Profane: Sacrilegious Expression in a Multicultural Age 9780520958227

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Profane

The publisher gratefully acknowledges the generous support of Bentley University.

Profane Sacrilegious Expression in a Multicultural Age

edited by

Christopher S. Grenda, Chris Beneke, and David Nash Foreword by Martin E. Marty

university of california press

University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit www.ucpress.edu. University of California Press Oakland, California University of California Press, Ltd. London, England © 2014 by The Regents of the University of California Library of Congress Cataloging-in-Publication Data Profane : sacrilegious expression in a multicultural age / edited by Christopher S. Grenda, Chris Beneke, David Nash. p. cm. Includes bibliographical references and index. isbn 978-0-520-27722-9 (cloth, alk. paper) — isbn 978-0-520-95822-7 (electronic) 1. Blasphemy. 2. Swearing. I. Grenda, Christopher S. bl65.b54P76 2014 179′.5—dc23 2014000733 Manufactured in the United States of America 23 22 21 20 19 18 17 16 15 14 10 9 8 7 6 5 4 3 2 1 In keeping with a commitment to support environmentally responsible and sustainable printing practices, UC Press has printed this book on Natures Natural, a fiber that contains 30% post-consumer waste and meets the minimum requirements of ansi/niso z39.48-1992 (r 1997) (Permanence of Paper).

Contents

List of Illustrations Foreword

vii ix

Martin E. Marty

Introduction: On the Modern Confluence of Blasphemy, Free Expression, and Hate Speech

1

Christopher S. Grenda, Chris Beneke, and David Nash

part one. creating space for sacrilegious expression 1. Thick-Skinned Tolerance: Satire, the Sacred, and the Rise of the Modern

25

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Christopher S. Grenda

2. The Productive Obscene: Philip Roth and the Profanity Loop

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Jacques Berlinerblau

3. Defaced: The Art of Blaspheming Texts and Images in the West David Lawton

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part two. sacrilege and democratic development 4. Blasphemy and Free Thought in Jacksonian America: The Case of Abner Kneeland

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Paul Finkelman

5. Secular Blasphemies: Symbolic Offense in Modern Democracy

141

Robert A. Yelle

part three. civility, the sacred, and human rights 6. Muslim Political Theology: Defamation, Apostasy, and Anathema

167

169

Ebrahim Moosa

7. Protesting Sacrilege: Blasphemy and Violence in Muslim-Majority States

189

Ron E. Hassner

8. The Indonesian Blasphemy Act: A Legal and Social Analysis

223

Asma T. Uddin

9. Profound Offense and Religion in Secular Democracies: An Australian Perspective

249

Elizabeth Burns Coleman

10. Blasphemy versus Incitement: An International Law Perspective

281

Jeroen Temperman

Afterword: Blasphemy beyond Modernism

315

David Nash

List of Contributors Index

335 339

Illustrations

figures 3.1. 3.2. 3.3. 3.4. 3.5. 3.6.

Chris Ofili, The Holy Virgin Mary / 84 Myra Hindley / 86 Maurizio Cattelan, HIM / 88 Alexander Kosolapov, This Is My Body / 91 Alexander Kosolapov, This Is My Blood / 91 Alan Schechner, Self Portrait at Buchenwald: It’s the Real Thing / 92 3.7. Alan Schechner, Bar Code to Concentration Camp Morph / 94 3.8. Alan Schechner, The Legacy of Abused Children: From Poland to Palestine / 96 3.9. Theo van Gogh, still from Submission / 97 3.10. Gérard Garouste, Passage (Autoportrait) / 102

tables 7.1. Occurrence of cartoon riots in Muslim-majority states / 190 7.2. Cartoon protests and riots in states with significant Islamist movements / 207

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Foreword martin e. marty

Blasphemers, profaners, and producers of the sacrilegious are to be found in most cultures, especially those that hold religion in high regard. Readers of this book will soon learn that attacks on and undercuttings of religions acquire many names, usually in terms of what they oppose, and what they oppose changes so often that the attackers are usually very busy people. Because I am a historian of religions, I had to ask why the editors and authors gave me the privilege of helping to introduce their volume. We scholars of religion don’t usually employ inflammatory words such as blasphemy or profaneness, instead preferring abstract terms to deal with such phenomena. Secularization had long been one such term, perhaps because it sounds neutral. Yet while it is still at home in some scholarly discourse today, it almost always gives harbor and encouragement not merely to nonreligion but also to whatever might subvert religion. The authors in this collection venture far from the conventional boundaries of the study of religions. They do so in pursuing the logic of their respective disciplines as well as in crossing disciplinary boundaries as their subjects and contexts demand. When I began work in this field three score years ago, one of its key areas was described as a dialectic of belief and unbelief. Ever since I began to publish, “unbelief” has been a specialty of mine. It showed up in a doctoral dissertation, later spruced up and published as The Infidel: Freethought and American Religion (Cleveland: Meridian Books, 1961) and tidied up still further as The ix

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Varieties of Unbelief (New York: Holt, Rinehart and Winston, 1964). Official Catholicism established a Vatican Secretariatus Pro Non Credendibus, which held conferences in which I participated in Rome and Baden bei Wien in 1976. Out of the Rome conference came a book, The Culture of Unbelief (Berkeley: University of California Press, 1971), and later the two-volume Encyclopedia of Unbelief (Buffalo: Prometheus Books, 1985). Terms such as blasphemy and profaneness did not appear in any of these, though they were clearly vital to “the culture of unbelief.” Significantly, in the post–World War II era, Western scholars played up the conflict between belief and unbelief, thus accenting the cognitive and intellectual dimensions of religious expression. What stunned me as I read Profane was how time bound and culture bound that imagined conflict was. Contributors to the present collection do justice to the doctrines and the intellectual substance of religious belief over against unbelief. But recent generations of scholars, including authors in this book, are not content to consider the propositional or dogmatic sides of belief and its antagonists. They want to get closer to their religious and antireligious subjects and tease out the meaning and significance of blasphemy and profaneness. None of their terms are novel. Blasphemy has always erupted and interrupted where religious cultures are vibrant and their importance taken for granted. In previous eras and other cultures, it was easier than now—as evidenced in the chapters ahead—to define, censor, legislate, or police the blasphemer. But it is the fact of the protean, viscous, and sometimes elusive character of the blaspheming violators that draws attention and demands inquiry now. Similarly, the profane has been observed, isolated, and inquired about as long as there has been a well-defined understanding of “the sacred,” however described. The profane (pro-fanum, “across the threshold of the sanctuary”) is simpler to discuss when it manifests itself in a homogenous religious culture, where the sanctuaries are readily identifiable. In this book, however, the authors have to deal with multireligious expressions that may have little to do with state-sanctioned sanctuaries. They find such expressions newly invigorated in an age of images. For an introduction to this perspective, explore the ubiquitous digital phenomena that, as David Lawton’s chapter 3 explains, challenge traditional textual expressions. How is the blasphemer censored when he or she is not easily taken captive as a specimen for study? Every day, social media generates countless opportunities for public dissent or affirmation— such as Facebook’s ubiquitous “Like” button and Twitter’s “Retweet” option—which can subvert religious authority in an instant.

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As for sacrilege, the term survives, but it demands different approaches than it might have when the sacred was more easily isolated and defined. Many of the following pages revisit historic inventors and purveyors of sacrilegious phenomena, but the volume’s contributors are busiest when they deal with contemporary expressions. Sacrilege, as Christopher S. Grenda shows, thrives on satire (see chapter 1). Satire abounds in popular and high culture alike. As this foreword is being written, wildly popular comedians host late-night news shows that regularly and derisively feature religious topics. So far as I can tell, religious viewers make up no small part of their audiences. What does it mean when such iconic figures display ambivalence or casual irreverence toward religion? Comic portrayals may have corrosive effects on religious communities, but these communities are too fluid, kinetic, and vulnerable to provide a stable object of sacrilege. Yet something important, perhaps even something sacred, is being subverted. The word communities in that sentence points to a revealing and appropriate notice explicit in Grenda’s and Lawton’s essays and implicit in others: blasphemy is an assault on community. Blasphemy has always been most effectively proscribed when community boundaries have been sharply defined and church-state authority robust. It was not difficult for Grand Inquisitors or their less grand inferiors to locate, censor, punish, or kill those who were seen as undercutters of the Catholic imperium in all its forms or of Protestantdom when it emerged. It was easy for Puritans, empowered by the laws of England and New England, to pursue and punish blasphemers. There was then little difficulty in naming the blasphemer and pointing out how her or his expressions jeopardized community. The authors in this book, however, know that at least in “Western Culture,” where church and state have been largely separated and where civil constitutions recognize a vast number of religious communities and expressions as being protected by law, pursuing and punishing the sacrilegious is a more fraught exercise. This does not mean that putative or alleged violators have disappeared. The targets have merely changed and the goal posts moved. Which is to say that in any study of blasphemy, profaneness, unbelief, or sacrilege, the scholar has to be discerning and, because religion in some form or other is usually a target, has to at least provisionally determine what is religious and what is not. The readiest location in which to find the alternative to conventionally studied religion in pluralist societies is not the established sanctuaries but different kinds of public gathering, witness, testimony, and celebration.

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The most obvious and most obviously powerful among these appear in what Robert Bellah and whole schools of political scientists, sociologists, and theologians have called “civil religion” (see especially Bellah, “Civil Religion in America,” Daedalus 96, no. 1 [1967]: 1–21). Such an entity, evident in Muslim-majority states as well as secular democracies, is at home in countries such as the United States, which disestablished religion centuries ago, substituting for it the veneration of “the people” and its national symbols. To observe examples of all this, students of this subject have to make at least tentative and preliminary stabs at defining religion and locating where its power resides in the present and the past century. To see in the previous century how instant, efficient, and radical was the censorship of those who were viewed as violating the sanctity of a nation, a race, or a culture, one need only consider Fascism, Nazism, Communism, or other repressive forms of government. In the past century, millions were imprisoned or executed for their blasphemy against such sacralized political movements. Irreverence directed at the swastika, the fasces, the hammer and sickle, the red star, or the crescent has been the beleaguered object of our modern inquisitors and imprisoners. Today the civil definition of “the sacred” is most assiduously and selfconsciously analyzed in what Marshall Hodgson, in The Venture of Islam: Conscience and History in a World Civilization (Chicago: University of Chicago Press, 1974), calls Islamdom. Salmon Rushdie and other targets of Muslim outrage make unsurprising appearances on the pages devoted to Muslim-majority states. Drawing on historic texts, especially the Qurʼan, Muslim governments or movements make daily news because of their intolerance for obscenity, profanity, and blasphemy. Violators of the norms of community, be they legal or cultural, know that they invite death when they bring their causes to the open field known as “the public.” Ebrahim Moosa (chapter 6) and Ron E. Hassner (chapter 7) chronicle this well in the succeeding pages. In the introduction, the editors observe how their subject has reemerged from the shadows and is now the object of lively global media attention. Some of the awakened interest in blasphemy occurred because historians in the West, who had long regarded “secularization” as the dominant paradigm, had to reconsider their working assumptions. They had been neglecting the religious voices all along. But then came events that provoked more considered responses. An illustration: In 1988, when I was charged to colead a six-year, five-volume study of militant fundamentalisms in the various religions, my colleague R. Scott

Foreword | xiii

Appleby and I monitored differing understandings of religion in various cultures. Fresh in our minds were the American military and governmental leaders who did not know what to make of the lethal potential of some movements behind the 1979 Iranian revolution. When we asked military, political, and intelligence leaders how that revolution, which helped to unseat the James Carter administration and embarrassed the United States, had surprised American officials, we encountered various responses, including the argument that the leaders had routinely overlooked religious elements in Muslim-majority states and movements. The United States, we heard from the apologists, knew much about Iranian education, business, military affairs, music, and more. To paraphrase the thrust of the feeble explanations for intelligence failures, “the only thing we paid no attention to was religion, because everyone knows that religion has no power in the modern world.” Several years later, Appleby returned from domestic and world travels with word that the State Department and the Central Intelligence Agency, which had once virtually ignored religion, had now “gotten” it. The reawakening of “strong religions,” the tragedy called 9–11, and the events that headlines cover daily have brought religion, including that which opposes blasphemy, profaneness, and sacrilege, unequivocally to the fore. Certainly the place of religion in governmental, diplomatic, and military affairs assures that its study will remain urgent for an indefinite future. My reading led me to approach this book for the light it throws on grand and often ominous movements of our time. That is where its findings and proposals will likely have the greatest impact. But I have to confess that as I read, I found another reason to encourage others to do the same: that is, for the way that the people about whom the authors write generate genuine curiosity and enjoyment in learning. For sixty years I have generally devoted my attention to mostly settled-down, orthodox, staid, and spent or half-spent religious sects, cults, denominations, and movements. For me, dealing with unbelievers, blasphemers, and profaners has produced few dull moments. But I cannot assume that those who have less reason to write or read the history of religious movements share that spirit. Let me invite them, then, simply to notice how often, from ancient times to postmodern ones, it is the heretics, the unbelievers, and the blasphemers who make the religious story come alive. They may do so simply by giving expression to aspects of human aggression. The blasphemer may attack one sacred front, then, when it

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wanes, move on to another. This is in the spirit of John Dewey’s trenchant observation that people do not shoot at targets because they are there. They set up targets to make the act of shooting more meaningful. On the other hand, sometimes the satirist acts in a spirit of vocation and hope. The poet W. H. Auden observed that while the comic may be a pessimist—think of gallows humor, for example—the satirist (see chapter 3) is a kind of optimist (Auden, introduction to The Selected Poetry and Prose of Byron [New York: New American Library, 1966]). He thinks that by poking desperate fun at the pretentious or the selfassured holders of power, he might persuade them to reconsider their place and/or be toppled. A cartoonist friend of mine suggested that being a satirist was a cherishable and enviable profession. He said, “I get up every day knowing that I am professionally called to be an equalopportunity assailant,” taking on people on both sides of every polarizing issue. In the period when my work focused on “the infidel,” I could not help but notice how much more fun the Mark Twains and Voltaires had than did their sober and contented clerical targets. Thus, the authors of the following chapters regularly demonstrate that they are having a good time grappling with the charmingly obstreperous, emphatically fallible, and often outrageously imaginative characters who have so nettled people in power and provided fresh openings for thought about the most pressing, philosophically rich, and often downright entertaining issues of earlier times, as well as our own.

Introduction On the Modern Confluence of Blasphemy, Free Expression, and Hate Speech christopher s. grenda, chris beneke, and david nash

A minor legal revolution occurred in 2008. That year, the United Kingdom decriminalized blasphemy as a common-law offence.1 Though little debate preceded the move, which passed as a minor amendment to a broader bill for combating crime and disorder, this was no exercise in symbolism. Just a few years earlier, a parliamentary committee had affirmed blasphemy as an offense of “strict liability,” meaning that the intent of the accused was not relevant for prosecution.2 An English newspaper editor was successfully prosecuted under this standard near the end of the 1970s, and in 1996 the British government surprised a filmmaker by censoring his film for blasphemous content. The European Court of Human Rights (ECHR) upheld both decisions.3 Thus, with the passage of the 2008 statute, a long epoch of blasphemy prosecution appeared to have ended. Yet concerns over contemptuous and disparaging speech—especially about religion—have proved more vexed and intractable than earlier observers could have anticipated. An ostensible relic of bygone eras, blasphemy has reemerged as an explosive transnational phenomenon. Violent reactions to the low-budget American film trailer The Innocence of Muslims and to Danish newspaper cartoons depicting the Prophet Mohammed, the indictment of the Dutch politician Geert Wilders for his cinematic critique of Islam, and a spate of blasphemy-related murders in Pakistan and Syria have refocused world attention on the legitimate scope of free expression in religious matters. While the Islamic 1

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world has been the scene of the most conspicuous eruptions, tensions between critical expression and religious incitement smolder across the globe. European and Australian legislation against disparaging religion or ridiculing religious persons and a United States–backed United Nations resolution against “hostility toward religious believers” underscore the world’s fractured understandings of both the sacred and the sacrilegious. Humans have been uttering profane words—and punishing them— for millennia. But these recent incidents signal uniquely modern currents rippling across the contemporary world. The U.K. story is a case in point. Amid the uproar over the Danish cartoons, Parliament unwittingly took a step toward the abolition of blasphemy prosecution by legislating against a new form of offensive speech. The 2006 Racial and Religious Hatred Act criminalized incitement to religious hatred, defined as “stirring up hatred against persons on religious grounds.”4 In enacting this new law, Parliament commenced a movement from the criminalization of older offenses of blasphemy (contempt of deity) and sacrilege (disparagement of religion) to prohibitions on the newer offense of religious hatred (inciting hostility or violence against religious persons).5 The transition was not completed until the abolition of the Common Law of Blasphemous Libel in 2008, which capped a process fraught with lingering unease about the abolition of blasphemy restrictions. Other Western democracies have similarly shifted their approach to profane expression. In the decades after World War II, many formerly Christian countries replaced or revised blasphemy laws protecting established churches and prescribed beliefs with laws protecting the religious beliefs of all citizens, or hate speech legislation protecting religious believers or persons. The German criminal code includes both types of provisions, one protecting all religions against insult and another protecting religious persons against hatred and assaults on their dignity.6 Austria’s penal code prohibits the “disparaging of religious precepts.”7 Ireland’s Defamation Act of 2009 criminalizes “blasphemous matter” that is “grossly abusive or insulting in relation to matters held sacred by any religion.”8 The enactment of these European strictures has coincided with broader transnational efforts to shield Islam from criticism.9 Since 1999, the fifty-seven-state Organization of Islamic Cooperation (OIC) has sought a United Nations resolution criminalizing hatred against religious believers and protecting religion by defining “the defamation of

Introduction | 3

religions” as a human rights violation.10 To date, liberal proponents of free speech have successfully blocked its adoption. A revised 2011 resolution veered closer to the contemporary European legal formulas that seek to protect religious persons, prohibiting “discrimination, incitement to violence, and violence against persons based on religion or belief.” As a consequence, the latest OIC effort has drawn significant support from both Europe and the United States.11 There are substantive differences between the way that secular European regimes approach irreverent speech and the way that Muslimmajority countries approach it. Whereas Muslim-majority regimes protect the established faith of the state, contemporary democratic regulations tend to protect a broad range of religions or their adherents. Punishments also diverge. Western and Western-inspired democracies generally rely on the deterrent effects of fines, probation, or suspended sentences (with a criminal record), while blasphemy laws in Muslimmajority states prescribe imprisonment, corporal punishment, and even execution.12 Iran’s penal code from 1991 states that “anyone who insults the Islamic sanctities or any of the imams . . . should be executed if his insult equals to speaking disparagingly of Prophet Muhammad. Otherwise, should be imprisoned from one to five years.”13 Pakistan’s relevant criminal code, developed in the 1980s, similarly protects Islamic sanctities with penalties for blasphemy that include long imprisonment and capital punishment.14 Sudan’s 1991 criminal code guards both religion and religious believers, punishing insults against religion or expressions of contempt for adherents with imprisonment, fines, and flogging. The code also prescribes death for apostasy from Islam.15 Yet these stark legal fault lines obscure something more fundamental and more tenacious in human affairs: a nearly universal substratum of esteem for singularly venerated and inviolable things. Across regions of the globe, religious cultures, and regime types, societies invariably single out privileged aspects of social life for unique recognition and protection against profanation. These sacred objects range from dominant religions (in, e.g., Iran, Pakistan, and Sudan) through sanctities more generally (in, e.g., Ireland, Austria, and Germany) to the personal dignity of religious believers (in, e.g., the United Kingdom, Australia, and Canada) and sensibilities concerning national symbols (in, e.g., the United States). Whatever the objects protected, most societies strive to manage the social effects of derisive expression. The means of identifying offenders are often similar as well. Wherever they exist, restrictions paint irreverent

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speech in broad, imprecise strokes. Vague concepts such as insult, offense, ridicule, contempt, hostility, disparagement, and incitement generate captious legal formulas with the potential to entrap activists, artists, dissidents, writers, populists, and even the occasional social media malcontent, whether they intended to blaspheme or not. The improbable modern convergence of speech regulation is crystallized in the widespread invocation of “defamation.” Its traditional meaning in democratic societies focuses on individual persons. Civil prosecution of defamation penalizes expression only when it is shown to harm a person’s reputation and livelihood. Many thus view the campaign by the OIC and others to criminalize the defamation of religions as an attempt to change the meaning of the concept. Yet as Robert A. Yelle indicates (chapter 5), the personally affective way many Muslims identify with the Prophet Mohammed may predispose them to view derogatory speech about the religious figure as violating their persons, a verbal form of attack. Elizabeth Burns Coleman suggests a correspondingly symbiotic relationship between beliefs and person among some Aboriginal Australians (chapter 9). The conviction that defamation should extend beyond matters of personal reputation and livelihood to encompass communal esteem, as Jeroen Temperman points out (chapter 10), poses serious practical and legal challenges for liberal regimes premised on free speech.16 Whatever its impact, advocates of an encompassing conception of defamation remind us that religious persons may not be as easily abstracted from religious belief as secular advocates of censorship suggest.17 As the ECHR declared in 2005, “believers may legitimately feel themselves to be the object of unwarranted and offensive attacks” when their beliefs are insulted.18 On this view, religious identity—what makes individuals religious persons—is nearly always entwined with belief. That tends to distinguish it from racial and ethnic identity.19 But the fact that it is relatively independent of physiology or skin color does not make religious identity less constitutive of a person’s sense of self or, as the ECHR suggests, less deserving of protection from public ridicule or disparagement.20 These fine distinctions make the criminalization of religious hate speech a delicate endeavor in liberal democracies. The relatively mild speech restrictions enacted in the Canadian province of Manitoba illustrate the challenge intrinsic to distinguishing religious beliefs from the people who hold them. Prohibiting “the publication of a libel against a race, religious creed or sexual orientation,” Manitoba’s criminal code

Introduction | 5

Section 19(1) seemingly protects religion (rather than religious persons). Yet the provision describes the prohibited libel as that which is “likely to expose persons belonging to the race, professing the religious creed, or having the sexual orientation to hatred, contempt or ridicule.”21 Like speech codes in other Western states, Manitoba’s statute makes provision for irreverent expression about religion and seems to prohibit only verbal hostility against the persons of religious believers.22 However, the law curtails expression about religion that is “likely to expose” religious believers to hatred or ridicule without specifying the nature of the exposure (the degree of imminence and proximity) or its extent (the degree of intensity and persistence) and without identifying how and when ridicule of religion becomes ridicule of the religious person. We have here more an allusion to a distinction than a clarification of it, requiring future definition by government prosecutors, judges, and regulators, often in the heat of prosecution itself. The Manitoba law’s imprecise formulation reflects its complex purpose, which is to shield vulnerable groups by criminalizing vile and inciting speech without endangering free expression. Balancing both aims by distinguishing criminal expression from noncriminal expression is a difficult task. Australia has encountered a similar conundrum. The state of Victoria’s Racial and Religious Tolerance Act of 2001 singles out “persons” for special protection in prohibiting a statement about “religious belief or activity” that “incites hatred against, serious contempt for, or revulsion or severe ridicule of” religious adherents.23 The issue there is not simply how and when ridicule of belief incites ridicule or hatred of believers but subtle degrees of expression, namely when seemingly permissible expressions of contempt or ridicule become severe contempt and serious ridicule, which are criminal. Sensing these difficulties, the chief executive of the Equal Opportunity Commission of Victoria attempted to clarify the law as prohibiting ad hominem vilification but not offense.24 But if ad hominem vilification resulted in demonstrable harm, it would amount to standard defamation and thus not require the 2001 legislation. The legal and ethical quandaries arising in Manitoba and Victoria resonate in liberal, diversity-friendly democracies across the globe. Exactly when does expression become criminal? When do spirited, open debate and criticism reach such a degree of derision and incitement as to require criminalization? Who should adjudicate when strong disagreement is interpreted as contempt? Are liberal states equipped to craft definitive legal answers to these questions? And then we confront the

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problem whose urgency has become evident over the past quarter century: what happens when such judgments about expression are made across national and cultural boundaries?

the internationalization of blasphemy In 1988, the Western world received the first intimation that blasphemy might be revived in new, harrowingly transnational form. That was the year Salman Rushdie’s The Satanic Verses, a whimsical and determinedly impudent rewriting of core Qurʼanic themes, touched off a cultural and political firestorm.25 The novel, Rushdie explained, addresses Islam’s “revelation from the point of view of a secular person.”26 By the time he published it, he had already acquired widespread renown in the Englishspeaking world for literary and political irreverence. The Satanic Verses had a truly global impact, marking the rise of profanation as a conspicuous international phenomenon. Neither moderate nor conservative Muslims were amused. Islamic authorities regarded The Satanic Verses as derogatory for a number of reasons, including its substitution of “Mahound” for the name of Islam’s holiest prophet and “Jahilia” for its holy city of Mecca. Brash threats and occasional violence ensued. Five months after the book’s publication, the Iranian leader Ayatollah Khomeini issued a fatwa calling for “all zealous Muslims to execute” Rushdie, a resident of London, along with all “publishers who were aware of its contents.”27 The British Muslim Action Front simultaneously called for Rushdie’s prosecution under England’s existing law of blasphemous libel. However, because English law protected only the Church of England and its version of Anglican Christianity (as the church established by law), Rushdie was immune from prosecution in the United Kingdom.28 As a secular, left-leaning British author who was born in India and raised a Muslim, Rushdie embodied a new era, in which relatively isolated worlds of speech regulation and heightened religious sensibilities made increasingly regular and uneasy contact. One source of this change is technological. Electronic media now transmit offense as rapidly as image and text—nearly as fast, in other words, as profane words are uttered. Objects of religious indignation and offense can be distributed, recontextualized, and summoned at the click of a mouse. The global flood of electronic media has occurred in conjunction with a worldwide renaissance of religion and religious politics in the past half century, a phenomenon that Peter Berger calls “the deseculari-

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zation of the world.”29 Despite regular forecasts of its demise, faith thrived in many regions in the late twentieth and early twenty-first centuries. More importantly, devotedly literalist and proselytizing forms of faith flourished. This was true among America’s Christian evangelicals as well as in northern Africa and southern Asia, where an energized postcolonial generation of Muslim activists rejected Western secularism in favor of religiously informed political movements and religious nationalism.30 In some cases, such as Iran, the religious dimension was explicitly revolutionary. In others, such as Pakistan, it was grafted on to the older postwar secular state.31 Though such religious movements promised a return to undefiled beginnings, as the overextended term fundamentalism suggests, their ideologies often proved culturally innovative and politically fecund. In many instances, they ended up tethered to authoritarian regimes that criminalized expression critical of both religious sanctities and political authorities.32 These movements have not always been without humor, and many have proved commercially savvy, but they are generally less inclined than their languishing liberal counterparts to accommodate the twenty-first-century onslaught of digitally paced ridicule and raillery. Adding to the disruption that the cascading rush of electronic media and religious politics caused was the ethnic and religious diversification of the world’s democracies. Vigorous multinational migration has provided the demographic foundation for a thorough transformation of diversity’s value and social function. Both secular and religious variants of multiculturalism gained traction, especially in Europe, the Americas, Australia, New Zealand, and India.33 As multiculturalists and new minorities challenged entrenched commitments to nationalism and individual-rights liberalism, they also fostered emphatic expressions of identity difference.34 Public spaces that had been relatively homogenous became sites for the assertion of religious and ethnic distinctness. While spirited defenses of cultural assimilation and the priority of national identity have been common in Europe and America over the past few decades—and bouts of xenophobia hardly unknown—modern rights-protecting states have largely responded to the new social realities by accommodating diversity, especially religious diversity, through policies of social recognition and cultural tolerance.35 One consequence has been the replacement of blasphemy laws premised on the sacred character of a specific religion with prohibitions on the disparaging of all religions and/or hate speech legislation premised on the dignity of persons as members of religious groups. In the wake of the Rushdie

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affair, Britons debated whether the offense of blasphemy should be retained, repealed, or extended to protect all U.K. religions equally rather than just the established church. An interfaith group of English religious leaders belonging to the World Conference on Religion and Peace issued a statement advocating equal treatment “in our multi-cultural society” by extending the blasphemy law so that “all minority religions will be fully protected.”36 Likewise, in 2002, the Muslim Council for Religious and Racial Harmony petitioned Parliament to extend “existing religious offences (notably blasphemy) laws” to “all major faiths practiced in the United Kingdom” so as to “promote better understanding in our multi-cultural and multi-faith society.”37 The logic behind the proposed expansion of England’s blasphemy law was mainly secular (criminalizing inciting irreverence) and multicultural (equally protecting the beliefs of all adherents, native and immigrant). The denouement came when Parliament criminalized incitement to religious hatred against any group, in 2006, and then, two years later, abolished its blasphemy law. The coincidence of digitally accelerated technological change, surging religious politics, and Western multiculturalism has laid the groundwork for a reconsideration of freedom—and its appropriate limits—in Western democracies. Early modern demands for liberty of conscience sought to limit state powers in religious matters, especially the government’s capacity to impose religious uniformity. The First Amendment to the U.S. Constitution, for example, forbids Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” This “negative” liberty, as Isaiah Berlin famously termed it, presumed a high degree of individual autonomy and what Christopher S. Grenda calls “thick-skinned tolerance” (see chapter 1).38 The implications of such rights, the products of countless travails, were that (1) individuals were free to express political and religious opinions and (2) those who objected would not respond with violence. In other words, conceiving religious liberty in negative terms has usually implied the toleration of unwelcome speech about religion. The concurrent postwar development of multicultural and authoritarian movements has resulted in a two-sided offensive against this negative liberal doctrine of free speech, now often criticized as insufficiently attentive to cultural differences. Recent moves to restrict blasphemy derive from a “positive” conception of liberty.39 In contrast to negative liberty, positive liberty sanctions state efforts to support a hospitable social environment for the maintenance of identities and exer-

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cise of beliefs, which may be enhanced by limiting certain kinds of critical expression.40 This perspective informed a 2008 report of the European Commission for Democracy through Law that examined regulations throughout Europe. Its title, “Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred,” points to the proximity of blasphemy and hate speech restrictions. Citing the Austrian penal code, which prohibits the “disparaging of religious precepts,” the commission explained “the constitutional freedom of religion by taking it as both a positive and a negative right vis-à-vis the state. The positive aspect of the freedom leads to a constitutional obligation to protect religious feelings in order to guarantee religious peace.”41 Roughly a decade earlier, the ECHR, referencing Articles 9 and 10 of the European Convention on Human Rights, made a similar point more succinctly: “The manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State.”42 These multicultural restrictions on expression, and the more positive conceptions of liberty accompanying them, have resulted in the occasional confluence of efforts by democracies to protect minority groups within their borders and efforts by authoritarian societies to limit criticism and curtail minority rights within theirs. What both enterprises share is a presumption that dignity is inseparable from respectful characterizations of groups and nations, which satire, derisive rhetoric, denigrating images, and other forms of critical expression threaten.43 As the secretary general of the OIC explained in 2012, “Freedom of speech is one thing, but usage of your freedom should not be to offend others or advocate hate speech or provoke to violence.”44 To be sure, democratic efforts often seek to protect minority identities rather than a hegemonic religion and thus are distinguishable from traditional and authoritarian blasphemy laws in fundamental ways. Yet being democratic, such efforts still require majoritarian authority for legal enactment and/or the status of a majoritarian social norm to be effective, what John Stuart Mill called “the ascendancy of public opinion.”45

the scholarship on sacrilegious expression Until recently, scholarly discussions of blasphemy and the censoring impulses that motivate it have tended to treat these phenomena as curious vestiges of a remote past, moldy legal constructions that have outlived their ideological infrastructure. In the aftermath of the Rushdie

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affair, for example, the American scholar Leonard W. Levy expanded an earlier and less ambitious history46 into a much larger and widely cited volume, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (New York: Alfred A. Knopf, 1993). The latter examines cases of verbal offense from ancient origins through the modern Englishspeaking West, concluding with Khomeini’s fatwa against Rushdie and the pluralist question of the day, “Should all religions be protected or none?”47 Yet even in exploring contemporaneous authoritarian and multicultural interests in blasphemy regulations, Levy presented blasphemy as a relic of a distinctly traditional and predominantly Christian practice. He thus offered a hopeful forecast of blasphemy’s ultimate demise.48 His contemporaries saw matters progressing along similar lines. While some employed newer methodologies to explore the social texture of blasphemy as a practice structuring community life, they also tended to treat it as the residue of an outdated and parochial world view.49 Scholarship since the turn of the millennium has evinced an awareness that blasphemy can no longer be understood primarily as the fading pulse of Christian medievalism. Instead, human aversion to the sacrilegious seems more and more like a durable palimpsest on which many different kinds of culturally specific needs are inscribed. It reflects both deep individual longings and tireless collective desires to protect the sacred and restrict expression that threatens it. Different cultural traditions—and different eras within traditions—yield alternately robust and retiring approaches to speech restriction. Yet over time and across cultures we can discern historical patterns in the formation and application of blasphemy laws as repeated efforts are made to mark off sacred and inviolable realms of life for special recognition and protection. By almost all accounts, we are living through an especially restive era of both irreverent expression and speech regulation. Paul Marshall and Nina Shea have not only examined the severe penalties inflicted on those who have defiled Islamic sanctities in countries such as Pakistan and Iran but also explored how the European Commission on Human Rights and the ECHR have punished authors and censored their works in order to protect human rights—“namely, ‘the right of citizens not to be offended in their religious feelings.’ ”50 David Nash has suggested that “the blasphemy industry is poised for significant growth” and notes the prodigious human capacity to offend and incite.51 Scholars, however, do not agree on the value of unrestricted speech. In fact, the philosopher Elizabeth Burns Coleman and the sociologist Kevin White argue that blasphemy regulations foster an inclusive pluralism in multi-

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cultural Australia. They conceive of laws against defamation as secular instruments for recognizing and sheltering the diversity of sacred perceptions, that is, for “protecting difference.”52 Profane enters these churning cultural and legal waters by treating blasphemy as a constituent feature of modernity—not an aberration from it—just as it was a constituent feature of earlier forms of social organization. The volume’s tripart structure points to the multifaceted relationship between blasphemy and modernity, which cuts across time and space and thus resists reduction to a “problem” unique to any particular culture, religion, or geopolitical region. Part 1 investigates struggles to create space for sacrilegious expression in Western culture and society. Christopher S. Grenda opens the section by examining conflicts over religion-related expression in early modern Europe and North America. His chapter suggests that the Enlightenment’s great iconoclasts, such as David Hume, along with its orthodox Christian exponents, such as John Witherspoon, developed modern conceptions of toleration by turning satire into an agent of religious tolerance. Of course, much Enlightenment sacrilege appears tame by today’s standards. In their chapters on modern sacrilege, Jacques Berlinerblau and David Lawton chart the self-consciously provocative nuances of late twentieth- and early twentieth-century artistic expression. Both draw attention to the audience-dependent character of sacrilege. Exploring the exuberant obscenity of Philip Roth’s fiction, Berlinerblau contends that the author’s brilliant and irreverent tales unleashed a cycle of incendiary responses that demonstrate how frictions between profane authors and outraged audiences generate creativity. Lawton posits a similarly productive dynamic between producers and consumers of profane images. Modern visual art, he concludes, demands that viewers engage the feelings of disorientation and offense that blasphemy provokes. Like Grenda and Berlinerblau, Lawton illuminates the paradoxes surrounding conflicts over expression in Western societies committed to freedom of conscience and free speech. Collectively, the three authors make the case for blasphemous expression, though not simply by recourse to a liberal doctrine of free speech. Rather, they suggest that expression’s disruptive power has the capacity to undermine, transform, and constructively engage cultural forms and institutions that have grown rigid with time. Part 2 focuses on the United States as the world’s first modern democracy with a rights-laden secular constitution and a vibrant religious culture. It is presented here not as a beacon of liberal free speech but as a

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democratic nation beset by persistent conflicts over religion-related expression. Paul Finkelman’s chapter offers a case study of the sometimes unsettling ways that democratic norms and liberal values are reconciled with religious speech restrictions. Charges of sacrilege, Finkelman contends, cannot be reduced to controversies over religious belief. Rather, as the early nineteenth-century case of the famed “infidel” Abner Kneeland reveals, they often reflect wider concerns over gender, marriage, labor relations, and ethnicity. Such charges have proved remarkably durable. As Robert A. Yelle shows in his account of late twentiethcentury American constitutional and political development, solicitude for the sacred has hardly disappeared in the United States. Rather, it has assumed striking new forms. Yelle’s analysis of the Military Valor Act demonstrates how reverence for sacred objects and principles can animate predominantly secular and civic institutions. The larger point of these studies is that, far from the exclusive preserve of overtly religious nations, fierce contests over profane expression have long vexed democratic societies—and at multiple stages in their development. In Part 3, Profane stretches decisively outward to offer a global perspective on twenty-first-century blasphemy and its regulation. The section’s first three chapters explore blasphemy in both Islamic history and modern Muslim-majority societies. Ebrahim Moosa opens with a sweeping survey of Muslim political theology that highlights a longrunning debate among Muslims about how to relate the common good “to the order of salvation.” His analysis resembles Yelle’s in suggesting that tendencies toward the creation of rigid conceptual barriers between secular and sacred reflect secularization theory’s myopia and complacency. Without discounting these broad continuities in Muslim political theology, Ron E. Hassner emphasizes the diversity of Islamic political systems. He shows how the internal dynamics in specific Muslim polities elicited a sprawling range of popular responses to the 2005 Danish cartoons depicting the Prophet Mohammed. Among Hassner’s notable findings is that the controversial images sparked violence in just nine of fifty-two Muslim-majority states. He concludes that the violence correlated strongly with the existence of “radical groups [that] enjoyed the freedom to organize and protest the cartoons but lacked state protection of their sacred values.” Asma T. Uddin’s chapter scrutinizes the implementation of blasphemy law in the largest Muslim-majority democracy, Indonesia (where violence occurred in the wake of the Danish cartoons). Contrary to its stated goal of fostering national unity and promoting human rights in a postcolonial era, Uddin contends, the

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recently upheld Law on the Prevention of Blasphemy and Abuse of Religion has divided the country, stifled religious expression, and ostracized Indonesian religious minorities. The dilemma confronting many modern, multicultural nations is this: how can the conflicting demands of individual rights and aesthetic freedom be reconciled with public civility and community peace? Democracies striving to both cultivate social inclusion and protect expressive liberties do not have an easy task before them. Elizabeth Burns Coleman’s chapter takes up Australia’s struggles to reconcile these competing ends by unpacking a peculiar and fascinating controversy over the powers reputedly contained in an Aboriginal musical instrument, the didgeridoo. What has emerged in the controversy is a potent defense of Aboriginal knowledge as sacrosanct—and therefore immune from critical inquiry. Some Australian multiculturalists thus insist that the majority simply refrain from criticism of Aboriginal religion. Coleman embraces this position and recommends an approach premised on self-censorship and vigorous politeness codes. But is this a viable solution? Can critical expression be substantively curtailed without jeopardizing rights to speech, press, and assembly? That is the question which Jeroen Temperman probes in his chapter, on international speech regulation and the threat it poses to free inquiry and expression. As Temperman sees it, national and international bodies will have to be extremely circumspect in managing the alleged harm that speech causes. Democracies are best served, he argues, by punishing only “the most heinous forms of incitement to (religious) violence,” thereby avoiding the perils of a capacious regulatory net that ensnares lesser forms of critical expression.

connecting themes Profane poses more questions than answers. It considers profane expression and its regulation from multiple perspectives, ranging across the fields of history, political science, literary and religious studies, international relations, law, and communications. Because the ideological conflicts under consideration are unavoidably global, the approach is comparative, examining the dynamics of blasphemy across cultural and geopolitical boundaries. While bearing in mind the traces of earlier taboos and restrictions, these chapters also reveal how resolutely modern the regulation of blasphemy and irreverence is, and how constitutive of modern ideologies and regimes. The patterns that the chapters reflect

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are enduring yet peculiarly modern. And the questions they raise seem increasingly vital to the prospects for human flourishing. All of Profane’s contributors explore the diverse and often discordant values that animate contending appeals to rights. Some of them, critical of regulations on expression, indicate how such efforts invariably muster social and political power against nonconforming individuals and dissenting ideas. They make the case for blasphemous expression by exploring the creative work accomplished through provocation. Others are more attentive to grievances arising from historical experience and keenly aware of how words can intimidate and humiliate. They help explain the censoring impulses that underlie national and transnational civility and multicultural projects. Part of the chapters’ yield is that the censoring of insulting or inciting irreverence is a culturally specific endeavor, one that discloses a nexus of underlying assumptions about modern social organization. Scholars and policy makers sometimes rely on the adage that seemingly intractable cultural divisions can be resolved via “global dialogue.” This is an alluring notion, but as these chapters show, sharp differences over the nature of rights and the local fabric of cultural sensibilities often render such projects less productive than hoped. At present, global dialogue is likely to embody and exhibit more than it can possibly adjudicate. Of course, any society worth inhabiting will hold some things sacred. Yet a society that respects fundamental freedoms of expression must permit a measure of sacrilege. This is the inexhaustible paradox of our democratic and multicultural age. Blasphemy charges are fueled by a powerful human aversion to our own irreverent tendencies and ignited by the blasts of intercultural exposure that modern societies generate. The resulting conflicts may not be remediable by the usual appeals for engagement. But the fact that the future tends to unfold in surprising ways, humbling the confident and the righteous alike, suggests the practical wisdom of understanding the conflicts and acquainting ourselves with the values that inform them.

notes 1. Criminal Justice and Immigration Act 2008, Section 79, “Abolition of Common Law Offences of Blasphemy and Blasphemous Libel,” Subsection 1: “The offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished.” Accessed December 4, 2012, www.legislation.gov.uk /ukpga/2008/4/section/79. It should be noted that the English Blasphemy Statute of 1698 had been abolished in the context of the Criminal Justice Act of 1967.

