHER_3.22.21 3/23/2021 4:02 PM

210 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

with penalties of up to ten years’ imprisonment, various actions, including

“caus[ing] or excit[ing] national, racial or religious hate, discord or intolerance,”

whether “by force, mistreatment, endangering the security, ridicule of the

national, ethnic or religious symbols, by damaging other people’s objects, by

desecration of monuments, graves, or in some other manner[.]”

216

On its face,

the article includes elements of a blasphemy law, given that it identifies ridicule

of religious symbols as possible grounds for inciting national, racial, or religious

hate. It has also been applied to prohibit activity that undermines the

Macedonian Orthodox Church.

In 2002, Archbishop Jovan (christened Zoran Vraniškovski) left the

Macedonian Orthodox Church to join the Serbian Orthodox Church.

217

Macedonian court sentenced him in August 2004, at a time of targeted

government discrimination against the Serbian Orthodox Church and attacks on

its churches, to eighteen months in prison for “instigation of ethnic, racial and

religious hatred, discord and intolerance” under Article 319.

218

Religious

freedom NGO Forum 18 reported that the Supreme Court of Macedonia upheld

two of the grounds for his conviction, namely “‘accepting to become exarch of

the Ohrid Archbishopric, and for having church calendars (small booklets with

holy dates, prayers and saints’ pictures) at his church services when he was

arrested.’”

219

The calendar allegedly “slander[ed]” the Macedonian Orthodox

Church by, among other “untruths,” calling out its bishops for failing in their

duties, and hurting the religious feelings of the Macedonian population by

assailing the sacredness of the Macedonian Orthodox Church.

220

In evaluating the judgment of the lower court, the Panel of Experts on

Freedom of Religion or Belief of the Office for Democratic Institutions and

Human Rights of the Organization for Security and Cooperation in Europe

determined that “any form of religious activity that has the effect of challenging

the legitimacy and supremacy of the [Macedonian Orthodox Church] as the

dominant religion is to be considered as causing religious hatred.”

221

216

See the earlier version of the Criminal Code at Criminal Code, http://www.derechopenalenlared.com/

legislacion/codigo_penal_macedonia.pdf (Maced.).

217

Branko Bjelajac, MACEDONIA: Serbian Bishop Remains in Prison as Appeal Fails, FORUM 18 (Sept.

20, 2005), http://www.forum18.org/archive.php?article_id=655.

218

Orthodox Ohrid Archbishopric, Decision, http://poa-info.org/archbishop/testimonies/verdict_racial_

hatred.html.

219

Bjelajac, supra note 217.

220

Orthodox Ohrid Archbishopric, supra note 218.

221

OSCE/ODIHR, OPINION ON THE CASE OF BISHOP JOVAN (ZORAN VRANISKOVSKI) ¶ 8 (July 27, 2005),

https://www.legislationline.org/download/id/762/file/d5f56c87fb455c31d66cc0b9aa7f.pdf.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 211

In 2014, Article 319 of the Criminal Code was expanded to add many other

“discriminatory grounds” on which hatred could be caused, including:

gender, race, color of the skin, membership in marginalized group,

ethnic membership, language, nationality, social background,

religious belief, other beliefs, education, political affiliation, personal

or social status, mental or physical impairment, age, family or marital

status, property status, health condition, or in any other ground

foreseen by law on ratified international agreement[.]

222

D. Denmark

Although Denmark repealed its little-used blasphemy law in 2017,

223

it has

turned to using its hate speech law to punish blasphemy, particularly against

Islam.

224

Denmark is unique among countries examined here because it does not

punish blasphemy against a majority religion—only 5.5% of the population is

Muslim.

225

However, political consensus in Denmark is that language regarded

as anti-immigrant or anti-Muslim should be prohibited, and therefore Denmark

does punish expression of minority viewpoints that are perceived by some of its

population as blasphemous.

226

Like in other countries examined here, Danish

authorities and courts have enforced a ban on hate speech to protect a religious

group from criticism.

Denmark’s hate speech law is found in Section 266b of the Criminal Code,

which reads:

Whoever publicly, or with intention to disseminating in a larger circle

makes statements or other pronouncement, by which a group of

persons is threatened, derided or degraded because of their race, colour

222

Criminal Code of Macedonia, art. 319 (2009, amended 2018) https://www.legislationline.org/

documents/section/criminal-codes/country/31/North%20Macedonia/show; Hate Speech is Considered a Crime

in the Republic of Macedonia, MEDIA FACT CHECKING SERV. (Mar. 6, 2014), http://factchecking.mk/hate-

speech-is-considered-a-crime-in-the-republic-of-macedonia/.

