Legal responses to religious hate crime: identifying critical issues

Abstract

To what extent should citizens, as a matter of law and policy, be “free” to abuse, ridicule, threaten, defame, mock and insult the religious beliefs, icons, prophets, practices and esteemed figures of believers, even where such attacks contribute to ongoing debate of topics of “public interest” and political controversy? Should the expression of religious views contradicting liberal ideology’s universalistic interpretation of principles of tolerance, pluralism and broadmindedness be legally protected? Or, are issues concerning the “protection of religious sensibilities” essentially particularistic and wholly context dependent in ways that this universalistic ideology, grounded in conceptions of natural/human rights, cannot adequately grasp?

Addressing such key questions requires us to surpass purely legalistic and technocratic forms of doctrinal analysis concerned with remedying alleged “gaps” and “anomalies” in a criminal code. In what follows, we question the distinction between vilifying a religious practice and directly inciting hatred of its believers, which is contained in recent legislative initiatives and resulting case law. We compare theoretical, mainly normative arguments given for ‘freedom of expression’ within liberal ideology, with empirical examples which expose the contradictions within, but not the legitimacy of, existing legislation regarding ‘stirring up religious hatred’ and ‘freedom of speech’.