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2. The committee explained in 2003 that “all that matters is whether the accused did in fact publish the material that is the subject of prosecution.” See Select Committee on Religious Offences in England and Wales, First Report, ch. 3, “The Law as It Stands,” April 10, 2003, accessed September 14, 2012, www .parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldrelof/95/9505.htm. 3. The first case, Whitehouse v. Lemon, AC 658 (1979), involved Denis Lemon, the editor of a newspaper with a primarily homosexual readership. In what became known as the Gay News case, he was convicted of blasphemous libel for publishing a poem by James Kirkup that indicates sexual encounters between Christ and the Apostles and depicts a sexual encounter between a Roman soldier and the body of the crucified Christ. Lemon was fined five hundred pounds and sentenced to nine months’ imprisonment, which was suspended for eighteen months. The sentence but not the fine was reversed on appeal. (For more on this case, see ch. 5.) In the second case, the British Board of Film Classification refused to certify Nigel Wingrove’s Visions of Ecstasy because of its probable blasphemous nature in depicting the erotic encounters of St. Teresa of Avila (shown apparently erroneously as a young woman) with the crucified Christ. Appeal was made to the European Court of Human Rights, which upheld the law. In doing so, it invoked the “margin of appreciation,” which enables individual states to maintain laws that reflect their cultural norms—thus suggesting that a conception of blasphemy was, at that time, still a part of British culture and its assumptions. Wingrove v. United Kingdom, 24 EHRR 1 (1997). 4. Racial and Religious Hatred Act, Section 1, “Hatred against Persons on Religious Grounds,” accessed December 5, 2012, www.legislation.gov.uk /ukpga/2006/1/section/1/enacted. Similar measures had been proposed earlier but not passed. As a precursor, see the Anti-terrorism, Crime and Security Act of 2001, Section 39, “Religiously Aggravated Offences,” accessed December 5, 2012, www .legislation.gov.uk/ukpga/2001/24/contents. This 2001 act amended the Crime and Disorder Act of 1998, whose Article 31 (accessed June 15, 2012, www.legislation.gov.uk/ukpga/1998/37/section/31) now includes a section on “religiously aggravated public order offenses,” defined according to sections 4, 4A, and 5 of the Public Order Act of 1986 (accessed June 17, 2012, www.legislation.gov.uk /ukpga/1986/64), which specifies “threatening, abusive or insulting words.” 5. Blasphemy, as irreverence of deity, and sacrilege, as insult of religious belief or sanctities, are two species of the same genus. Although technically distinct, they are functionally synonymous, and the word blasphemy is often used—as throughout much of this text—to represent both offenses. 6. See the German criminal code, Section 130(2)1, “Agitation of the People,” accessed August 31, 2012, www.iuscomp.org/gla/statutes/StGB.htm#130; Section 166(1), “Insulting of Faiths, Religious Societies and Organizations Dedicated to a Philosophy of Life,” accessed August 31, 2012, www.iuscomp.org /gla/statutes/StGB.htm#166. Though the latter statute is not applied often, authorities employed it in 2006 to prosecute a German citizen for distributing toilet paper imprinted with the words “Koran, the Holy Koran” to media outlets and mosques. The defendant received a one-year suspended prison sentence and was assigned three hundred hours of community service. See “Suspended

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Prison for German Who Insulted Koran,” Expatica, February 23, 2006, accessed June 10, 2012, www.expatica.com/de/news/local_news/suspended-prison-forgerman-who-insulted-koran-27912.html; “German Charged for Koran–Toilet Paper Effort,” 6ABC.com, February 10, 2006, accessed June 10, 2012, http:// abclocal.go.com/wpvi/story?section=news/entertainment&id=3894273. It is worth noting that section 166(1) seeks to be nondiscriminatory between religious and secular viewpoints, protecting philosophies of life as well as faiths. 7. European Commission for Democracy through Law, Annexe II: Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred . . . , October 22, 2008, 11, accessed June 16, 2012, www.venice. coe.int/webforms/documents/?pdf=CDL-AD(2008)026add2-bil. Section 188 of the Austrian Penal Code is on p. 10 and states that whoever “publicly disparages or mocks a person or a thing, respectively, being object of worship or a dogma, a legally permitted rite, or a legally permitted institution of a church or religious society located in Austria in a manner capable of giving rise to a justified annoyance is liable to imprisonment for a term not exceeding six months or to a fine.” Austrian authorities have applied this law to protect the majority Catholics as well as minority Muslims. In the former case, authorities banned a film version of Oskar Panniza’s Das Liebeskonzil in 1993. In the latter, they convicted an Austrian woman in 2011 for saying, “Mohammed had a thing for little girls.” The woman was fined. See Howard Friedman, “Austrian Appeals Court Upholds Conviction for Denigrating Muslim Religious Beliefs,” Religion Clause (blog), December 27, 2011, accessed June 16, 2012, http://religionclause. blogspot.com/2011/12/austrian-appeals-court-upholds.html. 8. See Section 36 of the Defamation Act (2009), accessed December 20, 2012, www.irishstatutebook.ie/2009/en/act/pub/0031/sec0036.html: “(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000. (2) For the purposes of this section, a person publishes or utters blasphemous matter if— (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends by the publication or utterance of the matter concerned, to cause such outrage.” 9. Article 20(2) of the International Covenant on Civil and Political Rights (1966), accessed October 15, 2012, www.ohchr.org/en/professionalinterest /pages/ccpr.aspx, prohibits “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” United Nations debates over proposed resolutions regarding religion have invoked similar principles to meet new challenges (see n. 11). 10. The title of a draft of the resolution was “U.N. Human Rights Council Resolution Combating Defamation of Religions” (available at http://eclj.org /PDF/OICDefamationofReligionsResolution03-12-09.pdf). 11. Quote from United States Commission on International Religious Freedom, “USCIRF Welcomes Move Away from ‘Defamation of Religions’ Concept,” press release, March 24, 2011, accessed December 6, 2012, www.uscirf .gov/news-room/press-releases/3570. For a firsthand account of the negotia-

Introduction | 17

tions over the resolution, see Austin Dacey, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (New York: Continuum Books, 2012), 1–14. See also Robert Evans, “Islamic Bloc Drops U.N. Drive on Defaming Religion,” Reuters, March 25, 2011, accessed December 6, 2012, http://in .reuters.com/article/2011/03/24/idINIndia-55861720110324. 12. The Iranian dissident and Nobel laureate Shirin Ebadi has criticized such protections in “Islamic states such as Iran, Saudi Arabia, Pakistan, and so on.” See her speech at the Oslo Freedom Forum (May 9–11, 2011), accessed July 3, 2011, www.youtube.com/watch?v=pSj4QFBml0g. 13. See Mission for Establishment of Human Rights in Iran, “Islamic Penal Code of Iran,” Book 5, “Ta’azirat [Punishments NOT Specified in Shari’a] and Deterrent Punishments,” Chapter 2, “Insulting the Religious Sanctities or State Officials,” Article 513, accessed July 1, 2012, http://mehr.org/Islamic_Penal_ Code_of_Iran.pdf. 14. See Paul Marshall and Nina Shea, Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (Oxford: Oxford University Press, 2011), 83–100; United States Department of State, International Religious Freedom Report 2003, Pakistan section, accessed July 3, 2012, www .state.gov/j/drl/rls/irf/2003/24473.htm. Saudi Arabia, a more traditional dynastic regime, possesses a less systematized penal code but a well-documented record of blasphemy prosecution. See the 2010 Annual Report of the United States Commission on International Religious Freedom, accessed July 2, 2012, www.uscirf.gov/images/ar2010/saudiarabia2010.pdf, as well as reports from international news agencies such as Reuters, e.g., “Saudi Arabia Considers Law against Insulting Islam,” July 15, 2012, accessed July 16, 2012, http://in.reuters .com/article/2012/07/15/saudi-islam-law-idINL6E8IF2CY20120715. 15. Section 125 reads, “Whoever by any means publicly abuses or insults any religion or its beliefs or sacred symbols or seeks to excite contempt or scorn against its followers shall be punished with imprisonment for a term which may not exceed six months or with fine or with flogging which may not exceed forty lashes.” For this and Section 126, accessed December 18, 2012, see www.ecoi .net/file_upload/1329_1202725629_sb106-sud-criminalact1991.pdf. 16. It resembles democratic laws that acknowledge the subjective perceptions of victims of assault, though without an imminent physical threat (or even the advocacy of such a threat), a crucial difference. 17. Since religion is directly involved, a religiously informed view of the relationship between religious belief and religious persons is arguably as valid as a secular view. 18. See I.A. v. Turkey (2005), accessed January 7, 2013, http://hudoc.echr. coe.int/sites/eng/pages/search.aspx?i=001-70113. The case involved the publication in Turkey of The Forbidden Phrases (1993). “I.A.” is the pseudonym of the director of the publishing house who was prosecuted in Turkey for blasphemy. The prosecution originally resulted in a two-year prison term, which was commuted to a fine but appealed to the ECHR. The European court upheld the conviction with the following reasoning: “28. Pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society.’ . . . Those who choose to exercise the freedom to manifest their religion . . . cannot reasonably expect

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to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. . . . 29. However, the present case concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: ‘Some of these words [in the Qurʼan] were, moreover, inspired in a surge of exultation, in Aisha’s arms. . . . God’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.’ 30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a ‘pressing social need.’ ” 19. The reasoning of religious hate speech prohibitions is grounded in the reasoning of racial hate speech prohibitions. Yet as the text above and the following note suggest, it is not self-evident how to transfer that reasoning from race to religion in order to protect the psychological well-being and sense of equality of religious persons without that protection involving their sense of religious identity, the locale of religious belief. For a discussion of race, see Mari J. Mastuda, “Public Response to Racist Speech: Considering the Victim’s Story,” in Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment, ed. Mastuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw (Boulder, CO: Westview, 1993), 24–25, listing a range of harms including fear, nightmares, post-traumatic stress disorder, hypertension, psychosis, suicide, and devastating damage to “one’s self esteem and sense of personal security” (25). 20. Consider the dynamic as a diagram with religious belief informing religious identity, which defines a person as a religious person (belief identity person). Relevant statutes, such as the 2006 British law noted earlier in this introduction or the Manitoba law that it considers next, seek a way to sever this equation, a point in the diagram where belief, identity, and person are clearly distinguished for the purposes of speech prohibitions and prosecution. The difficulty, at least in part, stems from the fact that these types of hate speech prohibitions are largely grounded in concerns with race and racial hatred. That poses a difficulty because the racial dynamic does not entail a set of beliefs at its core, and thus concerns about race can perhaps more successfully inform the protection of persons from hostility and hate without infringing on ridicule or contempt of beliefs. Moreover, since the concept of religious hate does entail beliefs at its core—the beliefs informing the religious identity that make a person a religious person—it may be a misnomer to describe religious hate speech laws as protecting persons. They seem, more accurately, to protect religious identity. 21. Manitoba Defamation Act (C.C.S.M. c. D20), Section 19(1), “Libel of Race, Creed or Sexual Orientation,” accessed July 2, 2012, http://web2.gov .mb.ca/laws/statutes/ccsm/d020e.php. For general commentary, see Marshall

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and Shea, Silenced, 230: “In both politics and law, the distinction between blasphemy bans and hate-speech laws has become increasingly blurred”; Eric Heinze, “Cumulative Jurisprudence and Hate Speech: Sexual Orientation and Analogies to Disability, Age, and Obesity,” in Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein (Oxford: Oxford University Press, 2009), 267: “In recent jurisprudence, blasphemy laws have often been maintained precisely insofar as they serve the same aims as hate speech laws—prohibiting speech likely to be found offensive or unduly disruptive.” 22. Consider the United Kingdom’s Racial and Religious Hatred Act, discussed above. Its Section 29J, “Protection of Freedom of Expression,” permits significant speech critical of religion, allowing “ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents.” Its Sections 29A and B, “Meaning of ‘Religious Hatred’ ” and “Use of Words or Behaviour or Display of Written Material,” restrict expression in relation to religious persons, prohibiting “hatred” against such persons in the following terms: an individual who uses “threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.” Accessed December 5, 2012, www.legislation.gov.uk /ukpga/2006/1/schedule. In considering the permissibility of religious criticism under the Racial and Religious Hatred Act, it is important to note that this act amended parts of the Public Order Act of 1986. Section 5 of the 1986 act (accessed December 5, 2012, www.legislation.gov.uk/ukpga/1986/64/section/5) was not amended and remains binding. It criminalizes the causing of alarm or distress by the use of “threatening, abusive or insulting words.” Freedom of expression thus remains notably curtailed as a threat to public order rather than a form of hatred. 23. Racial and Religious Intolerance Act (2001), Section 8, “Religious Vilification Unlawful,” accessed June 17, 2012, www.austlii.edu.au/au/legis/vic /consol_act/rarta2001265/s8.html. 24. See “Muhammad Cartoons ‘Legal’ in Victoria,” Age, February 7, 2006, accessed July 18, 2012, www.theage.com.au/news/national/muhammad-cartoons-legal-in-victoria/2006/02/07/1139074213332.html. 25. See Richard Pipes, The Rushdie Affair: The Novel, the Ayatollah, and the West (New York: Carol Publishing, 1990); Jeremy Waldron, “Religion and the Imagination in a Global Community: A Discussion of the Salman Rushdie Affair,” Times Literary Supplement, March 10–16, 1989, reprinted as “Rushdie and Religion” in Waldron, Liberal Rights: Collected Papers, 1981–1991 (Cambridge: Cambridge University Press, 1993), 134–42. 26. Shrabani Basus, “Of Satan, Archangels and Prophets,” interview with Salman Rushdie, Sunday (India), September 18–24, 1988, in The Rushdie File, ed. Lisa Appignanesi and Sara Maitland (Syracuse, NY: Syracuse University Press, 1990), 33. 27. For the text of the fatwa, see Appignanesi and Maitland, Rushdie File, 68. 28. See “Bid to Prosecute Rushdie Is Rejected,” New York Times, April 10, 1990, accessed July 3, 2011, www.nytimes.com/1990/04/10/books/bid-to-prosecute-rushdie-is-rejected.html.

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29. Peter L. Berger “The Desecularization of the World: A Global Overview,” in The Desecularization of the World: Resurgent Religion and World Politics, ed. Berger (Washington DC: Ethics and Public Policy Center, 1999), 1–18; Berger, “Religion and Global Civil Society,” in Religion in Global Civil Society, ed. Mark Juergensmeyer (Oxford: Oxford University Press, 2006), 11–22. See also David Westerlund, ed., Questioning the Secular State: The Worldwide Resurgence of Religion in Politics (New York: St. Martin’s, 1996); John Witte Jr., “The Rights and Limits of Proselytism in the New Religious World Order,” in Religious Pluralism, Globalization, and World Politics, ed. Thomas Banchoff (Oxford: Oxford University Press, 2008), 106, describing “a great awakening of religion around the globe. . . . In the former Soviet bloc, for example, numerous Buddhist, Christian, Hindu, Jewish, Muslim, and other faiths have been awakened. . . . In postcolonial and postrevolutionary Africa, these same mainline religious groups have come to flourish in numerous conventional and inculturated forms, alongside a bewildering array of traditional groups. In Latin America, the human rights revolution has not only transformed long-standing Catholic and mainline Protestant communities but also triggered the explosion of numerous new Evangelical, Pentecostal, and Traditional movements. Many parts of the world have seen the dramatic rise of a host of new or newly minted faiths— Adventists, Baha’is, Hare Krishnas, Jehovah’s Witnesses, Mormons, Scientologists, Unification Church members, among many others.” 30. Rajeev Bhargava, “Rehabilitating Secularism,” in Rethinking Secularism, ed. Craig Calhoun, Mark Juergensmeyer, and Jonathan VanAntwerpen (Oxford: Oxford University Press, 2011), 92–93: “The contemporary crisis of secularism started with the establishment of the first modern theocracy in Iran and spread to Egypt, Sudan, Algeria, Tunisia, Ethiopia, Nigeria, Chad, Senegal, Turkey, Afghanistan, Pakistan, and Bangladesh”; Juergensmeyer, New Cold War? Religious Nationalism Confronts the Secular State (Berkeley: University of California Press, 1994). 31. For the secular conception of the state of Pakistan at its inception in 1947, consider the comments of its first president, Mohammed Ali Jinnah, to the Constituent Assembly of Pakistan: “You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State. As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. . . . Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.” From “Mr. Jinnah’s

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Presidential Address to the Constituent Assembly of Pakistan,” August 11, 1947, printed in Dawn (Pakistan), Independence Day Supplement, August 14, 1999, accessed July 3, 2012, www.pakistani.org/pakistan/legislation/constituent_address_11aug1947.html/. 32. Such movements instrumentally combine select parts of tradition with modern techniques of mass communication, recruitment, mobilization, and social organization. With these, they build an institutional infrastructure of education, social services, and politics fusing religious identity with modern forms of nationalism or transnationalism. They thus represent an alternative to traditional dynasticism or Western-inspired secularism. Consider Abdullah A. AnNa’im, “The Politics of Religion and the Morality of Globalization,” in Juergensmeyer, Religion in Global Society, 30: “The idea of an Islamic state, as presently advocated by fundamentalist movements, has no precedent in more than fifteen centuries of Islamic history.” The modern dimensions of fundamentalism in its many varieties are well studied. See, e.g., the volumes of the Fundamentalist Project, launched by the American Academy of Sciences and edited by Martin E. Marty and R. Scott Appleby: Fundamentalisms Observed (Chicago: University of Chicago Press, 1991), Fundamentalisms and the State: Remaking Polities, Economies, and Militance (Chicago: University of Chicago Press, 1993), Fundamentalisms and Society: Reclaiming the Sciences, the Family, and Education (Chicago: University of Chicago Press, 1993), Accounting for Fundamentalisms: The Dynamic Character of Movements (Chicago: University of Chicago Press, 1994). See also Gabriel A. Almond, Appleby, and Emmanuel Sivan, Strong Religion: The Rise of Fundamentalisms around the World (Chicago: University of Chicago Press, 2003). 33. The political dynamics of India partly revolve around the competition between a revival of forms of religious nationalism and attempts to rejuvenate the secular strains of its postindependence politics with theories of multiculturalism. See Rajeev Bhargava, ed., Secularism and Its Critics, repr. ed. (Oxford: Oxford University Press, 2011); T. N. Srinivasan, ed., The Future of Secularism (Oxford: Oxford University Press, 2007). 34. Anna Elisabetta Galeotti, Toleration as Recognition (Cambridge: Cambridge University Press, 2002), 134: “Supporters of multiculturalism have strongly attacked liberalism.” 35. Charles Taylor, “The Politics of Recognition,” in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1994), 63. For the different ways that secular states regulate and interact with the religions of their society, see Alfred Stepan, “The Multiple Secularisms of Modern Democratic and Non-democratic Regimes,” in Calhoun, Juergensmeyer, and VanAntwerpen, Rethinking Secularism, 114–44, identifying four models just among modern democracies: separation of church and state (France and the United States), established religion (Denmark or Norway), positive accommodation (Netherlands and Germany), and principled distance (Indonesia and India). For related but different models of secularism, see Ahmet T. Kuru, Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge: Cambridge University Press, 2009), which distinguishes French “assertive” secularism from American “passive”

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secularism: “Assertive secularism requires the state to play an ‘assertive’ role to exclude religion from the public sphere and confine it to the private domain. Passive secularism demands that the state play a ‘passive’ role by allowing the public visibility of religion. Assertive secularism is a ‘comprehensive doctrine,’ whereas passive secularism mainly prioritizes state neutrality toward such doctrines” (11). As Kuru points out, though, France’s assertive secularism allows for significant state funding of religious endeavors such as education. 36. The joint statement was signed by representatives of six religions in Britain, “Canon Gordon Wilson (Christian), Rabbi Albert H. Friedlander (Jewish), Mr B. Konnur (Hindu), Dr Syed Aziz Pasha (Muslim), Professor Harmindar Singh (Sikh), Mr Pankay Vora (Jain).” It was published in the Independent (London), March 17, 1989, and appears in Appignanesi and Maitland, Rushdie File, 125–26. Likewise, a 1990 report by England’s Commission for Racial Equality—“Law, Blasphemy and the Multi-faith Society”—sought to promote mutual respect and tolerance by prohibiting the denigration of any religious belief. 37. See “Submission from the Muslim Council for Religious and Racial Harmony,” July 5, 2002, accessed March 11, 2012, www.parliament.the-stationeryoffice.co.uk/pa/ld200203/ldselect/ldrelof/95/95w61.htm. 38. See Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (London: Oxford University Press, 1969), 118–72. 39. Charles Taylor, “What’s Wrong with Negative Liberty?,” in The Idea of Freedom: Essays in Honour of Isaiah Berlin, ed. Alan Ryan (Oxford: Oxford University Press, 1979), 175–93. 40. The notion of a supportive social environment is emphasized throughout Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012); Galeotti, Toleration as Recognition; Gutmann, Multiculturalism; Susan Mendus, ed., The Politics of Toleration in Modern Life (Durham, NC: Duke University Press, 2000). More generally, see Will Kymlicka and Wayne Norman, eds., Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000); Kymlicka, ed., The Rights of Minority Cultures (Oxford: Oxford University Press, 1995); Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990). 41. European Commission for Democracy through Law, Annexe II: Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred, 11. See also n. 7, above. 42. Otto-Preminger Institut v. Austria, 19 EHRR 34, 56 (1995), quoted in Select Committee on Religious Offences in England and Wales, First Report, appendix 4, April 10, 2003, accessed June 17, 2012, www.parliament.thestationery-office.co.uk/pa/ld200203/ldselect/ldrelof/95/9516.htm. 43. The UN Declaration of Human Rights, last visited January 28, 2014, www.un.org/en/documents/udhr/, states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The same principles have animated subsequent agreements, such as the International Covenant on Civil and Political Rights (1966), and were eventually incorporated into the ideologies that sustain democratic multiculturalism.

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44. See Jaweed Kaleem, “At United Nations, Organization of Islamic Cooperation Calls for Ban on Insulting Prophet Muhammad,” Huffington Post, September 30, 2012, accessed December 15, 2012, www.huffingtonpost.com/2012/09/30 /united-nations-organization-of-islamic-cooperation_n_1927166.html. OIC secretary general Ekmeleddin Ihsanoglu’s language resembles that used by the multicultural New Zealander Jeremy Waldron in The Harm in Hate Speech (2012), though Waldron recommends tolerating mere verbal offense. 45. John Stuart Mill, On Liberty (London, 1859), 3.18. 46. Leonard W. Levy, Treason against God: A History of the Offense of Blasphemy (New York: Schocken Books, 1981). 47. Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie, repr. ed. (Chapel Hill: University of North Carolina Press, 1995), 551–67. 48. Ibid., 569. 49. Alan Cabantous, Blasphemy: Impious Speech in the West from the Seventeenth to the Nineteenth Century, trans. Eric Rauth (New York: Columbia University Press, 2002; originally published as Histoire du blasphème en occident [Paris: Éditions Albin Michel, 1998]), 2–4, describing the “ ‘practice’ of blasphemy” as revealing “a whole complex of attitudes” about “the deeper structures of communities.” Cabantous thought that such a structural approach precluded a longue durée treatment of the subject: “I do not think it possible to write a history of blasphemy that embraced the entire course of monotheistic religions, from Moses to Salman Rushdie” (7). See also David Lawton, Blasphemy (Philadelphia: University of Pennsylvania Press, 1993), 5: “Blasphemy is a concept distinctive to Jewish and Christian traditions,” with cases such as Islamic denunciations of The Satanic Verses being part of “a false identity” of fundamentalism. 50. Marshall and Shea, Silenced, 35–60, 83–100, 233. See also Dacey, Future of Blasphemy, 8, explaining that “years before Pakistan had introduced its resolution [at the UN Human Rights Council] combating the defamation of religions, the European Court of Human Rights in Strasbourg had already invented and enshrined in human rights law a ‘right to respect for religious feelings.’ ” 51. David Nash, Blasphemy in the Christian World: A History (Oxford: Oxford University Press, 2007), 247. 52. Elizabeth Burns Coleman and Kevin White, “Negotiating the Sacred in Multicultural Societies,” in Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, ed. Coleman and White (Canberra: Australian National University E Press, 2006), 2: “A society’s reaction to and management of blasphemy and sacrilege goes to its core, for it defines how it relates to its constituent groups, protecting difference or leaving the vulnerable to cope on their own.” Similarly, see Jon P. Gunnemann, “Property and Sacred Ordering in Global Civil Society,” in Juergensmeyer, Religion in Global Civil Society, 91–113.

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part one

Creating Space for Sacrilegious Expression

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Chapter 1

Thick-Skinned Tolerance Satire, the Sacred, and the Rise of the Modern christopher s. grenda

Satire has a long history. Its epochs of wit have long tended to offend. The sixteenth-century Dutch humanist Desiderius Erasmus invoked that history in prefacing The Praise of Folly (1509): “But those who are offended at the lightness and pedantry of this subject, I would have them consider that I do not set myself for the first example of this kind, but that the same has been oft done by many considerable authors.” He cited distinguished forebears, such as famed authors of Greek and Roman antiquity, to whom he might have added Geoffrey Chaucer, whose satirizing of religious figures in The Canterbury Tales (1475) resembled his own witty criticism of contemporary religion. Erasmus voiced his wit in satirical oration: “Satire and panegyric, distant be, / Yet jointly here they both in one agree.” He believed that the satirical style engaged public attention: “So does the humour of the age require, / To chafe the touch, and so foment desire.” The mocking manner was no mere pomp but integral to critical commentary: “The mould o’ th’ subject alters the success; / What’s serious, like sleep, grants writs of ease, / Satire and ridicule can only please.” Erasmus was pleased to identify the father of his protagonist, Folly, as the author of the universe forever overturning all things sacred and profane: “Plutus . . . the primary father of the universe; at whose alone beck, for all ages, religion and civil policy, have been successively undermined and re-established.” Uncertain that all would delight in satire, Erasmus resorted to historical assertion: “Wits have always been allowed this privilege.”1 27

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Though Erasmus satirized contemporary religion, the objects of satire have varied throughout history. Planetary thinking engaged Galileo’s wit.2 Aesthetic appraisal drew Rembrandt’s ire.3 Rebellious politics and literary style spurred John Dryden’s scorn.4 Entire social classes have incited ridicule, from Alexander Pope’s and Mark Twain’s jeers at aristocracy to Sinclair Lewis’s and W. B. Yates’s derision of the middle class. Among all wit’s objects, though, the target of Erasmus’s wit—religion—has proved particularly appealing and enduring. The French humorist Molière resembled Chaucer in parodying pretensions to piety so well, in the title character of Tartuffe (1664), that contemporaries began to use the name as a synonym for “hypocrite.” The English pamphleteer Ralph Wallis was less subtle in Room for the Cobler of Gloucester and His Wife: With Several Cartloads of Abominable Irregular, Pitiful Stinking Priests (1668). He echoed Erasmus in ridiculing religion’s seduction by worldly pomp and power: Room for Prelates, here comes a Company; Room for Prelates, and ev’ry Coat-Card; Archbishops and Bishops, Archdeacons and Deans; Room for Prelates, and for the Black Guard. Cathedrals and Chapters, with Anthems and Raptures, And all the Hierarchical Rabble, With all of that sort, that makes as good sport In the Chore, as a Fool with his Bable. (4)

The history of religious satire entered a new, defining phase near the start of the eighteenth century. Though inherited forms of ridicule persisted, satire in cultural and political debates about religion began to inform an emerging discourse of religious toleration that was recognizably modern.5 Such satire was not without danger. Prosecutions for seditious and blasphemous libel continued in the Age of Enlightenment. Nevertheless, the use of irony, humor, and ridicule in quarrels over religious texts, practices, and beliefs was intertwined with the development of modern sensibilities in tolerating sectarian differences. This novel form of tolerance differed from earlier forms of humanist forbearance which had extended the range of permissible doctrinal views within a catholic church. Erasmus himself proposed an inclusive ecclesiology accommodating diverse views of nonessential doctrinal matters, called adiaphora. The purpose of such an inclusive ecclesiology was to incorporate believers into one church, not to permit denominational sectarianism or heterodox views of essential doctrines such as original sin or the divinity of Christ.6 Erasmus’s catholic vision continued into the

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post-Reformation era of confessional sovereignties with similar proposals for indulgent unity, or concordia, advocated by Dutch Arminians,7 the Saxon Samuel Pufendorf,8 and the Latitudinarians of England.9 Separately, though, the outlines of a more discernibly modern tolerance, which drew a harder line between civil and ecclesiastical concerns and made room for individual expressions of conscience, began emerging with force in the mid-to-late seventeenth century. “The civil state and Magistrate are merely and essentially civil,” Roger Williams declared in 1652, with the outward “bodies and goods of the people the proper or adequate object of the civil Magistrate.”10 Contemporaries often expressed the modern notion of limiting state authority to civil matters in terms of restricting the state’s penal power to the outward things of persons and property, not the inward things of conscience and belief. This modern notion was intended to allow the practice of denominational and confessional sectarianism in sovereign societies. It circulated widely in the decades and generations after the mid-seventeenth century.11 As the Quaker William Penn affirmed in 1679, “Civil Interest is the Foundation and End of Civil Government.”12 By the turn of the century, many described the sectarianism that “every Church is Orthodox to itself” as a fact to be accommodated.13 Such toleration, to be sure, remained a radical position for some time.14 Religious minorities throughout Europe and North America continued to suffer exclusion from public institutions or prohibitions on their very existence.15 Yet sectarian diversity persisted. Religious minorities, especially in the Anglo-American world, gradually gained enough security in their social status to demand not merely the right of worship but the abolition or reform of discriminatory laws such as religious taxes and test oaths.16 In conjunction with notions of toleration, the literati of the Englishspeaking public sphere used satire to scrutinize the communities, beliefs, and practices of the increasingly diverse religious landscape, just as they did in examining other dimensions of social life, such as politics, art, and social hierarchy.17 Charges of blasphemy remained a real threat. Yet wit, humor, and even ridicule in debates about religious systems and institutions were integral to Enlightenment conceptions of tolerance. Raillery regarding the uses and meanings of religion, and tolerance of religious differences, in other words, were related endeavors. Both were refined forms of expression, exhibiting the cultivation of the self in wit and noncoercion and the civility of the polis in letters and nonpersecution. The practice of satirical tolerance informed the belletristic culture

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of freethinkers and aesthetics as well as the civic endeavors of sectarians and orthodox Christians. It thus helped shape the eighteenth century’s burgeoning republic of letters, creating civic space for contending trends in religious beliefs and practices and for related disputes over pedagogy and rights. It fostered the rendering of critical judgment by conceiving of the self more as an expressive agent of moral discernment than as a protected identity. It thus crafted, and bequeathed, a particular type of tolerance, a hearty, thick-skinned liberality able to accommodate substantive moral differences.

freethinking and christian satire around 1700 The satirical republic included moral judgments as dissonant as those of Ralph Wallis and Charles Blount. Both were Restoration-era Englishmen who lived under penal laws that prohibited religious worship outside the Church of England (though Blount lived just beyond the Act of Toleration [1689], which ended corporal punishment for orthodox Protestant dissent). They berated the established church because the state had invested it with financial resources for its parishes and ecclesiastical courts and with cultural authority in education and print licensing. Blount’s scorn was palpable in “The Deist: A Satyr on the Parsons” (c. 1686): Religion’s a Politick Law, Devis’d by the Priggs of the Schools; To keep the Rabble in awe And amuse poor Bigotted Fools. And they, for good vitualls and Bubb, Will bellow their Nonsense aloud, And rant out a Tale of a Tub, To fright the ignorant Croude.18

Wallis was similarly anticlerical, though with a prophetic tone portending the demolition of episcopal structures: Come down ye Bishops, fear a fall, Your Kingdom ’gins to shake, The hand is writing on the wall, Which makes your knees to quake; Of all this Pomp and glorious train, Which caused God to frown, Which sin of yours he doth so hate, That sure you must come down;

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For sure the Word of God is True, and do it not forget, He will pluck up, I say to you, Those plants he never set.19

Blount and Wallis differed in their backgrounds and social standings. Blount was an English country gentlemen; Wallis a nonconforming pamphleteer. Though Wallis had been a freeman of London before the restoration of the Stuart monarchy in 1660, his publications were illegal thereafter, and he suffered arrest on at least one occasion.20 The two also differed in their religious views. Blount was a deist critical of traditional, orthodox religion. Wallis was an orthodox Christian who, unlike deists, believed in the divinity of Christ and original sin. Despite such differences, the two similarly ridiculed the established church as vulgar in its worldliness. They also viewed it as an entrenched obstacle to their respective programs of cultural reform, deism and Christian evangelism. Deists rejected much of orthodox Christianity for natural religion, forswearing revelation beyond what natural philosophy revealed about nature’s God.21 Though not monolithic, deists criticized biblical text, disputed Christ’s divinity, disavowed miracles, and portrayed Christian doctrines on human nature, sin, and redemption as disingenuous theological schemes promoted by a professional class of publicly funded clerics. They called such schemes “priestcraft.”22 Blount portrayed established religion as a political tool, nonsense devised by well-fed thieves to “keep the rabble in awe.” Deists viewed such religion as entrenched in public institutions, through which it distorted thought and morality and thus impeded human flourishing and cultural progress. Its claims of revealed truth, they maintained, encouraged intolerance and suppressed the expression of conscience and opinions; its focus on sin fettered moral striving and the cultivation of virtue; its featuring of hell and miracles furthered fear, ignorance, and passivity; and its suspicion of freethinking hindered advances in science.23 Deists used these depictions of orthodox Christianity as rhetorical weapons in their battle for cultural stewardship as they sought to emancipate society from orthodoxy’s hegemony. For them, orthodox Christianity, as one scholar notes, was “a fundamental obstacle to the improvement of humankind and the amelioration of social and political injustices.”24 In contrast, Wallis’s ridicule of established religion and its intolerance was grounded in religious motives that were thoroughly orthodox. Similar to Blount, he viewed England’s church as using pomp and ceremony for temporal gain, but he proclaimed the living God as liberating society

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from episcopal structures. In this, he evoked biblical imagery of an active God promoting cultural renewal by pulling down the moral and institutional structures of human iniquity.25 His social vision grew from his orthodoxy, which warranted restricting state power to civil things because of the low moral condition of governing authorities. “The Magistrates power extends no further than to the outward man, to require obedience in Civil things,” he proclaimed, because “neither can Great men (as we see) reform themselves” nor “undertake to sanctifie, justifie, or glorifie a soul.” “What is the Magistrates place then?” Wallis continued. “Doth not this derogate from the honour of a Magistrate, if his power extend only to temporal things?” Wallis’s answer referenced the command to political obedience in Romans 13, declaring, “Whereas the Apostle bids, Submit &c. he means only in Civil things.”26 The discourse on civil things reflected vital cultural undercurrents. Wallis and Blount titled their respective works Magna Charta and Oracles of Reason to suggest programs of cultural renewal that would remedy the ills they associated with established religion.27 Satire was an essential tool of their programs and remained so for many after England’s Act of Toleration. Not only did various forms of intolerance continue to thrive in parts of Europe, with French Huguenots and German Palatinates still fleeing their homelands for England and elsewhere, but the Toleration Act itself was merely a provisional suspension of penal laws against select English dissenters. It allowed their worship as second-class subjects but was neither universal nor irrevocable. Daniel Defoe parodied the fragility of the situation in The Shortest-Way with the Dissenters (1702). Raised a dissenting Presbyterian and educated at a leading dissenting academy,28 he wrote the work in the voice of a High Church Tory Anglican advocating the persecution of England’s sectarians. “Her Majesty did never promise to maintain the Toleration to the destruction of the Church,” he exclaimed. “I am not supposing that all the Dissenters in England should be hanged or banished. But as in case of rebellions and insurrections, if a few of the ringleaders suffer, the multitude are dismissed.”29 The work was a hoax. It mocked religious intolerance by satirizing the contemporary revival of Tory Anglicanism and its call for a robust confessional culture. The hoax was so subtle, though, that readers were confused when Defoe’s authorship was revealed. Authorities, however, used this revelation to place him in the pillory for seditious libel.30 Defoe had been less subtle in ridiculing intolerance in The True-Born Englishman: A Satyr (1701). He began with a religious proverb, “Wher-

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ever God erects a house of prayer / The Devil always builds a chapel there.” Identifying “the largest congregation” as the Devil’s, Defoe derided Tory aspirations to confessional uniformity and the suppression of religious nonconformity: With uniformity of service, he Reigns with a general aristocracy. No non-conforming sects disturb his reign, For of his yoke there’s very few complain.31

Satirical expression through the early decades of the eighteenth century aimed not only at institutions of established religion or programs of intolerance but also at the deeper social structures of behavioral norms and habits. Discourses on social behavior proliferated in a process of evaluating the manners most appropriate for a post–Glorious Revolution social order.32 “Manners” and “refinement” became important touchstones, with satire being a means of scrutinizing social norms and promoting cultural reform. “Satire, if you can / Their temper show, for manners make the man,” Defoe exhorted.33 Such critics understood how the established church and the royal court had shaped English culture to date, and they sought new cultural and institutional means of achieving a more tolerant—postpuritan and post-Tory—society.34 Christian satirists such as Defoe advocated the manners of a nonsectarian Protestantism independent of social status. “The end of satire is reformation,” he explained, but “all our reformations are banters, and will be so till our magistrates and gentry reform themselves by way of example.” England was “a nation that wants manners,” “ill-natured and uncivil.”35 Others, critics of Christianity, sought refinement in coffeehouses, clubs, and theaters characterized by politeness and toleration, an aesthetic and freethinking counterpoise to the church and the court.36 Central to these eighteenth-century experiments in refinement was the cultivation of the self in a revised cultural order. Whig thinkers viewed the self and the polity as exchanging domineering patterns of religious coercion and intolerance for sociable discourses of wit, irony, humor, and ridicule. Satire pervaded such projects as they became central to the many strains of Enlightenment conceptions of religious toleration. The role of satire in shaping toleration was evident in Anthony Ashley Cooper’s Characteristicks of Men, Manners, Opinions, Times (1711). Cooper, like Blount, was a country gentleman, the third Earl of Shaftesbury and a former member of Parliament.37 His essays constituted,

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according to one scholar, “a foundational work in English Deism”38 and were widely reprinted throughout the eighteenth century.39 Though Shaftesbury eschewed the aggressive tone of many deists, he similarly criticized contemporary Christianity, viewing it not just as a corrupt institution but as an inferior cultural system whose teachings on human nature inhibited human flourishing and social development.40 As an alternative, he offered a freethinking vision of a natural religion aimed at rehabilitating human nature and restoring natural virtue while, in his words, “asserting thus zealously the Notion of a religious Liberty, and mutual Toleration.”41 Shaftesbury also contributed a distinct moral philosophy, an aestheticism in which virtue was a performance art to be admired for its beauty. The performance involved characters in dialogue exhibiting the refined manners of polite conversation. The manners were the philosophy, less proving moral truth through knowledge and logic than displaying it in the communal affections of sociable selves.42 It was a “moral Painting, by way of Dialogue,” as Shaftesbury’s Philocles character notes in his “Recital of Certain Conversations.”43 The philosophical method was itself a socialization process. It used literary characters to draw readers into a community of sociable exchange whose manners formed common moral standards for shaping the character of its participants, both fictitious and real. “We polish one another, and rub off our Corners and rough Sides by a sort of amicable Collision,” the Third Earl explained.44 The dialogue’s common moral sense inheres in the display of wit’s assorted hues—raillery, humor, irony, and ridicule—as Shaftesbury details in Sensus Communis: An Essay on the Freedom of Wit and Humor: “One of those principal Lights or natural Mediums, by which Things are to be view’d, in order to a thorow Recognition, is Ridicule.”45 His objects of ridicule included confessional uniformity,46 religious intolerance,47 and Christian revelation.48 He undermined belief in the accuracy of biblical text49 and mocked popular understandings of its basis for morality,50 all “without fearing what disturbance I might possibly give to some formal Censors of the Age.”51 Shaftesbury also celebrated the virtue of ridicule in A Letter Concerning Enthusiasm. It was particularly useful for evaluating personal beliefs, “for in the manner we may conceive ’em, they may peradventure be very grave and weighty in our Imagination; but very ridiculous and impertinent in their own nature.”52 He also advised “applying the Ridicule”53 in dialogue to subject conventions to humorous censure, calling them “Cowards” who “are so afraid to stand the Test of Ridicule.”54

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Shaftesbury viewed such raillery as replacing older relations characterized by religious domineering. Polite wit undermined the solemnity that sustained older habits by displaying the more tolerant sensibility of critical humor.55 Wit’s wisdom was “never to punish seriously what deserv’d only to be laugh’d at,” an indulgence that Shaftesbury modeled by mocking the apostolic author of the Christian epistles.56 The Third Earl also applauded the theatrical jeering of religious inspiration in “a choice Droll or Puppet-Show at Bart’lemy-Faire.” Prophets were parodied “upon the Stage” as puppets, “being not in their own power, but (as they say themselves) mere passive Organs actuated by an exterior Force.”57 He labeled such humor the “Bart’lemy-Faire Method.” Critical in its parody and polite in its tolerance, it superseded the need for penal laws in religion. Shaftesbury thus recommended that the magistrate dispense with the “supernatural Charity” of the “saving of Souls” to focus on the administering of temporal affairs.58 In seeking to restrict the magistrate’s authority, Shaftesbury expressed important developments regarding the state and toleration. His focus on temporal affairs resembles Wallis’s argument about civil things. Neither was a philosopher examining the origins of political authority, though both articulated a vision of good government through religious satire. By ridiculing prominent religious practices, institutions, and beliefs, they encouraged greater tolerance of religious worship and sects, the one from a freethinking perspective, the other from orthodox conviction.

satire before revolution: not for the multitude Shaftesbury’s Characteristicks enjoyed significant influence throughout the eighteenth century, promoting religious criticism, moral sense philosophy, and literary dialogue. It also advanced an ongoing debate about expressive manners that was entwined in the period’s contests over religious toleration. Respondents to Shaftesbury’s essays, even before they were compiled in Charactersticks, included the Whig Edward Fowler, in Reflections upon a Letter Concerning Enthusiasm (1709), and the Tory Mary Astell, “the first English feminist,”59 in Bart’lemy Fair: Or, An Enquiry after Wit (1709). Both decried Shaftesbury’s influence in promoting wit and ridicule in discussions about religion. “Wit, Liberty, and Ridicule reign; and yet we lie in all our vices and Maladies,” Fowler bemoaned.60 Shaftesbury’s Letter is “industriously spread in the Nation,”

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Astell lamented, even though many “reckon it a very poor, incoherent, contradictory, senseless, Piece; weak in every thing but Malice to Religion, and even to GOD Himself.”61 Opponents viewed Shaftesbury as encouraging a form of expression that tended to promote disorder. “Let it be remember’d,” Astell warned, “that it is of the very Essence of Wit to be out of Rule, and above all Measure.” Measure restrained expression; wit freed it to subvert social conventions. “Method is a Restraint, not to be suffer’d by Free Writers in a Free Nation,” Astell complained. “So Free that not any thing is sacred enough to be Privileg’d; not our Laws, nor our Religion, not our Sovereign, nor our GOD.”62 Fowler thus advocated that “with regard to things truly sacred, or of the greatest Importance, [wit] ought strictly to be Forborn or Restrained.”63 Restraint had potential legal implications. Since the lapse of the Licensing Act in 1695, the English press was free from the prior restraint of licensing but not immune from postpublication prosecution for libel.64 In Rex v. Taylor (1675), Lord Chief Justice Matthew Hale had declared Christianity part of English common law and the Church of England part of the English constitution.65 The result was amorphous notions of seditious and blasphemous libel indictable at common law,66 as Defoe experienced.67 Shaftesbury argued that the threat of prosecution was reason for more wit, as an authorial method of legal evasion: “If Men are forbid to speak their minds seriously on certain Subjects, they will do it ironically. If they are forbid to speak at all upon such Subjects, or if they find it really dangerous to do so; they will then redouble their Disguise, involve themselves in Mysteriousness, and talk so as hardly to be understood.”68 Wit disguised its author as it exposed its subject, as in feigning Christian orthodoxy while subverting biblical authority.69 Wit thus maintained privacy in the process of publicity. Shaftesbury published his “essay on the freedom of wit and humour” as “a letter to a friend.” The guise of personal correspondence covered his promulgating, through several published editions, the freedom of wit enjoyed in private clubs: “For you are to remember (my Friend!) that I am writing to you in defence only of the Liberty of the Club.” “The Publick is not, on any account, to be laugh’d at,” at least not “to its face.” Wit disguised laughter from “the Multitude” as it criticized standing institutions and conventions for the sophisticated.70 It was intended for highbrow consumption. The English cleric Thomas Woolston employed “this clancular and subtil Method” of writing to his own detriment, being convicted of blas-