223

Denmark Revokes 334-Year-Old Blasphemy Law, LOCAL DK (June 2, 2017), https://www.thelocal.dk/

20170602/denmark-revokes-334-year-old-blasphemy-law.

224

Jacob Mchangama, Something’s Rotten: How Denmark Is Criminalizing Blasphemy Through Hate

Speech Law, COLUM. GLOB. FREEDOM EXPRESSION (Feb. 29, 2016), https://globalfreedomofexpression.

columbia.edu/updates/2016/02/somethings-rotten-denmark-criminalizing-blasphemy-hate-speech-law

[hereinafter Mchangama, Something’s Rotten].

225

U.S. DEP’T OF STATE, DENMARK 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT 2 (2020),

https://www.state.gov/reports/2019-report-on-international-religious-freedom/denmark/.

226

One motivation is to prevent terrorism, since unpunished expressions of blasphemy may attract extreme

reactions. Kimiko de Freytas-Tamura, Danish Man Who Burned Quran Is Prosecuted for Blasphemy, N.Y.

TIMES (Feb. 23, 2017), https://www.nytimes.com/2017/02/23/world/europe/denmark-quran-burning.html.

FISCHER_3.22.21 3/23/2021 4:02 PM

212 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

of skin, national or ethnic background, faith or sexual orientation, will

be punished by fine or imprisonment for up to 2 years.

227

Danish free speech advocate Jacob Mchangama shared that a man who uploaded

a video of himself burning a Quran accompanied by the message “[t]hink of your

neighbours, it stinks when it burns” was charged by the police in February 2016

with violating Section 266b.

228

Mchangama argued that the man’s action was

blasphemous—“[i]t is difficult to imagine an act more insulting to a religious

dogma than burning its sacred book”—but was not an attack on Muslims as a

group, which is what the hate speech law criminalizes.

229

Mchangama explained

that the blasphemy law, still on the books at the time, had not been used in

decades and its application would have been untenable to the public, hence the

shift to using the hate speech law to punish blasphemy.

230

A full year after the

shift to using the hate speech law, the man’s hate speech charge was changed to

blasphemy.

231

However, when the blasphemy law was repealed, all charges

against the man were dismissed.

232

Another incident identified by Mchangama that involved what he calls

“scope-creep” was the conviction under Section 266b of a man who had written

on Facebook in response to a discussion about an Islamist group’s domination

of a local tenants’ association.

233

The man wrote: “The ideology of Islam is as

abominable, atrocious, oppressive and as misanthropic as Nazism. The massive

immigration of Islamists into Denmark is the most destructive thing to happen

to Danish society in recent history.”

234

The man posted a negative comment a

few minutes later about Islam’s views on democracy.

235

The District Court of

Elsinore found in February 2016 that the defendant’s “statements ‘as a whole’

constituted ‘generalizing claims that are insulting and degrading towards the

adherents of Islam.’”

236

Mchangama’s conclusion about the court’s ruling is that blasphemy in

Denmark will now be banned under the hate speech law:

227

DENMARK CRIMINAL CODE, 27:266b (Den.).

228

Mchangama, Something’s Rotten, supra note 224.

229

Id.

230

Id.

231

de Freytas-Tamura, supra note 226.

232

Denmark Ditches Blasphemy Laws, UNCOMMON GROUND (June 3, 2017), https://

uncommongroundmedia.com/Denmark-Ditches-Blasphemy-Laws/.

233

Mchangama, Something’s Rotten, supra note 224.

234

Id.

235

Id.

236

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 213

By equating degrading and insulting comments aimed at Islam, with

anti-Muslim hate speech, the Court in Elsinore has in fact expanded

the Danish hate speech ban to cover blasphemy. This marks the

clearest departure in some 70 years during which pure criticism of

religion, no matter how harsh, was thought to be protected by freedom

of expression.

237

Mchangama lamented that because the penalty for violating the law was only a

few hundred dollars, an appeal is difficult, “increasing the likelihood that the

decision will create precedent and encourage further prosecutions of criticism of

religion.”

238

E. Parallels to Blasphemy Laws

All of these hate speech cases display parallels to cases under blasphemy

laws, both in the elements involved and the apparent motives for prosecution.