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phemous libel in 1729.71 In Six Discourses on the Miracles of Our Saviour (1727–30), he mocks biblical miracles as “the grossest Absurdities,” commenting on Jesus casting demons into swine, “If any Exorcist in this our Age and Nation” had done likewise, “our Laws and Judges too of the last Age, would have made him to swing for it.”72 Critics denounced this “profane Ridicule of the most Sacred things.”73 Yet Woolston had cloaked his ridicule in allegorical exegesis, a hermeneutics with patristic roots, to suggest that Jesus’s miracles were “prophetical and parabolical Narratives.”74 His counsel even raised this point at trial, arguing that the defendant intended only to “shew, That the Miracles of our Saviour were to be understood in a Metaphorical Sense, and not as they were Literally Written.”75 Critics, however, viewed the erudite veneer as evidence of dissembling intent. Edmund Gibson, the bishop of London, decried Woolston’s “Blasphemous Manner” while noting “the Duty of the Civil Magistrate at all time, to take care that Religion be not treated either in a ludicrous, or a reproachful manner.” Because Woolston’s manner deceived, Gibson continued, it subverted all standards, striking “at the Foundation of all Religion, and of Truth, Virtue, Seriousness, and good Manners; and by consequence at the Foundation of Civil Society.”76 The justice presiding over the case agreed, citing Rex v. Taylor to remind defense counsel, “Whatever strikes at the very root of Christianity, tends manifestly to the dissolution of civil government.”77 The deist Anthony Collins responded to Woolston’s predicament by popularizing Shaftesbury’s method and argument. Collins satirized the orthodox view of the Christian gospels as literal fulfillments of Hebraic prophecy, clothing his ridicule in exaggerated piety.78 He tied his endeavor to religious toleration, citing Pierre Bayle and John Locke and advocating “that universal liberty be established in respect to opinions and practices not prejudicial to the peace and welfare of society.”79 Yet this argument assumed the point in dispute by supposing that ridiculing religion did not subvert social order. Making the supposition explicit, Collins authored A Discourse Concerning Ridicule and Irony in Writing (1729), which shows that even Anglican divines have long used wit in debating religion. Lest that fail to convince, he articulated Shaftesbury’s argument that religious intolerance is reason for more ridicule of religion.80 In this, Collins exhibited a form of what Jacques Berlinerblau calls the profanity loop (see chapter 2)—countering intolerance of wit with yet more satire and ridicule. Collins presented this strategy as a biblical command, invoking “the noble Sarcasm of Elijah”; “the Psalmist” who suggested “laughing to scorn, and deriding the greatest men

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upon Earth”; and “the following Sarcasm or Irony” about humanity’s fall into sin in Genesis 3:22: “This Passage shews, that the whole Affair of the Fall . . . was a very entertaining Scene.”81 Original sin, the orthodox view of human nature, was a subject of humor. The Scottish philosopher David Hume employed similar humor more subtly.82 In his A Treatise of Human Nature (1739–40), Hume describes irony as “conceal’d strokes of satire.” Though “the open declaration of our sentiments is call’d the taking off the mask,” he explains, “the secret intimations of our opinions is said to be the veiling of them.” The veil mitigates offense: it “moves not my indignation to such a degree, as if [one] flatly told me I was a fool.”83 Such playfulness also informs Hume’s essay “Of Miracles,” which he withheld from the Treatise but included in An Enquiry Concerning Human Understanding (1748). Therein, he describes advocates of the use of reason in religious matters as pretend Christians. In good humor, he dons their mask to profane revelation, asking readers to consider “the Pentateuch, which we shall examine, according to the principles of these pretended Christians, not as the word or testimony of God himself, but as the production of a mere human writer and historian. Here then we are first to consider a book, presented to us by a barbarous and ignorant people, written in an age when they were still more barbarous, and in all probability long after the facts which it relates, corroborated by no concurring testimony, and resembling those fabulous accounts which every nation gives of it origin.” The irony is conspicuous in its guise. Hume proceeds as if merely describing the biblical accounts of the Fall, the Flood, and the Covenant, refraining from irony until his concluding thought: “Upon reading this book, we find it full of prodigies and miracles. It gives an account of a state of the world and of human nature entirely different from the present: Of our fall from that state: Of the age of man, extended to near a thousand years: Of the destruction of the world by a deluge: Of the arbitrary choice of one people, as the favourites of heaven; and that people the countrymen of the author.”84 Hume combined satire and “the principles of toleration” in his Natural History of Religion (1757). He emphasized that toleration “proceeded from the steady resolution of the civil magistrate, in opposition to the continued efforts of priests and bigots.” And he decried “a religion (and we may suspect Mahometanism of this inconsistence) which sometimes painted the Deity in the most sublime colors” and “sometimes degraded him nearly to a level with human creatures.” His irony, regarding a religion of divine incarnation in human form, was again

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reserved for his conclusion, “Happily this is the case with Christianity that it is free from a contradiction, so incident to human nature.”85 Hume was long conscious of the importance of politeness, even before he was denied an Edinburgh professorship on charges of heterodoxy. He intentionally avoided militant tones. He thus found writing in dialogue an inviting style, because it allowed significant license under cover of literary characters.86 In “Of a Particular Providence and of a Future State,” Hume’s first-person character relates “a conversation with a friend who loves sceptical paradoxes; where, though he advanced many principles, of which I can by no means approve, yet as they seem to be curious, . . . I shall here copy them . . . in order to submit them to the judgment of the reader.” The conversation begins with shared admiration of “freedom and toleration” against “creeds, confessions, or penal statutes” and culminates in the friend’s undermining of reasoned arguments for divine benevolence, nature’s deity being “both uncertain and useless.”87 The friend’s severing of morality from religion was Hume’s doing and implied, contra the Woolston case, that religion was not a necessary social foundation.88 Hume voiced the same argument through the skeptical Philo in his Dialogues Concerning Natural Religion, begun in the early 1750s and published posthumously in 1779.89 Hume’s dialogues were not unlike Shaftesbury’s in important respects. The ease of their give-and-take exhibits a degree of license, a tolerant picture of free exchange and opinion laced with irony and ridicule. Orthodox Christians also used satirical wit in dialogue to advance the case for toleration. From British North America, the Yale-educated Jonathan Dickinson exposed legal inequities resulting from the ensnaring of religion in human power and vice. He was an orthodox evangelical who proclaimed original sin and imputed righteousness in works such as The Nature and Necessity of Regeneration (1743). He was a founding trustee and the first president of the College of New Jersey (1746), later Princeton University, which, unlike contemporary English universities, disclaimed subscriptions of faith for enrollment.90 Dickinson’s 1732 work The Scripture-Bishop embodies the English tradition of religious nonconformity, which had long maintained biblical warrant for an ecclesiology of clerical peers rather than bishops. In simulated astonishment, Dickinson recalled past persecutions for resistance to the power and pomp of English episcopacy: “Having read the ecclesiastical Story of our Kingdom since the Reformation, I was surpriz’d to find such Clouds of Sufferers for Nonconformity to Prelacy and Ceremony. What a dark Scene.” He continued, “How severe were

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the Persecutions after the Restoration,” when many “were stript of their Estates, languished and died, in Prisons, for preaching the Gospel.”91 Dickinson’s work is a dialogue, a literary affectation of privacy. It mimics a “free and unreserv’d converse” among gentlemen “without the interruption, or observation of others.” Its purpose was to publicize the predicament of its protagonist Eleutherius, whose name means “liberator” in Greek. “Eleutherius was a Gentleman of a plentiful Substance, a liberal Education,” Dickinson explained, “and possess’d those ministerial Qualifications as would have intitled him to some of the highest Preferments in the Episcopal Church, had he consulted his promotion in the choice of his Profession, and declared himself for the national Establishment.” Yet Eleutherius was Presbyterian, not Anglican. “This being a matter of great grief to some of his ambitious and aspiring Friends, whose Heads ran much upon his Promotion, occasion’d him a Visit from one of them, a Clergyman of the establish’d Church” named Praelaticus.92 The visit from this ambitious friend of the establishment, allured by worldly advance and power, is the occasion of the dialogue. Though Dickinson’s provincial New Jersey lacked a religious establishment,93 he used the literary forms of the imperial literati to criticize English constitutional inequities. On those literary forms, Hume commented, “All polite letters are nothing but pictures of human life”; authors “place opposite characters in a proper contrast; and alluring us into the paths of virtue by the views of glory and happiness, direct our steps in these paths.”94 Dickinson did not use views of glory and happiness but described Eleutherius in terms of the unjust denial of glory. Despite eminent qualifications, Eleutherius was denied worldly advance for nonconformity. “I cannot conform to the legal Establishment,” he exclaimed as a provincial minority.95 Hume suggested that polite letters were to coax readers toward virtue; Dickinson used letters to define vice as inequitable treatment for religious belief, a policy that he associated with the imperial center of the British Empire. Local representatives of England’s Whig regime responded. James Wetmore of New York authored Eleutherius Enervatus, warning about “the Subversion of all Government, civil and ecclesiastical.”96 John Beach of Connecticut reproached Dickinson’s “design to propagate this brutish noise.”97 “Established clergy,” Dickinson rejoined, “every where exact their Salary, from those of other Persuasions.”98 Dickinson’s views resembled those of the Scottish provincial John Witherspoon, who was also an orthodox Christian and a subsequent president of Princeton. Before immigrating to New Jersey, Witherspoon

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was involved in heated debates among Scottish Presbyterians. The nature of those debates is evident in his Practical Treatise on Regeneration (1764), wherein he criticizes how “the new birth is a subject, at present, very unfashionable,” even “held in derision.”99 Witherspoon led the “popular,” or evangelical, wing in the Church of Scotland against the so-called moderates, who downplayed experiential piety and traditional doctrine in favor of benevolence and the common good.100 In engaging with the moderates, Witherspoon satirically debated religious practices and beliefs in Ecclesiastical Characteristics (1753), whose title is mockingly suggestive of Shaftesbury’s, and A Serious Apology for “The Ecclesiastical Characteristics” (1763). Ecclesiastical Characteristics was first published in Glasgow and then circulated widely, with enlarged editions appearing in London (1754), Glasgow (1754 and 1755), Edinburgh (1763), Rotterdam (n.d.), and Philadelphia (1767).101 Witherspoon called it “a satire upon clergymen of a certain character,” explaining that “a satire that does not bite, is good for nothing,” for “it is essential to this manner of writing, to provoke and give offence.” The satirized clerics were self-styled British “moderates,” whom Witherspoon viewed as corrupt in their “open solicitation of ecclesiastical preferment” and their partisan favoring of those who endorsed their refashioned morality. The new morality embodied the aestheticism of Shaftesbury, the poet Mark Akenside, and the moral sense philosophers Francis Hutcheson and David Fordyce (at the Universities of Glasgow and Aberdeen, respectively). Witherspoon viewed such polite authors as offering “a pretended theory of moral virtue” that promoted aesthetic sensibility over consciousness of sin, the beauty of benevolence and social harmony over the experience of redeeming grace.102 At stake was stewardship of the church, schools, and culture, as moderates sought to transfer the traditional religious virtues of “modesty and other bastard virtues of the same class,” Witherspoon jeered, into “the opposite column, that is to say the column of vices.”103 Witherspoon viewed the new morality as having contemptuous and authoritarian streaks. The contempt concerned common standards. Aesthetic sensibility was “not to be confined to common forms,” he derided, but developed “in opposition to the bulk of mankind, who through want of taste, are not able to relish the finest performances.” Witherspoon’s criticism of pretentious claims to moral discernment that transcended common thoughts and habits informed his satirical discussion of biblical text. He assumed moderate pretensions to mock the moderate reading of Christian liberty in Romans 14, clarifying the claim

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that “the worst of all heresies is a bad life”: “Now, if instead of worst, which is an uncomely expression, you would read greatest in that passage, then a libertine is the greatest of all heretics and to be honored in proportion. Even the apostle Paul (who is very seldom of any use to us in our reasonings) seems to suppose that they are men of most knowledge who are most free and bold in their practice, and that they are only weak brethren who are filled with scruples. The weak man is restrained and confirmed by his narrow conscience.”104 Witherspoon’s satire also pointed toward the moderates’ authoritarian streak. He charged them with using patronage to impose ministers of the new morality on parishes against the traditional call and assent of the congregation, “a settlement decided over the belly perhaps of the whole people in the parish.” He viewed this practice as reflecting a broader temperament, which he described in mockingly voicing the moderates’ authoritarian reading of “the third chapter of the Romans”: “If human authority be once duly interposed, it is obeying God to comply with whatever is enjoined thereby.”105 The problem, for Witherspoon, inhered in the new morality itself. Its aesthetic ethic of benevolence possessed the authoritarian tendency to resolve all ethical and political disputes in “the good of the whole.” This ethic, he wryly noted, “contains all knowledge of the whole and the good of the whole, more than which, I hope, will be allowed to be not only needless, but impossible.”106 He feared that refined sensibilities were precluding individual obligations of conscience from taking precedence over collective claims of the common good. “Conscience,” he remarked ironically, “is of all things the most stiff and inflexible and cannot by any art be molded into another shape,” “whereas the whole principles of moderation are most gentle and ductile.” Witherspoon suggested that in substituting benevolence for conscience, this moral ductility was equating God with society. “The good of the whole,” he ridiculed, suggesting the image of idolatry from Exodus 20:3, “is not only true, but it is all truth, and will not suffer any thing to be true but itself.”107 In A Serious Apology, Witherspoon defends satire in debates about religion by explaining “that it is a lawful thing to employ ridicule in such a cause,” which is sometimes “the most proper method, if not, in a manner, necessary.” He describes his satirical censuring in terms of Enlightenment toleration: “No civil penalties follow upon it among us, and no civil penalties ought to follow upon it in any nation.” The “highest authority” being biblical text, he engages the “many instances of irony in the sacred writings,” ranging from Genesis and Kings to “an

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expression from our Saviour himself,” who “uses a language plainly ironical; as in John x. 32.”108 Underlying these biblical references is a distinctly evangelical rationale for satire, a religion of the Word leveling the impregnable forces of pride. “The lawfulness of employing ridicule,” Witherspoon explained, is “founded upon the plainest reason. There is commonly a pride and self-sufficiency in men under the dominion of error, which makes them deaf to advice and impregnable to grave and serious reasoning; neither is there any getting at them till their pride is leveled a little with this dismaying weapon.”109 A Serious Apology appeared as the great war for empire between Britain and France was ending and tensions between the victorious Britain and its North American colonies began. Shortly thereafter, Witherspoon migrated to British America to become the president of Princeton, in 1768. As a member of the Continental Congress, he preached a fastday sermon in Philadelphia on “the just view given us in scripture of our lost state” before returning to the city weeks later to sign the Declaration of Independence.110 He taught philosophy at Princeton. His students included almost one-fifth of the future delegates to the Constitutional Convention of 1787.111 His teaching dwelt on “the depravity and corruption of our nature”112 as he continued to question aestheticism, identifying one of the “excesses” of moral sense theory as “the making the general good the ultimate practical rule to every particular person, so that he may violate particular obligations with a view to a more general benefit.”113 Witherspoon’s notion of particular obligations of conscience taking precedence over collective claims of the greater good influenced his most famous student, James Madison, who replicated the argument in helping to end Virginia’s religious establishment in the 1780s.114 Though Witherspoon’s use of satire and ridicule in debating religious texts, practices, and beliefs remained predominately highbrow, the age included increasingly popular forms of such expression in ongoing debates about religion and toleration.

democratizing satire: the age of revolution More popular satirical discussions of religion and toleration proliferated in the latter decades of the eighteenth century. The voices widening the audience of the satirical republic included those of a younger generation, adept at writing in popular and assertive tones. Two such figures were the freethinking deist Thomas Paine and the Christian evangelical James Murray. Paine authored widely read tracts such as

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Common Sense (1776), The Rights of Man (1791–92), and The Age of Reason (1794–96). Murray’s Sermons to Asses (1768) went through several editions in England and a Philadelphia printing in 1774.115 He followed with a second volume in 1771, defending the American Revolution in Sermons to Ministers of State, which also had multiple English editions and a Philadelphia run in 1783. Both wrote in a style intended to reach wide audiences. Paine’s “clear, simple, concise, and . . . manly”116 style in Common Sense reached hundreds of thousands, while Murray feigned “hope [that bishops] will not be offended at receiving a little assistance” from his printed appeals over their heads to their parishioners.117 Though neither inhabited the cultural mainstream, both conceived of what Murray called the “republic of letters” as an arena of moral judgment, persuasion, and competition, projecting themselves less as identities seeking recognition and protection than as agents of moral declaration.118 They both proclaimed much of contemporary religion corrupt, tainted by material allure and ensnared in worldly power, pomp, and ambition. “The church,” Paine declared of Christianity, “has set up a religion of pomp and of revenue in pretended imitation of a person whose life was humility and poverty.”119 Murray bemoaned the “interest, sordid self-interest” of “men in sacred offices.”120 When “men began to corrupt religion,” he sneered, “they were obliged to make up the want of Christian simplicity with honours borrowed from the kingdoms of this world.”121 Through their competing programs of deism and evangelism, Paine and Murray sought to free society from established religion. Both thus attacked religious establishments and promoted the natural rights of religious conscience. “All national institutions of churches,” Paine declared, are “no other than human inventions set up to terrify and enslave mankind and monopolize power and profit.”122 Murray similarly avowed, “If there were no alliance between church and state, there would be more civil and religious liberty.” Seeking to limit state power to outward things, he continued, “The Laws of civil society have only a respect to the bodies of men, and cannot extend beyond what pertains to the body.” Society, in other words, “cannot oblige men to part with their natural rights.” “Asses, and worse than asses, surely you are,” then, who surrender “the rights of your own consciences.”123 Paine and Murray infused their calls for greater religious liberty with wit, ridicule, satire, and irony. Murray suggested that Sermons to Asses “should have been dedicated to the A[rch]b[ishop]s, B[ishop]s, and their C[lerg]y,” but with conspicuous irony, having just made the association he

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intended, “the author was afraid of offending their modesty with the flattery of a dedication, and for that reason altered his design.” The people were thus the asses, ridden by the “two burdens of civil and religious oppression.”124 Murray directed Sermons to Doctors in Divinity, however, at the leaders of established religion. “Doctors and Asses are synonymous terms,” he scoffed, after noting, “Perhaps the title should be Sermons to wild asses.” “Unless the Doctors be regenerated, the address is very proper,” he continued, given that “there have been few disturbances in the church, or the world, of which they have not either been the parents or nurses.”125 Murray echoed Dickinson in criticizing clerical ambition and Witherspoon in questioning the ethics of prominent belles letters and the authoritarian imposition of pastors.126 He also resembled Witherspoon in using satire to debate biblical meaning. Referencing 2 Corinthians 10:4, which renounces “carnal weapons,” or temporal authority in religion, he mocked the erudite recourse to temporal power: “Some narrow minded bigoted people may perhaps alledge, that the weapons of the Church’s warfare are not carnal,—and our translation of Paul’s epistles seems to hint as much;—But as it is very likely that Doctors in divinity may find a various reading, and perhaps discover the word carnal to be genuine, but the particle not, an interpolation through the rashness of some transcriber, by rectifying the text and restoring it to its primitive state, it will read, The weapons of our warfare are carnal.”127 Paine’s satire in promoting religious liberty derided orthodox Christianity. In Common Sense, he advocated independence from Great Britain by suggesting that hereditary rule was as ridiculous as original sin: “To say that the right of all future generations is taken away by the act of the first electors in their choice not only of a king, but of a family of kings forever, hath no parallel in or out of scripture but the doctrine of original sin, which supposes the free will of all men lost in Adam.” “From such comparison,” he chided, “hereditary succession can derive no glory. For as in Adam all sinned, and as in the first electros all men obeyed; as in the one all mankind were subjected to Satan, and in the other to sovereignty.” It “unanswerably follows,” Paine sarcastically concluded, “that original sin and hereditary succession are parallels. Dishonorable rank! Inglorious connection!”128 To “the absurdity and profaneness of the story” of original sin, Paine added “the whole theory or doctrine of what is called the redemption” in The Age of Reason. This doctrine, he scoffed, “was originally fabricated on purpose to bring forward and build all those secondary and pecuniary redemptions upon.”129 He not only filled the pamphlet with

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blasphemous statements about Christianity130 but described Christianity itself as blasphemous, “for what can be greater blasphemy than to ascribe the wickedness of man to the order of the Almighty[?]”131 Paine repeatedly mocked the very idea of revelation and undermined the notion of sacred text as a “fraud.”132 In this, his purpose was not unlike Shaftesbury’s, though pursued without literary disguise and in more militant tones. He unequivocally declared Christianity to be an inferior cultural system—“the age of ignorance commenced with the Christian system”—which he hoped to replace with “the pure and simple profession of Deism.”133 A contemporary compared him to the Devil in turning “God’s word into ridicule.”134 When the British government charged Paine and his publisher with sedition in 1797, the prosecution criticized Paine’s writing for having “excited a general avidity to read the book, particularly among the middling and lower classes.”135 Supporters then published the trial transcript for popular audiences.136 Their response to this prosecution was a democratized version of Shaftesbury’s earlier recommendation to counter intolerance with still more deistic wit and anti-Christian satire—a popular form of Berlinerblau’s profanity loop.

conclusion Eighteenth-century opponents of satirical discussions of religion sought to preserve belief systems as buttresses to social hierarchy and authority. That judgment seems self-evident in retrospect. Yet the notion that certain forms of expression are potent agents of disorder threatening the social fabric is not always comfortably assessed from such distance. Ronald Dworkin defended the right to ridicule religion while endorsing media self-censorship to avoid causing psychological pain and social alienation for some religious readers and viewers.137 He opposes legal censorship by the state. Jeremy Waldron does not. He recommends criminalizing the verbal creation of a hostile environment for believers, meaning one that damages their psychological well-being or undermines their sense of equality.138 Of particular importance is his historicism. “There is a very considerable literature on hate speech,” he explains, “but most of it lacks a historical dimension.” Waldron seeks to provide that dimension by disclosing the “relation between religious toleration as an Enlightenment ideal and religious hate speech” prohibitions.139 Most regimes, legal systems, and ideologies seek some form of historical legitimatization, a purported heritage of earlier developments as justifying grounds for programs of more recent vintage. John Rawls famously

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cast his liberal philosophy as the evolved product of political thinking following the early modern wars of religion.140 Americans routinely portray their competing views on church and state as faithful reflections of the First Amendment’s religion clauses.141 Radical forms of political theology often appeal to a past of purer beginnings. And Waldron quotes from Locke, Bayle, Voltaire, and Denis Diderot in pursuing an Enlightenment pantheon to support current hate speech criminalization.142 Yet the pursuit is misguided. Many Enlightenment figures were aware of the potency of expression. Following England’s civil wars, a young and intolerant Locke “accused the pens of Englishmen of as much guilt as their swords.”143 Following the American Revolution, an older and tolerant George Washington “practiced restraint,” in the words of Chris Beneke, “a determination not to take certain kinds of actions—not to insult, not to offend, not to persecute, not to tyrannize over a minority group—a willful withholding of judgment.”144 The restraint of personal decorum is fundamentally different from the restraint of criminal law. Advocacy of the former is not a natural ally of the latter; the one respects individual autonomy, while the other does not. Most Enlightenment writers took direct and primary aim at limiting state authority to criminalize, not empowering it. Slighting this fact elicits James Murray’s irony regarding erudite exegesis, turning a renunciation of carnal weapons into an endorsement of their use.

notes 1. See Desiderius Erasmus, Erasmus in Praise of Folly . . . (London: Reeves and Turner, 1876), available at http://oll.libertyfund.org/index.php?option=com_ staticxt&staticfile=show.php%3Ftitle=551&layout=html#chapter_104195. For a print edition, see Erasmus, The Praise of Folly and Other Writings, trans. and ed. Robert M. Adams (New York: W. W. Norton, 1989). 2. Galileo Galilei, Dialogue Concerning the Two Chief World Systems, Ptolemaic and Copernican (1632). 3. Rembrandt van Rijn, Satire on Art Criticism (1644). 4. John Dryden, Absalom and Achitophel (1681); MacFlecknoe, or a Satyr upon the True-Blew-Protestant Poet, T.S. (1682). 5. For different perspectives on religious toleration, see John Coffey, Persecution and Toleration in Protestant England, 1558–1689 (New York: Pearson Education, 2000); John Christian Laursen and Cary J. Nederman, eds., Beyond the Persecuting Society: Religious Toleration before the Enlightenment (Philadelphia: University of Pennsylvania Press, 1998); Laursen and Nederman, eds., Difference and Dissent: Theories of Toleration in Medieval and Early Modern Europe (Lanham, MD: Rowman and Littlefield, 1996).

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6. István Bejczy, “ ‘Tolerantia’: A Medieval Concept,” Journal of the History of Ideas 58, no. 3 (1997): 376–77, claims that Erasmus worked “on behalf of the unity and the concordia” of Christians. More generally, consider Ole Peter Grell and Bob Scribner, Tolerance and Intolerance in the European Reformation (Cambridge: Cambridge University Press, 2002). 7. E.g., Hugo Grotius, Discourse of Toleration before the Amsterdam City Council (1616). See Even Haefeli, New Netherland and the Dutch Origins of American Religious Liberty (Philadelphia: University of Pennsylvania Press, 2012), 39–40. After Calvinists gained ascendancy in the Dutch Church at the Synod of Dort (1618), some Arminians began rethinking sectarian toleration, such as Simon Episcopius, who wrote Free Worship of God (1627). See Jonathan I. Israel, “The Intellectual Debate about Toleration in the Dutch Republic,” in The Emergence of Tolerance in the Dutch Republic, ed. Christiane BerkvensStevelinck, Israel, and G. H. M. Posthumus Meyers (Leiden: Brill, 1997), 3–36. 8. Samuel Pufendorf, The Divine Feudal Law: Or, Covenants with Mankind, Represented (1695), trans. Theophilus Dorrington, ed. Simone Zurbuchen (Indianapolis: Liberty Fund, 2002). See Detlef Döring, “Samuel von Pufendorf and Toleration,” in Laursen and Nederman, Beyond the Persecuting Society, 178–96. 9. E.g., Edward Stillingfleet, The Mischief of Separation (London, 1680). See John Marshall, “The Ecclesiology of the Latitude-Men, 1660–1689: Stillingfleet, Tillotson and ‘Hobbism,’ ” Journal of Ecclesiastical History 36, no. 3 (1985): 407–27; Richard Ashcraft, “Latitudinarianism and Toleration: Historical Myth versus Political History,” in Philosophy, Science and Religion in England, 1640–1700, ed. Richard Kroll, Ashcraft, and Perez Zagorin (Cambridge: Cambridge University Press, 1992), 151–73. 10. Roger Williams, The Bloody Tenent Yet More Bloody: By Mr. Cottons Endevour to Wash It White in the Blood of the Lambe (1652), in The Complete Writings of Roger Williams, 7 vols. (New York: Russell and Russell, 1963), 4:203, 194. See also Williams, The Bloody Tenent, of Persecution, for Cause of Conscience (1644), in ibid., 3:127, 202, 240. 11. The argument possessed scattered roots, as in Sebastian Castellio, Concerning Heretics and Whether They Should Be Persecuted, and How They Should Be Treated (1554), and Dirck Volckertszoon Coornhert, Synod of Freedom of Conscience (1582). 12. William Penn, One Project for the Good of England (1679), in The Political Writings of William Penn, ed. Andrew R. Murphy (Indianapolis: Liberty Fund, 2002), 120. See also Penn, The Great Case of Liberty of Conscience (1670), in ibid., 101. 13. John Locke, A Letter Concerning Toleration (London, 1689), ed. James H. Tully (Indianapolis: Hackett, 1983), 32. For limiting state power to “Civil Interests” or “outward things,” see 26. See also Pierre Bayle, A Philosophical Commentary (1708), ed. John Kilcullen and Chandran Kukathas (Indianapolis: Liberty Fund, 2005), 89 (pt. 1, ch. 4): “Each Sect looks on it self as the only true Religion”; 133 (pt. 1, ch. 10): “Each Party believes it self the Orthodox”; for limiting the state to civil matters, see 203, 207 (pt. 2, ch. 6), 301 (pt. 3, ch. 7), 350 (pt. 3, ch. 25).

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14. Ole Peter Grell, Jonathan I. Israel, and Nicholas Tyacke, eds., introduction to From Persecution to Toleration: The Glorious Revolution and Religion in England (Oxford: Oxford University Press, 1991), 15. 15. John Marshall, John Locke, Toleration and Early Enlightenment Culture (Cambridge: Cambridge University Press, 2006), 19. 16. E.g., Isaac Backus, An Appeal to the Public for Religious Liberty (1773); “Religious Petitions Presented to the General Assembly of Virginia, 1774– 1802,” microfilm, Virginia State Library. See also Leonard W. Levy, The Establishment Clause: Religion and the First Amendment, 2nd ed. (Chapel Hill: University of North Carolina Press, 1994), 22; William G. McLoughlin, New England Dissent, 1630–1833: The Baptists and the Separation of Church and State, 2 vols. (Cambridge, MA: Harvard University Press, 1971), 1:482. 17. Roger D. Lund, Ridicule, Religion and the Politics of Wit in Augustan England (Burlington, VT: Ashgate, 2012). 18. Charles Blount, “The Deist: A Satyr on the Parsons: To the Tune of Old Simon the King” (unpublished, c. 1686), quoted in Gillian Manning, “The Deist: A Satyr on the Parsons,” Seventeenth Century 8, no. 1 (Spring 1993): 155. The opening lines of the poem circulated in various publications that reproduced them without attribution. See, e.g., George Flint, The Lunatick (London, n.d.), 1; The Honest Electors, or, The Courtiers Sent Back with Their Bribes: A New Ballad Opera (1733), 13–14. 19. Ralph Wallis, Rome for Good News, or, Good News from Rome: In a Dialogue between a Seminary Priest, and a Supposed Protestant, at Large (London, n.d.), 11–12. 20. For information on this period, see J. A. I. Champion, The Pillars of Priestcraft Shaken: The Church of England and Its Enemies, 1660–1730 (Cambridge: Cambridge University Press, 1992); Michael Watts, The Dissenters: From the Reformation to the French Revolution (Oxford: Clarendon Press, 1978). 21. James A. Herrick, The Radical Rhetoric of the English Deists: The Discourse of Skepticism, 1680–1750 (Columbia: University of South Carolina Press, 1997), 23–49. 22. See, e.g., Anthony Collins, Priestcraft in Perfection (1710), and the deist Alciphron in George Berkeley, Alciphron: Or the Minute Philosopher (1732), in Alciphron in Focus, ed. David Berman (London: Routledge, 1993), 27. See also Champion, Pillars of Priestcraft Shaken; Mark Goldie, “Priestcraft and the Birth of Whiggism,” in Political Discourse in Early Modern Britain, ed. Nicholas Phillipson and Quentin Skinner (Cambridge: Cambridge University Press, 1993), 211; Robert Sullivan, John Toland and the Deist Controversy: A Study in Adaptations (Cambridge, MA: Harvard University Press, 1982). 23. For recent thinking on religion and science, see Ronald L. Numbers, ed., Galileo Goes to Jail and Other Myths about Science and Religion (Cambridge, MA: Harvard University Press, 2009). 24. Kerry Walters, Revolutionary Deists: Early America’s Rational Infidels (New York: Prometheus Books, 2011), 8. 25. See 2 Corinthians 10:4–5 and Hebrews 4:12–13. 26. Ralph Wallis, More News from Rome, or Magna Charta, Discoursed of between a Poor Man and His Wife (London, 1666), 10–11.

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27. Ibid.; Charles Blount, Oracles of Reason (London, 1693). 28. Paula Backscheider, Daniel Defoe: His Life (Baltimore: Johns Hopkins University Press, 1989), 13–22. 29. Daniel Defoe, The Shortest-Way with the Dissenters; Or, Proposals for the Establishment of the Church (London, 1702), 16, 23; also referencing the international plight of toleration at 5, 12. 30. The hoax convinced some Tory Anglicans to view the work as one of theirs. Defoe made fun of this fact in More Short-Ways with the Dissenters (1704), 8. For Anglican responses, see Charles Leslie, Reflections upon Some Scandalous and Malicious Pamphlets, Viz. I. The Shortest Way with the Dissenters (1703), and Mary Astell, A Fair Way with the Dissenters and their Patrons (1704). See also Daniel Brühlmeier, “Daniel Defoe: Dissent, Economics, and Toleration,” in Religious Toleration: “The Variety of Rites” from Cyrus to Defoe, ed. John Christian Laursen (New York: St. Martin’s, 1999), 213; Maximillian E. Novak, Daniel Defoe: Master of Fictions—His Life and Ideas (Oxford: Oxford University Press, 2001), 173–78; Backscheider, Daniel Defoe, 132–35. 31. Daniel Defoe, The True-Born Englishman: A Satyr (1701), 4–5. 32. Sammy Basu, “ ‘Woe unto You That Laugh Now!’: Humor and Toleration in Overton and Shaftesbury,” in Laursen, Religious Toleration, 163. 33. Defoe, True-Born Englishman, 26. Similarly, “Satire, return to our unthankful isle / Secured by Heaven’s regard and William’s toil / To both ungrateful and to both untrue / Rebels to God, and to good-nature too” (56). 34. For related trends in other parts of the North Atlantic world, consider Dena Goodman, The Republic of Letters: A Cultural History of the French Enlightenment (Ithaca, NY: Cornell University Press, 1994); David S. Shields, Civil Tongues and Polite Letters in British America (Chapel Hill: University of North Carolina Press, 1997). 35. Defoe, True-Born Englishman, preface (n.p.), 32. 36. Shields, Civil Tongues. 37. Robert Voitle, The Third Earl of Shaftesbury, 1671–1713 (Baton Rouge: Louisiana State University Press, 1984). 38. Herrick, Radical Rhetoric, 17. 39. Douglas J. Den Uyl, forward to Anthony Ashley Cooper, Third Earl of Shaftesbury, Characteristicks of Men, Manners, Opinions, Times, 3 vols. (Indianapolis: Liberty Fund, 2001), 1:vii. 40. Shaftesbury, An Inquiry Concerning Virtue, or Merit, in ibid., 2:3. See also Lawrence E. Klein, Shaftesbury and the Culture of Politeness: Moral Discourse and Cultural Politics in Early Eighteenth-Century England (Cambridge: Cambridge University Press, 1994), 54–57. 41. Shaftesbury, Miscellaneous Reflections, &c., in Characteristicks, 3:69. Shaftesbury also discussed the religion “espous’d or countenanc’d by the Magistrate” (65), meaning the state’s established religion. Most freethinkers advocated not the separation of church and state but a religion “firmly under civil control.” See Klein, Shaftesbury and the Culture of Politeness, 10. 42. Shaftesbury, Soliloquy: Or, Advice to an Author, in Characteristicks, 1:121: ancient dialogues “pointed out real Characters and Manners: They exhibited ’em alive.”

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43. Shaftesbury, The Moralists, A Philosophical Rhapsody; Being a Recital of Certain Conversations on Natural and Moral Subjects, in ibid., 3:107. 44. Shaftesbury, Sensus Communis: An Essay on the Freedom of Wit and Humour, in a Letter to a Friend, in ibid., 1:42. 45. Ibid., 40, with “zealots” identified as those who “try the Edge of Ridicule against any Opinions besides their own.” 46. Ibid., 53: “ ’Twas agreed that there was only one certain and true Dress, one single peculiar Air, to which it was necessary all People shou’d conform. . . . Men became persecuted thus on every side.” 47. Ibid., 51: Christians “had made sound Experiment upon one another; each Party in their turn.” 48. See Basu, “ ‘Woe unto You,’ ” 162–65. 49. Shaftesbury, Sensus Communis, 93: “It becomes, upon the whole, a Matter of nice Speculation.” 50. Ibid., 61–80. 51. Ibid., 93. 52. Shaftesbury, A Letter Concerning Enthusiasm, to My Lord Sommers, in Characteristicks, 1:8. 53. Ibid., 7. See also Voitle, Third Earl of Shaftesbury, 324–33. 54. Shaftesbury, Letter Concerning Enthusiasm, 7–8. Likewise, ibid.: “There can be no impartial and free Censure of Manners where any peculiar Custom or National Opinion is set apart, and not only exempted from Criticism, but even flatter’d with the highest Art.” See also Klein, Shaftesbury and the Culture of Politeness, 19. 55. Basu, “ ‘Woe unto You,’ ” 148: “Humor was a mode of toleration,” 154. 56. Shaftesbury, Letter Concerning Enthusiasm, 9, 19 (on the apostle Paul): “What Advantage he made of his Sufferings, and how pathetically his Bonds and Stripes were set to view, and often pleaded by him, to raise his Characters, and advance the Interest of Christianity.” 57. Ibid., 18. 58. Ibid., 12–13: “Supernatural Charity, has taught us the way of plaguing one another most devoutly. It has rais’d an Antipathy which no temporal Interest cou’d ever do. . . . The saving of Souls . . . has become in a manner the chief Care of the Magistrate, and the very End of Government it-self.” For criticism of intolerance, see 9–10, 13–14. 59. Bridget Hill, ed., The First English Feminist: “Reflections upon Marriage” and Other Writings by Mary Astell (New York: St. Martin’s, 1986). 60. Edward Fowler, Reflections upon “A Letter Concerning Enthusiasm, to My Lord *****,” in Another Letter to a Lord (1709), 28. 61. Mary Astell, Bart’lemy Fair: Or, An Enquiry after Wit, in Which Due Respect Is Had to “A Letter Concerning Enthusiasm” (1709), 22–23. 62. Ibid., 19. 63. Fowler, Reflections, 46. Similarly, see John Tottie, Ridicule, So Far as It Affects Religion, Consider’d and Censur’d (1734). 64. Lund, Ridicule, Religion and the Politics of Wit, 29; Justin Champion, Republican Learning: John Toland and the Crisis of Christian Culture, 1696– 1722 (Manchester: Manchester University Press, 2003), 12.

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65. See Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Chapel Hill: University of North Carolina Press, 1995), 221. 66. Lund, Ridicule, Religion and the Politics of Wit, 189–90. A statute sometimes called the Blasphemy Act was passed in 1698 but never successfully used. 67. Astell, Bart’lemy Fair, 60, mocks Defoe as “a good Humor’d Man in the Pillory, for no sort of Crime, but a little harmless Wit, and because his Superiors do not understand Raillery!” See Backscheider, Daniel Defoe, 102–5. Attempts were also made to prosecute the deist Matthew Tindal for his The Rights of the Christian Church Asserted (1706) as well as those who sold this book. See Samuel Hilliard, A Narrative of the Prosecution of Mr. Sare and His Servant, for Selling “The Rights of the Christian Church” (London, 1709). 68. Shaftesbury, Sensus Communis, 46. Similarly, John Toland, Christianity Not Mysterious (London, 1696), iv, suggests that one “is either forc’d to keep perpetual Silence, or to propose his Sentiments to the World, by way of Paradox.” 69. In his Letter Concerning Enthusiasm, for instance, Shaftsbury invokes biblical texts (“I learn from Holy Scripture,” 28) that command believers to “judge the Spirits whether they are of God” (35) as the rationale for a selfanalysis that guards against grave and weighty beliefs. 70. Shaftesbury, Sensus Communis, 48–49. 71. Thomas Woolston, Six Discourses on the Miracles of Our Saviour and Defences of His Discourses, 1727–1730 (New York: Garland, 1979), 68. 72. Ibid., 19, 34–35. 73. Richard Smalbroke, A Vindication of the Miracles of Our Blessed Saviour, 2 vols. (London, 1731), 2:vii. 74. Woolston, Six Discourses, 20. For the patristic element, see William H. Trapnell, “What Thomas Woolston Wrote,” British Journal for Eighteenth-Century Studies 14, no. 1 (Spring 1991): 13–30. 75. An Account of the Trial of Thomas Woolston, B.D. (London, 1729), 3. 76. Edmund Gibson, The Bishop of London’s Pastoral Letter to the People of His Diocese (London, 1728), 35. Roger D. Lund, “Irony as Subversion: Thomas Woolston and the Crime of Wit,” in The Margins of Orthodoxy: Heterodox Writing and Cultural Response, 1660–1750, ed. Lund (Cambridge: Cambridge University Press, 1995), 170, describes the Woolston affair as “a case in which not the matter of the argument but the witty manner of its presentation provided the grounds for legal prosecution.” 77. William Holdsworth, A History of the English Law, vol. 8 (London: Methuen, 1938), 408, quoted in Lund, “Irony as Subversion,” 187. 78. Anthony Collins, A Discourse on the Grounds and Reasons of the Christian Religion (1724). 79. Anthony Collins, The Scheme of Literal Prophecy Considered (1727), 415, 432. 80. Anthony Collins, A Discourse Concerning Ridicule and Irony in Writing (1729), 25, argues that ridicule “is both a proper and necessary Method of Discourse in Many Cases, and especially in the Case of Gravity, when that is attended with Hypocrisy or Imposture, or with Ignorance, or with soureness of Temper and Persecution; all of which ought to draw after them the Ridicule and

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Contempt of Society, which has not other effectual Remedy against such Methods of Imposition.” 81. Ibid., 26. The other referenced texts are 1 Kings 18 and Psalms 2:4. 82. For Hume’s irony, see John Valdimir Price, The Ironic Hume (Austin: University of Texas Press, 1965). 83. David Hume, A Treatise of Human Nature (1739–40), ed. David Fate Norton and Mary J. Norton (Oxford: Oxford University Press, 2000), 102 (1.3.13). 84. David Hume, An Enquiry Concerning Human Understanding . . . , ed. Eric Steinberg (Indianapolis: Hackett, 1977), §10, “Of Miracles,” 89–90. 85. David Hume, The Natural History of Religion (1757), in David Hume: Writings on Religion, ed. Antony Flew (Chicago: Open Court, 1996), 147 (9.5), 139–40 (6.12). 86. Timothy S. Yoder, Hume on God: Irony, Deism and Genuine Theism (New York: Continuum, 2008), 47–48. 87. Hume, Enquiry Concerning Human Understanding, §11, “Of a Particular Providence and of a Future State,” 90, 99. 88. Isabel Rivers, Reason, Grace, and Sentiment: A Study of the Language of Religion and Ethics in England, 1660–1780, vol. 2, Shaftesbury to Hume (Cambridge: Cambridge University Press, 2000), 238–329. 89. David Hume, Dialogues Concerning Natural Religion and the Posthumous Essays of the Immortality of the Soul and of Suicide, ed. Richard H. Popkin (Indianapolis: Hackett, 1980), 58–76 (pts. 10–11). Even Philo’s famed “confession” at 88 (pt. 12) severs morality from natural religion, which “affords no inference that affects human life, or can be the source of any action or forbearance.” See J. C. A. Gaskin, “Hume on Religion,” in The Cambridge Companion to Hume, ed. David Fate Norton and Jacqueline Taylor (Cambridge: Cambridge University Press, 2008), 480–514. 90. Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln (Oxford: Oxford University Press, 2002), 25. 91. Jonathan Dickinson, The Scripture-Bishop, or The Divine Right of Presbyterian Ordination and Government (Boston, 1732), 3–4. 92. Ibid., i–ii, 1–2. 93. See Douglas G. Jacobsen, An Unprov’d Experiment: Religious Pluralism in Colonial New Jersey (Brooklyn: Carlson, 1991). 94. Hume, Enquiry Concerning Human Understanding, §1, “Of the Different Species of Philosophy,” 1, 4. 95. Dickinson, Scripture-Bishop, 9–10. 96. James Wetmore, Eleutherius Enervatus: Or, An Answer to a Pamphlet, Intitled, The Divine Right of Presbyterian Ordination (New York, 1733), 13. 97. John Beach, A Vindication of the Worship of God According to the Church of England, from the Aspersions Cast upon It by Mr. Jonathan Dickinson (New York, 1733), 10. 98. Jonathan Dickinson, The Scripture-Bishop Vindicated: A Defence of the Dialogue between Praelaticus and Eleutherius (Boston, 1733), 29. 99. John Witherspoon, A Practical Treatise on Regeneration (1764), in The Works of the Rev. John Witherspoon (Philadelphia, 1802), 2 vols., 2nd ed., ed. William W. Woodward (Harrisonburg, VA: Sprinkle, 2001), 1:76–77.

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100. Richard B. Sher and A. Murdoch, “Patronage and Party in the Church of Scotland,” in Church, Politics and Society: Scotland 1408–1929, ed. Norman MacDougall (Edinburgh: J. Donald, 1983), 197–220; Robert K. Donovan, “The Popular Party of the Church of Scotland and the American Revolution,” in Scotland and America in the Age of the Enlightenment, ed. Sher and Jeffrey R. Smitten (Edinburgh: Edinburgh University Press, 1990), 81–99. 101. Thomas Miller, ed., The Selected Writings of John Witherspoon (Carbondale: Southern Illinois University Press, 1990), 49. 102. John Witherspoon, A Serious Apology for “The Ecclesiastical Characteristics” (Edinburgh, 1763), 5, 41, 30. 103. John Witherspoon, Ecclesiastical Characteristics, or, The Arcana of Church Policy (Glasgow, 1753), in Miller, Selected Writings of John Witherspoon, 61. 104. Ibid., 67–68. Two further examples of satire on moderate readings of sacred texts are at 72, 73. 105. Ibid., 88–89. 106. Ibid., 79. 107. Ibid., 99, 79. 108. Witherspoon, Serious Apology, 15–16, 36. Witherspoon quotes the cited passage as an example of biblical irony: “Many good works have I shewed you from my Father; for which of those works do ye stone me?” (16). He also defends irony by quoting from the church fathers Irenaeus, Tertullian, Jerome, and Augustine (16–17). 109. Ibid., 16. 110. John Witherspoon, The Dominion of Providence over the Passions of Men (Philadelphia, 1776), in Political Sermons of the American Founding Era, 1703–1805, ed. Ellis Sandoz (Indianapolis: Liberty Fund, 1991), 538. 111. Marci A. Hamilton, “The Reverend John Witherspoon and the Constitutional Convention,” in Law and Religion: A Critical Anthology, ed. Stephen M. Feldman (New York: New York University Press, 2000), 61. 112. John Witherspoon, Lectures on Moral Philosophy, ed. Jack Scott (Newark: University of Delaware Press, 1982), 66, contra Mark A. Noll, Princeton and the Republic, 1768–1822: The Search for a Christian Enlightenment in the Era of Samuel Stanhope Smith (Princeton, NJ: Princeton University Press, 1989), 43: “With Hutcheson, [Francis] Alison, and most other eighteenth-century moral philosophers, Witherspoon set aside the Augustinian distrust of human nature.” 113. Witherspoon, Lectures on Moral Philosophy, 86. 114. James Madison, “Memorial and Remonstrance against Religious Assessments” (1785), §1: “Religion or the duty which we owe to our Creator and the manner of discharging it . . . is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” 115. James E. Bradley, Religion, Revolution, and English Radicalism: Nonconformity in Eighteenth-Century Politics and Society, repr. ed. (Cambridge: Cambridge University Press, 2002), 129. 116. John Adams to Abigail Adams, March 19, 1776, in The Letters of John and Abigail Adams, ed. Frank Shuffelton (New York: Penguin Books, 2004), 145.

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117. James Murray, Sermons to Asses (London, 1768), ii. 118. James Murray, Sermons to Doctors in Divinity; Being the Second Volume of Sermons to Asses (London, 1771), 41. 119. Thomas Paine, The Age of Reason, Part I (1794), in Paine: Political Writings, ed. Bruce Kuklick (Cambridge: Cambridge University Press, 1997), 284. 120. Murray, Sermons to Asses, 20. 121. Murray, Sermons to Doctors in Divinity, 56. 122. Paine, Age of Reason, 268. 123. Murray, Sermons to Asses, 155, 186, 9, 40. 124. Ibid., v–vi, 5. 125. Murray, Sermons to Doctors in Divinity, ix–x. 126. Ibid., 2, 11, 25, 29, 41, 48. 127. Ibid., 26–28. 128. Thomas Paine, Common Sense (1776), in Kuklick, Paine: Political Writings, 13. 129. Paine, Age of Reason, 275, 284. 130. E.g., ibid., 271: “The Christian theory is little else than the idolatry of the ancient mythologists, accommodated to the purposes of power and revenue.” 131. Thomas Paine, The Age of Reason, Part II (1795), in Thomas Paine: Collected Writings, ed. Eric Foner (New York: Library of America, 1995), 747. I thank Chris Beneke for bringing this quote to my attention. 132. Paine, Age of Reason, Part I, 272, 276, 278, 280, 281, 299. 133. Ibid., 299, 302. 134. James Muir, An Examination of the Principles Contained in “The Age of Reason” (Baltimore: S. and J. Adams, 1795), 9. 135. R v. Williams, 26 St. Tr. 653 (1797), quoted in Ivan Hare, “Blasphemy and Incitement to Religious Hatred: Free Speech Dogma and Doctrine,” in Extreme Speech and Democracy, ed. Hare and James Weinstein (Oxford: Oxford University Press, 2009), 303. 136. Seth Cotlar, Tom Paine’s America: The Rise and Fall of Transatlantic Radicalism in the Early Republic (Charlottesville: University of Virginia Press, 2011), 42. 137. Ronald Dworkin, “The Right to Ridicule,” New York Review of Books 53, no. 5 (March 23, 2006), accessed November 23, 2012, www.nybooks.com /articles/archives/2006/mar/23/the-right-to-ridicule/. 138. Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012), 105–43. 139. Ibid., 230. 140. John Rawls, “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public Affairs 14, no. 3 (Summer 1985): 225; Political Liberalism (New York: Columbia University Press, 1993), xxiv–xxix, 10, 154. 141. Contrasting perspectives include, on one side, Steven K. Green, The Second Disestablishment: Church and State in Nineteenth-Century America (New York: Oxford University Press, 2010), and Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York:

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New York University Press, 2002), and on the other, Douglas Laycock, “ ‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William and Mary Law Review 27, no. 5 (1986): 875–923, and Lawrence W. Levy, The Establishment Clause: Religion and the First Amendment, 2nd ed. (Chapel Hill: University of North Carolina Press, 1994). 142. Waldron, Harm in Hate Speech, 210–33. 143. John Locke, “First Tract on Government” (1660), in Locke: Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, 1997), 5. 144. Chris Beneke, “The ‘Catholic Spirit Prevailing in Our Country’: America’s Moderate Religious Revolution,” in The First Prejudice: Religious Tolerance and Intolerance in Early America, ed. Beneke and Christopher S. Grenda (Philadelphia: University of Pennsylvania Press, 2011), 275.

Chapter 2

The Productive Obscene: Philip Roth and the Profanity Loop jacques berlinerblau

Maybe that’s all I really am, a lapper of cunt, the slavish mouth for some woman’s hole. Eat! And so be it! Maybe the wisest solution for me is to live on all fours! Crawl through life feasting on pussy, and leave the righting of wrongs and the fathering of families to the upright creatures! Who needs monuments erected in his name, when there is this banquet walking in the streets? —Philip Roth, Portnoy’s Complaint (1969)

By 1969, when Philip Roth published the staggeringly obscene effusions in our epigraph, he could do so with impunity.1 The volcanic legal controversies about obscenity in literature, which had spewed so much sulfur from the turn of the century to the early 1960s, were a smoldering relic of the past.2 The societies for the suppression of vice and the textual inquisitions that the Post Office led in the era of Comstock laws were losing steam.3 The undercover raids of bookstores in which police officers and district attorneys—two cohorts not renowned for the breadth of their humanistic erudition—raked the shelves in search of salacious new fiction were drawing down. It was the 1957 Roth v. United States (the plaintiff, Samuel Roth, bears no relation to our author) that, paradoxically, set the stage for what fast became a new cultural reality. Roth ruled that “obscenity is not within the area of constitutionally protected freedom of speech or press.”4 Yet within a decade, obscenity in American literature, art, cinema, and so on gushed forth with unparalleled frequency, openness, and constitutional protection. 57

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The nation’s judicial system soon ceased to debate whether works such as James Joyce’s Ulysses, D. H. Lawrence’s Lady Chatterley’s Lover, Henry Miller’s Tropic of Cancer, Vladimir Nabokov’s Lolita, or Allen Ginsberg’s Howl, among many others, could be published, sold, or even read.5 The juridical lava about the communal dangers that obscene passages in fiction presented could no longer threaten novelists holed up in their studios, university offices, or writers’ colonies.6 In the wake of Roth, a “circular, self-nourishing process of liberalization” was afoot.7 The 1957 decision defined obscene material as “material which deals with sex in a manner appealing to prurient interest”— that is, having a tendency to excite lustful thoughts. The arbiter would be “the average person, applying contemporary community standards.”8 Writing for the majority was Justice William Brennan—a delicious irony, since his subsequent rulings would establish him as something like the patron saint of American free speech. In the 1960s, Brennan was instrumental in the process that “turn[ed] on its head” Roth’s severe views on the constitutionality of obscenity.9 This was a decade when the justice fully explored the logic of his aside in Roth that only works “utterly without redeeming social importance” would be denied First Amendment protection.10 This moment in American legal thought made much of his 1957 insight that “sex and obscenity are not synonyms.”11 And it was a time when experts—as opposed to the state or “the average person”—were increasingly empowered to judge the merits of literary fiction.12 So thoroughgoing was the impact of the “Brennan Doctrine” that law enforcement officials around the country mostly (and to some, inexplicably) ignored retaliatory decisions intended to reinvigorate censorship statutes, such as the Warren Burger court’s 1973 collection of cases Miller v. California.13 From the point of view of artistic freedom, this was a new America. One of Philip Roth’s protagonists helpfully charts where the winds were blowing. A character living in 1973 croons about the virtues of the porn magazine that he was allegedly publishing, “Sex is changing in America—people are swinging, eating pussy, women are fucking more, married men suck cocks, so Lickety Split reflects that.”14 The literature of the period reflects that as well; obscene literary expression was increasingly commonplace and decreasingly contested. Obscenity without legal obstacles, profanity without penalty, blasphemy without banishment—these were the new standards that creative persons enjoyed (and for the most part continue to enjoy) in the United States. Writers who exuberantly trafficked in profanity-laden,

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obscene, and occasionally blasphemous prose suddenly found fewer legal obstacles standing between them and uninhibited creative selfexpression. What did confront them, however, was not necessarily inconsequential: the censure and condemnation, as well as the hysterical sanctimony, of some of their compatriots. What happens, then, when artistic products that may enjoy legal protections encounter ferocious cultural contestation? There exists little theoretical conjecture about how offensive literature (and by extension, theater, art, cinema, comedy, and so forth) functions under circumstances in which its offensiveness cannot be subjected to legal penalty.15 How do we theorize the relation between the profaner and the profaned in such liberal conditions? Under less liberal regimes, the profaner is simply fined or imprisoned. But what happens when the profaner has every “right” to ply his or her craft? Our inquiry begins with four theoretical rules of thumb.16 First, disputes about obscenity are always relational. This obvious, albeit crucial, insight impacts every aspect of our analysis, including how one defines and understands obscenity. Simply put—and with all due respect to the definition that Roth adumbrates—“the obscene” is what a given individual, community, or society claims to be obscene (the law, the final authority in such matters, may or may not concur). The artist and others, in turn, riposte that the work under assault is no such thing. In some instances, they may double down and gleefully declare that while the work is obscene, it is nevertheless a constitutionally protected form of expression.17 Second, and in accord with this relational approach, we will need to be cognizant of what I will call the sociological “profanity loop.” Participating in the loop are at least two parties. The first—though not necessarily always the initiator—is a profaner, in the form of the artist. The second is (are) the profaned. The latter might include religious constituencies, ethnic minorities, pressure groups of various stripes, scholars outraged about stereotypical depictions, incensed aesthetes, and so forth. As we shall see, the most ideologically diverse and even mutually antagonistic groups may draw together in a coalition of the profaned. The profaner and the profaned typically feel that they inhabit completely opposite sides of a moral spectrum and are divided by an unbridgeable abyss. The truth is that—and here I come to my third rule—their relationship is unavoidably dialectical. They provoke and invoke each other. Roth himself, in broad terms, expressed a similarly dialectical understanding of human social interaction. In The Counterlife, his alter ego,

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Nathan Zuckerman, muses, “The treacherous imagination is everybody’s maker—we are all the invention of each other, everybody a conjuration conjuring up everyone else. We are all each other’s authors.”18 A profanity loop in the arts suggests that the belligerents, especially the profaners, are not only spurred but also influenced by the cycle of outrage; the outrage becomes part of the art. Fourth and finally, before I get to the empirical data that is Roth’s oeuvre, a theoretical distinction needs to be drawn between artists who intentionally and consciously seek to enrage particular constituencies and those who inadvertently infuriate their auditors. Roth, playing the role of profaner to perfection, virtually dared his readers to take umbrage at his writing. And for much of his career, that is precisely what they did.

the outrages of philip roth: a sampler Philip Milton Roth almost certainly ranked among the nation’s most controversial and reviled writers in the 1960s and especially the 1970s. (Nowadays, by contrast, he is one of America’s, and the world’s, most garlanded writers.)19 He earned his infamy mostly in the period following the release of his best-selling 1969 novel, Portnoy’s Complaint. The Newark, New Jersey, native, however, had ruffled feathers—Jewish feathers in particular—since his debut on the American literary stage with his breakthrough 1959 collection, Goodbye, Columbus. He continued to provoke outrage for the next half century. Still, not all of Roth’s novels are cut from the same scandalous cloth. Contributions such as Letting Go (1961), When She Was Good (1966), The Plot against America (2004), and Everyman (2006) are relatively free of offensive content. It is, therefore, not accurate to say that every single one of this writer’s works is a testament to obscenity. It would be more accurate to say that in each decade of his prodigious career, one can point to novels that evince the characteristic Rothian provocations. Posterity’s first encounter with Roth’s fiction includes a view of a woman’s posterior. The very first paragraph of Goodbye, Columbus set the tone for more than half a century of transgressive prose. A firstperson narrative voice introduces us to the auburn-haired Brenda Patimkin. Our initial glance at this intriguing young woman occurs poolside, as she adjusts her swim gear: “Her hands suddenly appeared behind her. She caught the bottom of her suit between thumb and index finger and flicked what flesh had been showing back where it belonged. My blood jumped.”20

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Roth’s next two novels (Letting Go and When She was Good) are relatively sedate affairs. Aside from his festering conflicts with Jewish communal leaders in the early 1960s (triggered by Goodbye, Columbus), the author did not figure centrally in the national debates that were then raging about obscene literature. Yet by the time he published Portnoy’s Complaint, the anything-goes atmosphere of the decade and the relaxed censorship laws of the Brennan era seem to have influenced his work.21 Portnoy’s established Roth as a writer who exulted in the depiction of sexual taboos and antireligious themes (he often couples the two, interestingly, in his fiction). Much of this text focuses on his masturbatory deflowering of socks, apple cores, and a piece of liver. To cite one memorable passage: I believe that I have already confessed to the piece of liver that I bought in a butcher shop and banged behind a billboard on the way to a bar mitzvah lesson. Well, I wish to make a clean breast of it, Your Holiness. That—she— it—wasn’t my first piece. My first piece I had in the privacy of my own home, rolled around my cock in the bathroom at three-thirty—and then had again on the end of a fork, at five-thirty, along with the other members of that poor innocent family of mine. So. Now you know the worst thing I have ever done. I fucked my own family’s dinner.22

It is also a work that scratches at some of the wounds that Roth had allegedly inflicted on Jews a decade earlier with the stories of Goodbye, Columbus. Alexander Portnoy rants that his people are “sucking and sucking on that sour grape of a religion! Jew Jew Jew Jew Jew Jew! It is coming out of my ears already, the saga of the suffering Jews! Do me a favor, my people, and stick your suffering heritage up your suffering ass—I happen also to be a human being!”23 The experienced Roth reader knows that, for all of his self-hating shtick, he happens to be quite fond of Judaism. (The same cannot be said about his relationship with Christianity; see below.) In his disappointing follow-up to Portnoy’s Complaint, the political satire Our Gang, the author again indulges his ribald proclivities. He imagines this dialogue among Richard Nixon’s handlers: Spiritual Coach: Jane Fonda. Has she ever appeared nude in a film? Highbrow Coach: I can’t honestly say I remember seeing her pudenda on the screen, Reverend, but I think I can vouch for her breasts. Spiritual Coach: With aureole or without?

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Highbrow Coach: I believe with. Spiritual Coach: And her buttocks? Highbrow Coach: Yes, I believe we’ve seen her buttocks. Indeed, they constitute a large part of her appeal.24

In his 1983 The Anatomy Lesson, a character masquerading as a pornographer claims that he rejected a cache of pictures portraying Playboy’s Hugh Hefner in flagrante delicto. He rationalizes his refusal to publish these images as follows: “‘You think it’s news that Hugh Hefner fucks? Get me pictures of the Pope fucking—then we can do business.’”25 Even in the domain of literary criticism—to which Roth has contributed some very fine essays—one may identify his characteristic irreverence. This is a writer who could describe The Scarlet Letter as follows: “Hawthorne gave us Hester Prynne, the brave adulteress of Puritan Boston, whose cunt, to paraphrase an ancient, was her fate.”26 In some of his later fiction, the profanity becomes considerably darker in tone—in both its existential and its misogynistic dimensions. The unforgettable graveyard masturbation scenes in the crackling 1995 Sabbath’s Theater are poignant examples. Standing by his deceased lover’s tombstone, the deranged protagonist Mickey Sabbath observes that he wanted his ejaculate “to drill a hole in her grave! To drive through the coffin’s lid to Drenka’s mouth!”27 Another of Roth’s recurring alter egos is the professor of literature David Kepesh. In a 1972 work, The Breast, Kepesh metamorphoses into a six-foot mammary and subsequently fantasizes about anally penetrating a hospital worker with his enlarged nipple.28 When last sighted, in 2001’s The Dying Animal, Professor Kepesh was whinging about a former student’s lackluster fellating technique: “I began coming, she abruptly stopped and received it like an open drain. I could have been coming into a wastepaper basket.”29 In a recent interview with Tina Brown, Roth chuckled at the “green dildo scene” in his 2009 The Humbling. When Brown asked him whether it was “a hard thing to write a sex scene with a woman in [sic] a green dildo,” he replied, “No harder than writing a sex scene without a woman with a green dildo, really.”30 In any case, even nearing the age of eighty, Roth could imagine encounters such as this one: Then she crouched above Tracy, brushing Tracy’s lips and nipples with her mouth and fondling her breasts, and then she slid down a ways and gently

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penetrated Tracy with the dildo. Pegeen did not have to force her open. She did not have to say a word—he imagined that if either one of them did begin to speak, it would be in a language unrecognizable to him. The green cock plunged in and out of the abundant naked body sprawled beneath it, slow at first, then faster and harder, then harder still, and all of Tracy’s curves and hollows moved in unison with it.31

Not all of Roth’s provocations, however, are of a sexually graphic nature. He also traffics in anti-Christian and more generally antireligious sentiments. While there is some overlap, profanity and obscenity are not necessarily the same thing as the more religiously tinged concept of blasphemy.32 Roth verges on blasphemy in his treatment not only of Judaism but of Christianity as well. One thinks of a remarkable 1987 exchange (first made public in 1998) with the writer Mary McCarthy. There she chided the novelist for the way he depicted Christians in The Counterlife (1986) and accused him of harboring a “pathology—a severe case of anti-antiSemitism” for the manner in which he sketched English conceptions of Jews.33 For example, in one scene of the novel, an old woman in a restaurant complains aloud about the terrible odor of Jews.34 Elsewhere in Counterlife’s metafictional extravaganza, Zuckerman, the central protagonist, attends Christmas Eve Mass and proceeds to unspool a variety of “unseasonal observations.” One of these occurs while he observes the interaction between the head of a youth choir and its star performer. Scouring their movements from afar, Zuckerman cannot restrain himself from detecting “a little whiff of homoerotic pedophilia” in the older man’s treatment of the young boy.35 The discerning reader may again notice the proximity of sexual and antireligious themes. Perhaps we should expect nothing less from a writer who had earlier referred to Jesus as “The Pansy of Palestine.”36 In the same work, Portnoy’s father exclaims, “I assure you, Alex, you are never going to hear such a mishegoss of mixed-up crap and disgusting nonsense as the Christian religion in your entire life.”37 In The Anatomy Lesson, Roth speaks of “the voodoo healer, Dr. Jesus Christ.”38 Lest one think that Roth has confined his antireligious effusions to Christianity, there is Zuckerman’s visit to the Wailing Wall in Jerusalem. Observing Jews communing with their God at this holiest of sites, he demurs, “I couldn’t help but be gripped by the sight of this rock-worship, exemplifying as it did to me the most awesomely retarded aspect of the human mind.”39

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premeditated profanity “Why should writers alone,” one of Roth’s most enervated protagonists kvetched, “get to say the unsayable?”40 It’s a revealing query, and as evident above, Roth does in fact appear to have luxuriated in the expression of sentiments that polite society would rather leave unexpressed. Throughout his massive oeuvre, now totaling more than thirty books, the author has consistently endeavored to shock his readers. As the literary critic Debra Shostak observed, “Roth has seemed not just to risk, but even to welcome, censure.”41 Frank Kermode was spot on when he commented that “what distinguishes Roth’s [work] is outrageousness.”42 In fact, the theme of transgression is “omnipresent.”43 Roth himself, without much prodding, has conceded as much: “I occasionally have an anti-Roth reader in mind. I think, ‘How he is going to hate this!’ That can be just the encouragement I need.”44 In terms of the profanity loop, I should note that Roth is anticipating the reaction of the profaned even before he profanes on the written page! What must be stressed, then, is that Roth’s transgressions are intentional. They are not, however, gratuitous or secondary to his work. As we shall see, his offenses are essential to the broad thematic import of the fiction he produces.45 The purposefulness of his boundary crossing provides a contrast with literary provocateurs of yore. Reading through Edward de Grazia’s Girls Lean Back Everywhere, a magisterial study of twentieth-century obscenity trials, one is struck by the incredulity that afflicted literary defendants.46 Most simply could not believe that their work as a whole would be subjected to censorship for this or that obscenity. It was all a surprise, and a tragedy, to them. This was not the case for Roth, which probably also holds true for most writers in the West today. Communications and knowledge being what they are, fictionalists nowadays are usually cognizant of precisely where the boundaries of obscenity are situated. In fact, many writers consciously factor their audiences’ reception of their work into their art. Roth is a case in point: he fully understands that he is being offensive. In fact, Roth has used his fiction to explore the act of transgression. Even in his earliest stories, the author ruminates on how one goes about breaking the rules, on how one effects the transition from “nice Jewish boy” to “the Jewboy” (his parlance for the libidinous, outrageous, socially unacceptable Jew).47 In a youthful short story, “The Conversion of the Jews,” the protagonist Ozzie Freedman asks at the very moment when he is about to scan-

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dalize his community, “Can this be me?”48 Continuing to ponder the dilemma, he likens himself to a thief who “crams the money in his pockets and scoots out the window.” As he is about to perform his sacrilegious outrage (threatening to commit suicide by plunging from a rooftop unless the entire Jewish community down below says they believe in Jesus Christ), he answers his existential query in the affirmative: “Suddenly you know it’s you.”49 The decisive passage demonstrating Roth’s studied contemplation of the process of transgression is in Portnoy’s Complaint. There his “cuntcrazy” lead character, Alexander Portnoy, reflects on his boundarycrossing past, “The lesson may have been learned that to break the law, all you have to do is—just go ahead and break it! All you have to do is stop trembling and quaking and finding it unimaginable and beyond you: All you have to do, is do it!”50 And do it Philip Roth did! While almost any serious author will inadvertently offend certain groups and sensibilities, Roth’s outrages have certainly not been adventitious. Upsetting norms and disturbing pieties would appear to be a moral imperative for him. His provocation is purposeful, with deep philosophical moorings in his thought. Throughout his career, Roth railed against what he calls the “pastoral.” By this he means hypocritical, shallow, artificial, and patently false conceptions of life. These, he intimates, abound in white Anglo-Saxon Protestant culture, to which he must retort with his antipastoral world view. God (if he exists) is severe, not loving. Humans are creaturely, not saintly. Christianity is a religion of violence, not love. Death results in nothingness, not heaven or hell. Betrayal is the stuff of life. A pastoral, for Roth, is a decidedly goyische thing, an inversion of lived reality, a misprision against the artist’s obligation “to expose the unspeakable truth.”51 The late literary critic Mark Krupnick drew attention to Roth’s proclivity for antipastoral metaphors, such as images centering on excrement. These symbols point to the fundamental truth that we live “a shit-filled life.” “He has increasingly found loss, humiliation, and death at the heart of things,” Krupnick remarked. “He has found the basic, most elemental principle of things in excrement. The protagonists of his most recent books have in the end been overcome by storms of shit.”52 Roth’s use of obscenity and profanity is the form that speaks to the contents of his fiction. Thus when asked about the obscenity in Portnoy’s Complaint, he was adamant that the it furthered the novel’s thematic. Of Alexander Portnoy, he wrote, “He is obscene because he wants to be saved. . . . I wanted to raise obscenity to the level of a subject.”53

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Regardless of what the reader may think of Roth’s canon, his experiments in obscenity are not conducted for mere titillation. Rather, obscenity is constitutive of life; fiction bows to this truth.

the profaned respond Expressions of profanity, I have suggested, dialectically trigger expressions of outrage. The context in which this dialectic played out in the 1960s and 1970s was quite different from that of previous decades. Unlike writers of bygone eras, Roth was not threatened with legal sanctions for his indiscretions. District attorneys and vice societies did not seek his arrest and prosecution. He did not have to mount an impassioned defense of expressive liberties in front of a skeptical jury. None of this means, however, that he lacked for vocal and vehement detractors. Roth was subjected to the perfervid counterthrusts of the profaned. He was skewered for being a self-hating Jew, a pervert, a misogynist, a racist, an enemy of common decency, and—naturally—a mediocre writer. He dealt with this outrage in the way that a sculptor deals with clay, shaping it into not only more obscenity but also literary reflections on all of those who played a role in the profanity loop. Roth’s decades-long skirmish with the Jewish community began after the appearance of Goodbye, Columbus, for which he received the National Book Award. In 1984 he complained to an interviewer, “They’d never really got off my ass for publishing Goodbye, Columbus, which was considered in some circles to be my Mein Kampf.”54 As Krupnick observed, “Roth’s own career has been marked from the start by attempts to mortify him. Goodbye, Columbus (1959) stirred up the indignation of rabbis and other spokespersons of the organized Jewish community. The familiar cry of anti-Semitism went up, and it has been heard since then at various times.”55 Rabbi Saul Teplitz complained that Roth “constantly depicts the Jewish characters in his short stories and novels as depraved and lecherous creatures.” He quoted another rabbi wondering aloud whether, for this author, the world “would be a much better and happier place without ‘Jews.’ ”56 Some Jewish religious leaders made careers out of anathematizing the young literary phenom from Newark. Incensed about his treatment of Jewish subjects, the poet and author Jeremy Larner complained in 1960, “Roth, however, seeks only to cheapen the people he writes about.” “He cheats himself,” Larner sighed, “and cheats his readers of the truth.”57 The sports writer Harold Riba-

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low complained in 1963 about “what I felt was a violence against Judaism on the part of the author.”58 Likewise, the journalist Charles Angoff lamented Goodbye, Columbus’s “almost total lack of understanding of Jewish life in America.”59 The invective halted for most of the latter half of the 1960s, when, as noted above, Roth was relatively inoffensive in his prose and thematics.60 But with the publication of the anything-goes Portnoy’s Complaint, it seemed as if he became Public Literary Enemy No. 1 in the American Jewish community and beyond.61 Marie Syrkin unloaded on Roth as a “frequently nasty” writer. She accused his character Alexander Portnoy of being “a total phony . . . and a rebuke to all those Jews who get high grades and profess to be socially involved.” Syrkin terminated her screed with an accusation that would haunt Roth: “Within the trappings of the old-hat Jewish joke lurks a savage anti-Jewish stereotype, even more old-hat, and not at all funny.”62 Portnoy’s Complaint not only exposed an intergenerational rift between Roth and the Jewish community—for its central protagonist lampooned the ignorance, hypocrisy, and philistinism of his Jewish elders—but triggered an ongoing series of confrontations with female writers and scholars, some of whom exemplified the burgeoning feminist consciousness of the era. Marya Mannes proffered a dissent from laudatory assessments of Portnoy’s Complaint and charged that Roth “succeeds brilliantly in generating revulsion.” Mannes—who had earlier sacked the comedian Lenny Bruce during one of his many run-ins with the law—accused Roth of practicing “the pornographer’s trade.” She went on to complain that “not only does he sit on life’s toilet seat; he examines, lovingly, the bowl beneath.”63 In her classic Sexual Politics, Kate Millett devotes half a paragraph to Roth, and not a flattering one. As she enthuses, “Portnoy’s long kvetch is a hilarious demonstration of how elaborate cultural penis-worship may produce, in a man of intelligence or sensitivity, a monumental infantilism whose only satisfactions are a contradictory blend of onanistic self-deprecation and the cheap glory of settling old minority scores in the sexual exploitation of women.”64 The literary scholar Mary Allen accused Roth of voicing “enormous rage and disappointment with womankind.”65 The general outrage stimulated by Portnoy’s Complaint, which sold millions of copies and was translated into at least nineteen languages, often spilled over into assessments of Roth’s qualifications as a writer.66 The snowballing coalition of the profaned now acquired those who objected to him on aesthetic grounds. As Robert Alter opined, “Roth suffered, rather,

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from a general deficiency in the sympathetic imagination of humanity. . . . This deficiency of sympathy expresses itself in a kind of vendetta against human nature.”67 Syrkin did not find “Roth’s obscenity at all original. It is therefore hard to understand what new dimension Roth believes he has given to the public usage of obscenity. . . . Obscenity is achieved when the writer shows not human beings animated by emotion but merely organs in friction. This contemptuous dismemberment of personality Roth aims for and achieves ad nauseam.”68 The literary critic J. Mitchell Morse lamented Roth’s fame: “As I write, he is for the time being Lord of all, the hottest brand name in the market. By now, everybody knows enough about him, and I don’t find him worth discussing at length. Philip Roth belongs in the same abject bag as Leo Rosten, Harry Golden, Myron Cohen, and Sam Levenson.” Morse rated Roth a mere “servile entertainer.”69 But perhaps the most famous and spectacular of all the criticisms of Roth’s profanity emanated from one of the period’s leading literary grandees, Irving Howe. Roth could parry insults from rabbis, feminists, sports writers, journalists, and even obscure professors—let us never lose sight of what strange bedfellows constituted this particular coalition of the profaned. But Howe was precisely the sort of Grand Man of Belles Lettres whose opinions had stature in the pantheon of American high culture, which the agile Roth was in the process of scaling.70 Back in 1959, Howe had defended Goodbye, Columbus against the strictures of the Jewish community.71 But on reading Portnoy’s Complaint, his assessment of Roth worsened considerably. In 1972, in what is now probably the single most famous riposte to a Roth novel, Howe derided the author’s creative vision as “deeply marred by vulgarity,” by which he meant “the impulse to submit the rich substance of human experience, sentiment, value, and aspiration to a radically reductive leveling or simplification.”72 This chapter notes above that in Roth’s aesthetic, obscene form speaks to obscene content. Herein lies one of the points of contention with Howe. Roth believes that human experience is, in fact, deeply marred by vulgarity (among other things) and hence should be represented as such. “Stupidity happens unfortunately to be real,” Zuckerman declares, “and no less capable of governing the mind than fear, lust, or anything else.”73 What was “reductive leveling” for Howe was truth for Roth. Any student who examined the loop between profaners and their profaned critics would not be surprised by Howe’s philippic or any of the other interventions predicated on differing concerns. What is sur-

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prising, however, is what happened next. Instead of passively submitting to the battering that he received from his critics, Roth reloaded and proceeded to fictionalize his pain in ways that make us rethink the creative potential of ordeals concerning obscenity and culture wars.

roth strikes back: extending the loop, “apertures sputtering” In her tell-all Leaving a Doll’s House: A Memoir, Claire Bloom recounts a variety of unflattering anecdotes about her former husband Philip Roth. One of these concerns his reaction to a middling review of the 1993 Operation Shylock. “John Updike’s grudging estimation in The New Yorker,” Bloom reveals, “came as a great blow to Philip’s morale.” She goes on to insinuate that Updike’s evaluation, as well as other negative assessments, led to Roth’s physical and psychic breakdown.74 This anecdote demonstrates how attuned artists may be to their critical reception; they do not appreciate what they may see as the profanation of their own work. There is, admittedly, a certain type of creative soul who may remain oblivious to criticism hurled in his or her direction. Roth, however, is more the rule than the exception. As one of his characters, himself a novelist, phrased it, “Sooner or later, there comes to every writer the two-thousand-, three-thousand-, five-thousand-word lashing that doesn’t just sting for the regulation seventy-two hours, but rankles all his life.”75 Roth was majorly rankled by the critique he received following Goodbye, Columbus and Portnoy’s Complaint. The first full-blown fictional symptoms of this anguish are evident in the 1979 novel The Ghost Writer.76 This fine book came on the heels of a run of novels that achieved nowhere near the commercial success of Portnoy’s Complaint, including Our Gang (1971), The Breast (1972), The Great American Novel (1973), My Life as a Man (1974), and The Professor of Desire (1977). Creatively speaking, Roth appeared to be leveling off in 1979, still reeling from the lashing and notoriety that he experienced postPortnoy’s. Roth’s innovation in The Ghost Writer reinvigorated his career for decades thereafter. Employing the techniques of what is variously known as metafiction or autofiction, he reintroduced the character of Nathan Zuckerman—whom we first met in a different iteration in Roth’s first postmodern experiment, My Life as a Man.77 Zuckerman, it would appear, is some sort of fictionalized version of Roth. He is featured in

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nine novels, becoming increasingly quiet until his last sighting, in the 2007 Exit Ghost.78 The critic Alan Cooper coined the term ZuckerRoth to make sense of the bewildering overlap between the fictional and nonfictional personae.79 The question of whether Zuckerman is literally Roth—whose answer Roth has done everything he can to playfully obfuscate—has preoccupied critics for years and need not detain us here.80 For our purposes, what is essential is the bufferlike role that Zuckerman plays in Roth’s fiction. The wearing of this mask has permitted the author to make his own contribution to what I have called the profanity loop. Prior to the 1960s, the profanity loop was incomplete in not allowing the profaner the freedom required to respond to outraged critics. It went something like this: A perceived literary obscenity outraged some persons somewhere, who roused themselves to action and initiated legal proceedings as they surged into a loosely affiliated coalition of the profaned. That led, often enough, to the punishment and censure of the artist (if not the publishing house and assorted booksellers). It also led to heartache: from Joyce to Lawrence, Theodore Dreiser, and Radclyffe Hall—all writers whose work was subjected to lengthy, expensive, and well-publicized inquisitions. The process pulverized these artists. By the 1960s, however, with the federal government gradually backing out of these disputes, a new equation developed. Obscenity led not to legal injunction but merely to the outrage of the profaned. With the playing field leveled and the latter no longer in possession of what Antonio Gramsci might have called the coercive apparatus of the state, authors were free to blaspheme with impunity.81 Roth’s work demonstrates a new possibility in the loop, whereby the profaner strikes back. The artist modulates the critique received into the key of his or her art. The equation now becomes: profanity leads to the outrage of the profaned, which in turn triggers the profaner to create more art about the encounter itself. When the London Sunday Times asked if he had an “inflamed Jewish readership” prior to publishing Portnoy’s Complaint, Roth railed against Jewish detractors who “wouldn’t let up, no matter what I wrote. So I thought finally, ‘Well, you want it, I’ll give it to you.’ And out came Portnoy, apertures sputtering.”82 Metafiction provides contemporary writers with a stunning vehicle for payback. Ironically, the activism of the coalition of the profaned tends to heighten attention to the offending work of art, to radiate the abominations far and wide. The profaned become unwitting contributors to the further creation and dissemination of what they see as the unspeakable.

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Is it unfair that artistic work that may demonize, let’s say, a minority is proffered so many advantages—the constitutional right to offend and then to reoffend? Perhaps, but society’s crucial need for free expression is an obvious counterbalancing concern. In liberal democracies it may sometimes be prudent for those in the coalition of the profaned to be less publicly outraged, lest they inadvertently contribute to the success of the profaner. In any case, it was in The Ghost Writer that Roth began to revisit the psychic pain he experienced after the publication of Goodbye, Columbus and Portnoy’s Complaint. Looking back in 1984 at that period of his life, he spoke of “the censorious small-mindedness and shame-ridden xenophobia that I ran into from the official Jews who wanted me to shut up.”83 As he embarked on the metafictional stage of his career, it became clear that he would not be shut up. Zuckerman would be his mouthpiece. The Ghost Writer, a winking bildungsroman, features a young Zuckerman, who spends the night at the home of his idol, the highly revered albeit nearly forgotten Jewish writer E. I. Lonoff.84 The twenty-threeyear-old arrives at his mentor’s home in emotional duress. He has been estranged from his father owing to a short story he wrote about a family inheritance dispute gone terribly awry. A nervous Doc Zuckerman, Nathan’s father, had shown the unpublished manuscript to one of Newark’s most influential Jews, a certain Judge Leopold Wapter. The latter proceeded to deliver a philippic. In a lengthy letter, the jurist asks young Zuckerman, “What set of aesthetic values makes you think that the cheap is more valid than the noble and the slimy is more truthful than the sublime?” Wapter was just getting into gear. He terminates his inquisition with “Can you honestly say that there is anything in your short story that would not warm the heart of a Julius Streicher or a Joseph Goebbels?”85 It does not seem a coincidence that Marie Syrkin, mentioned above, invoked Streicher in her jeremiad about Portnoy’s Complaint.86 Zuckerman’s resolution of the psychological agony that the twin scowls of the paternal and legal authorities create is to conjure up a most remarkable fantasy about marrying, of all people, Anne Frank. Through a narrative twist too detailed to mention here, he convinces himself that unbeknown to the world, Frank survived the Nazi death camps and made her way to the United States. In a remote corner of western Massachusetts she serves as the archivist and lover of her professor E. I. Lonoff.