The fact patterns of these hate speech cases are similar to those of blasphemy

cases, wherein the defendant has said something perceived as negative toward a

religion or religious beliefs or apparently undermines a religion or religious

beliefs, whether intentionally or not. Motives for prosecution and punishment

are also similar—motives that are widely regarded by international human rights

advocates and U.N. experts as illegitimate, such as suppressing political

opponents and targeting religious minorities. Most significantly, these hate

speech cases reveal that as with blasphemy laws, the nature of the prohibited

speech under these hate speech laws is inherently subjective, which renders the

laws prone to arbitrary and abusive application. Thus, the seeming support for

the use of hate speech legislation to shield minorities from harm in the U.N.

Strategy and Plan of Action on Hate Speech will, in fact, cause minorities more

harm, as they are subjected to more arbitrarily-applied, abusive legislation.

IV. A

NTI-BLASPHEMY MOTIVES

Some countries that enforce blasphemy laws and support the U.N.’s

campaign against hate speech have made clear that they believe that what they

perceive as blasphemy constitutes hate speech. These anti-blasphemy motives

for supporting the campaign expose how hate speech laws are vulnerable to

abuse, casting further doubt on the idea that the Strategy and Plan of Action on

Hate Speech and hate speech laws will protect minorities.

237

Id.

238

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

214 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

One of the most vocal supporters of the United Nations’ preoccupation with

countering hate speech is Pakistan, the notorious defender of blasphemy laws.

Pakistan’s support for hate speech laws deserves strong skepticism. At a high-

level roundtable discussion called “Countering Hate Speech,” co-hosted by

Pakistan and Turkey at the United Nations in September 2019,

239

Prime Minister

Imran Khan quickly revealed his goals.

240

Although the event was billed as

focusing on hate speech, Khan focused almost exclusively on how problematic

he considers blasphemy against Islam and the Prophet Muhammad.

241

Khan, who ardently supported blasphemy laws to gain support from the

religious right during his campaign the previous year,

242

repeatedly conflated

hate speech with blasphemy. He claimed that if someone is called an “Islamic

radical,” it hurts Islam by associating Islam with terrorism.

243

He also

highlighted Salman Rushdie’s Satanic Verses,

244

after the publication of which

Iranian Ayatollah Khomeini issued a fatwa calling for Rushdie’s death due to

his irreverence toward Islam and the Prophet Muhammad.

245

Khan said that

people in the West could not understand the pain Satanic Verses caused

Muslims, because European society considers religion differently.

246

Muslims,

conversely, experience deep pain “because the Prophet lives in our hearts.”

247

He said Western leaders must be as sensitive to Muslims when someone

“ridicules [or] blasphemes our Prophet” as they are to Jews when the Holocaust

is addressed.

248

To him, speech becomes hate speech when it insults or mocks

someone’s religion. He communicated the same sentiments at his speech before

the General Assembly.

249

239

President of Turkey & Prime Minister of Pakistan, Invitation for High-Level Round Table on

Countering Hate Speech of the Seventy-Fourth Session of the U.N. G.A. (Sept. 25, 2019), https://www.unaoc.

org/event/high-level-round-table-on-countering-hate-speech.

240

See Samaa TV, Terrorism Has No Religion: PM Imran Khan | SAMAA TV | 26 September 2019,

YOUTUBE (Sept. 26, 2019), https://www.youtube.com/watch?v=fgQvXhHiYI8.

241

Id.

242

Memphis Barker, Imran Khan Criticised For Defence Of Pakistan Blasphemy Laws, GUARDIAN

(July 9, 2018), https://www.theguardian.com/world/2018/jul/09/imran-kahn-accused-over-defence-of-pakistan-

blasphemy-laws.

243

Samaa TV, supra note 240, at 1:50.

244

Id. at 5:20.

245

Index on Censorship, Thirty Years On: The Salman Rushdie Fatwa Revisited, X INDEX THE VOICE OF

FREE EXPRESSION (Feb. 13, 2019), https://www.indexoncensorship.org/2019/02/student-reading-list-salman-

rushdie-fatwa.

246

Samaa TV, supra note 240, at 5:20.

247

Id. at 7:15.

248

Id. at 7:32.

249

Takeaways from Imran Khan’s Speech at UN General Assembly, GULF NEWS (Sept. 28, 2019), https://

gulfnews.com/world/asia/takeaways-from-imran-khans-speech-at-un-general-assembly-1.1569641835080.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 215

Khan’s politically expedient position that speech perceived as critical

towards Islam is per se hate speech against Muslims is unfortunately a

widespread belief in many Muslim-majority countries, although many Muslims

reject his position. But the United Nations’ support of hate speech restrictions,

which depend on subjective interpretation, opens the door to the justifications

pushed by Khan, even if U.N. officials might otherwise disagree with Khan’s

view.