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In one of the most dramatic passages in all of Roth’s fiction, young Zuckerman emotes vindictively as he ponders the possibilities of marrying this saint of Jewish suffering: “To be wed somehow to you, I thought, my unassailable advocate, my invulnerable ally, my shield against their charges of defection and betrayal and reckless, heinous informing! Oh, marry me, Anne Frank, exonerate me before my outraged elders of this idiotic indictment! Heedless of Jewish feeling? Indifferent to Jewish survival? Brutish about their well-being? Who dares to accuse of such unthinking crimes the husband of Anne Frank!”87 Who dares indeed! Having invoked his own ghosts and poked Jewish detractors in the eye by imagining Frank as Zuckerman’s wife, Roth took on his “expert” antagonists in the third Zuckerman novel, The Anatomy Lesson. It begins with images of an ailing, physically broken Zuckerman, unable to write or function. He attributes his pain to the recent death of his mother. Yet something else gnaws at him. This would be his feelings of guilt for “the family portrait the whole country had assumed to be his, for the tastelessness that had affronted millions and the shamelessness that had enraged his tribe.”88 The family portrait in question is Carnovsky—a work that seems suspiciously similar to Portnoy’s Complaint. Elsewhere, Zuckerman had written that Carnovsky had not gone over well with its (fictional) audience, “for depicting Jews in a peep-show atmosphere of total perversion, for depicting Jews in acts of adultery, exhibitionism, masturbation, sodomy, fetishism, and whoremongery.”89 As the plot of The Anatomy Lesson progresses, we learn that Zuckerman is mourning not only the recent death of his mother, not only the maelstrom set off by Carnovsky, but also a crushing review he has received from the noted literary critic Milton Appel. Informing this part of the plot of The Anatomy Lesson was Howe’s critique of Roth in the pages of Commentary in 1972. Through the alchemy of fiction, Roth transformed Commentary and Howe into Inquiry and Appel. In The Anatomy Lesson, Zuckerman describes Appel’s literary takedown: “In Inquiry, the Jewish cultural monthly that fifteen years earlier had published Zuckerman’s first stories, Milton Appel had unleashed an attack upon Zuckerman’s career that made Macduff’s assault upon Macbeth look almost lackadaisical.”90 Roth goes on, “In the Times in 1959, the twenty-six-year-old author had looked to Appel like a wunderkind, the stories in Higher Education ‘fresh, authoritative, exact.’ ”91 This fictional description closely resembles what Howe had written in 1959 about Roth’s Goodbye, Columbus

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in a piece titled “The Suburbs of Babylon.”92 And following “the success of Carnovsky, Appel”—much like Howe in the aftermath of Portnoy’s— “reconsidered what he called Zuckerman’s ‘case.’ ” Appel, a frowning Zuckerman recounts, had concluded, “Now the Jews represented in Higher Education had been twisted out of human recognition by a willful vulgar imagination largely indifferent to social accuracy and the tenets of realistic fiction.”93 In The Anatomy Lesson, Roth couples his loathing of pastorals with his penchant for fictionally extending the profanity loop. He derides Appel/Howe as a sanctimonious sort who “finds criticism a voice for virtue.”94 Roth/Zuckerman’s screed on sanctimony culminates in this blast, which takes aim at literary critics, Jews, pastoralists, and others in the coalition of the profaned: You sententious bastard, have you ever in your life taken a mental position that isn’t a moral judgment? . . . Milton Appel, the Charles Atlas of goodness! Oh, the comforts of that difficult role! And how you play it! Even a mask of modesty to throw us dodos off the track! I’m “fashionable,” you’re for the ages. I fuck around, you think. My shitty books are cast in concrete, you make judicious reappraisals. I’m a “case,” I have a “career,” you of course have a calling. Oh, I’ll tell you your calling—President of the Rabbinical Society for the Suppression of Laughter in the Interest of Loftier Values! Minister of the Official Style for Jewish Books Other than the Manual for Circumcision. Regulation number one. Do not mention your cock. You dumb prick!95

Elsewhere, Roth/Zuckerman excoriates Howe/Appel for failing to “distinguish between the illusionist and the illusion.”96 Yet our analysis indicates that the lines between these two states are stubbornly blurry in Roth’s fictional playgrounds. The liberalization of the post-Roth era made it possible for writers such as Roth to process the outrage of the profaned into newer and greater profanity and reflection on its significance.

theorizing the profane In the last of the Zuckerman novels, the 2007 Exit Ghost, we witness the unexpected, if not the absurd. There an elderly, incontinent Zuckerman is devoting formidable psychic and physical energy to suppressing a manuscript. Huffing about Manhattan in an adult diaper, the frail but still libidinous author sets himself the task of censoring an unpublished biography. The text in question exposes infelicitous truths about his

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mentor, Lonoff. These include the revelation that he had had an incestuous affair with his sister.97 How ironic! In The Ghost Writer, Roth introduces Zuckerman to us as a champion of unbridled, open literary expression. Nearly three decades later, on his last legs, this same character seeks to defend his master’s privacy through an act of self-righteous, clarity-occluding, truthdenying censorship. Once again, there is reason to suppose that an entire nonfictional galaxy had been sucked into Roth’s fictional universe. Was he alluding to recent revelations made by the writer Henry Roth that he had had inappropriate relations with his sister and first cousin? Is it a mere coincidence that the biographer in Exit Ghost is named Kliman and Henry Roth’s biographer is named Kellman?98 Fiction, as we have seen, is parasitic on nonfiction (whether the converse holds is not a possibility I will engage here). This chapter has detailed how disputes about obscenity in the nonfictional universe trundle their way into the so-called world of make-believe. To describe this process, I have made reference to a profanity loop and explored some of its mechanics in a time and a space where there are few legal prohibitions on artistic expression. The case of the eminent writer Salman Rushdie, however, introduces us to a most instructive variant, or curlicue, in the loop. Rushdie so incensed assorted state and nonstate actors with the publication of The Satanic Verses (1988) that Ayatollah Khomeini’s fatwa forced into him hiding for nearly a decade.99 This work, of course, is more explicitly blasphemous than Roth’s—it engages directly and extensively with verses from scriptures sacred to Muslims. That is to say, Rushdie’s infelicities coursed along a path well graveled by Muslim heretics and apostates, not to mention enemies of Islam since the time of the Prophet Muhammad. Yet as with Roth, we see in Rushdie the metafictional impulse to recycle the outrage provoked by one’s fiction in one’s fiction. Consider this startling, even taunting passage on the very first page of his underappreciated The Moor’s Last Sigh (1995): “On the run, I have turned the world into my pirate map, complete with clues, leading X-marksthe-spottily to the treasure of myself. When my pursuers have followed the trail, they’ll find me waiting, uncomplaining, out of breath, ready. Here I stand. Couldn’t’ve done it differently.”100 Also in a manner reminiscent of Roth, Rushdie in The Satanic Verses labors under the assumption that he can ply his provocative wares with impunity. And again as with Roth, there is reason to suppose that Rush-

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die was completely cognizant of the effect that The Satanic Verses might have on Muslim sensitivities. In a candid conversation with the Paris Review, he asked himself rhetorically if he “did it on purpose.” His response: “Of course I did it on purpose! How do you spend five years of your life doing something accidentally?”101 Two provisos are in order: Rushdie never imagined that his fiction would result in a global death sentence against him or in the horrific violence committed against translators, editors, and others affiliated with the book. The West may have legalized obscenity through the rule of law, defining and protecting its expression as a right. Yet the profaned, as I have been calling them, can sometimes marshal themselves into a force that acts beyond the state and beyond the hard-fought accomplishments of the West’s rule of law. This was never a consideration for Roth, but “worldwide vilification” coupled with Islamist militancy was an unforeseen tragedy for Rushdie.102 Obscenity controversies can have horrifying outcomes, but sometimes quite creative ones as well. This is because the energy that the profanity loop unleashes may galvanize fictionalists to produce new fiction. This is not to celebrate the axiom that misery is the greatest patron of the arts, but it is to stress that, all things considered, culture wars can have aesthetically significant results. As a character in Roth’s The Professor of Desire quips about the suffering of Franz Kafka, “All the worse for him . . . and all the better for the fiction.”103

notes Epigraph: Philip Roth, Portnoy’s Complaint (New York: Bantam, 1969; repr., New York: Vintage, 1994), 270–71. 1. It should be recalled that sections of Portnoy’s Complaint had appeared “out of the wreckage of four abandoned projects” that Roth had undertaken between 1962 and 1967. Roth, “In Response to Those Who Have Asked Me: ‘How Did You Come to Write That Book, Anyway?,’ ” in Reading Myself and Others (New York: Vintage, 1985), 29. 2. For the best account of this long era in American literary and legal history, see Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (New York: Vintage, 1993). See also de Grazia, “How Justice Brennan Freed Novels and Movies during the Sixties,” Cardozo Studies in Law and Literature 8 (1996): 259–65. 3. For a gripping discussion of Catholic efforts in the war against obscene literature, see Thomas F. O’Connor, “The National Organization for Decent Literature: A Phase in American Catholic Censorship,” Library Quarterly 65 (1995): 386–414.

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4. Samuel Roth v. United States, 354 U.S. 476, 485 (1957). See the materials in n. 2, above, for the long-term impact of Justice William Brennan’s opinion. 5. On the trials and travails of these literary figures, see de Grazia, Girls Lean Back Everywhere, 263–64. Interestingly, de Grazia notes that Philip Roth had an opportunity to participate in some of the late 1950s ructions about censorship centered at the Chicago Review, but for some unspecified reason he did not join the cause (355). 6. On how writers such as Roth and John Updike were the “beneficiaries” of the passing of the obscenity hysteria, see Loren Glass, “Redeeming Value: Obscenity and Anglo-American Modernism,” Critical Inquiry 32, no. 2 (Winter 2006): 341–61. Glass’s contention that Roth and Updike were “middlebrow novelists,” however, seems gravely mistaken (360). 7. Anthony Lewis, “Sex . . . and the Supreme Court,” Esquire, June 1963, 82. 8. Roth, 354 U.S. at 487, 488. 9. De Grazia, “How Justice Brennan Freed Novels and Movies,” 262. 10. The germane words read, “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” Roth, 354 U.S. at 484. 11. Ibid., 487. 12. Lewis, “Sex . . . and the Supreme Court,” 82. 13. On Brennan’s import and the way that Roth constitutionalized obscenity, see de Grazia, Girls Lean Back Everywhere, 12, 273, 321, 342, 409. In Miller v. California (413 U.S. 15), the Burger court tried to “[excise] the ‘utterly without social value’ prong of the three-pronged Brennan Doctrine” obscenity test (570; see also 572). On the lack of adherence to Miller, see 575. 14. Philip Roth, The Anatomy Lesson (New York: Farrar, Straus and Giroux, 1983; repr., New York: Vintage, 1996), 182. 15. Blasphemy, by contrast, with its distinctly religious tincture, has been more widely investigated. 16. The following discussion shadows my research on heresy and orthodoxy, which advances a similar relational, nonessentialist definition of those terms: Jacques Berlinerblau, “Toward a Sociology of Heresy, Orthodoxy, and Doxa,” History of Religions 40, no. 4 (May 2001): 327–51. 17. This brings us to the highly complex question of nomenclature. What is the difference between profanity, obscenity, and blasphemy? For the purposes of this article, we will relegate the last to a strictly religious context. That is to say, blasphemy has to do with the expression of sentiments that run afoul of religious authorities. As we shall see, this is only minorly germane to Roth’s writing, if only because of the loose and acephalous authority structure of modern Judaism. 18. Philip Roth, The Counterlife (New York: Vintage, 1986), 145. The surmise, incidentally, that we become who we are by engaging with others has a lengthy genealogy in social thought. Theorists have explored this nexus through initiatives such as Charles Horton Cooley’s “the looking-glass self,” the work

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associated with George Herbert Mead, and the school known as symbolic interactionism. Cooley first introduced his term in Human Nature and the Social Order (New York: Charles Scribner’s Sons, 1902), writing, “The kind of selffeeling one has is determined by the attitude toward this attributed to that other mind. A social self of this sort might be called the reflected or looking-glass self” (151–52). See also Mead, “Fragments on Ethics,” in Mind, Self, and Society from the Standpoint of a Social Behaviorist, ed. Charles Morris (Chicago: University of Chicago Press, 1962), 379; Erving Goffman, The Presentation of Self in Everyday Life (New York: Anchor, 1959). 19. He has won the PEN/Nabokov, PEN/Faulkner, and PEN/Bellow Awards, the National Book Award, the Man Booker International Prize, and so forth. Wikipedia has compiled a complete list of his many literary accolades: see http:// en.wikipedia.org/wiki/Philip_roth#List_of_awards_and_nominations. On his awards, one can also read Timothy Parrish, “Introduction: Roth at Mid-career,” in The Cambridge Companion to Philip Roth, ed. Parrish (Cambridge: Cambridge University Press, 2007), 5. 20. Philip Roth, “Goodbye, Columbus,” in Goodbye, Columbus (New York: Vintage, 1959; repr., New York: Houghton Mifflin, 1987), 3. 21. Roth discusses the effect that the “theatrics” of the 1960s had on him in his interview with Scott Raab, “Philip Roth Goes Home Again,” Esquire, October 7, 2010, www.esquire.com/features/philip-roth-interview-1010. Note that he published short sections of what became Portnoy’s Complaint in the earlier years of the decade. See Daniel Walden, “Goodbye Columbus, Hello Portnoy— and Beyond: The Ordeal of Philip Roth,” Studies in American Jewish Literature 3, no. 2 (Winter 1977–78): 9. 22. Roth, Portnoy’s Complaint, 134. 23. Ibid, 76. 24. Philip Roth, Our Gang (Starring Tricky and His Friends) (New York: Random House, 1971), 70. 25. Roth, Anatomy Lesson, 185. 26. Philip Roth, “Imagining the Erotic: Three Introductions; 1. Alan Lelchuk; 2. Milan Kundera; 3. Frederica Wagman,” in Reading Myself and Others, 233. 27. Philip Roth, Sabbath’s Theater (New York: Vintage, 1995), 444. 28. Philip Roth, The Breast (New York: Holt, Rinehart and Winston, 1972; repr., New York: Vintage, 1994), 44. 29. Philip Roth, The Dying Animal (New York: Vintage, 2001), 29. 30. Tina Brown, “Philip Roth Unbound,” Daily Beast, October 21, 2009, www.thedailybeast.com/articles/2009/10/21/philip-roth-unbound.html. 31. Philip Roth, The Humbling (New York: Vintage, 2009), 112–13. 32. The latter term, needless to say, is difficult to define. See Ivan Hare’s chapter “Blasphemy and Incitement to Religious Hatred: Free Speech Dogma and Doctrine,” as well as many others, in Extreme Speech and Democracy, ed. Hare and James Weinstein (New York: Oxford, 2009), 289–310. 33. Mary McCarthy and Philip Roth, “An Exchange,” New Yorker, December 28, 1998–January 4, 1999, 98. 34. Philip Roth, The Counterlife (New York: Vintage, 1986), 290–95. 35. Ibid., 261.

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36. Roth, Portnoy’s Complaint, 168. 37. Ibid., 40. 38. Roth, Anatomy Lesson, 143. 39. Roth, Counterlife, 86. 40. Ibid., 215. 41. Debra Shostak, “Roth and Gender,” in Parrish, Cambridge Companion to Philip Roth, 112. 42. Frank Kermode, “Philip Roth,” in Pleasing Myself: From Beowulf to Philip Roth (London: Penguin, 2001), 256. 43. Robert Greenberg, “Transgression in the Fiction of Philip Roth,” Twentieth Century Literature 43, no. 4 (Winter 1997): 488. 44. Philip Roth, “Interview with The Paris Review,” by Hermione Lee, Paris Review 93 (Fall 1984), reprinted in Reading Myself and Others, 121. 45. In his interview with Scott Raab, “Philip Roth Goes Home Again,” Roth discusses his little-known short story “On the Air.” Admitting that he does not like it, he opines, “I was experimenting with excess. . . . I just wondered how far I could go, and I discovered what my limit was.” The story appears in New American Review 10 (1970): 7–49. 46. On the poverty, sadness, and depression that often resulted for writers who ran afoul of censors, see de Grazia, Girls Lean Back Everywhere, 51. For D. H. Lawrence, see 63, 65; Theodore Dreiser, 109; Radclyffe Hall, 192. See also 247. 47. Roth, “ ‘How Did You Come to Write that Book, Anyway?,’ ” 31. 48. Philip Roth, “The Conversion of the Jews,” in Goodbye, Columbus, 147. 49. Ibid., 148. 50. Roth, Portnoy’s Complaint, 78, 79. See also Greenberg, “Transgression in the Fiction of Philip Roth,” 489. 51. Philip Roth, Operation Shylock (New York: Vintage, 1993), 58. 52. Mark Krupnick, “ ‘A Shit-Filled Life’: Philip Roth’s Sabbath’s Theater,” in Jewish Writing and the Deep Places of the Imagination, ed. Gene Carney and Mark Shechner (Madison: University of Wisconsin Press, 2005), 15. 53. Roth, “On Portnoy’s Complaint,” in Reading Myself and Others, 16–17. 54. Ibid., “Interview with The London Sunday Times,” 134. 55. Mark Krupnick, “ ‘We Are Here to Be Humiliated’: Philip Roth’s Recent Fiction,” in Carney and Shechner, Jewish Writing, 47. See also Aharon Applefeld, “The Artist as a Jewish Writer,” in Reading Philip Roth, ed. Asher Milbauer and Donald Watson (London: Macmillan, 1988), 13–16. 56. Rabbi Saul Teplitz and Rabbi Theodore Lewis, quoted in Dan Isaac, “In Defense of Philip Roth,” in Critical Essays on Philip Roth, ed. Sanford Pinsker (Boston: G. K. Hall, 1982), 182. 57. Jeremy Larner, “The Conversion of the Jews,” Partisan Review 27, no. 4 (December 1960): 761, 768. 58. Harold Ribalow, review of Letting Go, Chicago Jewish Forum 21 (Summer 1963): 327. See also Alan Cooper, Philip Roth and the Jews (Albany: SUNY Press, 1996), 34–35. 59. Charles Angoff, “Caricatures of Jewish Life,” Congress Bi-weekly 30 (March 4, 1963): 14.

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60. Roth discusses the impact of this decade on his work in “Interview with The Paris Review,” 119–48. 61. See Walden, “Goodbye Columbus, Hello Portnoy,” 3–13, for a discussion of early reactions to Roth. See also David Evanier, “Looking for Anne Frank,” National Review 31, no. 47 (November 23, 1979): 1502. 62. Marie Syrkin, “The Fun of Self-Abuse,” Midstream 15 (April 1969): 64, 66, 68. See Roth’s answer, “Imagining Jews,” New York Review of Books, October 3, 1974. Syrkin responded to that piece with a letter to the editor, which was published with a reply by Roth: “Philip Roth and the Jews: An Exchange,” New York Review of Books, November 14, 1974. Roth also pillories Syrkin in The Anatomy Lesson; see Eric Sundquist, “Philip Roth’s Holocaust,” Hopkins Review 5, no. 2 (Spring 2012): 239. 63. “A Dissent from Marya Mannes,” Saturday Review, February 22, 1969, 39. For her attack on Bruce, see de Grazia, Girls Lean Back Everywhere, 466. 64. Kate Millett, Sexual Politics (Garden City, NY: Doubleday, 1970), 325. 65. Mary Allen, The Necessary Blankness: Women in the Major American Fiction of the Sixties (Urbana: University of Illinois Press, 1976), 96. 66. For a list of translations, see Bernard Rodgers Jr., Philip Roth: A Bibliography, 2nd ed. (Metuchin, NJ: Scarecrow, 1984), 3–4. 67. Robert Alter, “When He Is Bad,” in Pinsker, Critical Essays on Philip Roth, 45. 68. Syrkin, “Fun of Self-Abuse,” 67–68. 69. J. Mitchell Morse, “Brand Names and Others,” in Pinsker, Critical Essays on Philip Roth, 51, 52. 70. Debra Shostak, Philip Roth—Countertexts, Counterlives (Columbia: University of South Carolina Press, 2004), 13. For another discussion of Howe, see Jay Halio’s Philip Roth Revisited (New York: Twayne, 1992), 173–75. 71. Irving Howe, “The Suburbs of Babylon,” New Republic 140, no. 24 (June 15, 1959): 17–18. 72. Irving Howe, “Philip Roth Reconsidered,” in Pinsker, Critical Essays on Philip Roth, 243. Howe’s reductive equation (that the vulgar equals the simple) was of dubious warrant to the postmodern aesthetic that eventually set in and dominated the American art scene for decades. For a fascinating account of how judicial conceptions of obscenity clashed thunderously with the values of postmodern aesthetic production, see Amy Adler’s important “Post-modern Art and the Death of Obscenity Law,” Yale Law Journal 99, no. 6 (April 1990): 1359– 78. 73. Roth, Counterlife, 306. 74. Claire Bloom, Leaving a Doll’s House: A Memoir (Boston: Little, Brown, 1996), 192, 193. 75. Roth, Anatomy Lesson, 78. 76. Readers of Roth’s earlier My Life as a Man (New York: Vintage, 1974) started to get hints of his critique-induced malaise. This work must be seen as the experimental mock-up whose new metafictional technique the works of the Zuckerman cycle revisited so profitably. For a fuller discussion, see Pia Masiero, Philip Roth and the Zuckerman Books: The Making of a Storyworld (Amherst, NY: Cambria, 2011).

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77. For some important studies of this literary genre, see Brian Stonehill, The Self-Conscious Novel: Artifice in Fiction from Joyce to Pynchon (Philadelphia: University of Pennsylvania Press, 1988); Robert Scholes, Fabulation and Metafiction (Urbana: University of Illinois Press, 1979); Mark Currie, ed., Metafiction (London: Longman, 1995). On Roth, see Lillian Kremer, “Philip Roth’s Self-Reflexive Fiction,” Modern Language Studies 28, nos. 3–4 (Autumn 1998): 57–72; Hana Wirth-Nesher, “Roth’s Autobiographical Writings,” in Parrish, Cambridge Companion to Philip Roth, 158–72, which explores the introduction of “Philip Roth” as a character (thus adding a new layer of complexity to the proceedings). 78. The number of books is based on the most recent Rothian table (Roth’s breakdowns of who his books are “by,” which appear in the front matter of his novels), found in Nemesis (Boston: Houghton Mifflin Harcourt, 2010). 79. Cooper, Philip Roth and the Jews, 210. 80. Actually, a tremendous amount of confusion has been raised by the specter of an authorized biography of Philip Roth, the first of which is dead in the water. For a humorous assessment of the situation, see my “Philip Roth’s Next Book and Biography: What’s Going On?,” Chronicle of Higher Education, June 4, 2012, http://chronicle.com/blogs/brainstorm/philip-roths-lives/47489. A new biographical project with Blake Bailey has been announced. See Charles McGrath, “Philip Roth to Cooperate with New Biographer,” Arts Beat (blog), New York Times, September 5, 2012, http://artsbeat.blogs.nytimes.com/2012/09/05/philip-rothto-cooperate-with-new-biographer/; Associated Press, “Philip Roth Biography, Written with His Cooperation, Acquired by WW Norton & Co.,” Washington Post, September 27, 2012. 81. Selections from the Prison Notebooks of Antonio Gramsci, ed. Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1987). 82. Roth, “Interview with The London Sunday Times,” Reading Myself and Others, 116. 83. Roth, “Interview with The Paris Review,” 135. 84. Philip Roth, The Ghost Writer (New York: Vintage, 1979). 85. Ibid., 103, 104. 86. Syrkin, “Fun of Self-Abuse,” 75. 87. Roth, Ghost Writer, 170–71. 88. Roth, Anatomy Lesson, 34. 89. Philip Roth, Zuckerman Unbound (New York: Vintage, 1981), 7. 90. Roth, Anatomy Lesson, 68. 91. Ibid. 92. Howe, “Suburbs of Babylon,” 17–18. 93. Ibid., 69. 94. Ibid., 161. 95. Ibid., 167. 96. Roth, Zuckerman Unbound, 168. 97. Roth, Exit Ghost, 197. 98. Steven Kellman, Redemption: The Life of Henry Roth (New York: W. W. Norton, 2005). For more on Henry Roth and incest, see Jonathan Rosen, “Writer, Interrupted: The Resurrection of Henry Roth,” New Yorker, August 1,

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2005, 74–79; Charles McGrath, “Breathing Life into Henry Roth,” New York Times, May 23, 2010, sec. C, 1. 99. See Malise Ruthven, A Satanic Affair: Salman Rushdie and the Rage of Islam (London: Chatto and Windus, 1990); Andrew Anthony, “How One Book Ignited a Culture War,” Guardian, January 11, 2009, www.guardian.co.uk /books/2009/jan/11/salman-rushdie-satanic-verses; Steven Weisman, “Japanese Translator of Rushdie Book Found Slain,” New York Times, July 13, 1991, www.nytimes.com/books/99/04/18/specials/rushdie-translator.html. 100. Salman Rushdie, The Moor’s Last Sigh (New York: Vintage, 1995), 3. 101. Salman Rushdie, “The Art of Fiction No. 186,” interviewed by Jack Livings, Paris Review 174 (Summer 2005), www.theparisreview.org/interviews /5531/the-art-of-fiction-no-186-salman-rushdie. 102. Ibid. 103. Philip Roth, The Professor of Desire (New York: Vintage, 1977), 167.

chapter 3

Defaced The Art of Blaspheming Texts and Images in the West david lawton

I have tried for more than two decades to find a culturally legitimate space for serious artistic purposes in the polemics of blasphemy. When I wrote my book Blasphemy in 1992, I found myself using the language of exchange transaction; I argued that blasphemy marks a struggle to define community, both by those who would regulate blasphemy, thereby identifying who and what is to be marginalized, and by those who would challenge such regulation, thereby contesting a community’s cultural boundaries and normative conceptions of self. Blasphemy is thus most volatile and creative when opposing groups intuit degrees of affinity as well as of difference.1 This analysis sheds some light on what David Nash has called the epidemic of blasphemy since the Salman Rushdie affair, yet it has been harder than ever in the intervening years to sustain a case for guarded cultural optimism.2 In hindsight, the spirit of the times seems more attuned to warnings by Richard Webster against what he saw as free-speech fundamentalism3 or to Nash’s own more moderate conclusion that periods of toleration and secularization are mere “conditional episodes”4 in the history of blasphemy. In this chapter I examine works that have been labeled blasphemous, caused community shock, or attracted actual violence since the 1990s. In contrast to my practice in Blasphemy, which moved through a series of textual readings, I focus mainly on the visual arts. This is where most of the controversies have occurred, a fact that marks our culture’s shift to the image, the digital, and the short attention span that characterizes 82

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Internet browsing; it is an environment in which artists know they have but a moment or two to capture the viewer’s attention and in which blasphemy and other forms of shock may become a regular part of the artist’s tool kit. Most recent controversies about blasphemy in the arts have concerned visual images rather than texts; even when a text is involved, especially a sacred one, it is likely to be by being burned, graffitied, or otherwise defaced—in other words, by being treated as a visual rather than a verbal sign. Historically, this may be less of a cultural change than it appears: the long history of iconoclasm means that images deemed offensive to religious sensibilities have been prone to destruction, not just by the Taliban. My questions here, however, are about our contemporary situation and the future of blasphemy as a way of conceptualizing complex identities across a range of global communities. I look at groups of images in the first part of what follows in order to, in the second part, characterize and begin to explore the broader questions they raise. I have excluded work that does not merit examination as artwork, subjective though I acknowledge such judgments to be; I therefore do not look at the Danish Mohammed cartoons or the shady fragment of film insultingly titled The Innocence of Muslims. The works I cite here are works I consider seriously as art, whether I like them or not.

faces of blasphemy “There’s nothing in the First Amendment that supports horrible and disgusting projects!” This was the famous reaction of New York mayor Rudy Giuliani to the exhibition Sensation, shown at the Brooklyn Museum of Art in 1999 after premiering at the Royal Academy of Arts in 1997.5 Giuliani found much in the show—or rather, in its catalog—to offend him; his reprisals against the museum, including an attempt to evict the show, were promptly overruled by a federal court judge.6 The particular target of Giuliani’s wrath was The Holy Virgin Mary by Chris Ofili, a black Madonna incorporating collaged pornographic images of female genitalia from blaxploitation magazines—at a distance, these look like cherubim—and decorated with elephant dung covered in resin (see fig. 3.1). This had not been “thrown” at the religious image, as Giuliani alleged, but carefully applied as part of the work’s design. At the time, Ofili used elephant dung, which he described as “beautiful,” in a number of his works.7 This led one detractor, when Ofili was awarded the Turner prize in 1998, to dump a load of manure on the steps of Tate

figure 3.1. Chris Ofili, The Holy Virgin Mary, 1996. Acrylic, oil, polyester resin, paper collage, glitter, map pins, and elephant dung on linen. 96 × 72 inches (243.8 × 182.9 cm). © Chris Ofili. Courtesy David Zwirner, New York.

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Modern with a sign reading “Modern art is a load of bullshit.”8 The sense of humor here chimes rather well with Ofili’s own. His work explores stereotypes of race, gender, and indeed religion and often, sometimes comically, finds beauty through them (the coloration of The Holy Virgin Mary is aesthetically stunning). No such humor was evident in the New York protests, which were led by Giuliani and the president of the Catholic League, both of whom failed to recognize a fellow Catholic in Ofili. After the court overruled Giuliani, the painting was attacked by an elderly white man, who, all too symbolically, smeared it with white paint.9 It seemed to British observers that New York protesters had chosen the wrong painting. It was another work on exhibition that caused most controversy in London and was twice attacked there as Ofili’s painting was to be in New York: Marcus Harvey’s Myra, an enormous blowup of the standard press image of Myra Hindley (see fig. 3.2), after the style of Andy Warhol or Chuck Close.10 As American commentators noted at the time, very few Americans had a sense of who Hindley was. To an English spectator of Sensation, however, her gaze was inescapable and ominous. Hindley was one of the Moors murderers: with her lover Ian Brady in the early 1960s she had kidnapped, tortured, and eventually murdered five children from the Greater Manchester area (where, incidentally, Harvey and Ofili trained a generation later). This is my home area, and I used to wait for my school bus in the early 1960s beside the photographs of their victims, then listed as missing. I introduce such personal witness because the offense of a shocking image is deeply personal and goes to one’s sense of community. I understand very well the trauma that the Moors murders caused, not least because the moorland graves of the victims could not all be identified, even with the supposed help in 1986 of the murderers, who had been sentenced to life imprisonment in the very year capital punishment was abolished. Winnie Johnson, the mother of Keith Bennett, who was murdered in 1964 aged twelve, went to her grave in August 2012, his photo and his glasses in her coffin, having failed in her long search for his body to bury. It was Johnson who spearheaded the protest against the Sensation exhibition at the Royal Academy on behalf of Mothers against Murder and Aggression: “They used to hang killers on the gallows. Now they hang them in the gallery.”11 What made Myra singularly provocative was that Harvey had constructed his image, designed to rise above the surface of the canvas, by using a plaster cast of a child’s hand. Knowing this made the image

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figure 3.2. Press photo of Myra Hindley.

particularly compelling and, to the protesters, repellent. Much as I understood their feelings, I cannot say that I shared their reactions to Harvey’s work. I found it disturbing, as it was intended to be, but also genuinely moving. The image of celebrity in our time, and our art market, is drained of meaning. Harvey’s choice of medium restored meaning to the image of Myra Hindley in a terrible way: it brought home the human reality of her crimes and the pathos of her victims. For me it also raised questions about the sort of communities we live in: how did Hindley herself, still a teenager when she and Brady made a hobby of

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murder, grow from a child into that? In this context, the use of the child’s hand seemed not exploitative but rather painfully relevant. Among the sometimes jejune and self-regarding artifacts of the exhibition, Myra stood out, in company with a few others, for its solemnity, even for a moral gravity. Yet the exhibition was not wantonly called Sensation (with its puns on sensational and sensationalism). It invited, indeed sought, the reactions of offense it received, though perhaps with insiders simultaneously assuring themselves and one another that only the unsophisticated were likely to register the offense. It is a truism, much voiced at the time of the New York protests, that Mayor Giuliani and company were doing Charles Saatchi’s work for him by driving up the price of his investments12—just as it took Ayatollah Khomeini to sell Salman Rushdie’s novels in the United States. It would seem futile to try to distinguish between types of offense involved in the New York and London protests, both, after all, against works in the same exhibition. Although only one of the controversial works had an overtly religious subject, both cases rudely jolted a community’s sense of the sacred. If “blasphemy” is a useful category, it should apply to both. The jolt creates a secondary, microcosmic community around the artwork, one whose fault lines represent, reenact, or redefine those of communities beyond the gallery. Community, even more than religion, is at blasphemy’s core. If so, it is not quite true that “blasphemy emerges somewhere between the production and reception of images.”13 In both these cases, offense completes the circuit of the artwork, which is unfinished and unproductive without it. This is the economy of the art market, which takes attendance figures and publicity, almost all publicity, as an index of financial value. It is also, however, an aesthetic effect—by no means always a creative one, but potentially so. Blasphemy is part of the intention of these works. Artists, patrons, and protesters are linked together involuntarily and depend on one another. Now let us take another celebrity image, the installation sculpture by Maurizio Cattelan simply called HIM. Seen from behind, some distance away, is a young boy, smartly but soberly dressed in the style of the first half of the twentieth century. The boy is kneeling in prayer. He appears absorbed, unaware of his vulnerability to the viewer behind him. The viewer is drawn into the space and walks forward for a closer look. As one reaches the front of the figure, one sees the mistake one has made. For the face is not that of a young boy; the praying figure is Adolf Hitler (HIM; see fig. 3.3).14 One also understands, as anyone who has watched

figure 3.3. Maurizio Cattelan, HIM, 2001. Wax, human hair, suit, polyester resin. 39¾ × 16⅛ × 20⅞ inches (101 × 41 × 53 cm). Courtesy of the artist and Marian Goodman Gallery, New York.

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Claudius trying to pray in Hamlet should know, that prayer does not equate with innocence or virtue. Is this the point of the work? Is the joke also on the viewer: we have chosen to involve ourselves with Hitler all over again, when our history should have taught us to leave well alone? Both Myra and HIM challenge us to rethink our relationship with an icon of evil. Are we merely its victims, or do our communities help to produce, as well as reproduce, the evil by which we are harmed and offended? Whereas Myra looms over us, Cattelan’s installation is subtler, because it depends on surprise—though at the expense of entrapping the viewer. My first encounter with it, in the Centre Pompidou, brought an unforgettable moment of recognition; I recall my near-simultaneous reactions of amusement and horror, followed by panic (because I had laughed) at the temporary breakdown of my moral priorities. For that reason, and in the light of Cattelan’s other work (he produced a notably irreverent sculpture of Pope John Paul II being struck by a meteorite),15 I am less inclined to attribute to it the gravity I ascribe to Myra. Cattelan seems to align himself with the anticlericalism of the Italian Left, as expressed in the trenchant farce of Dario Fo: prayer here seems synonymous with hypocrisy. Context, however, is everything. One of the great advantages of installations is that they are portable and may rest temporarily in unexpected places. One thinks of Cattelan’s late Italian colleague Gino de Dominicis, whose building-size skeleton Calamita Cosmica lay supine for a while outside the Duomo in Milan.16 So HIM has turned up in parts of Europe that all but convert it into moral allegory. The most recent, and controversial, is the site of the Warsaw ghetto (where the statue is visible only from a distance: counterproductively, Cattelan’s image is now so well known that one does not even have to see it in order to know that it represents Hitler).17 Scarcely deterred by the artist’s prior form in Poland (his image of John Paul), the Simon Wiesenthal Center moved forthrightly to an accusation of blasphemy: the installation was “a senseless provocation which insults the memory of the Nazis’ Jewish victims.” In what for me is one of the few hopeful signs since 1992, the defense came from an unexpected quarter: Poland’s chief rabbi, Michael Schudrich. To the credit of the organizers, he had been consulted before the installation took place. To his own infinite credit, he continued to defend it even after his life became difficult, saying, “I felt there could be educational value to it.” His contribution to the installation’s catalog makes what is by far the best case not only for this work but for Harvey’s: art can “force us to face the evil of the world.” His comments imply that a community may choose to move on from an entrenched position once historical circumstances

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have changed and may engage with a variety of means, including art, to enable its review of past and present trauma. Examples like these compel us to examine each case on its merits and carefully weigh both intention and context. They encourage us to question whether the few seconds of viewers’ attention that constitute blasphemy in a digital age represent a religious breach, a community fault line, or, for instance, an ungenerous or inadequate reading practice. Out of such questioning should emerge not a hit-or-miss test but rather a spectrum of intention, offense, context, interpretive community, and effect. (For example, if we grant that Harvey’s painting does not condone child murder nor Cattelan’s installation make light of the Holocaust, what is the discomfort we feel about having the subjects recalled to our present view?) Against such nuanced local calibration, however, is the whole weight of globalization. This tends to privilege religion, which is all encompassing, whereas community is sometimes too small, too singular, too under the radar to register. Nevertheless, in cases that most obviously call religion into question, the stakes are often community in a global environment. Among exhibitions that set out to change the culture—such as Sensation or the Centre Pompidou’s Traces du Sacré—must rank the 2003 Moscow exhibition whose title translates as Caution! Religion! This was the occasion of an act of violence comparable to those directed against the works by Ofili and Harvey: the destruction by an Orthodox demonstrator of Alexander Kosolapov’s This Is My Body. The work consisted of a huge head of Jesus, hoarding style, juxtaposed quite plainly with the McDonald’s sign and the inscription, as per the title, “This is my body” (see fig. 3.4). A companion piece merely exchanged the McDonald’s sign for the Coca-Cola logo and changed the inscription to “This is my blood” (see fig. 3.5).18 To believers these must have seemed plainly offensive, but in fact their intent was far from plain. Kosolapov was vitally interested in registering the effect of different Western influences pouring into Russia after the fall of communism. That his intention is not religious, or not primarily so, is demonstrated by a comparable pair of images in which the face of Lenin replaces the face of Jesus, with equivalent slogans. While the Jesus image was taken to be religious in address—and Kosolapov, not being naïve, was not slow to invite such a reading—it was in fact about the impact of globalization and the attendant commercialism that inundated Russia under Boris Yeltsin. This seems to me an important distinction, not least in the exploration of a local identity through global interventions, but it is not easy to distinguish between the religious and other forces

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figure 3.4. Alexander Kosolapov, This Is My Body, 2001. © Alexander Kosolapov, courtesy of the artist.

figure 3.5. Alexander Kosolapov, This Is My Blood, 2001. © Alexander Kosolapov, courtesy of the artist.

external to that identity—indeed, the work looks like a series of questions without pat answers. In this case, it may be that religion offers the most succinct and symbolically powerful vocabulary we possess for considering the claims of community. Let us therefore follow the Coca-Cola sign to further complications, and back to another exhibition in New York. We see here what happens

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figure 3.6. Alan Schechner, Self Portrait at Buchenwald: It’s the Real Thing, 1991–93. Digitally manipulated photograph. © Alan Schechner, courtesy of the artist.

in extreme conditions when an artist imposes both Coca-Cola and his own image on a classic, canonical photograph—one accorded nearly universal respect and reverence. The work involved, not a painting but a digital manipulation, is Alan Schechner’s ironically titled It’s the Real Thing (1991–93). Onto Margaret Bourke-White’s famous monochrome picture of the skeletal wraiths who looked up at her camera on the day the Buchenwald camp was liberated, Schechner has interpolated his own image, looking sleek and confident.19 Amid the monochrome bleakness of White’s photo only a can of Coca-Cola, resting in Schechner’s hand, is rendered in color (see fig. 3.6). In all the presentations I have

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given, I have never found an image more universally provocative or divisive than this one. With a longevity to rival that of the Rushdie affair, the furor raised by it persists: there can be found any number of raw denunciations on the Internet (“Self-Hating, Israel-Threatening” is one of the easiest to look for).20 The criticism amounts to a great human cry of pain, on behalf of Jews, Holocaust victims, and all other victims of human history never before subject to digital manipulation. As if the criticism need be academic or objective to be worthy of discussion, it is often aimed at the medium itself: digital manipulation, the detractors claim, is too easy or too slick. But Schechner already knows this, and would place his own work in a cutting-edge critique of commercialization, industrialization, and therefore digitalization itself. He seems to feel that reproduction has eroded the moral power of the original photograph; his trivialization of it is a perverse effort to reinstate it. Another of his manipulations, more subtle and more skillful, takes a standard bar code, blurs and morphs it slowly through several stages, and arrives at precisely the image of Jewish prisoners in their Holocaust camp uniforms (see fig. 3.7).21 It is eerily skillful: as one reads downward, the bar code numbers are transfigured into the faces of the condemned. The point is threefold: technology facilitated the original Holocaust; our sensibilities have become forgetful, lulled by our own exposure to technology; and so, having lost the moral, we are in danger of repeating history with our Abu Ghraibs and occupied territories. Hence, perhaps, Schechner’s apparently cocksure intervention into our cultural memory of the Holocaust. Born in England, Schechner lived in Israel as a young adult and served in the Israeli army. He belongs with a group of Israeli and international artists working in digital media whose work reflects uncomfortably on its complicity with its technological base. One of them, Horit Herman-Peled, acknowledges as much: “Digital technology plays an important role in . . . state terror, as an instrument of surveillance and identification, construction, deconstruction and stripping of human identity.” She asks, “What is the relationship between the production of art by means of digital technologies and the production of terror by the same means?”22 This was posted online during the U.S. intervention in Iraq; it was a global, and thoughtful, act of dissidence. Along similar lines, the greatest of all Schechner’s provocations proved to be his simplest (and critics would say his cheapest) manipulation. He takes two photographs, one of a young boy from the Warsaw ghetto, another of a young Palestinian stone thrower (such as the dying Edward Said

figure 3.7. Alan Schechner, Bar Code to Concentration Camp Morph, 1991–93. Digitally morphed photographs. © Alan Schechner, courtesy of the artist.

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passionately defended) after his arrest by Israeli troops. With the utmost economy, Schechner places in the hand of the one the photograph of the other, so that each of the historically distant boys carries, and is, a representation of the other. A still greater provocation is the title Schechner then gives his work: The Legacy of Abused Children: From Poland to Palestine (see fig. 3.8).23 The trope is that history will repeat itself unless we acknowledge how it has abused us. Schechner’s work belongs with dissident attacks on Israeli foreign policy, both from inside Israeli society and from committed outsiders. His art is so probingly political and plays so strongly into political divisions of our own society and world that there is no neutral ground from which to estimate its quality. I judge worthwhile the offense given by the last two images I have examined; I remain unsure about It’s the Real Thing except to feel that younger people today may know Bourke-White’s original photograph because of it—and that is a mixed blessing. My very attempt to make this judgment confronts the incompatibility of aesthetic and political criteria. Is there any question, however, that we are talking about blasphemy? If we are, I would defend Schechner’s work on the grounds that I defended Rushdie’s, that he has earned the right to make his criticism from the inside of a culture that is his own. Though Schechner, in common with important Israeli digital artists such as Ori Gersht,24 makes his professional home in England (and latterly the United States), he served in the Israeli army in the occupied territories. He became profoundly disaffected as a result, and his art draws on his personal observation and experience, which necessarily vary from one human being to the next. To repeat the key point here: if the core of blasphemy is community, then dissenting voices within a community have a moral—and, one would hope, legal—right to be heard and defended. Issues of provocation and community conflict could hardly be sharper than in the case of Submission, the short film made in English by the Dutch polemicist Theo van Gogh with a script by Ayaan Hirsi Ali. The film was shown once on Dutch television in 2004; as a direct consequence, Van Gogh was shot dead on an Amsterdam street, and a five-page note was left pinned by knife to his body.25 The note parodies, intentionally or not, the theme of writing on the body that gave the film its one striking visual image: the back of a naked woman, supposedly after punishment, on which are inscribed verses from the Qurʼan. The image is most commonly reproduced as a still and has come to stand in lieu of the film itself (see fig. 3.9).26 It brings to mind a long history of orientalism and topics such as the Ottoman harem or the treatment by

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figure 3.8. Alan Schechner, The Legacy of Abused Children: From Poland to Palestine, 2003. Digitally altered photographs and DVD projection. © Alan Schechner, courtesy of the artist.

Western artists of odalisques. (An image of an odalisque by the Tunisian artist Héla Ammar was at the center of riots in Tunis in June 2012 against local artists’ Printemps des Arts exhibition.)27 The motif of writing on the body is powerful and was also fashionable in cultural theory and in the work of artists and photographers when Van Gogh employed

figure 3.9. Theo van Gogh, still from Submission, 2004. Courtesy of Thomas Kist.