In fact, in 2017, the U.N. Human Rights Committee issued concluding

observations on Pakistan’s human rights record in which it condemned the

country’s blasphemy laws while simultaneously exhorting it to prosecute hate

speech.

250

In the same paragraph it recommended that Pakistan repeal its

blasphemy laws, the Committee told Pakistan that it should “[e]nsure that all

cases of hate speech and hate crimes are thoroughly and promptly investigated

and that perpetrators are prosecuted and, if convicted, punished[.]”

251

The

Committee issued its recommendations despite overwhelming evidence of the

inevitable use of hate speech laws in Pakistan to protect Islam and to punish

anyone who disagrees—and with the apparent blessing of the United Nations.

The OIC has also been a major proponent of banning hate speech, and its

own advocacy for hate speech restrictions clearly reveals its motivations to

protect Islam. Thirty-one of the OIC’s fifty-seven members have blasphemy

laws.

252

Nine of the ten countries that have blasphemy prohibitions that “most

run counter to international law principles”—that is, the worst blasphemy laws,

according to USCIRF—are in OIC countries: Iran, Pakistan, Yemen, Somalia,

Qatar, Egypt, Algeria, Comoros, and Libya.

253

Meanwhile, of the countries with

the ten lowest scores, only Guyana and Tunisia are OIC members.

254

250

Concluding Observations on the Initial Report of Pakistan, supra note 102, ¶ 34(a), 34(d).

251

Id. ¶ 34(d).

252

The countries are Afghanistan, Algeria, Bahrain, Bangladesh, Brunei, Comoros, Egypt, Guyana,

Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Nigeria, Oman,

Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Suriname, Syria, Tunisia, Turkey, United Arab Emirates, and

Yemen. USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 19; Member States, ORG. ISLAMIC COOP.,

https://www.oic-oci.org/states/?lan=en. The USCIRF report did not analyze the laws of the West Bank and Gaza,

given that the U.S. does not consider the Palestinian Territories a country. However, the West Bank and Gaza

do have prohibitions on blasphemy. Palestine, END BLASPHEMY LAWS, https://end-blasphemy-laws.org/

countries/middle-east-and-north-africa/palestine (last updated June 18, 2020). The OIC members that do not

have blasphemy laws are Albania, Azerbaijan, Benin, Burkina Faso, Cameroon, Chad, Djibouti, Gabon, The

Gambia, Guinea, Guinea-Bissau, Ivory Coast, Kyrgyzstan, Maldives, Mali, Mauritania, Mozambique, Niger,

Senegal, Sierra Leone, Tajikistan, Togo, Turkmenistan, Uganda, and Uzbekistan.

253

USCIRF 2017 BLASPHEMY LAWS SURVEY, supra note 6, at 18–20.

254

Id. at 21.

FISCHER_3.22.21 3/23/2021 4:02 PM

216 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

At its 15th Regular Session, the OIC Independent Permanent Human Rights

Commission “stressed the need to cooperate with OIC and other international

stakeholders to campaign to legislate laws that criminalize all forms of hate

speech, including Islamophobia.”

255

Hate speech, in the eyes of the Commission,

includes Islamophobia, which the OIC identifies as including the defamation of

Islam.

256

This is unsurprising given how many OIC members have blasphemy

laws.

Another example of how the OIC conflates hate speech with criticism of

religion can be found in a report from the 8th Regular Session of the

Commission, which included a debate on freedom of expression and hate

speech.

257

The report switches among the terms hate speech, defamation, and

Islamophobia in discussing negative attitudes and expression toward Islam and

toward Muslims.

258

It claims that “defamation of religions and discrimination

against Muslims are interlinked and cannot be dealt in isolation, hence the need

to tackle both, though with different strategies.”

259

The report focuses more on

the interlinkage:

Negative stereotyping and stigmatization of religions or religious

symbols have consequential impact on their followers as it directly

impinges on their right to freedom of religion as well as subjects them

to negative stereotyping that leads to various forms of discrimination

and violence against them. A true understanding of the nature of

Islamophobia is also crucial to setting the priorities of an action plan.

In fact, this phenomenon attempts to distort the image of Islam and by

extension abuse all Muslims irrespective of their geographical

location. Islamophobia is also in violation of many human rights of

Muslim individuals and communities of Muslims living in Western

societies.

260

255

OIC Independent Permanent Human Rights Commission Concludes Its 15th Regular Session Held in

Jeddah from 21-25 April 2019, OIC IPHRC (Apr. 25, 2019), https://oic-iphrc.org/web/index.php/site/view_

news?id=438.

256

For example, in a declaration on countering Islamophobia, OIC Ministers of Foreign Affairs stated,

“[w]e strongly believe that defamation of Islam geared towards denigrating and dehumanizing Muslims, their

beliefs and sacred personalities, insults the deep-seated religious feelings, undermines their dignity and violates

their fundamental human rights thus threatening the multicultural fabric of the societies.” Declaration by the

Annual Coordination Meeting of Ministers of Foreign Affairs of OIC Member States on Countering

Islamophobia, ORGANISATION ISLAMIC CONF. (Sept. 24, 2010), http://ww1.oic-oci.org/english/conf/fm/

acm2010/en/ACM-2010-DEC-English.pdf.

257

OIC IPHRC, COUNTERING ISLAMOPHOBIA: AN UNFINISHED BUSINESS (2015) [hereinafter

COUNTERING ISLAMOPHOBIA].

258

Id.

259

Id. at 66.

260

Id.

FISCHER_3.22.21 3/23/2021 4:02 PM

2021] HATE SPEECH AND BLASPHEMY LAWS 217

This argument is in line with Prime Minister Khan’s claim that criticizing Islam

harms Muslims.

261

The Commission argues that criticism of the religion itself

leads to discrimination against individual adherents of the religion.

262

If hate

speech includes speech that leads to discrimination against persons, then by this

logic criticism of the religion is hate speech.

This dangerous argument can be used to justify a broad ban on any speech

criticizing or questioning a religious belief because in theory it could cause harm

to an adherent of that belief. Any speech critical of a religion would be deemed

hate speech. Again, this points to the problem that the determination of what

exactly can be classified as hate speech is dependent on cultural and religious

backgrounds, and thus no matter how hate speech is defined, laws prohibiting it

will be applied in ways similar to blasphemy laws.

ONCLUSION

In countries where religious and political minorities suffer, there are people

who want to see the repeal of blasphemy laws and the flourishing of religious

and political pluralism and freedom. But extremism continues to prevail.

Government officials who speak out against blasphemy laws and discrimination

against minorities face serious threats, the loss of jobs, and even death.

The U.N. Strategy and Plan of Action on Hate Speech, which was unveiled

the same month Asia Bibi finally was allowed to leave Pakistan after almost a

decade on death row for alleged blasphemy,

263

hinders religious freedom efforts

by these advocates and harms the very minorities the United Nations claims to

protect. It gives cover to extremists who want to continue to quash viewpoints

that go against the status quo or that threaten their position of power, and to

politicians who find it politically expedient to appease extremists, or who

themselves want to suppress political opposition.

The problems with the Strategy and Plan of Action will not be solved with a

more rigorous definition of hate speech. Flaws in the definition in the Strategy

and Plan of Action are fundamental to restrictions on hate speech. By their very

nature hate speech laws rely on subjective interpretation, which facilitates

arbitrary and often malicious enforcement against minorities, in the same ways

blasphemy laws are used. The insistence by Special Rapporteurs that problems

261

See generally Samaa TV, supra note 240.

262

See generally COUNTERING ISLAMOPHOBIA, supra note 257.

263

See Secretary-General António Guterres, supra note 1; More Than Six Months After Acquittal, supra

note 58.

FISCHER_3.22.21 3/23/2021 4:02 PM

218 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

with vague hate speech laws can be solved with stricter definitions and

independent judiciaries ignores the realities that there is no impartial arbiter of

what constitutes hate and that, in fact, in many cases the arbiter is politically or

religiously motivated against minorities.

U.N. Member States and human rights advocates who claim to care about

minority rights need to oppose in strong terms and disassociate from the

Secretary-General’s Strategy and Plan of Action on Hate Speech. The longer the

Strategy and Plan of Action exists, the more it will permeate agencies, programs,

and funds throughout the United Nations. These entities then will influence

perhaps unwitting Member States, through U.N. funding, programming, and

policy development in those countries, to adopt laws and policies that are

vulnerable to abuse. Meanwhile, Member States that punish blasphemy will

capitalize on the Strategy and Plan of Action’s ambiguous and subjective terms

to justify their violations of the rights of minorities. The Strategy and Plan of

Action on Hate Speech is disastrous for these minorities, and Member States

must put an end to the campaign immediately.