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it. It appears, for example, in I.N.R.I., the 1999 retelling of the life of Jesus photographed by Bettina Rheims with a text by Serge Bramly. This book caused a sensation in France with its strangely bohemian and cerebral blend of the Gospel stories with Vogue cover–style fashion shoots, rock video and MTV, and soft-core fetishism, all with a surprisingly hard visual edge. One of the more trenchant images in I.N.R.I. represents Jesus and the doctors in the Temple: the doctors, attired as Hasidic rabbis, are writing Hebrew scripture on the boy Jesus’s bare torso.28 The most likely influence on Van Gogh, however—which led to an allegation of plagiarism in the Dutch Parliament after the film’s TV showing—was the much more complex and interesting work of the Iranian artist, photographer, and filmmaker Shirin Neshat.29 Her images of Iranian women are conceptually strong and do not attempt realism any more than Van Gogh did; she violates taboos by, for example, showing the bare soles of the feet, she paints sacred text in beautiful calligraphy on the faces of her subjects and elsewhere on their bodies, and in some images she then shows the women holding guns—ambivalently, perhaps as a sign of the violence to which they are subject, but not without autonomous menace. Yet nothing about Neshat’s work invites prurience, and the juxtaposition of motifs is used to disturb stereotypes rather than to reinforce them. The viewer—all the more when looking at a woman’s intelligent face rather than, as in Van Gogh’s case, her abused back—is prompted to reflect upon a life experience other than one’s own. A kind of tenuous contact is made, defamiliarized but not dehumanized. For its part, Submission purports to show the experience of Muslim women. It stems, directly or indirectly, from Hirsi Ali’s cultural background and her desire to repudiate it.30 The film’s tone is unremittingly polemical, its visual mode contrastingly abstract and detached; the combination does not lend itself to imaginative engagement, though it succeeded all too well in evoking outrage. Hirsi Ali is open to the accusation of ignoring the diversity within Islam but could reply that she did not experience it, any more than Jeanette Winterson’s character in Oranges Are Not the Only Fruit experienced liberal Christianity. The fact that Hirsi Ali was working within her own cultural formation, however, makes the case very different from that of the Danish Mohammed cartoons. Her protest demands to be seen in a different kind of context and needs to be set alongside powerful novels and memoirs by socially prominent women in Muslim countries, such as Nawal el-Saadawi in Egypt and Tehmina Durrani in Pakistan, whose target is the

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widespread cruelty to women, as they represent it, at the hands of Muslim men, especially clerics.31 In the case of Submission, a breach in an Islamic community is complicated by the fact that it takes place in Western Europe and plays to wider debates about cultural and religious identity both inside and outside European Islamic communities. The list of qualifications could continue: for example, the difference in the cultural attitudes of different ethnic Muslim communities, in Holland between Moroccan and Turkish, or the whole context of Dutch politics after World War II. Van Gogh’s decision to make his film with Hirsi Ali becomes even more complex when one factors in his own sexual and cultural politics, especially his friendship with the right-wing politician Pim Fortuyn (himself assassinated in 2002): both were gay men who had resisted Calvinism, only to see a revival of homophobic attitudes from migrant communities, to which they responded with what they saw as a proportionate Islamophobia. In this instance, the offense preceded the artwork. Yet the story of Hirsi Ali and Van Gogh’s work is not quite a grand narrative of a “clash of civilizations,” for it is shaped at every turn by the intense interplay of cultural specificities. What offense takers and offense givers share in this tragic episode is their acute anxiety about identity on the personal and communal level (gender, sexuality, ethnicity, religion). I am struck that almost all the recent “blasphemous” images discussed thus far have as their main visual subject the human face. The face may be a means of engagement and empathy, as in some of Neshat’s images, but it can also be a means of alienation, as in others by her or (for some viewers) in Ofili’s Madonna, and at times drastically so, as with the faces of Hindley and Hitler. These are all variations on a global theme of identity politics. The main public function of the human face in the modern world, be it on passports, driver’s licenses, or identity cards, is as a means of instant personal identity, as recognized or sometimes stigmatized by a community. To make a proposition out of Schechner’s most subtle representation: our faces morph into our individual bar codes. The face has therefore become our privileged cultural marker for the boundaries of community (with identity as its middle term), whether we seek to include or exclude, extend or delimit. Those who would ban the burqa, for example, see it as an affront to their normative idea of community precisely because it removes the face from social circulation. It is probably no accident that the leading social media site of recent times should be called Facebook, where users (“members”) are greeted by name and can play with queasy agency at community and identity.

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Thus blasphemy, community, and the face are interlinked in identity politics, and what worries us is the question of how much agency we really have in who we are, even online. The pressure on identity may come from outside or within, and often from both. In addressing fellow Muslims in 2005 “as citizens of states that recognize human rights,” Tariq Ramadan urged them to “reject the status of subcitizens that is the product of a perverse internal neocolonialism.”32 This is a warning, granted a regime of mutual rights, not to retreat into an alienated communal identity formed partly in response to historic violence. Yet the point is hardly specific to Muslims. It applies to any of us with a cultural trigger to give or take offense, even in the absence of real threat or danger. Most of us still subscribe, if vaguely, to the Freudian belief that our current anxieties are grounded in past trauma. At the community level, such past trauma may blaze forth as offense. But even historic victims remain members of a violent species. In all the cases examined here, the taking of offense is aggressive or at best passive-aggressive; the posture is a biosocial consequence of differential concepts of identity at the communal level. The offense taken at an imaginary danger can create a real one. In such circumstances, the giving of such offense, whatever an artist’s intention, may serve as a cultural lightning conductor, allowing us to vent, more or less safely, the violence that inheres in our community formation. Large portions of the world need the advice of Poland’s chief rabbi. If art can “force us to face the evil of the world” (notice the ubiquitous “face” here),33 can it also help our communities face the night terrors of identity from which blasphemies gain strength? A good start might be a rethinking of art history itself. An important development in this respect was the exhibition Traces du Sacré at the Centre Pompidou in Paris in 2008, an ambitious, inevitably uneven attempt to rewrite the whole history of modern European art in terms of its engagement with religion and the spiritual. The exhibition had a clear thesis, the autonomy of the artist in relation to the systems of thought and power associated with the churches of all faiths and confessions. In a secular society, the curators argued, art is not emptied of the sacred, yet it exists in an individual relation not controlled by quasi-obligatory belief systems. This is an important version of the centuries-old battle between the poets and the priests: as the curators depicted it, art unsettles the foundations of our being (individual destiny, existential anguish, the cycle of life and death) just as religion does. The exhibition’s trajectory ran to the present day through such key phases as the “solar and lay cult” of impressionism, notions of the spiritual in art from Wassily Kandinsky onward, a retro-

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spect on Auschwitz as the cathedral of the twentieth century (in Jerzy Grotowski’s staging of Stanisław Wyspian´ski’s Akropolis, showing the sublimity of humankind plunged in the abyss),34 abstraction’s search for the absolute, and multicultural contestations in our postcolonial times— as, for example, in Adel Abdessemed’s Also sprach Allah.35 Names such as George Gurdjieff, Helena Blavatsky, and Jiddu Krishnamurti were a little more central than usual in art history, alongside growing stock in Antonin Artaud, early, figural Mark Rothko, and Georges Bataille. The exhibition dealt with topics such as sacred violence (see catalog p. 52), myth versus religion (54), ruins and a poetics of the dead (60), theosophy, syncretism, automatism, hermeticism, and even crystals, and it produced such interesting and provocative pairings as spiritualism and art brut, Bauhaus and esotericism, Dada and gnosis, architectural utopianisms and dystopianisms, mystical socialisms and danses sacrées (185). It is a counterhistory that might enable us to revisit, say, The Satanic Verses and find it a work not of postmodernism but of high modernism. The exhibition was persuasive by virtue of its intellectual organization and the sheer number and quality of the artworks that substantiated its themes. Not least, Traces du Sacré put blasphemy in a much broader historical and conceptual space than we are used to. Works employing a blasphemous motif, such as Max Ernst’s painting of the Virgin Mary paddling the very red bottom of a very corporeal Christ child, appeared in a long historical perspective and alongside contemporary works that engage with religion with more evident deference. In Ernst’s painting, three attentive surrealists (including Ernst himself) watch the Virgin’s strenuous Messiah abuse through a window.36 In this exhibition it was more than usually evident that they were contemplating not only the antecedent traditions of Christian, especially Renaissance, art but also the paradigms of conduct and discipline passed on by the churches. Since so much art is oppositional, from within a partly common culture, the viewer of this exhibition might at least glimpse the notion that a history of blasphemy, as a history of appropriation and misappropriation, could also be—indeed, in the Centre Pompidou manifested as—a revisionist history of art. That history would then demand a new formalism to describe it (an aesthetic of blasphemy), together with a highly developed sense of rhetorical situation. It always matters who is doing the representing, just as in Cattelan’s HIM (exhibited here) it matters who is doing the praying. The sorts of questions we would develop would then be questions about context, reading, and, in all senses (cultural, linguistic, and material), translation.

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figure 3.10. Gérard Garouste, Passage (Autoportrait), 2005. © 2013 Artists Rights Society (ARS), New York / ADAGP, Paris.

For me, the salient image from Traces du Sacré was Passage, a selfportrait of the contemporary Parisian artist Gérard Garouste (see fig. 3.10).37 Again, it features a face—in the extended sense established here, a defining face of blasphemy. Garouste takes upon himself the persona of the fool—it is a key motif in his autobiography, L’Intranquille. His use of it is Pauline: folly in the eyes of the world is wisdom. In the selfportrait, arms outstretched, he is carrying an open Bible, the Greek Septuagint. He extends this toward the rear of a donkey that wears a fool’s hat and motley; as Garouste explains in an interview on the exhibition website, the visual image is sustained by a pun in French on ânesse, sheass, which reinforces the play on wisdom and folly.38 The she-ass also appears in L’Intranquille, where it is part of a larger pattern of puns on bêtise.39 The presence of the Septuagint in the artist’s hands is reinforced by another volume, open on his head. This is Augustine’s commentary on Psalm 56, which became an authoritative locus of medieval anti-

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Semitism but, according to Garouste, was based on a mistranslation of the original Hebrew in the Septuagint. This is an intervention into the scholarly history of theology; the exhibition catalog (235) speaks of Garouste’s “peinture érudite.” But there is nothing pedantic in the thrust of the painting. The two volumes that the artist carries, like his outstretched arms, point uphill toward the donkey, which carries a third volume on its back: Hitler’s Mein Kampf, the historical outcome of the Church-authorized anti-Semitism that began with Augustine’s commentary on Psalm 56. While the visual plane moves upward to the donkey, its direction is complicated by the extraordinary and unnatural contortion of the artist’s body, which appears to have three legs: two pointing forward and one back, supported by a third arm, which carries a cane. The artist’s torso and head also point back downhill, in the direction of the viewer and in the opposite direction from the outstretched arms. The artist’s face is clearly visible, mouth open, eyes uplifted as if in prayer or anguish. The painting therefore expresses an unresolved ambiguity: is the artist moving uphill, toward the donkey and Mein Kampf, or attempting to retreat to safety downhill? Even if the latter, does the painting offer the possibility of a positive direction (and why should that be downhill)? All around, the world is on fire. Formally and conceptually, the painting invites allegory. The hill is history, the fire is apocalypse; the artist is trying to escape both even while being carried toward destruction, to which we are led in Garouste’s design by the misappropriation and misuse of religious texts. Garouste says that his posture indicates doubt, but if so, it is a religious doubt that repudiates institutional religion. Here we find the visual artist recalling us to the need to address issues of reading and misreading, especially the appropriation and misappropriation of religious texts. This is the most rational face of modern blasphemy.

blasphemy disenchanted? In the concluding part of this chapter, I want to develop, albeit in brief, a consideration of the issues raised by the examples I have provided. These examples largely arise within one community or subcommunity and cause offense when they reach the arena of another. In the case of Myra, the distance is small, between Manchester and London. Exceptionally, in this case, a broader movement, from London to New York, may lead to the erasure of offense. Even in the European context, this sort of movement looks like an extension of colonial history and might

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reasonably be called postcolonial. For all their cultural variety, the examples involve a limited number of tropes that migrate across cultures. Offense is itself one such code; the “clash of civilizations” is another; the inhospitable fallacy that one cannot be both Muslim and European, whether used against migrant communities or against Turkish membership in the European Union, is a third. One could analyze most blasphemy cases in the style of Michael Riffaterre’s semiotic analysis of poetry, by identifying the underlying trope or cliché.40 Most of these would be about temporality, the untimely embeddedness of the past in the present. In other words, they are instances of a “perverse internal neocolonialism” or, one might say, a “perverse internal medievalism,” or both. Scripture can be a medievalism, inasmuch as it entails a violent recapture of a mythologically lost past. Fundamentalism can be a medievalism, because it denies the past, even that of the text itself. It is subject to, and threatened by, translation. Although the desire to equate Muslim and Christian fundamentalism is lazy, some form of fundamentalism, even in the absence of an overt religious ideology, as in secular France, is often invoked in blasphemy cases. Fundamentalism, and not just American fundamentalism, is generally a form of exceptionalism, and exceptionalism is wired to nationalism, as the national appropriation of an ostensibly international discourse. To begin with, we should surely problematize the unit of study, not least where blasphemy is alleged. I received my scholarly training in the 1970s, when one was still largely trained in the academic discipline pertaining to a national culture. If one studied two national cultures, one was called comparative. If one studied more than two, any of which had the appearance of transgressing continental boundaries, one was called multicultural. To be interdisciplinary was a brave new world. In today’s global perspective, doing less than all this at once would be to announce one’s intellectual limitations. The sole drawback, since the training itself has not been proportionately transformed, is that relatively few scholars have the reach to meet our international ambitions. The danger becomes that we fall into a rather lazy globalism that effaces difference rather than enhancing it, which benefits mainly—to draw from the above examples—McDonald’s and the Coca-Cola company and becomes a standard currency for making generalizations about, say, Christianity and Islam. By contrast, limitations freely admitted become a form of knowledge. The benefit of a collaborative volume such as this one is that it brings various types of informed intellectual limitation into dialogue. I am aware, then, that the images I have considered above are

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restricted to Western Europe. One might argue that this is often held to be a key location for the “clash of civilizations” (since at least 1453), but such a claim might merely prolong a legacy of Eurocentrism. Or I might plead an ethical extenuation: this is my culture of origin, in whose affairs I therefore meddle as of right. Much of what is important in the Western European context is nevertheless colonial and postcolonial (in the cases of, for example, Moroccan, Algerian, and Somali communities in Holland and France, and Indian, Pakistani, Bengali, and Indonesian communities in Britain) or extends significantly beyond existing European boundaries, as in the case of Turkey. The U.S. context for its part entails making a historical and political case for racial and cultural diversity, which have often served as the involuntary opponents, and tragic victims, of exceptionalism and nationalism. All of which is to say: we need to be careful about what we mean by world. We need to be more careful still if we rely on claims that “the world” is growing “disenchanted.” Much writing about and around themes relating to blasphemy in the past generation has acknowledged the influence of Marcel Gauchet’s 1985 book, Le désenchantement du monde: Une histoire politique de la religion, translated into English in 1997.41 The Traces du Sacré exhibition, for example, depended to a great extent on his thesis. Since that thesis concerns cultural change in the wake of the Enlightenment, Gauchet’s “world” must be largely coextensive with Western Europe. His central tenet is what he calls the paradox of freedom: although religion was historically necessary (indeed, liberating) as a sine qua non of social organization, it created conditions for its own undoing in its increasing reliance on state power. Established religion as a form of social regulation comes into conflict with a principle of individual autonomy that it helped create. Hence the inevitability of “disenchantment”: the more theocratic a society, Gauchet argues, the more vulnerable its religion is to change. As a historical prospectus, this offers some comfort to those of us who would like to see, for example, a more secular Iran. Viewed from a long historical perspective, in which almost all forms of social organization eventually fail, it has an antecedent plausibility, but one should surely hesitate to apply it as a Marxist law. Logically, the theory is self-certifying and does little more than work out the terms of Gauchet’s definition of religion as choice rather than obligation and as conferring the power to change. We might well wonder whether the theory as configured in the 1980s would have assumed quite the same form if devised in today’s world, which outside Europe seems to have veered further from disenchantment.

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Gauchet’s account would set a positive value on blasphemy, as a portent of individual autonomy, and so it was represented in Traces du Sacré. Yet one might wonder how in these terms blasphemy could outlive the obsolescence of the religion in opposition to which it derives its power to offend. Is blasphemy itself subject to disenchantment? If Gauchet’s theory seems inflexible, that may be because its key terms—religion, the nation-state—are too broad. The analysis of visual examples of blasphemy in the first part of this chapter demonstrates the need to deal in smaller, more diverse and variable units of study: communities and subcommunities, both within and across nations. Harvey’s Myra caused offense in its transition from Manchester to London, and Ofili’s Holy Virgin Mary became an object of offense once it crossed the Atlantic. Kosolapov’s satires on incursions by global commercialism into postcommunist Russia gave offense to the newly reempowered Orthodox community. Shechner’s disconcerting manipulation of Holocaust images needs to be linked to a subcommunity of dissenting Israeli writers and artists and their critique of Israel’s policy. The account of Submission and of Van Gogh’s murder reveals a particularly complex interplay of communities and subcommunities in contemporary Amsterdam. We saw too how Cattelan changes the reception and therefore the meaning of HIM by periodically relocating it in different communities. These examples all suggest in different and specific permutations that the basic unit of blasphemy, even more basic than religion, is community. Gauchet’s work is useful, however, in insisting on major differences in the character of the three major European religions, Christianity, Judaism, and Islam. This helps explain why blasphemy tends to play differently from one religion to the next—why, for example, blasphemy in a Christian community is both more routine and harder to sustain than in Islam. In both Islam and Judaism, scripture must be studied and read in the original language, whereas Christian communities habitually read their Bible in translation. Although burning a Christian Bible has historically been a source of blasphemy allegations,42 the defacing of scripture by an attack on its actual form—cutting up an ancient Torah43 or using Islamic calligraphy on women’s bodies—is both more heinous and more immediate in the other two religions. Just as scripture in Judaism and Islam resists translation, so the divine resists representation: though neither religion has ever been uniformly aniconic, the main traditions variously inhibit or prohibit representing the divine or trafficking in the divine in terms of human embodiment. (It is therefore calamitously easy to provoke Muslims with any visual rep-

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resentation of Mohammed, however inept or malicious.) Christianity, by contrast, insists on the dual nature of Jesus as both fully divine and fully human. However desirable it may be for orthodoxy to insist on a certain physical decorum, apart from what Saint Paul calls the scandal of the cross (1 Corinthians 1:18–21), there is no theological barrier to prevent the godhead’s exposure to the gamut of routine corporeal indignities. A Christ child with a bottom to be slapped is relatively mundane among them. Another modern image that was physically attacked by onlookers, Andres Serrano’s Piss Christ, pushes Christian notions of the beauty of embodiment as far as they will go, and further.44 There is a long history of Christian discomfort at artists’ religious images, most of which yields to grudging acceptance over time—not because Christian communities are exceptionally tolerant, but because they mostly learn to live with the visual consequences of their theology. Most recent examples of offense have been caused by the introduction of corporeal elements that are nonhuman: Ofili’s elephant dung or an image of the crucified Christ made of Marlboro cigarettes,45 even an otherwise inoffensive Hello Kitty Nativity scene in a department store window.46 Pushing against orthodox limits often seems little more than teasing and attracts at best synthetic outrage, as in the I.N.R.I. images or Gilbert and George’s Sonofagod Pictures: Was Jesus Heterosexual?47 Elisabeth Ohlson Wallin’s much-traveled Ecce Homo photographs of an LGBT Jesus have been controversial,48 but I am aware of no cogent theological grounds for decrying them (and the archbishop of Uppsala sanctioned their exhibition in their native Sweden). In this day and age in Western Europe, those who wish to give genuine offense must go to innovative extremes, as in Jerry Springer: The Opera, which represented Jesus as an infantile, mother-fixated, diaper-wearing, fat American adult male,49 but such extremes tend to owe more to the desire to excel as off-color comic entertainment than as theological pretensions or social commentary. They are offense as box office, which at least calls for a measure of artistic accomplishment. If one were to make a typology of blasphemy, then, it would require the categories of both religion and culture, categories sometimes contested and opposed to each other but which almost always interplay, albeit in different ways, and which point to different types of communities and subcommunities. Those who speak for a religion are often also speaking for a culture, for example those who would convert homophobia into a religious principle (or those nineteenth-century preachers in the deep South who defended slavery as God’s manifest will). Whatever

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else it is, fundamentalism, especially in the modern United States, is a culture. Moreover, many types of difference are at stake when offense is given or taken, from the broadly religious to the narrowly communitarian. In addition to depicting a spectrum of offense, a typology of blasphemy would allow for a spectrum of intention on the part of the blasphemer. Sometimes the offense taken arises from a misunderstanding of the artist’s intention: this is probably true of Kosolapov’s painting and certainly true of the Hello Kitty Nativity. Sometimes the offense fails to register what the artist sees as the distance between a strategic element of blasphemy and the overall intention of the work. This applies particularly to literary texts and rarely makes for a successful defense in alleviating perceived provocation. The fatwa against Rushdie was not annulled by his insistence that the offending Jahila material was a fantasy on the part of the insane Gibreel Farishta, and Christopher Marlowe was not distinguished from Doctor Faustus when Puritans rejoiced in his death as a blasphemer.50 In the visual arts, offense may arise when an artist turns something regarded as sacred into the vehicle for another kind of social comment. So Harvey in Myra reflects on monstrosity and media; Schechner critiques Israeli militarism; Kosolapov and Sarah Lucas take aim at consumerism and commercialism. In the last three cases, the artists reveal what they are doing through provocatively punning titles (all transplanted quotations): respectively, It’s the Real Thing (Coca-Cola, Schechner’s image and digital manipulation of a Holocaust image), This Is My Body (McDonald’s), and Christ You Know It Ain’t Easy (the Marlboro Crucifixion). At one end of the intention spectrum are cases where an artist means no offense but apparently gives it in the design or treatment of the subject. A clear historical instance would be Christ in the House of His Parents (1849–50) by John Everett Millais, the Pre-Raphaelite plainness of which offended the more sentimental canons of Victorian culture.51 At the opposite end are cases where the blasphemy is fully intended, most commonly as the expression of political, social, or religious dissent. A straightforward example is Piss Christ. A much more thoughtful and programmatic example is Garouste’s Passage, analyzed above. Images of this kind arise not from latter-day disenchantment, as Gauchet describes, but from an older, atavistic battle between priests and poets fundamental to artistic blasphemy; they are the visual counterparts of literary works such as Doctor Faustus or The Satanic Verses. In the literature, the common strategy, beyond offense, is to dispute or queer scripture by rewriting it in a contrary form, as in The Last Temptation of Christ, and

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sometimes by splitting it into doubles. Thus Rushdie turns Mohammed into Mahound; Sigmund Freud, arguing for the origin of Judaism in ancient Egypt, turns Moses into two, the second of whom assassinates and supplants the first;52 and Philip Pullman produces a fiction about “the good man Jesus and the scoundrel Christ, “the latter of whom betrays the former and then impersonates the dead Jesus in order to propagate the myth of his resurrection and establish the church.53 In all three cases, there is a discernible artistic pleasure in perverting the received scriptural text. The writers seek to expose the trick, to undo the history, of both religious institutions and the scripture itself. At least in the cases of Freud and Pullman, the accusations of misappropriation that they make in their fictions serve to license their own calculated misappropriations of scripture. However subtly modulated (and it rarely is subtle), such misappropriation is assimilable to Dada or surrealism and the desire to paint a mustache on the Mona Lisa. We should not underestimate the serious, often heartfelt, pleasure of defacing scripture. In the absence of extended narrative, the pictorial arts make such suggestions by substitutions, of putti by vulvas in Ofili’s Virgin Mary, of blood by urine in Piss Christ, of a pious boy by Hitler in HIM. Since these are acts of translation, they belong in the same conceptual territory as appropriation and misappropriation and insist on the artist’s transitive freedom of movement. But while literature and the visual arts generally seek the maximum play for appropriation, scripture does not. The notion of scriptural inerrancy is important in all three major Western religions, even Christianity, whose Bible is already translated. The cultural conflict is therefore about the freedom to appropriate, and it yields a version of history: on the one hand, poets and artists who rejoice in that freedom; on the other, clerics of various faiths and denominations who would regulate it while being as it were professionally exempted from such regulation. From a cultural viewpoint, appropriation and misappropriation are the same act, common to both the arts and religion and, crucially, using the same language. Marlowe gets it right at the beginning of Doctor Faustus. Faustus, who after Marlowe comes to embody the artist as deliberate blasphemer, is both Icarus— “His waxen wings did mount above his reach, / And, melting, heavens conspir’d his overthrow”—and the precursor of John Milton’s Satan, “falling to a devilish exercise.”54 He is at once artist and blasphemer, depending entirely on the angle of view. Yet blasphemous dissent may stem from authentic idealism. The best modern example might be the French-Canadian film Jesus of Montreal

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(1989), in which a group of actors whom the church has called on to refresh an uninspired and embarrassingly maudlin Passion play discover in their researches what seems to them the truth of the New Testament, which the church has suppressed. The film itself becomes a serious modern parody of the New Testament, in which the resurrection of Jesus is represented by corneal grafts and organ transplants from the dead body of the actor who had played him in the revised Passion play. The film works out the logic of its antiscripture at a level of detail so sustained as to be allegorical (the link between allegory and blasphemy would repay further study). Though leading Catholic dignitaries in Canada and the United States loudly expressed their offense, the film struck most viewers, including Catholics, as a serious-minded and artistically honest inquiry. Were it to be rereleased in the modern climate of Catholicism after so many recent scandals, it might be regarded as both prophetic and exemplary. It returns us to the central question of the interpretation of scripture. This is also integral to the most intellectually demanding of the modern visual works discussed above, Garouste’s Passage. Paradoxically, both the film and Passage reveal the commonality between dissident and official interpreters. For all their rupture, they are agreed on the importance of scripture. Theirs is a shared tradition that makes the artists’ dissent intelligible and important. Without it, neither the religion nor the art is truly functional. Whereas in Traces du Sacré a range of esoteric artistic forays into comparative anthropology or archetypal symbolism was considered by the curators to be largely self-explanatory, Garouste’s brilliant painting was judged to require an extensive text panel in order to be understood. Garouste would scarcely have been surprised: our culture is not in touch with its historic roots. There has to be at least this much merit, when applied to Western Europe, in Gauchet’s thesis. There, if nowhere else, what happens to blasphemy as Christianity retreats? To judge from examples reviewed in this chapter reviews, it adapts to more secular, more overtly cultural subjects—such as child abuse or Hitler or government policy. There is nevertheless an intellectual and affective loss, not least of familiar modes for discussing pressing issues of translation, appropriation, and, above all, community. For all their cultural antagonism, blasphemy and religion occupy adjacent fields. They need each other. As religion loses its hold, so may blasphemy. If Gauchet is right after all, if only in the case of post-Christian Western Europe or North America, and it grows harder for blasphemy to do its cultural work in the West as religion becomes less secure socially and

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less supported institutionally, then we may need a new term for a newly alienated form of blasphemy. Hesitantly, I would endorse postblasphemy. This will combine elements in new ways and be less susceptible to ideological reading. In visual terms, the two works from Sensation in this chapter may come closest. In literary terms, we have a frighteningly commonplace visualization of the breakdown involved in Douglas Preston’s airport novel appropriately called Blasphemy: in the violent meeting of backwoods fundamentalism and government-sponsored science, each turns out to be as fundamentalist, blasphemous, and destructive as the other.55 More compellingly, and from the end of the twentieth century, when the sort of cultural breakdown involved became clear on an international scale, we might consult Orhan Pamuk’s Turkish novel Yeni Hayat (1995), translated into English as The New Life (1998).56 It is a surrealist retrospect of Turkey’s civil strife in the 1970s and 1980s. Islamic-leaning Eastern Anatolia is at odds with secularist Istanbul; political divisions have become so inscribed that nobody knows any longer what caused them; and various irregular factions, not only in universities but also in civil society across the country, are happily engaged in the process of killing fellow citizens with whom they think they might disagree. The casus belli is a book that the combatants have glimpsed but not read, an improbable amalgam of railway timetables, memoirs of a retired railway engineer, and half-reminiscences of Dante Alighieri and Rainer Maria Rilke. The ideas and passions involved prove ephemeral. All that the participants agree on is the importance of killing one another to advance programs never defined. Violent offense holds sway without real cause. The whole is a parable of the identity confusion spread by globalizing modernity. Again, the visual arts mostly eschew a narrative dimension but invite such conflicts. We may find an equivalent in the increasing intermixing of international cultural signs in modern art. The Coca-Cola logo appears in remote Anatolia in Pamuk’s novel. I think of its meeting with Russian Orthodoxy in Kosolapov and with the Holocaust in Schechner. I think of the way that Islamic artists, say in Europe or in Tunisia, reflect on the representations of colonial, orientalist art and of the fateful way that Theo van Gogh tried to turn such representations back on Islam. I think of portable artwork such as Cattelan’s that signifies differently in London or New York, Paris or Warsaw. I think of the challenging mixture of elements in Ofili’s Virgin Mary, derived from medieval Europe and postcolonial Africa, from religious idealism and racist pornography. I conclude that we will not give up blasphemy. Even if it proves more

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deeply rooted than religion, it will remain one of the most valuable and ominous indices of who we think we are.

notes 1. David Lawton, Blasphemy (Philadelphia: University of Pennsylvania Press, 1993): “Blasphemy is an exchange. . . . Though the weight is always heavily on the side of power, the offense exists between the sides involved, in the gap between them, in the exchange itself, an exchange without reciprocity” (5); “Blasphemy is therefore a discourse that includes those who purport to be offended by it” (202). 2. David Nash, Blasphemy in the Christian World: A History (Oxford: Oxford University Press, 2007). 3. Richard Webster, A Brief History of Blasphemy: Liberalism, Censorship and “The Satanic Verses” (Southwold, Suffolk: Orwell, 1990). Webster has written of what he calls “liberalism’s holy war.” See www.richardwebster.net /liberalismsholywar.html. 4. Nash, Blasphemy in the Christian World, 242. 5. Robert Ayers, “Red Grooms’s Chris Ofili Drawing,” Blouin ArtInfo, November 20, 2007, www.blouinartinfo.com/news/story/26119/red-groomsschris-ofili-drawing/; Sensation: Young British Artists from the Saatchi Collection, Royal Academy catalogue, ed. Norman Rosenthal and Brooks Adams (London: Thames and Hudson, 1998). For the controversy, see Hugh Davies and Ben Fenton, “Whiff of Sensation Hits New York,” Daily Telegraph, October 2, 1999, and, in the aftermath, Lawrence Rothfield, ed., Unsettling “Sensation”: Arts Policy from the Brooklyn Museum of Art Controversy (Rutgers, NJ: Rutgers University Press, 2001). 6. For the threat of eviction, see New York Times, September 24, 1999; the court’s first order, New York Times, November 2, 1999; and the outcome of the case, New York Times, March 28, 2000. 7. British Council website for Chris Ofili, “Painting with Shit on It,” http:// collection.britishcouncil.org/collection/artist/5/18786/object/39634. See also Christopher Rapp, “Dung Deal—Brooklyn Museum of Art’s ‘Sensation’ Exhibition,” National Review, October 25, 1999; Adrienne Dengerink Chaplin, “Contemporary Art and the Return of Religion,” August 6, 2010, www.cardus.ca /comment/article/2093/. 8. Bibi van der Zee, “Chris Ofili (Winner 1998),” Guardian, October 31, 2003. 9. New York Times, December 18, 1999. For the outcome of the case against the painting’s attacker (a $250 fine), see New York Daily News, November 15, 2000. 10. Dalya Alberge, “Attacks Force Hindley Portrait to Be Moved,” Times (London), September, 19 1997; http://artcrimes.net/myra; Simon Hattenstone, “Myra, Margaret and Me,” Guardian, February 20, 2009. 11. Winnie Johnson, quoted by Tamsin Blanchard in the Independent, September 19, 1997. Hindley herself appealed in a letter from prison for the por-

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trait to be removed. Johnson died on August 18, 2012, and obituaries appeared in all the main British newspapers in the days following. 12. See, for example, Hilton Kramer, “How Saatchi Orchestrated Brooklyn Museum Frenzy . . . Money, Not Art, Rules Show,” New York Observer, April 10, 1999. For a more considered critique, see Julian Stallabrass, High Art Lite: British Art in the 1990s (London: Verso, 2006). 13. S. Brent Plate, Blasphemy: Art That Offends (London: Black Dog, 2006), 28. This is an indispensable collection of images, including most of those examined here dated before 2005. 14. It is photographed in situ at the Centre Pompidou in the catalogue Traces du Sacré (Paris: Éditions du Centre Pompidou, 2008), 248–49. 15. Maurizio Cattelan, La Nona Ora, reproduced in Plate, Blasphemy, 8; see also Traces du Sacré, 242. The statue was vandalized when exhibited in Warsaw in 2000–2001. 16. Italo Tomassoni, De Dominicis (Milan: Skira, 2011); http://moblog.net /view/251782/calamita-cosmica-by-gino-de-dominicis. 17. For the material in this paragraph, see Vanessa Gera, “Maurizio Cattelan’s Statue of Praying Hitler in Ex–Warsaw Ghetto Sparks Emotion,” Huffington Post, December 28, 2012, www.huffingtonpost.com/2012/12/28/mauriziocattelan-praying-hitler_n_2376699.html. 18. See Plate, Blasphemy, 46–47, 160–61. There is, inevitably, again a Saatchi connection—see www.saatchi-gallery.co.uk/artists/kosolapov_alexander .htm?section_name=breaking_the_ice. 19. Plate, Blasphemy, 46; Alessandro Imperato, “Boundaries of Representation: Holocaust Manipulation, Digital Imaging and the Real,” http://drainmag .com/contentFEBRUARY/RELATED_ESSAYS/boundaries.htm; Lutz Koepnick, “Photographs and Memories,” South Central Review 21 (2004): 94–129. 20. See, e.g., www.masada2000.org/Schechner.html. 21. See Plate, Blasphemy, 105. 22. www.horit.com/terror.htm. 23. For Schechner’s own presentation, see www.dottycommies.com/holocaust10.html. For Said, see Aaron Matz, “Stone Thrower and Scholar: Edward Said’s Ferocious Unity,” New York Observer, September 11, 2000, http://observer .com/2000/09/stone-thrower-and-scholar-edward-saids-ferocious-unity/. 24. Gersht’s magnificent exhibition History Repeating was at the Museum of Fine Arts in Boston from August 25, 2012, to January 6, 2013. MFA Press printed the catalogue and study, written by Al Miner and Yoav Rinon, in 2012. 25. The film can still be seen on YouTube. For the murder, see Ian Buruma, Murder in Amsterdam: Liberal Europe, Islam, and the Limits of Tolerance (London: Penguin, 2007). 26. Some of the stills are reproduced in Plate, Blasphemy, 16–17; others can be found online. 27. Yasmine Ryan, “Tunisia’s Embattled Artists Speak Out,” Al Jazeera, June 15, 2012, www.aljazeera.com/indepth/features/2012/06/2012615111819112421 .html. 28. Bettina Rheims and Serge Bramly, I.N.R.I. (New York: Monacelli, 1999), 64–65.

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29. A major retrospective of Nishat’s work was held at the Detroit Institute of Arts in April–July 2013. The catalogue, Shirin Neshat (Detroit: Detroit Institute of Arts, 2013), has essays by Rebecca R. Hart, Sussan Babale, and Nancy Princenthal. See also Marina Abramovic´ and Arthur C. Danto, Shirin Neshat (New York: Rizzoli, 2010). For an online sample of photographs and an interview with Neshat, see http://whoawaitwhat-witlee28.blogspot.com/2011/12 /wiki-abstracts-no-39-shirin-neshat.html. 30. Ayaan Hirsi Ali, Infidel (New York: Free Press, 2007); Ali, The Caged Virgin: An Emancipation Proclamation for Women and Islam (New York: Atria, 2008). 31. Nawal el-Saadawi, The Fall of the Imam, trans. Sherif Hetata (London: Methuen, 1990), discussed in Lawton, Blasphemy, 140–41; Tehmina Durrani, Blasphemy: A Novel (London: Penguin, 1995). 32. Tariq Ramadan, Western Muslims and the Future of Islam (New York: Oxford University Press, 1995), 225. 33. Gera, “Maurizio Cattelan’s Statue of Praying Hitler.” 34. Traces du Sacré, 25. 35. Ibid., 160–61. 36. Max Ernst, La Vierge corrigeant l’Enfant Jésus devant trois témoins: André Breton, Paul Eluard et le peintre (1926); see Traces du Sacré, 238–39. 37. Gérard Garouste, Passage (Autoportrait), 2005; see Traces du Sacré, 237. 38. “Entretien avec Gérard Gerouste,” dir. Bernard Clerc-Renaud, Centre Pompidou, http://traces-du-sacre.centrepompidou.fr/exposition/paroles_artistes .php?id=28. 39. Gérard Garouste, with Judith Perrignon, L’Intranquille: Autoportrait d’un fils, d’un peintre, d’un fou (Paris: L’iconoclaste, 2009). 40. Michael Riffaterre, Semiotics of Poetry (London: Methuen, 1980). 41. Marcel Gauchet, Le désenchantement du monde: Une histoire politique de la religion (Paris: Gallimard, 1985), trans. Oscar Burge as The Disenchantment of the World: A Political History of Religion (Princeton, NJ: Princeton University Press, 1997). 42. For the 1855 Dublin case against Rev. Vladimir Petcherine, see Lawton, Blasphemy, 111–19. 43. For a 2012 case in Tel Aviv, see Shmarya Rosenberg, “Chief Rabbis Protest ‘Blasphemous’ Art, Threaten to Find Ways to Close Gallery,” December 27, 2012, http://failedmessiah.typepad.com/failed_messiahcom/2012/12/chief-rabbis-protest-blasphemous-art-threaten-to-find-ways-to-close-gallery-567.html. 44. Andres Serrano, Piss Christ (Immersion) (1987); see Plate, Blasphemy, 131–32; Traces du Sacré, 232–33, 243. 45. Sarah Lucas, Christ You Know It Ain’t Easy (2003); see Plate, Blasphemy, 14–15. 46. Tom Sachs, Hello Kitty Nativity Scene (1994); see Plate, Blasphemy, 26–27. After Catholic League protests, Barney’s removed the installation, which it had intended to auction for charity, from its store window. 47. Gilbert and George, Sonofagod Pictures: Was Jesus Heterosexual?, with essay by Michael Bracewell (London: White Cube, 2006).

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48. The series may most accessibly be viewed on YouTube: www.youtube. com/watch?v=XyM7P4j2WYc. 49. The Wikipedia article provides a useful description of the show and its reception: http://en.wikipedia.org/wiki/Jerry_Springer:_The_Opera. 50. See David Lawton, “Christopher Marlowe, Doctor Faustus,” in The Oxford Handbook of Tudor Drama, ed. Thomas Betteridge and Greg Walker (Oxford: Oxford University Press, 2012), 161–74. 51. Sir John Everett Millais, Christ in the House of His Parents (1849–50); see the account on the Tate Gallery’s website, www.tate.org.uk/art/artworks /millais-christ-in-the-house-of-his-parents-the-carpenters-shop-n03584/textsummary. 52. Sigmund Freud, Moses and Monotheism (1939), in The Origins of Religion, ed. and trans. James Strachey (London: Penguin, 1985); see also Lawton, Blasphemy, 167–72. 53. Philip Pullman, The Good Man Jesus and the Scoundrel Christ (London: Canongate, 2010). 54. Christopher Marlowe, Faustus, A-Text, prologue, lines 20–23, in Doctor Faustus and Other Plays, ed. David Bevington and Eric Rasmussen (Oxford: Oxford University Press, 1995). 55. Douglas Preston, Blasphemy (New York: Forge Books, 2008). 56. Orhan Pamuk, The New Life, trans. Güneli Gün (New York: Farrar, Strauss and Giroux, 1998). See David Lawton, “History and Legend: the Exile and the Turk,” in Postcolonial Moves: Medieval through Modern, ed. Patricia Clare Ingham and Michelle R. Warren (New York: Palgrave Macmillan, 2003), 175–78.

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part two

Sacrilege and Democratic Development

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chapter 4

Blasphemy and Free Thought in Jacksonian America The Case of Abner Kneeland paul finkelman

In 1834 a grand jury in Boston indicted Abner Kneeland for blasphemy. In 1838, after four trials and a final appeal to the Massachusetts Supreme Judicial Court, Chief Justice Lemuel Shaw upheld Kneeland’s conviction.1 The prosecution and conviction resulted from three articles Kneeland published in his newspaper, the Boston Investigator. The Investigator was the first “rationalist” publication in the United States2 and was aggressively hostile to organized religion, Christianity, traditional notions of God, and the existence of a hereafter. Although it was in his discretion to suspend Kneeland’s sentence, Shaw sent the iconoclastic publisher off to the Suffolk County jail for two months. The conviction and the sentence had no effect on Kneeland’s hostility toward established churches or his willingness to attack them from the lectern or in print. If anything, the short jail sentence further radicalized him. As the Boston minister Theodore Parker noted after Shaw’s decision, “Abner was jugged for sixty days; but he will come out as beer from a bottle, all foaming, and will make others foam.”3 While the venerable and famous Chief Justice Shaw had the temporal power to jail Kneeland, the case did more damage to him than to Kneeland. The chief justice’s opinion was one of the worst in his long and otherwise distinguished career and “did not so much reveal his greatness as it confirmed Richard Henry Dana’s observation that Shaw, a conservative Unitarian and Whig, was ‘a man of intense and doting biases.’ ”4 From a modern perspective, Kneeland spoke truth to power, 119

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and Shaw’s use—or misuse—of his power remains a black mark on his reputation. For Kneeland, the conviction and sentence had the opposite effect. The case enhanced his reputation at the time and among scholars today. At the beginning of Kneeland’s legal ordeal, a number of intellectuals were unsympathetic to his views, especially his unorthodox religious beliefs, as well as his views on gender, marriage, and sexuality, and his Jacksonian political sympathies. The charge of blasphemy reflected this larger constellation of social and cultural perspectives that challenged so many accepted or traditional social conventions of Boston’s elite establishment. Similar to blasphemy charges today, it was not just about religion but involved the attempt to protect the way social institutions, cultural norms, and political power were structured. However, by the time Kneeland went to jail, many serious and significant members of Boston’s intellectual community, most notably Ralph Waldo Emerson and Rev. William Ellery Channing, had rallied to his cause and were thoroughly disgusted with the prosecution and jail sentence, which seemed like a persecution for religious beliefs. A number of New England intellectuals recalled that the last time Massachusetts had pursued this kind of persecution, it had left a score of people dead in Salem. While no one threatened Kneeland’s life for his theological beliefs (or his social views), his persecution smacked of the same sort of intolerance that had led to Salem, and this surely disturbed many who disagreed with him on most of these issues. There are many ironies tied to Kneeland’s fame. Although he had a long career of radical free thought and social agitation, Kneeland is remembered mostly because of Shaw’s opinion and the jail sentence he confirmed. Although Kneeland mocked Christianity with its tradition of martyrdom, Chief Justice Shaw made him a martyr. Similarly, Kneeland rejected the idea of a “resurrection of the dead, immortality, and eternal life,” and believed that death is an external extinction of life.”5 But ironically, what Kneeland wrote and published in the Investigator, which helped send him to jail, gave Kneeland immorality among historians and supporters of religious liberty, as it highlighted the dimensions of social and political authority that are invariably embedded in blasphemy charges.

kneeland’s early life Born in Massachusetts a year before the American Revolution began, Kneeland had a common-school education but little more. While work-

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ing as a carpenter, he joined a Baptist church, becoming a preacher in that denomination in 1801. He also taught school and published some well-regarded spelling books.6 He became the official town minister in Langdon, New Hampshire, in 1805 and served in that state’s legislature in 1810–11. He left New Hampshire and the Baptist church at the end of his legislative term and moved back to Massachusetts, where he became a Universalist minister in Charlestown. In 1814 he abandoned the church, in part because he no longer accepted the Bible as a divine text. But by 1818 he was once again preaching, holding pulpits in New York and Philadelphia. In 1829 he permanently abandoned the Universalist Church and formally and publicly rejected Christianity with the publication of A Review of the Evidences of Christianity. While clearly blasphemous to many Americans (such as Chief Justice Shaw), this tract went through six editions in the next decade and brought Kneeland a substantial following. In 1831, the same year that the abolitionist William Lloyd Garrison began publishing the Liberator, Kneeland moved to Boston and founded the Boston Investigator, which continued to operate until 1904. Though the era was marked by a resurgence of evangelical Protestantism, Kneeland quickly attracted a significant number of supporters, with twenty-five hundred people subscribing to his paper and nearly as many attending each of his lectures. Shocking to “proper” Boston society was the fact that about a third of those who came to his lectures were women. His lectures—and those he sponsored given by others— introduced Bostonians to new ideas about marriage, birth control, and the irrationality of Christianity. By this time, he had emerged as a radical freethinker. He supported antislavery, workers’ rights, public schools, and the abolition of imprisonment for debt. His most radical and dangerous positions (from the perspective of the Boston establishment) were on gender equality, racial equality, marriage, birth control, and religion. He went beyond merely advocating women’s rights—which was radical enough to make many of Boston’s elite shudder—but supported gender equality in marriage, the dissemination of information about birth control, and what would come to be known as family planning. In a “Marriage Catechism” that he published in his paper, Kneeland argued that the basis of marriage was the mutual happiness of the partners and without that happiness the marriage should be automatically dissolved. He asserted that a marriage contract was “morally and virtually binding so long as it is productive of the happiness of the parties immediately concerned, and no longer,” and that it was “civilly binding as long as it is

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necessary to, and promotive of, the well-being of the offspring and no longer.”7 He was essentially arguing for what we would today recognize as a civil contractual understanding of marriage and its accompanying dissolution in no-fault divorce. Such forward thinking was utterly shocking to the Boston establishment, as were his ideas that women should be allowed to choose their own mates and that there should be “perfect equality as to rights and privileges regardless of sex.”8 Kneeland also argued that marriage choices should be made, as individuals wished, “totally regardless of color.” In a state where interracial marriage was still illegal—and in a society obsessed with race and color— he proclaimed, “What! To marry each other? Yes, to marry, if they love or fancy each other.”9 He was probably the first social critic in the nation not merely to advocate an end to racial restrictions on marriage but to support the idea that people should be free to make such choices. In addition to his newspaper, Kneeland printed and sold socially radial works by others. He offered the public Robert Dale Owen’s Moral Physiology; or, A Brief and Plain Treatise on the Population Question, which was first published in Great Britain in 1830, and a marriage manual (which advocated birth control) written by Dr. Charles Knowlton, who had been briefly jailed for this allegedly “obscene” publication. Well before he was charged with blasphemy for his religious opinions, Kneeland was writing (and selling) papers and books that could only be described as socially blasphemous to the Unitarian and predominantly Whig elite of Boston, challenging their views on gender, marriage, and race and thus undercutting the cultural basis of their politics. His radical ideas and intellectual connections to radical political and social thinkers were ultimately as important in leading to his prosecution as anything he wrote that might have been construed as blasphemous. Every lecture he gave and every issue of the Investigator he published brought Kneeland a greater following—and greater notoriety—in Boston. His freethinking threatened almost every social convention of the age. But except for his advocacy of birth control, which might have led to an obscenity prosecution,10 there were no obvious legal remedies for those who felt threatened by him. Antebellum Boston generally provided a relatively free and open forum for speech and the exchange of ideas. Advocates of antislavery, radical abolition, racial equality, and even slave revolts were able to publish there without any serious legal consequences. Garrison’s Liberator was secure in Boston, and in 1829 the black radical David Walker advocated black rebellion in his famous

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Appeal, which he successfully published in the birthplace of the American Revolution.11 But there was one arena (beyond obscenity) where the state could restrain free speech. A Massachusetts act of 1782, passed at the very end of the Revolution, provided imprisonment of up to a year for “any person [who] shall willfully blaspheme the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government, or final judging of the world or by cursing or reproaching Jesus Christ or the Holy Ghost or by cursing or contumeliously reproaching the holy word of God, that is the canonical scriptures as contained in the books of the Old and New Testaments, or by exposing them or any part of them, to contempt and ridicule.”12 In December 1833, the Investigator published three articles that in the eyes of the local prosecutor, Samuel Parker, violated the 1782 statute. Parker, a Whig politician and the son of the Episcopal bishop of Massachusetts,13 approached the prosecution with the zeal of a Grand Inquisitor. At the trial, he argued that Kneeland had to be suppressed because his popular newspaper and lectures brought dangerous ideas to the general public. Parker tied Kneeland to Voltaire, Robert Owen, Thomas Paine, Fanny Wright, Jean-Jacques Rousseau, David Hume, Edward Gibbon, “the Republic of Revolutionary France,” and “Mr. Jefferson . . . the Virginian Voltaire.” He admitted that there were “other infidels— Hume, Gibbon, Voltaire, Volney, &c.” whose works were available, but they “were read only by men of literary habits—necessarily a few—and to men of sound understanding they carried their antidote with them.” But Kneeland was different. His “Journal, a Newspaper [was] cheap— and sent into a thousand families. Where one man would be injured by Hume, Gibbon, or Volney, a thousand may be injured by this Newspaper so widely circulated, so easily read—so coarsely expressed—so industrially spread abroad.”14 In other words, the real danger of Kneeland was not his religious views per se but the fact that he was able to disseminate them to large numbers of people, many of whom were not sophisticated members of Boston’s elite, well-educated class. Parker feared that Kneeland would undermine the hegemony of Boston’s elite by bringing radical social, political, and religious ideas to the masses. The dangers of such a radicalization of large numbers of average Bostonians were clear for conservative Whig politicians such as Parker and the judges who sentenced Kneeland and upheld his conviction. Parker did not directly accuse Kneeland of being a Democrat in overwhelmingly Whig Boston, but the implication was there, underscored

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by numerous attacks on Thomas Jefferson. Kneeland was not on trial for his political views, but his support for Andrew Jackson and his Democratic sympathies increased the hostility toward him from the city’s conservative Whig establishment. Parker was probably delighted that Kneeland’s attorney was Andrew Dunlap, a leader of the Democratic Party in Massachusetts and a former attorney general of the commonwealth. With Dunlap standing up for Kneeland, the connections to the Jacksonians were obvious. In January 1834, a jury found Kneeland guilty of blasphemy, and Judge Samuel Putnam, a Whig on the Boston Municipal Court, sentenced him to two months in jail. Kneeland appealed to the intermediate court, which consisted of one state Supreme Court justice sitting with a jury. This case ended in a hung jury, as did a second appeal. At that point the prosecution might have dropped the case. Endless trials for such a small matter seemed pointless. Indeed, it was highly unusual to continue prosecutions after hung juries at this time. The relentless prosecution of Kneeland smacked of bigotry and intolerance, as well as politics, rather than ordinary law enforcement.

kneeland’s blasphemy The three articles that led to Kneeland’s prosecution seem numbingly tame to modern readers. His attorney offered a two-pronged defense. First he claimed that they were published without Kneeland’s permission or knowledge, on a day when he had not been in Boston. Thus he was not legally responsible for them. Dunlap also noted that Kneeland had not written two of them and thus could not be prosecuted for their publication, since he had also never seen or authorized them. This defense was consistent with a classic defense in seditious libel cases dating from the seventeenth century. This sort of defense had protected numerous seventeenth- and eighteenth-century printers from angry prosecutors in Great Britain and in the colonies before the American Revolution.15 Until the end of the eighteenth century, juries in seditious libel cases in America and Britain were asked to decide only who had published the material that allegedly libeled the government.16 The judge would then decide whether the publication was libelous, which was almost always a foregone conclusion. Thus, in seditious libel cases, lawyers defended printers by arguing that they were not responsible for the offensive publication because someone else had typeset it or inserted it in the publication without the permission of the defendant, or that the defendant had

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not read the document but only found it on the floor of the printshop and simply inserted it to fill space. Kneeland’s very capable lawyer, Dunlap, followed this tradition, correctly arguing that his client could not be responsible for what he did not write and that someone else had inserted it into the newspaper without his permission or authority. Dunlap also argued that the publications were not blasphemous under the language of the statute. This claim was probably technically true but was ultimately unpersuasive to the juries and judges in Massachusetts. As Kneeland later noted in one of his pieces, he disputed the Unitarian view of God but never took the atheist position that there was no God. The first two articles mentioned in the indictment were not even written by Kneeland, but were reprinted from the New York Free Inquirer and, as noted, placed in the Investigator when Kneeland was out of town. However, it seems unlikely that he would have refrained from publishing them had he been in Boston that day. He had published other essays from the Inquirer and was hardly restrained in what he printed. The third item was a letter that Kneeland himself wrote, which had previously been published in the Trumpet and Universalist Magazine, which was affiliated with the Universalist Church.17 No one at the time seems to have raised the obvious question of why the commonwealth would prosecute Kneeland for printing the letter in his paper but not seek to prosecute the editors of the Trumpet for publishing it in the first place. If the letter was blasphemous, then its publication violated the law when published by a religious periodical as well as by an antireligious newspaper. The least important article was a harsh review of the recently published religious tract The Miller’s Son. The article, signed “A Skeptic,” was probably written by a mysterious author named Ben Krapac.18 His review included a few short sentences that ridiculed prayer: “I cannot pass over the subject of prayer, without adverting to the curious and strange predicament that God is placed in, by listening to the unceasing and endless varying, and what is worse, contradictory petitions that are every moment ascending up, or down to him. I think the old gentleman is more a subject of pity than General Jackson was during his late visit, his bowing and shaking was very arduous, but it was all one way, congratulatory and pleasing, and he had some occasional respite; but only think of God having no respite whatever, day or night.”19 Certainly this passage, which seems moderately humorous today, was deeply offensive to the Whig establishment of Boston, because it

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both mocked prayer and compared God with Andrew Jackson. Calling God an “old gentleman” was moderately impious, but it is hard to imagine how even the superpious prosecutor Parker could seriously believe that something in the passage violated the blasphemy statute. It is also particularly ironic that a Massachusetts prosecutor would be offended by an argument that challenged the efficacy of prayer, since the commonwealth’s Puritan founders had had numerous public debates about the nature of prayer. The Puritan and Separatist founders of Massachusetts believed in predestination and thus would have agreed with “A Skeptic” that prayers asking God for favors or help were ineffective—and even blasphemous by Puritan standards. The second article, which the mysterious Ben Krapac signed, argued that religion causes prejudice. It began with a quotation from Voltaire on the virgin birth of Jesus. This passage (which I set out below) was presumed to be so indecent and offensive that it was not put into Kneeland’s indictment or introduced into evidence at the trial. Thus the jurors were asked to convict Kneeland without seeing the evidence that proved he had committed blasphemy. Oddly, even by the standards of the early nineteenth century, the document was at worst vulgar, and certainly not obscene. Even odder, scholars since then have been reluctant (or too prudish) to quote it. Leonard W. Levy, who was certainly never shy about controversy, referred to the passage as a “gutter obscenity relating to the miraculous conception of Christ.”20 As I will discuss later, this characterization is clearly wrong. Whatever Kneeland published, it was not obscene. Later Levy again dodged the document, simply writing, “There was merely a quotation from Voltaire’s Philosophical Dictionary, which circulated in the respectable Athenaeum and in the Harvard Library.”21 Perhaps in 1957 the young Professor Levy was too reluctant to reprint this passage, but oddly, two decades later, when he was one of the most important historians in the United States and an expert on freedom of expression, he used the same description in his introduction to a collection of documents about Kneeland.22 What had Kneeland published that the prosecutor Parker thought was “too obscene . . . too revolting” to show the jury?23 It was this: “A Parisian would be surprised to hear that the Hottentots cut out one of the testicles of every little boy; and a Hottentot would be surprised to hear that Parisians leave every little boy with two.”24 Neither the Parisian nor the Hottentot is astonished at the practice of the other because he finds it unreasonable, but because he finds it differs from his own. The Frenchman will ask why the Hottentots allow their boys but one testicle,—but that same French-

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man, though he be too stupid to understand the laws of evidence, or too illiterate to apply them to history, firmly believes that Jesus Christ was begotten without any testicles at all.25

While Parker, in his bombastic style, asserted this was “obscene,” a characterization that Levy surprisingly endorsed—calling it a “gutter obscenity”—there was clearly nothing about the statement that was even remotely obscene. It might be crude, but it is not lascivious, salacious, or lewd. Even Boston Brahmins could not have argued that the language— including the word testicle—rises to the level of obscene. Levy argues that there was no blasphemy in this passaged because “the Virgin was not even mentioned in the statute.”26 But this is too narrow an argument. The statute of 1782 punished “any person . . . reproaching the holy word of God, that is the canonical scriptures as contained in the books of the Old and New Testaments, or . . . exposing them or any part of them, to contempt and ridicule.”27 Surely merely doubting or questioning the idea of the virgin birth could have been construed to be blasphemous under the statute, because a challenge to the truth of the virgin birth was a challenge to the literal truth of the Bible. However, at this time pamphlets, books, printed sermons, newspapers, and magazines contained numerous debates among clergy, theologians, scientists, and historians over the veracity of numerous portions of the Bible. Some of the leading scientists of the time, for example, regularly disputed the creation stories in Genesis.28 Thus, despite the language of the statute, challenging the literal truth of the Bible could hardly be blasphemy. And even for respectable Bostonians of the early Victorian era, this passage seems to be a pretty tame, although perhaps crude, attack on religion or faith. Although the prosecutor Parker refused to read this passage in court on the grounds that it was too obscene for the tender ears of the all-male jury, it is at least plausible that he did not present it to them because even a partisan jury of conservative, churchgoing Whigs might have found it mildly amusing and neither blasphemous nor obscene. Throughout the many incarnations of this case, the prosecutors and judges (including Chief Justice Shaw) insisted that the blasphemy statute did not prohibit discussions of theology or “the freest inquiry, when the real purpose is the discovery of truth, to whatever result such inquiries may lead.”29 This standard should have protected all of the allegedly blasphemous articles in Kneeland’s newspaper. But as Parker noted throughout his speeches in court, the danger came from the fact that

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Kneeland appealed so effectively to average citizens. The manner of speech, in other words, was as important as the content. Thus Parker made overt distinctions between high- and lowbrow expression. “Men of literary habits” could safely be allowed to read Hume, Gibbon, Voltaire, or even the newspapers that Kneeland published, but average Bostonians were not sophisticated enough to understand and reject these radical ideas. Popular discussions of religion and theology were more closely scrutinized than more learned exchanges. The outcome of Kneeland’s reprinting of Voltaire’s comments on the virgin birth illustrates this. Though the style of expression was certainly satirical, it could at least plausibly be maintained that a discussion of the biological issues of the birth of Jesus, however crude, qualified as a search for truth. But the prosecutors and judges in Boston believed that such discussions could not be presented to anyone except, perhaps, “men of literary habits.”30 Although the jury and the midlevel appellate courts found Kneeland guilty of publishing all three articles, by the time his case reached Chief Justice Shaw, the prosecution no longer focused on the two articles reprinted from the New York Free Inquirer, which Kneeland had not written. The attorneys for the commonwealth may have ignored these parts of the indictment because they accepted (but never acknowledged) the argument that Kneeland could not be prosecuted for something he had not written and was technically not responsible for printing. It is also possible that even the zealous Parker and the equally fanatic state attorney general, James T. Austin, who argued the case before Shaw, ultimately realized that these passages were surely not blasphemous by any standard of interpretation. In the end, Chief Justice Shaw upheld Kneeland’s conviction based on the third article in the indictment, which Kneeland had written. This passage (set out below) was part of a letter that Kneeland had sent to the editor of the Trumpet, a Universalist publication. In this letter Kneeland explained his philosophical views and his personal views on the theology of the Universalist faith. He wrote, “That in some respects I am still a Universalist; but that in others I am not.” He then set out how he differed from the Universalists. As he noted in every trial, he never denied the existence of God but only explained how his theological views differed from those of the Universalists: 1. Universalists believe in a god which I do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a mere chimera of their own imagination.

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2. Universalists believe in Christ, which I do not; but believe that the whole story concerning him is as much a fable and a fiction as that of the god Prometheus, the tragedy of whose death is said to have been acted on the stage in the theatre at Athens, five hundred years before the Christian era. 3. Universalists believe in miracles, which I do not; but believe that every pretension to them can be accounted for on natural principles, or else is to be attributed to mere trick and imposture. 4. Universalists believe in the resurrection of the dead, in immortality and eternal life, which I do not; but believe that all life is mortal, that death is an eternal extinction of life to the individual who possesses it, and that no individual life is, ever was, or ever will be eternal.31

In all of the proceedings against Kneeland, the prosecution and judges, including Chief Justice Shaw, argued that these passages proved that Kneeland had violated the 1782 statute, because he denied the existence of God. But of course Kneeland consistently and vociferously objected to such a characterization of his letter. He insisted again and again that the statement was not a denial of the existence of God but a rejection of the Universalists’ view of God.32 After his conviction, he reasserted his position: “I do not say, I do not believe in God, or in the Gods.” He followed this argument with a statement of his “Philosophical Creed,” in which he declared, “I am not an Atheist, but a Pantheist; that is, instead of believing there is no God, I believe that in the abstract all is God; and that all power that is, is in God, and that there is no power except that which proceeds from God. . . . Hence, I believe, that God is all in all; and that it is in God we live, move and have our being.”33 More important, throughout Kneeland’s trials, all the prosecutors and judges asserted that the law was not designed to interfere with legitimate theological discussion. In the first trial, Judge Samuel Putnam “had admitted that even an atheist might propagate his opinions,” and in a later trial, Judge Samuel Wilde had agreed that “the truth of the scriptures might be denied.”34 As Chief Justice Shaw noted, the Massachusetts Constitution admits the freest inquiry, when the real purpose is the discovery of truth, to whatever result such inquiries may lead. It does not prevent the simple and sincere avowal of a disbelief in the existence and attributes of a supreme, intelligent being, upon suitable and proper occasions. And many such occasions may exist; as where a man is called as a witness, in a court of justice, and questioned upon his belief, he is not only permitted, but bound, by every consideration of moral honesty, to avow his unbelief, if it exists. He may do it inadvertently in the heat of debate, or he may avow it confidentially to a

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friend, in the hope of gaining new light on the subject, even perhaps whilst he regrets his unbelief; or he may announce his doubts publicly, with the honest purpose of eliciting a more general and thorough inquiry, by public discussion, the true and honest purpose being the discovery and diffusion of truth. None of these constitute the wilful blasphemy prohibited by this statute.35

It is hard to imagine how someone as smart and sophisticated as Chief Justice Shaw could write this passage and then uphold a conviction for blasphemy on the basis of a very serious letter about theology in a publication sponsored by a religious group. Under Shaw’s standard— that someone “may announce his doubts publicly, with the honest purpose of eliciting a more general and thorough inquiry, by public discussion, the true and honest purpose being the discovery and diffusion of truth”—Kneeland’s conviction should easily have been overturned. In the end, the Kneeland prosecution makes no logical sense, and the evidence hardly supports the conviction or Chief Justice Shaw’s overblown opinion upholding it. Such an analysis, though, assumes that the case was actually about blasphemy and motivated by the threat it posed to orthodox religion. But it was not. Kneeland’s real crime was challenging an interconnected network of social conventions and attracting thousands of subscribers and listeners in the process.

blasphemy and toleration in antebellum america Kneeland’s was the last blasphemy case in Massachusetts and the last blasphemy conviction upheld by a significant American state judge. Shaw was the most influential antebellum American state judge. His decisions were cited throughout the nation, and his jurisprudence shaped much of modern American tort, contract, property, and labor law.36 Almost every Northern state adopted the precedent in his decision in Commonwealth v. Aves, that slaves voluntarily brought to free states by their masters were free.37 Similarly, most American jurisdictions accepted his articulation of the “fellow servant rule,” which shifted much of the burden of industrial accidents to workers and away from corporations and business owners.38 Thus Shaw’s decision in Kneeland—and his imposition of a two-month jail term—seems at odds with his generally forward-thinking, practical, and modern approach to law.39 Shaw’s most important biographer, Leonard Levy, argued that this decision was not only among the chief justice’s “worst” but that it was also “wholly at variance with freedom of opinion on religion.”40

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Such an analysis is certainly consistent with modern notions of freedom of conscience and the separation of church and state, which is precisely the point that Levy was making. In the modern United States, it is pretty clear that the speech, press, and religion clauses of the First Amendment protect all discussions of religion and belief.41 In our time, freedom of religion includes the right to denounce or mock the practices of other faiths. It also includes the right to deny the very existence of God and the hereafter. The United States Supreme Court has held that the establishment and free exercise clauses of the First Amendment prevent governments from discriminating against atheists or agnostics or establishing any faiths or favoring one faith over another.42 Today the federal government even acknowledges that the practice of witchcraft, which historically has been considered the antithesis of religious faith, should be recognized as a legitimate form of religious practice.43 In our time the state may not protect religion or religious institutions from the rough-and-tumble discourse of a free society. But Shaw’s opinion was not of our time. Rather, it reflected antebellum conditions, in a time when religion could be used as a tool to suppress dissent, though even then such suppression was at odds with the vibrant reform culture of Massachusetts and the substance of the persecution was at odds with the view of many intellectuals and dissenting ministers in the commonwealth. Certainly in retrospect, and for some contemporaries, Chief Justice Shaw’s opinion reflected a dying past and was inconsistent with the emerging future. Many antebellum intellectuals and reformers thought blasphemy statutes and prosecutions such as Kneeland’s were archaic and in opposition to what they believed were contemporary concepts of intellectual freedom in a republic dedicated to liberty. Thus many New Englanders agreed with the Rev. Dr. William Ellery Channing that it was “shocking” for a man to “be punished for his opinion,” and that the prosecution was “an offense at once to the principles and feelings of the community.”44 In addition to Channing, those opposed to the prosecution of Kneeland included other progressive clergy and abolitionists, transcendentalists, academic scholars, and reformers such as William Lloyd Garrison, Ellis Gray Loring, Ralph Waldo Emerson, Bronson Alcott, George Ripley, George Ellis, George Noyes, Rev. Theodore Parker, and George Bancroft. Indeed, by the end of the case, Kneeland’s supporters read like a Who’s Who of New England intelligentsia.45 In many ways, Kneeland’s conviction was the last gasp of the established church in the Bay State. A blasphemy prosecution, in the end, is

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an assault on belief, faith, or religions (or a particular faith or religion). It can only be criminal if the state chooses to use its civil power to protect a particular faith, creed, or church. By the Civil War, few Americans believed that the state had any interest in protecting or supporting one faith against another. Many Americans still believed the state could be used to persecute minority faiths—the Mormons in the late nineteenth century and the Jehovah’s Witnesses in the mid-twentieth century—but these persecutions were not framed in terms of theology or belief but rather as responses (however illegitimate and oppressive) to behavior, the actual practices of members of these faiths. Scholars disagree about the role of blasphemy prosecutions in the culture of antebellum America. Levy claimed that Shaw’s decision was “wholly at variance with freedom of opinion on religion,”46 although this seems to be mostly a retrospective analysis rather than a description of nineteenth-century legal theory. Other scholars argue that Shaw’s opinion in the Kneeland case was “the distillation and application of four decades of blasphemy jurisprudence.”47 In a sense both positions may be correct. There is no doubt that Shaw’s decision was “wholly at variance with freedom of opinion on religion.”48 But Levy’s point seems to be a philosophical one, about the nature of freedom of speech and religion under the Constitution and in a free society. He does not argue that there were no other cases on the subject at the time, because there were. He also notes that while a libertarian jurisprudence did not develop to accompany the democratized politics of the first half of the nineteenth century, many antebellum intellectuals and reformers thought blasphemy laws were archaic and in opposition to the notion of liberty in the young republic. But many Americans, especially conservatives such as Chief Justice Shaw, had different notions of religious liberty and its limits, especially when religion-related expression touched on venerated customs and norms. Their views illuminate how blasphemy charges, then and now, cannot be seen in isolation as controversies merely over belief. Kneeland’s prosecutors regarded his blasphemous expression as part of a wider constellation of ideas that challenged not just religious orthodoxy but social institutions and cultural norms affecting gender, marriage, sexuality, birth control, labor relations, and race. Moreover, their charges were linked to their perception that Kneeland was on the wrong side of important political divides in contemporary society. This implicit political dimension of Kneeland’s case is also an enduring feature of blasphemy charges in other cases. Boston’s leaders—almost all of whom

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were conservative Whigs—agreed that Kneeland was dangerous not merely because of his social and theological views but also because he had opposed the Bank of the United States and supported Andrew Jackson. Compounding these factors was his popularity. The fact that thousands came to Kneeland’s lectures and read his newspaper truly frightened the Boston establishment. Blasphemy was a convenient tool for silencing people like Kneeland in a nation where the overwhelming majority were evangelical Protestants. Thus virtually all legal theorists and jurists at the time supported blasphemy laws, but such support for these prosecutions was not fundamentally based on protecting religious orthodoxy. In that sense, the Kneeland case differs from older applications of blasphemy law because the prosecution was not designed to protect either an established church from a theological schism or a confessional state from a challenge to its religious ideology. Kneeland’s conviction was shocking to many in Boston because by the 1830s, convictions for blasphemy in the United States were, though not unheard of, at least uncommon. They were rare not because there was a strong, principled argument against them in the antebellum legal community. Legal commentators and treatise writers all agreed on the importance of such laws. However, most Americans allowed a fair amount of dissent and theological disagreement within and between traditional churches. Rather, blasphemy prosecutions were rare because relatively few people openly denounced or attacked religion in a manner sufficiently egregious to trigger a prosecution. The most famous American blasphemy case before Kneeland’s was People v. Ruggles, in which Chief Justice James Kent supported the conviction of Ruggles for declaring that “Jesus Christ was a bastard, and his mother must be a whore.”49 But few people were as bold or as outrageous as Ruggles. In addition, as American urban society became more complex and more religiously heterodox, there were fewer calls to suppress blasphemy or heresy. Surely most American legal theorists generally endorsed religious liberty (at least for traditional Western faiths), and in the context of world history, there was an extraordinary amount of religious freedom in the new nation. The Constitution banned religious tests for holding office at the federal level, and by the 1830s, the remaining state religious tests had been repealed or were being ignored. Since the end of the revolution, Protestants of all denominations had held public office, as had some Jews and Catholics. The overwhelmingly mainstream Protestant

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leaders of the legal community were doubtless skeptical of radical Protestants, and many were unabashed in their hostility toward Catholics. They generally tolerated Jews, who did not proselytize or engage in popular debates over theology or religious practice. At most, American Jews asked for exemptions from performing civic duties on their Sabbath, which they did not always get.50 As a small community that was supplemented by only a trickle of immigrants to the country,51 they posed no threat to America’s Protestant hegemony. The nineteenth century is replete with examples of political attacks (and sometimes mob attacks) on Catholics.52 Attempts by public school systems to impose Protestant prayers and Bible readings on Catholic children led to enormous political controversies and revealed the deeply anti-Catholic biases of the nation’s Protestant majority. But courts, judges, and legislatures were more circumspect, as illustrated by the New York decision upholding the clergy privilege for Catholic priests who refused to testify about what they heard in confession.53 Indeed, despite the political attacks and prejudice, Catholics had more political freedom and religious liberty in the United States than in any other country in the world where they were not the majority faith or where theirs was not the official church. Jews also had more political freedom and religious liberty in the United States than anywhere else in the world. Not surprisingly, few members of these faiths challenged America’s Protestant hegemony or religion in general. On the other hand, some extreme Protestants, atheists, and agnostics (who were usually from a Protestant background) challenged religious orthodoxy in ways that led to blasphemy prosecutions. The victims of these prosecutions—we might easily call them legal persecutions—went beyond acceptable bounds in their criticisms of faith and theology. It is important to understand that in antebellum America, robust theological debates were common and never seen as threatening to the status quo. Episcopalians, Methodists, Baptists, Presbyterians, and Unitarians all debated fine points of theology and practice. They also argued and divided over slavery, race, and the place of women in society. But none of these debates challenged the fundamental idea of a living God or the divinity of Christ.54 Those Protestants or former Protestants who openly challenged these fundamental notions of Christianity were occasionally prosecuted for blasphemy. Similarly, some Protestants whose theology led them to lifestyles, family arrangements, and marital relationships that challenged the status quo—such as the Shakers, the Oneida Community, and most of all the Church of Jesus Christ of Latter-Day Saints

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(Mormons)—faced persecutions that went beyond merely blasphemy trials. There was significant oppression, prosecution, harassment, and social ostracism of these groups for their differences of religious belief, communitarian values, reliance on strong, almost dictatorial leadership (for the Mormons and the Oneida Community), and martial relationships and family organization. The Mormons were certainly heretics according to traditional Christian theology because of their belief that Christ had returned to earth, and thus their entire faith might be seen as blasphemous, but the vicious treatment of the Mormons went well beyond any sort of blasphemy punishments.55 Kneeland was jugged for two months in the local jail and emerged with significant support from many in Boston; Joseph Smith and his followers were forced out of one community after another until Illinois authorities threw Smith into jail and did nothing to protect his life, allowing a local mob to murder him.

kneeland’s case in historical context In the end, the only true winner in Kneeland’s saga was Abner Kneeland. During his sixty days in jail, he had constant visitors. Every day, supporters came “unto him,”56 bringing home-cooked meals to sustain him in his cell. And as Theodore Parker predicted, when he left the county jail, Kneeland was “all foaming” like “beer from a bottle.”57 Almost immediately after he had served his sentence, Kneeland published a pamphlet, A Review of the Trial, Conviction, and Final Imprisonment of in the County Jail of the County of Suffolk, of Abner Kneeland for the Alleged Crime of Blasphemy, defending himself and attacking those who had prosecuted and persecuted him.58 In it, he reprinted all three essays that had led to his indictment in the first place, a blasphemous response to his prosecution for blasphemy. Such a response is hardly unique in the history of expression controversy. In chapter 1 of this volume, Christopher S. Grenda considers similar responses in the eighteenth century. He notes how figures such as the Third Earl of Shaftesbury and Thomas Paine responded to critics of their satires on Christianity by producing yet more satire. Jacques Berlinerblau explores similar dynamics in the twentieth century in chapter 2. In what he calls a profanity loop, the novelist Philip Roth used charges of obscenity as a creative source for the production of more obscenity. Kneeland’s pamphlet was a similar example of creativity in response to attempts at censorship. Significantly, it proved far more durable, and easier to disseminate, than a single issue of his newspaper. The offensive

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issue of the Boston Investigator had ceased to be sold or to circulate immediately after publication. But this pamphlet could be sold and could circulate for years to come. This new publication could have led to new indictments and trials. If the three essays were blasphemous when first printed, they were equally blasphemous when reprinted. An indictment would not have been double jeopardy, because the pamphlet constituted a new offense against the 1782 law, the churches of Massachusetts, and the protectors of morality in the Bay State. In publishing this pamphlet, Kneeland seemed to be begging the conservative establishment to give him more fame and publicity by bringing him to trial again. But by this time even a fanatic like Samuel Parker had no desire to take Kneeland on a second time. Never again would Massachusetts use its blasphemy statute—a relic of its Puritan past—to silence skeptics or critics of religion. In the future, Massachusetts would prohibit “obscene” material that was too sexual in its content. In the mid-twentieth century, the place where the American Revolution began was slapped down more than once for its absurdly narrow views on literature. In “Memoirs of a Woman of Pleasure” v. Massachusetts, the U.S. Supreme Court reversed a Massachusetts decision that this classic novel—known more popularly as Fanny Hill—was obscene.59 This was perhaps the last vestige of a blasphemy case in the Bay State, but hardly in the United States. Attempts to censor art, literature, and music, while often in the guise of regulating pornography or obscenity, are in the end often simply a reprise of blasphemy laws. These actions at the local, state, and national levels by prosecutors, legislators, and executives are all too often modern versions of blasphemy prosecutions, designed to impose the traditionalist moral values of those in power on those who challenge authority, tradition, and cultural hegemony.

notes I thank the brilliant librarians at Albany Law School, Colleen Ostiguy and Bob Emery, for their help in tracking down sources for this piece. This article was written while I held a summer research grant from Albany Law School. 1. Commonwealth v. Kneeland, 37 Mass. (20 Pick.) 206 (1838). 2. Henry Steele Commager, “The Blasphemy of Abner Kneeland,” New England Quarterly 9 (1935): 31. 3. Theodore Parker to George Ellis, quoted in Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (Cambridge, MA: Harvard University Press, 1957), 57.

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4. Levy, Law of the Commonwealth, 43, quote on 51–52. 5. “The Trial of Abner Kneeland for Blasphemy, Boston, Massachusetts, 1835,” 13 American State Trials 450, at 453. 6. Abner Kneeland, The American Definition Spelling Book (Keene, NH, 1802). Different publishers reprinted this book in numerous editions with revisions by Kneeland. I have located editions from 1804, 1807, 1808, 1809, and 1814. See also Kneeland, A Brief Sketch of a New System of Orthography (Walpole, NH: Nichols and Hale, 1807); Kneeland, The Child’s Spelling Book, Containing Easy Words from One to Four Syllables (Walpole, NH: Bill Blake and G. W. Nichols, 1808). These also went through multiple printings and editions. 7. The “Marriage Catechism” appeared in the second issue of the Investigator, on April 9, 1831. The relevant portions are in Roderick S. French, “Liberation from Man and God in Boston: Abner Kneeland’s Free-Thought Campaign, 1830–1839,” American Quarterly 32 (1980): 205–6. 8. Ibid., 206. 9. Ibid. 10. Advocates of birth control were often prosecuted under obscenity statutes in the United States. See Paul Finkelman, “Cultural Speech and Political Speech in Historical Perspective,” Boston University Law Review 79 (1999): 717–43. 11. David Walker, Appeal in Four Articles; Together with a Preamble, to the Coloured Citizens of the World, but in Particular and Very Expressly to Those of the United States of America (Boston, 1829). 12. “An Act against Blasphemy,” Massachusetts Acts, 1782, ch. 9, 150. Part of the text of the act is found in “Trial of Abner Kneeland,” 13 American State Trials 452. Almost all articles about this case, including the record in American State Trials, incorrectly identify this statute as chapter 8 of the 1782 laws. Even Chief Justice Shaw incorrectly cited it that way. The statute listed all the books of the Bible, by name, which could not be exposed “to contempt and ridicule.” Not surprisingly, it included only those in the Protestant, King James Version and did not include books of the Apocrypha from the Latin Vulgate, in the Catholic and Orthodox Bibles, such as Tobit (also called Tobias), Judith, and Maccabees. Apparently, and not surprisingly, the authorities in Protestant Massachusetts— where Catholics were not allowed to even hold office under the 1780 state constitution—would not have been bothered if someone had attacked the validity of the books in the Catholic Bible that were not in the Protestant Bible. 13. Walter Nelles, “Commonwealth v. Hunt,” Columbia Law Review 32 (1932): 1133n19. 14. Report of the Arguments of the Attorney for the Commonwealth, at the Trials of Abner Kneeland, for Blasphemy, in the Municipal and Supreme Courts in Boston (Boston: Beals, Homer, 1843), 13–14, 15, 75; reprinted in Leonard W. Levy, ed., Blasphemy in Massachusetts: Freedom of Conscience and the Abner Kneeland Case—A Documentary Record (New York: Da Capo, 1973) 189–90, 191, 251. 15. I have discussed this strategy at length in the introduction to Paul Finkelman, ed., A Brief Narrative of the Case and Tryal of John Peter Zenger (Boston: Bedford / St. Martin’s, 2010).

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16. The one great exception to this happened in the prosecution of John Peter Zenger, where the jury refused to comply with the judge’s demand for a verdict on only the facts of publication (which Zenger admitted) and instead came back with a general verdict of not guilty. See ibid. 17. Levy, Law of the Commonwealth, 45. 18. We know little about Krapac. In a footnote, Kneeland asserted that he lived in Mobile, Alabama. Kneeland, A Review of the Trial, Conviction, and Final Imprisonment of in the County Jail of the County of Suffolk, of Abner Kneeland for the Alleged Crime of Blasphemy (Boston: George A. Chapman, 1838), 13n; reprinted in Levy, Blasphemy in Massachusetts, 473. 19. Kneeland, Review of the Trial, 18; reprinted in Levy, Blasphemy in Massachusetts, 478. 20. Levy, Law of the Commonwealth, 45. 21. Ibid., 49. 22. Levy, Blasphemy in Massachusetts, ix. Levy’s reticence, especially in 1957, may have reflected the cultural conditions of postwar America, as evidenced by Jacques Berlinerblau’s ch. 2 in this volume. 23. Levy, Law of the Commonwealth, 46. 24. Here the article cites Voltaire’s Philosophical Dictionary (first published in Geneva in 1764), s.v. “circumcision.” 25. Kneeland, Review of the Trial, 13–14; reprinted in Levy, Blasphemy in Massachusetts, 473–74. 26. Levy, Law of the Commonwealth, 49. 27. “An Act against Blasphemy,” Massachusetts Acts, 1782, ch. 9, 150. 28. See, for example, William Stanton, The Leopard’s Spots: Scientific Attitudes toward Race in America, 1815–59 (Chicago: University of Chicago Press, 1960); Paul Finkelman, Defending Slavery (Boston: Bedford / St. Martins, 2006) 157–211. 29. Kneeland, 37 Mass. (20 Pick.) at 220. 30. Report of the Arguments, 13; reprinted in Levy, Blasphemy in Massachusetts, 189. 31. Kneeland, 37 Mass. (20 Pick.) at 216. 32. Earlier writers, such as the skeptical David Hume, carefully suggested God’s amoral nature only in learned treatises, not newspapers, and even then only through the voice of a fictitious dialogue character. See Christopher S. Grenda’s discussion of Hume in ch. 1 of this volume. 33. Kneeland, Review of the Trial, 480, 481. 34. Levy, Law of the Commonwealth, 49. 35. Kneeland, 37 Mass. (20 Pick.) at 220. 36. Levy, Law of the Commonwealth, ch. 2. 37. Commonwealth v. Aves, 18 Pick. (Mass.) 193 (1836). For a full history of the application of this case in the North, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981). 38. Farwell v. Boston and Worcester Railroad, 4 Metc. (Mass.) 49 (1842). For a discussion of this issue, see Paul Finkelman, “Slaves as Fellow Servants: Law, Ideology, and Industrialization,” American Journal of Legal History 31 (1987): 269–305.

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39. However, it does dovetail with his support for the establishment of the Unitarian Church in Massachusetts in Stebbins v. Jennings, 10 Pick (Mass). 172 (1830). See Levy, Law of the Commonwealth, 32–42. 40. Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (New York: Alfred A. Knopf, 1993), 422. 41. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Constitution, Amendment I. 42. In Torasco v. Watkins, 467 U.S. 488 (1961), the Supreme Court struck down a Maryland constitutional provision that required all officeholders to give a “declaration of belief in the existence of God.” See Richard B. Saphire, “Torasco v. Watkins and McDaniel v. Paty,” in Religion and American Law: An Encyclopedia, ed. Paul Finkelman (New York: Garland, 2000), 535. 43. Thus military cemeteries now allow the use of the Wiccan pentacle on headstones of graves. 44. William Henry Channing, The Life of William Ellery Channing (Boston, 1899), 506. 45. Levy, Law of the Commonwealth, 51, 57; Robert E. Burkholder, “Emerson, Kneeland, and the Divinity School Address,” American Literature 58 (March 1986): 11. 46. Levy, Blasphemy in Massachusetts, 422. 47. Sarah Barringer Gordon, “Blasphemy and the Law of Religious Liberty in Nineteenth-Century America,” American Quarterly 52 (2000): 715n34. However, Gordon does not provide any evidence for this claim. She cites a series of “profanity” prosecutions, only two of which took place before the Kneeland case, and a series of “Sabbath-breaking” cases, only one of which took place before the Kneeland case. Sabbath breaking, while having implications for blasphemy, is clearly a different kind of offense. The only reported blasphemy prosecutions before Kneeland’s that Gordon cites were People v. Ruggles, 8 Johns (N.Y.) 290 (1811), and Updegraph v. Commonwealth, 11 Serg. & R. (Pa.) 394 (1824). As best I can determine, in addition to those two there were only five reported blasphemy cases before Kneeland in the United States: Muzzy v. Wilkins, Smith (NH) 1 (1803); In re Bell, 6 City Hall Rec. 38 (1821); People v. Porter, 2 Parker Cr. R. (NY) 14 (1823); Barclay v. Hargrave, 16 NJ Law 1 (1837); and State v. Chandler, 2 Harr. (Del.) 553 (1837). Both Bell and Porter ended in acquittals. There were also a few reported cases for “profane swearing,” which might be seen as a form of blasphemy but is in fact something quite different; see Holcomb v. Cornish, 8 Conn. 375 (1831); Odell v. Garnett, 4 Blackf. (Ind.) 549 (1838). In the end, blasphemy is the crime of “the wilfull denial of the existence of God” (“Trial of Abner Kneeland,” 13 American State Trials at 576, paraphrasing the charge of Judge Wilde), denouncing holy figures (such as publicly declaring “that the Virgin Mary was a whore and Jesus Christ was a bastard,” Chandler, 2 Har. [Del.] at 553), or “malicious reviling of Christianity” (Updegraph, 11 Serg. & R. at 401). 48. Levy, Blasphemy in Massachusetts, 422. 49. Ruggles, 8 Johns (NY) at 290, 293.

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50. In Stansberry v. Marks, 2 Dall. (Pa.) 213 (1793), the Pennsylvania Supreme Court fined “Jonas Phillips, a Jew, as a witness,” when “he refused to be sworn, because it was his Sabbath.” Four decades later it supported this jurisprudence, noting in another case involving a Jew, “It never has been held except in a single instance, that the course of justice may be obstructed by any scruple or obligation whatever. . . . Rightly considered, there are no duties half so sacred as those which the citizen owes to the laws. . . . That every other obligation shall yield to that of the laws, as to a superior moral force, is a tacit condition of membership in every society, whether lay or secular, temporal or spiritual, because no citizen can lawfully hold communion with those who have associated on any other terms, and this ought, in all cases of collision, to be accounted a sufficient dispensation to the conscience.” Philips v. Gratz, 2 Pen. & W. (Pa.) 412, 416–17 (1831). 51. Obviously this would change at the end of the century. 52. For example, Millard Fillmore’s presidential campaign on the KnowNothing ticket in 1856. See Paul Finkelman, Millard Fillmore (New York: Times Books, 2011). 53. People v. Phillips (NY, 1813), reprinted in Western Law Journal 1 (1843): 109. For a discussion of this issue, see Spencer Weber Waller and Natasha Leigh Chefetz, “Clergy Privilege in Civil and Criminal Litigation,” in Finkelman, Religion and American Law, 89–92. 54. In theory, Jews challenged the divinity of Christ by rejecting the entire New Testament. In the seventeenth century, authorities in Maryland charged Jacob Lumbrozo with the capital crime of blasphemy for denying the divinity of Christ, but his capital sentence was commuted to expulsion from the colony. That seems to be the only instance in America, before or after independence, when a Jew was accused of blasphemy simply for being a Jew. See Levy, Blasphemy, 255. 55. Gordon, “Blasphemy and the Law of Religious Liberty,” discusses the connection between the LDS Church and blasphemy. Clearly, however, the vicious persecution of the Mormons went well beyond traditional blasphemy cases. See Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830–1900 (Urbana: University of Illinois Press, 1989). 56. Kneeland’s experience in jail, in an ironic sense, perhaps had Biblical implications: “Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me” Matthew 25:36 (KJV). 57. Theodore Parker to George Ellis, quoted in Levy, Law of the Commonwealth, 58. See n. 18. 59. “Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413 (1966). See generally Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (New York: Random House, 1991) for the best history of the law of obscenity.

chapter 5

Secular Blasphemies Symbolic Offense in Modern Democracy robert a. yelle

On July 27, 1656, Baruch de Spinoza (1632–77) was excommunicated by the elders of the Portuguese Jewish community in Amsterdam for heresy. The text of the proclamation of banishment stated in part, We excommunicate, expel, curse and damn Baruch de Espinoza, . . . cursing him with the excommunication with which Joshua banned Jericho and with the curse with which Elisha cursed the boys and with all the castigations which are written in the Book of the Law. Cursed be he by day and cursed be he by night; cursed be he when he lies down and cursed be he when he rises up. The Lord will not spare him, but then the anger of the Lord and his jealousy shall smoke against that man, and all the curses that are written in this book shall lie upon him, and the Lord shall blot out his name from under heaven. And the Lord shall separate him unto evil out of all the tribes of Israel.1

It is not entirely clear which heresies Spinoza was excommunicated for, though some accounts indicate that he was accused of professing disbelief in God and in the law of the Torah. The prescribed punishment was banishment. Despite additional persecutions from Dutch authorities, Spinoza lived out the remainder of his short life plying his trade as a lens grinder and writing works of philosophy that contributed to what Jonathan Israel has called “the Radical Enlightenment.”2 Spinoza died at the age of forty-four a secular Jew, having never converted to Christianity. The Jewish elders invoked Joshua and Elisha in cursing him. These were dreadful historical precedents. During the siege of Jericho, Joshua 141

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commanded, “And the city and all that is within it shall be devoted to the Lord for destruction,” and his people “utterly destroyed all in the city, both men and women, young and old, oxen, sheep, and asses, with the edge of the sword” (Joshua 6:17, 21).3 Elisha’s curse was only slightly less deadly: when some boys mocked him, he cursed them, and two she-bears devoured forty-two boys (2 Kings 2:23–24). The punishment of Jericho was an example of the war curse known as h. erem (‫)חרם‬, which commanded the complete extermination of an opposing tribe and combined elements of an irrevocable sacrifice (see Leviticus 27:28– 29) with punishment for severe religious violations.4 The curse against Spinoza was also a h. erem, a term often translated as “ban” or “proscription,” although “devotion to destruction” is more descriptive. Such a terrible curse pronounced against Spinoza as part of a punishment for heresy might be thought to illustrate the continuity of the ancient Hebraic law’s authority and its enduring ability to police the boundary between sacred and profane. Yet a crucial difference between the biblical h. erem and this seventeenth-century deployment is immediately apparent. Spinoza was not executed by a state, merely excommunicated by a religious community. He had earlier taken refuge in an increasingly secular Dutch society, in which the power of the ban imposed by the Jewish community was limited. Spinoza went by the Latin version of his given name—Benedict—and lived among the Christians. His case illustrates the transformation of heresy and blasphemy in secular modernity. With the political decline of Judaism from an independent nation to a minority religious community, the force of the h. erem diminished significantly. Because of the church-state divide that has become normative under secularism, the punishment for religious offenses generally, not only in Judaism, has been gradually limited to excommunication. Although the United Kingdom’s blasphemy laws were repealed only in 2008, the last person executed (by hanging) there for blasphemy was Thomas Aikenhead in 1697.5 The seventeenth century represented something of a watershed for religious freedom in this and other respects. However, as I shall argue, secularism does not represent anything as simple as the disappearance of the notions of blasphemy or heresy. Instead, these notions have been continued and modified, sometimes in subtle ways. This chapter first traces some of the changes in these religious offenses under secularism and describes what they suggest about the status of the sacred-secular divide in contemporary society. It then focuses on the contemporary United States, where some popular movements, leading

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intellectuals, and jurists seek to perpetuate something similar to the offense of blasphemy in their efforts to ban flag burning and hate speech. Rather than rehearsing the arguments of legal scholars based on U.S. constitutional law, I aim to situate the contemporary phenomenology of blasphemy in a longer history of religion and of secularization, a term I will use in the common way to denote the decline of institutional religious authority and the rise of a monopoly on law and punishment by the civil authority. Despite the official demise of the old blasphemy laws, we moderns have our own inviolable sensibilities, which are attached to certain identities and objects. Often these constitute cultural markers of difference. Recently, Talal Asad and Saba Mahmood have criticized the dichotomy of “religious” societies, which are supposedly intolerant, as signaled by their punishment of blasphemy and heresy, versus “secular” societies, which have abandoned such archaic notions in favor of free speech and social critique.6 This dichotomy, which has encouraged the notion of a “clash of civilizations” between Islamic and Western societies, is both self-serving and reductive. It ignores the injuries that derogatory words or images depicting objects of veneration, such as the Prophet Mohammed, may cause, as occurred with the infamous cartoons that the Danish newspaper Jyllands-Posten published in 2005. Such injuries are marginalized or rendered invisible, from a legal perspective, by normative concepts of privacy and freedom of speech in much of the contemporary West and by a triumphalist narrative of secularization that would relegate them to a category of “religious blasphemy” supposedly transcended through an inevitable process of the decline of religious authority and of an increasing freedom of religion for the individual citizen. A careful analysis of the differences between Muslims and secularists or secularized Christians regarding the relative values of private belief, public expression, and the power of images helps to destabilize such dichotomies and enable a more fruitful dialogue on issues of mutual concern. I sympathize with these critiques. In particular, the notion of a rigid dichotomy between religious and secular societies, according to whether they do or do not punish blasphemy, ignores the fact that many modern, supposedly secular Westerners are sensitive to symbols and identities they wish not to be defiled. The discussions below of flag burning and hate speech illustrate this. Nevertheless, there are certain differences between modern, or “secular,” and traditional, or “religious,” concepts of blasphemy. Spinoza’s case illustrates a level of intellectual freedom

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and social critique that would have been rare, if not unthinkable, before (or even since) the European Enlightenment. There is, surely, a difference between the fatwa that calls for the death of a blasphemer and the milder punishment of excommunication that Spinoza suffered. Although excommunication is undoubtedly a serious penalty for a believer and can entail a form of what we metaphorically call social death, it cannot be compared with either capital punishment or the extinction of all civil rights that comes from a general banishment. Another major difference, at least in the United States, concerns the legal protection accorded to most speech, including certain actions (such as flag burning) that are regarded as primarily expressive and therefore speechlike. These legal protections depend on the viability of the distinction between speech and action, or between ordinary action and action that is primarily symbolic. Some important thinkers, including Mahmood, have called this distinction into question. According to them, it emerged from a secular disestablishment of blasphemy that ignores the real harm that hateful speech, just as much as injurious action, may cause. In the analysis that follows, I attempt to situate such discussions in a longer history of blasphemy and its modern transformation. While acknowledging the instability of the distinction between speech and action, I call into question some of the arguments that have been deployed in favor of undoing or weakening this distinction.

profanation and the “decline” of the sacred The idea of blasphemy includes what can be described as “symbolic offenses against the sacred,” or what is deemed inviolable.7 According to classical theories of secularization, the sacred has declined or even vanished in modernity. This immediately raises a question: what role does or can blasphemy play in a society that is supposedly secular? Conversely, does the ongoing fact of symbolic offenses against the sacred, which has been raised to public prominence again as a result of increasing religious diversity and public debates over religious difference, prove that secularization is a myth? How do contemporary notions of symbolic or identity offense—“secular” blasphemy—differ, if at all, from more traditional forms of “religious” blasphemy? The ban of h. erem laid on Spinoza already illustrated the attenuation of the power of the sacred. That which was “devoted to destruction,” no less than that which was labeled “holy” (‫)קדש‬, was separated absolutely from common usage. The root word ‫חרם‬, like ‫קדש‬, means alternatively

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“sacred” or “prohibited” in various Semitic languages. Both denote items that are tabooed or interdicted, cordoned off by severe prohibitions. The dangerous power of the holy is illustrated by Uzzah’s death at touching the Ark of the Covenant (2 Samuel 6:6–7) and by Nadab and Abihu’s being consumed by fire for offering improper sacrifices to God (Leviticus 10:1–2). That same power is also illustrated by Saul’s loss of his kingship as a result of failing to execute the h. erem that had been laid on the Amalekites (1 Samuel 15). Samuel cursed him for having let Agag, the king of the Amalekites, live, along with his people’s choicest cattle. Part of the leveling function of secularization has been to deny the distinctions encoded in older systems of ritual prohibition. Together with the Mosaic distinction between pure and impure, already relativized by Paul’s rejection of the Mosaic law’s separation of Jew from gentile, the distinction between sacred and profane has gradually eroded. Chief among the targets of this leveling has been the Bible itself, which has come to be treated much like other secular books. Spinoza contributed significantly to the rise of a historical criticism of the Bible that began by interrogating its divine origins and status as a mode of revelation. He was one of the earliest to argue that Moses could not have authored the Pentateuch. More than a century later, Thomas Paine, in his Age of Reason (1794)—which led to his being charged with sedition and his publishers convicted of seditious and blasphemous libel—pointed out that, in addition to stylistic inconsistencies and historical discrepancies, the so-called Five Books of Moses contained events that their supposed author could not have observed, including his own death and burial, “for certainly Moses could not himself tell where he was buried.”8 Such deist criticisms reflected a broader rationalization, which Christopher S. Grenda also describes in chapter 1, a process that resulted in what we might call a republic of retorts or an economy of insult, in which religion increasingly came under criticism. Jeremy Bentham (1748–1832), the English utilitarian philosopher and legal reformer, played a notable role in these developments. He was a proponent of the separation of church and state who rejected the arguments of William Blackstone (1723–80) supporting the laws against heresy9 and the incorporation of divine law into common law. Blackstone had quoted the proposition of Chief Justice Matthew Hale (1609–76) from a famous blasphemy case that “Christianity is parcel of the laws of England.”10 Against this sacralizing move, Bentham worked to sever civil and ecclesiastical law by establishing a positive law that would be independent of religion. While criticizing Christianity in ways that

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challenged the blasphemy laws, he also rejected religiously based judicial oaths and denied that law required a religious sanction.11 Since Bentham, the principle of utility, as expressed through marketplace forces of valuation and the commodification of an increasing number of goods, has leveled many things formerly held sacred. In a market society in which financial transactions quantify value, the notion that holiness inheres in certain objects or beliefs deserving special protection seems dubious at best. One might say that secular modernity is based on a principle of profanation, breaking taboos and upending sacred perceptions and values. In fact, Karl Marx and Friedrich Engels described this upending process as a chief effect of capital.12 However, Marx suggested that even in this destabilizing and leveling process, venerating proclivities continued, in what he called “commodity fetishism,” the transference of sacred values to secular objects that thus acquire a value quite apart from any use or function they might have.13 Some early twentieth-century movements, including Dadaism and surrealism, criticized this aspect of capitalism, especially as it had encroached on other domains, such as the aesthetic, that were supposedly free from commercialism. Marcel Duchamp’s Fountain (1917) was a manufactured urinal displayed as a work of art. For some, this desecrated the sanctity of art, by associating it with bodily waste and industrial production. However, Duchamp’s provocation arguably only rendered explicit a debasement of aesthetic value that had already occurred. In similar fashion, decades later, Andy Warhol’s iconic representations of Campbell’s soup cans and Marilyn Monroe used the power of commodification and the cult of celebrity to suggest the sacral dimensions of capitalism. Such cases may be read ambivalently, as continuing the process of profanation that has accelerated under capitalism or as revealing repressed continuities between earlier religious techniques of sacralization and the present-day logic of commodity fetishism. The process of profanation, though asymptotically approaching a total evacuation of the sacred, appears to depend on a residue of sacrality that may be ineradicable. Giorgio Agamben has asserted a contrarian view of the relationship between secularization and profanation. He distinguishes secularization, meaning the decline of the sacred, from profanation, which depends on and inverts the sacred.14 Rather than identifying modernity with profanation, Agamben laments its inability to truly profane: as profanation means desecrating the sacred, whether by defacing it or appropriating it for common use, then the disappearance of the sacred, which Agamben believes has happened, means the impossibility of

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profanation. It is this impossibility, not desecration itself, that he mourns.15 In his inversion of values, the truly liberating human experience is profanation, which he views as increasingly harder to achieve. As examples of the kinds of profanation that modernity has disabled, Agamben points to ritual play and religious festivals.16 Many scholars have noted that numerous cultures include periodic rituals that symbolically invert the social hierarchy and license a temporary release from social norms. The lords of misrule, feast of fools, medieval charivari, and similar customs may survive in some modern-day carnivals.17 Insults are also common in certain traditional rituals described by anthropologists, such as the jokes and taunts that A. R. Radcliffe-Brown catalogued or Max Gluckman’s “rituals of rebellion.”18 This further complicates the picture of a straightforward decline from “sacred” to “secular.” The idea that profanity is especially common in modern society is widespread. However, if cultures supposedly possessing strong notions of the sacred have cultivated outbursts of profanity, is the stereotype of a reverent past simply mistaken? Many would argue an opposite view: namely, that the dramatic, inyour-face culture of obscenity for its own sake or for the sake of provocation is uniquely modern, at least to the degree to which we are now experiencing it. The American Jewish writer Philip Roth, whose profanities Jacques Berlinerblau’s chapter 2 quotes in unexpurgated form, would appear to be a case in point. However, as Berlinerblau shows, Roth’s most graphic declarations on sexual and excretory proclivities coincided with the end of efforts in the United States to ban obscenity in literature. In a strictly legal sense, then, it does appear that, as Agamben suggests, it has become impossible to profane. This may, however, represent not the decline of the sacred that he diagnoses but rather, as Berlinerblau describes, the migration of obscenity from the domain of law and punishment to that of civil society and social sanction. For various reasons already noted, although the crime of blasphemy may have declined, together with the decline of the legal authority of the Christian churches, the idea that modernity represents a simple trajectory from sacred to secular appears distinctly untenable.

the semiotics of profanity: speech acts, name taboos, and iconoclasm One way that secularization has supposedly affected the understanding of blasphemy is by introducing a semiotic less attuned to the power of

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images. Saba Mahmood has traced part of the Euro-American cultural incomprehension of Muslim injury over derogatory images of Mohammed to a secularist commitment to the arbitrariness of signs and their severability from more embodied and affective ways of knowing. She argues against viewing Islam through a secularist semiotic, drawing on Webb Keane’s argument that European modernity is partly constituted by a Protestant ideology that posits the autonomy of the subject from the sign. This development earlier attacked the performative and pragmatic dimensions of language and ritual in Catholic tradition.19 The new ideology, which anticipated the modern idea of the arbitrariness of the sign, rejected any substantive identity between language and physical reality. Henceforth, speech was supposed to be a transparent expression of sincere intention or (ideally) an accurate reflection of the world but not a source of magical power. This helped to create a dichotomy between speech and action. There does appear to be a difference, if not an unbridgeable divide, between traditional and modern views of signs: words, images, and other symbols. This divide has had consequences for symbolic offenses against the sacred. As Mahmood and Keane have noted, the Reformation profoundly influenced the development of the semiotic ideology of modernity.20 Protestant literalism and iconoclasm created a new economy of the sign, one that subordinated its poetic and performative dimensions. Polemics against ritual, against “vain repetitions” in prayer, and against typological interpretations of the Bible signaled a dramatic shift. The insistence on a literal reading of the Bible and other texts coincided with a privileging of semantic-referential over pragmatic-performative functions and promoted the idea of a univocal language—one word having one meaning, and vice versa—as a corollary of monotheism. The translation of scripture into the vernacular coincided with reforms reducing or eliminating much of the poetry of earlier liturgy. Pagan idolatry and polytheism were characterized as mistaken attributions of concreteness to language, beginning with the names of the pagan gods. We could describe this shift overall as a semanticizing of language. It contributed to the disenchantment of the sign, the reduction of linguistic and other signs to a supposedly transparent medium of communication rather than a power or force in their own right. As articulated by John Locke and other Enlightenment figures, this movement anticipated, in some respects, the contemporary structuralist doctrine of the arbitrariness of the sign, with the caveat that scientific knowledge was thought to be capable of bringing words into conform-

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ity with true knowledge. Brian Vickers has labeled this the shift from “identity” to “analogy,” from a magical view of the inextricable interconnection of a sign with its referent to the idea that such a relation is more remote or even entirely arbitrary.21 Mahmood and Keane emphasize the performative and pragmatic— that is, worklike and effective—dimensions of linguistic and other signs as an effort of recovery against a centuries-long process of repression. This scholarly effort is ongoing and incomplete. It will require that far more attention be paid to the semiotic ideologies of other cultures and historical periods. For example, in the English liturgy on the eve of the Reformation, as in many cultures, poetic devices played a crucial role in reinforcing the rhetorical and performative dimensions of language;22 these were largely stripped out as a result of the reformers’ bias toward the semantic.23 Similarly, the declaration of h. erem against Spinoza used parallelisms—a device common in the Hebrew Bible—to reinforce its message: “Cursed be he by day and cursed be he by night; cursed be he when he lies down and cursed be he when he rises up.” It also used the device called historiola, invoking mythic paradigms—the curses enacted by Joshua and Elisha—as precedent for the curse against Spinoza.24 Punishments imposed for blasphemy in early England as in some other cultures were also often symbolic, involving burning or boring through the tongue or branding with a B.25 Such uses of analogy and poetry served to reinforce the appearance of naturalness of arbitrary social institutions. Investment in the power of images, whether verbal, plastic, or pictorial, stands at the core of many traditional religions. This investment is the precondition for the offense of blasphemy, for if the image were of no account, its defacement would not elicit strong reaction. The notion that certain images are inviolate is expressed, for example, in the taboo placed in the Hebrew Bible on not only seeing God but also pronouncing his four-letter Hebrew name.26 Instead, one is supposed to say Adonai (Lord), and the vowels of ‫ יהוה‬are pointed in such a way as to remind one of this. The secrecy of the name in many traditions is designed to prevent magical control over its bearer. Hinduism as well, in which images are ubiquitous, includes encryptions of the true name of the god. Br. hada-ran. yaka Upanisad 4.2.2 declares, “The true name of the person in the right eye is Indha. Even though he is really Indha, people cryptically call him ‘Indra,’ because gods in some ways love the cryptic and despise the plain.”27 The name taboo is so widespread that it appears in popular culture: the villain in J. K. Rowling’s Harry Potter series is called “He Who Must Not Be Named,” but those who defy this taboo

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call him by his assumed name, Voldemort, and the wisest wizard, Albus Dumbledore, even refers to him by his given name, Tom (Riddle), to challenge the aura of power that the name taboo creates. The last example points to a theme that cuts across traditional and contemporary societies: the blasphemous, profane, or obscene often derives its force from the violation of a name taboo or other form of secrecy. The comedian George Carlin’s “Seven Words You Can Never Say on Television” depends on violating such taboos, as does Eve Ensler’s The Vagina Monologues. As noted above, ritual insults and even insult contests (such as flyting in Old English and Norse) are found in many traditional societies. But modernity specializes in violating such taboos, and not merely on ritually circumscribed occasions.28 A powerful argument for freedom of speech is that such name taboos have historically buttressed the hegemony of religious orthodoxy, with their violation representing a freedom to criticize authority. The ability to name something is, if not the power to control it, at least a means of release from its power. A flaw in this argument is that it does not, and perhaps cannot, distinguish between name taboos that reinforce authority and those that enhance individual or collective dignity by outlawing slurs against minority groups. “Secular” and “religious” cultures appear to share certain principles of profanation. Among the most common is the juxtaposition of discordant elements, particularly, in the context of blasphemy, prototypically sacred and profane items.29 Andres Serrano’s Piss Christ (1987) is one example; another is Antiochus IV Epiphanes’s desecration of the Jewish Temple by sacrificing swine’s flesh to Zeus on an altar there, precipitating the second-century b.c.e. Maccabean revolt. Another technique involves the caricatured distortion of the features on an individual, either facial features or mannerisms. This is not completely new either, nor limited to ridicule. Some have interpreted the exaggerated hips and breasts of female figurines from ancient societies as representing a “Great Mother,” or goddess of fertility; in this case, the principle of metonymy or synecdoche—of one part standing for the whole—combines with or constitutes exaggeration. Something similar may inform . the representation of the Hindu god Shiva by means of his linga, or phallus. Such modes of reduction-and-exaggeration may be reverential or demeaning. Thus, calling a man a prick or a woman a cunt or referring to either as an asshole exemplifies a basic mode of insult. The cartoon has always depended on a recognition and exploitation of the emotional investment in the power of the image, the drive to vio-

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late taboos on representation, and a quasi-magical belief that the manipulation of the image may reveal or even influence reality. Ernst Gombrich argued that the caricature—meaning a pictorial representation that exaggerates or otherwise distorts the features of a recognizable individual person—began only in the sixteenth century.30 The caricature or cartoon itself may be uniquely modern. However, the direct antecedents of the Jyllands-Posten cartoons are burnings in effigy and other symbolic punishments in absentia that were thought to affect the target at a distance.31 Such modes of punishment have also been applied to blasphemers, and to their publications, indicating that these symbolic actions have proved appealing to both blasphemers and censors.32 The principles of cartoon and caricature have long existed, even if the modern form of targeting recognized public figures has not. Therefore, I cannot agree entirely with the argument, expressed by Mahmood and others, that a major difference between Muslims and secularist Westerners is the inability of the latter to appreciate the power of the image. Those revering an image and those destroying or defacing it converge in their belief in its importance, even while using this for different ends. Ancient Israelites revered the name and figure of God while zealously rejecting image worship and destroying the idols of false gods. Who was more convinced of the power of the image: the Catholics who created images of the saints or the Protestant iconoclasts who destroyed such images? Iconoclasts are sometimes unbelievers, intent on dishonoring the sacred, such as the Republicans who desecrated churches and exhumed and displayed the religious dead during the Spanish Civil War.33 Yet iconoclasm draws part of its rationale from the gravity of the image it defaces or destroys. How do we then distinguish blasphemy from iconoclasm? Whereas Leonard W. Levy uses Diagoras of Melos, who threw a wooden idol into the fire and challenged the god thus abused to rescue his image from the flames, as an example of blasphemy, this appears to be at least equally a case of iconoclasm.34 Genesis Rabbah 38.13 tells a similar story about Abraham, who destroyed the idols made in his father-in-law Terah’s workshop, then, tongue in cheek, claimed that they had destroyed one another. Clearly Abraham, as the patriarch of iconoclastic monotheism, was scarcely unaware of the power that images wield. Islam itself serves as an illustration of the convergence of reverence for the image with blasphemy and iconoclasm. Though Mahmood argues that Muslims are deeply attached to the image of Mohammed, this attachment does not depend on any general belief in the sanctity of

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images or their nonarbitrary status. It is perfectly compatible with the destruction of the images of other religions, as in the case of the Taliban bombardment of the Bamiyan Buddhas. The point to consider is that the publishers of the cartoons of Mohammed in Jyllands-Posten practiced a related version of (ir)reverence and iconoclasm. Despite their evincing a modern semiotic, a secular disenchantment with the religious sign that may partly reflect the legacy of the Reformation, their iconoclasm did not prevent them from recognizing the power of signs—quite the contrary.

symbolic offenses in contemporary america In the contemporary United States, the practice of condemning symbolic offenses against sanctities deemed inviolable arguably continues in at least two “secular” forms: laws against flag desecration and the misappropriation of government symbols, and laws against hate speech directed against minorities. Both disclose important features of blasphemy’s “secularization,” or rather migration outside the traditional religious context. While inert vestiges of religious blasphemy laws can still be discovered in state statutes, Americans now reserve their most solicitous protections for objects of civil adoration. The 2012 case United States v. Alvarez involved Xavier Alvarez, a candidate for a local water district board in California who falsely claimed to have received the Congressional Medal of Honor for service in the U.S. military.35 The case required the U.S. Supreme Court to determine the constitutionality of the Stolen Valor Act of 2005. This act, signed into law by President George W. Bush, made false statements concerning one’s military honors punishable by fine or imprisonment. It reads, “Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”36 The court found the law to be unconstitutional and held that even false speech that is not otherwise illegal is constitutionally protected. Following the decision, some congressional representatives have sought to pass an amended law that would survive constitutional challenge by narrowing the prohibition to fraudulent speech, meaning false speech made for monetary gain.

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The name of the Stolen Valor Act was borrowed from the title of a 1998 book that recounts false claims of service in the Vietnam War, the ill treatment of veterans of that conflict, and the post-traumatic stress disorder they suffered.37 On July 12, 2005, Congressman John Salazar (D-CO) gave the following reasons for introducing the act: I wish to pay tribute to these brave individuals and to those men and women currently serving our Nation overseas. The Nation’s highest award [the Medal of Honor] is facing a serious challenge to its meaning and symbol. I am outraged by the impostors who claim they have received this and other honors the military awards for deeds and actions of soldiers. These criminals not only dishonor themselves, but they dishonor the sacrifice that true recipients have made. That is why, Mr. Speaker, I plan to introduce the Stolen Valor Act of 2005 next week. This piece of legislation will make it easier for Federal law enforcement officials to prosecute phonies and impostors and restore the true meaning of these illustrious awards. I hope my colleagues can join me in this effort to reclaim the meaning of honor and bravery and sacrifice in these United States.38

Salazar’s rationale was unrelated to monetary fraud. Instead, he sought to protect a different value: the “meaning and symbol” of honor, bravery, and sacrifice. Another provision of the U.S. Code already made it illegal to sell such medals.39 The post-Alvarez effort to criminalize fraudulent claims of military honors thus represents a compromise between the desire of some to outlaw such profanations and the Supreme Court’s efforts to protect free speech. Federal law already prohibited the wearing of military service decorations not rightfully earned.40 The same chapter of the U.S. Code also makes it illegal for unauthorized persons to wear the uniform of any member of the U.S. armed forces;41 to use the symbol of the 4-H Clubs or the words “4-H Clubs,” with or without intent to defraud;42 or even to use “knowingly and for profit” the character or name of Smokey the Bear or Woodsy Owl.43 None of these prohibitions was in question in Alvarez. But the Stolen Valor Act attempted to go further, by criminalizing false verbal claims about having earned a military medal. The rationale for such laws appears to be that the U.S. government requires control over the symbols of its authority and the ability clearly to identify its agents in order to function effectively. Thus it reasonably makes illegal the impersonation of federal officials.44 The logic of prohibiting the impersonation of active-duty troops in time of war is even stronger. The potential harm of false claims of past military service in a civilian context is naturally much lower.

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The Stolen Valor Act attempted to protect a value that is almost entirely symbolic rather than functional. The act had less in common with the law preventing the impersonation of a federal official than with the law that introduces the same chapter of the U.S. Code, which prohibits the “desecration of the flag of the United States”: “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.”45 The Supreme Court declared a similar Texas statute unconstitutional in Texas v. Johnson (1989). In that decision, it defined flag burning as symbolic speech communicating a political message, the offensiveness of which did not render it unprotected.46 Congress responded by amending the federal flag desecration law, framing its intent as the preservation of the physical integrity of flags rather than the prevention of offensive speech.47 The court struck down this effort too, arguing that the desire to protect the flag’s material substance rests on its importance as a symbol, the burning of which remains protected “speech” because it communicates a message.48 Subsequent efforts to amend the U.S. Constitution to prohibit flag desecration have been unsuccessful. Several states had or have laws prohibiting the desecration of venerated objects. In Texas v. Johnson, the court overturned the Texas Venerated Objects Law.49 Such laws often designate churches, public buildings, and flags as sacrosanct objects. Although many of these laws are of dubious constitutionality or have been overturned, they point toward the phenomenology of blasphemy in America, a nation where affective attachments to the symbol similar to those that have traditionally been associated with religious conceptions of blasphemy continue in the modern age. The desire to preserve real property does not in itself explain the grouping of only certain types of structures, including symbols of church and state authority, as requiring special legal protection from vandalism or desecration. Laws such as the Stolen Valor Act are intended to prevent injury to the majesty of public symbols, which can either be related to traditional religion or inform a kind of modern, civil religion.50 These laws maintain an important function of traditional antiblasphemy prohibitions: the commingling of inviolable sensibilities with the power of the state, such that a challenge to symbolic authority is tantamount to lèse majesté.51 The changing legal and semiotic status of the image under secularization thus has not precluded continued efforts to designate privileged

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objects and symbols for special legal protection. Many Americans regard the flag as inviolable, the secular form of a sacred object, considerably more than an arbitrary expression of national identity. This view contests some standard analyses of our civil religion. Sheldon Nahmod, for example, has applied a structuralist semiotic to the American flag: The American flag is a rectangular piece of cloth with the colors red, white and blue arranged in stars and stripes. Standing alone, like markings on a piece of paper, the flag lacks meaning. . . . What is signified by the American flag has no natural or necessary relationship to that signifier; rather, what is signified by the American flag is solely a function of socially created conventions. Just as words have no meaning apart from the conventions of the language in which they appear, and apart from their relation to other words in that language, the American flag similarly has no meanings apart from those conventionally given to it by those who see it.52

Though the meaning attributed to the U.S. flag may be arbitrary, this notion only raises the question of how such arbitrary symbols come to be invested with great importance and authority, akin to traditional conceptions of the sacred. For Americans, the U.S. flag is equivalent to what used to be called a totem, a symbol of the group. Émile Durkheim developed an anthropological account of the totem in identifying society itself or the group’s sense of identity as the source of the sacred. He sketched the primal scene of a group ritual in which effervescence or exuberance is projected on to the totem, investing it with sacral power and authority. The terms of his theory led him to dismiss the contribution that the sign itself made to this power, however. The nature of the “original” totem, he claimed, was revealed in the Australian churinga, a (supposedly) purely arbitrary sign, devoid of any meaning other than that which the group invests in it.53 As I have argued elsewhere, Durkheim’s reductionism leaves little room for a semiotics of religion and culture.54 In the case of the U.S. flag, however, his argument has some legitimacy. The flag’s red, white, and blue may have symbolic associations, but these are not widely known or agreed upon and cannot be regarded as the sources of the symbol’s meaning. Though the fifty stars, one for each state, are iconic rather than arbitrary, the U.S. flag comes close to being Durkheim’s “arbitrary” churinga. It is a symbol meaningless in itself but invested with massive significance as the expression of a group’s identity and history. William Connolly offered another analysis of the flag’s power: “When nationalists in the United States, for instance, demand laws to punish flag burners, they inadvertently expose the black hole at the center of

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the nation. Why not just pull out five new flags each time one is burned? The rage engendered by the flag burning expresses anxiety that the flag covers up the hole at the center of the nation. And it functions to fill that hole with a symbolic substance.”55 Connolly argued that the identity of the nation and the substance of its politics are entirely empty. Being arbitrary, the flag may mean whatever the group in power says: it is a useful cipher, the bare sign of sovereignty. Yet for these very reasons, the flag is indispensable. Connolly points us to the irrationality of our investment in an image that is fungible and reproducible. Any individual flag is just a scrap of cloth; other copies may easily replace it. Walter Benjamin reached a similar conclusion in arguing that mass industrial production, which “by making many reproductions . . . substitutes a plurality of copies for a unique existence,” diminishes or destroys the “aura” of art.56 He highlighted how commodification alienates the image from its local context of production. His analysis was mainly directed at film. There is no doubt that Benjamin captured something essential regarding the transformation of the image under capitalism. Yet the commodification of the flag has not undermined its capacity to represent, metonymically, an entire complex of associations. The flag’s aura differs little from that of the cross in an earlier age, an aura that reproduction did not diminish (even in the absurd multiplication of fragments of the “true cross”). It is in the nature of such symbols to function as tokens of something absent. The transition from handwork to machine production has arguably affected the crucifix little in this regard. If Benjamin is correct that art depends on the uniqueness of the object, then perhaps we need to distinguish between sacred objects and objets d’art more carefully. Or perhaps the yearning for the unique object represents a form of nostalgia, a counterreaction to commodification, and is itself peculiarly modern. A further illustration of the continued aura of the U.S. flag is the protocols for its handling and disposal as prescribed by Florida State University under color of federal and state law, as well as custom. The protocol is titled “Handling/Respect of the National Flag” and states, The flag of the United States should never be handled in a manner that would indicate an attitude of disrespect. The following should be observed. The United States flag should: Never be displayed with the union down except as a signal of dire distress; Never be dipped to any person or thing; Never touch anything beneath it such as the ground, floor or water;

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Never be used as drapery, festooned, drawn back or up in folds; Never be fastened, used or stored in a manner that allows it to be easily torn, soiled or damaged; Never be used as a drape or covering for a ceiling; Never have placed upon it or attached to it any mark, insignia, letter, word, figure design, picture or drawing of any nature; Never be used for receiving, holding, carrying or delivering anything; Never be embroidered on such items as cushions, handkerchiefs, costumes or athletic uniforms and should not be printed on napkins, boxes or other items for temporary use and subsequent disposal.57

Compare this to the rules that Muslims prescribe for the treatment of the Qurʼan. In addition to disposing of worn-out copies by wrapping and storing them, burying them, or in rare cases ritually burning them, Muslims also follow etiquette when using the text: “Quran-handling regulations extend far beyond disposal. Depending on their chosen sect, Muslims are forbidden to touch the Quran during menstruation, allow the book to touch the ground, leave it open after reading, use it as a pillow, or take it into impure places such as the bathroom.”58 It appears that the difference between a “secular” symbol such as the U.S. flag and a “sacred” symbol such as the Qurʼan is not always easy to discern; in any case, it clearly does not depend on a modern embrace of the arbitrariness of the sign.

hate speech The other class of contemporary prohibitions on expression that recalls traditional forms of blasphemy in seeking to designate and protect something as inviolable is hate speech legislation. Such laws have generally been held unconstitutional in the United States. An important exception is when speech involves an imminent physical threat to others, so as to meet the “fighting words” standard of Chaplinsky v. New Hampshire (1942), which developed into inciting “imminent lawless action” in Brandenburg v. Ohio (1969).59 Private organizations have more latitude to regulate speech. Many other democracies, however, maintain legal prohibitions on speech that do not require imminent threats of physical or lawless action. Such prohibitions include those against group defamation or incitement to racial or religious hatred. In addition to having a publicorder rationale, which is generally less demanding than the U.S. “fighting words” standard, such laws are designed to protect minorities from

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defaming insult or ridicule deemed to create a hostile environment. One objection to such laws is that, unlike traditional defamation, the speech act in hate speech contexts may not target an individual and may therefore not meet traditional evidentiary standards of harm. Another objection is that insult and similar events that cause emotional distress are often in the eye of the beholder, as Elizabeth Coleman also notes in chapter 9. Even what constitutes fighting words depends on context and the standards of the community. As Robert Post points out, such prohibitions enforce subjective norms in the guise of such concepts as the “rational person” test: what a reasonable individual would find insulting or hateful.60 Of course, similar standards have often been used in the past to suppress minority opinion labeled blasphemous or seditious. Hate crimes legislation, as opposed to hate speech legislation, imposes a higher penalty on physical crimes, such as assault, that target members of minority groups. Many such laws have been upheld as constitutional in the United States. The fact that hatred against such groups has manifested in lawless action that is not merely imminent but accomplished avoids running afoul of the constitutional protection for most speech. In the dichotomy between speech and action, speech, which is seen as intimately connected with a zone of private conscience, including religious belief, is regarded as more worthy of legal protection than many other forms of behavior. But the distinction between speech and action has come under criticism in recent years. Building on J. L. Austin’s notion of the performative utterance or, as John Searle has called it, the speech act,61 Judith Butler has interrogated the malleability of the characterization of speech as action embedded in American constitutional law. She has demonstrated that the labeling of certain behaviors as either “speech” or “action” by the U.S. Supreme Court and other courts reflects conclusions concerning the legality of such behaviors, conclusions that have already been arrived at on other grounds. She contrasts the Supreme Court’s protection of cross burning, regarded as a form of free speech, in R.A.V. v. City of St. Paul (1992), with the former government policy of “Don’t Ask, Don’t Tell” in the military, which rendered an individual’s declaration of homosexuality potential grounds for dismissal from service.62 There does appear to be an inconsistency, in that the former case found physical actions to be symbolic, classifiable as speech, and protected, whereas in the latter context, verbal declarations not accompanied by other behavior were omitted from the domain of protected speech.

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Peter Danchin has contributed to efforts to call into question the dichotomy between speech and action that has been enforced in U.S. free-speech law. Summarizing and extending Mahmood’s argument, he contends, “Once th[e] embodied and affective nature of the relationship between Muslims and the Prophet is made visible, the notion of moral injury caused by denigrating or purposively offensive speech no longer falls as neatly into an imagined forum internum of private belief or conscience. Rather it suggests a sense of violation—and violence—that strikes at a Muslim’s very being, a sense of wounding against an entire habitus or structure of affect.”63 In his effort to minimize the distinction between conscience and speech on the one hand and the body on the other, Danchin deploys such terms as violence, strikes, and wounding to describe offensive forms of speech. Such metaphors render emotional injuries more vivid by obscuring the boundary between speech and action—as in the phrase speech act. Similarly, the sociologist Anthony Cortese seeks to assimilate hate speech to hate crimes in order to criminalize the former. He defines hate speech as a form of violence—“words that are used to terrorize, humiliate, degrade, ambush, lacerate, pummel, assault, and injure.”64 This accumulation of visceral action verbs rhetorically redefines hate speech as aggressive action. However, erasing the distinction between verbal and physical forms of assault carries dangers, even beyond the risk that, given the subjective nature of emotional injury, it would be difficult to know which verbal or symbolic acts will provoke offense. Indeed, an argument against efforts to minimize this distinction is that they resemble the types of censorship represented by the older antiblasphemy laws, laws which prohibited forms of speech that many now regard as protected. As David Edgar has argued, the prosecution of artistic depictions of homosexuality under obscenity and blasphemy laws has often depended precisely on the inability or refusal to distinguish between action and expression: “[The] most dangerous legacy [of such cases] was not the well-worn notion that the representation of something encourages people to do it, but the new if related idea that to portray is to do. In the [infamous Gay News case, involving a poem about a Roman centurion’s homosexual activity with the dead body of Jesus Christ, the complainant] Mary Whitehouse’s solicitor claimed that there was no material difference between people being portrayed making love on stage or in film and a couple having sex in the street.”65 Butler has articulated a similar criticism of the call made by certain proponents of hate speech prohibitions to erase the legal distinctions between speech and action.

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The fact that in the case of “Don’t Ask, Don’t Tell” “an act of speech in which a sexual intention is stated or implied becomes oddly indissociable from a sexual action” shows that such a call can have unintended consequences potentially dangerous to certain liberal values that many of us treasure.66 Comparing hate speech prohibitions to those against flag burning is instructive. In flag or cross burning, the U.S. Supreme Court has defined the action of desecrating the flag or the cross as a form of symbolic speech, with the effect of expanding freedom of expression. Cortese suggests essentially the reverse, defining hateful speech as a form of action— an assault—for the purpose of narrowing permitted expression. In both cases, an important image is involved, one of civic, religious, or racial identity, which some suggest warrants the protection of criminal law. Cortese could have employed words such as desecrate and defile (rather than pummel and assault) in seeking prohibitions on hate speech, as these appear appropriate to his cause. However, that would have created an association between the punishment of hate speech and that of blasphemy, which would likely have been repugnant to many secularists. I find attractive Elizabeth Coleman’s conclusion in chapter 9 that there should be a limited right to freedom from offense, a right that requires us all to observe standards of politeness in civil discourse but is also limited to what is substantively and contextually reasonable. This would mean that neither those who maintain views that are directly at odds with the values of contemporary liberal societies nor those who express themselves in the context of a full-throated academic debate may reasonably expect to enjoy freedom from offense. Of course, this conclusion resolves none of the thorny issues regarding what constitutes either reasonable behavior or reasonable expectation. The courts will still have to decide what constitutes an absolute minimum legal standard of civility. My comparison of contemporary efforts to criminalize hate speech with earlier efforts to prohibit blasphemous expression will likely raise objections. The contemporary legislation is commonly presented as a reasonable and necessary response to raw bigotry, which undermines the social fabric when expressed publicly. As two proponents of hate speech prohibition explain, “Hate is generally understood as extreme negative feelings and beliefs held about a group of individuals or a specific representative of that group because of their race, ethnicity, religion, gender, or sexual orientation.”67 Criminal law treats hate speech as a simple question of mens rea (guilty mind or intent). By focusing on the

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motives behind the hate, proponents of criminalization deflect attention from the actions themselves. If we are concerned with maintaining social order rather than with someone’s internal state of mind, this focus is arguably misplaced. From another perspective, efforts to prohibit hate speech represent something new in the history of blasphemy. Whereas, in the past, the criminalization of blasphemy focused almost exclusively on protecting the religious symbols of a hegemonic order for the sake of preserving its authority, current protections in multicultural democracies prohibit symbolic offenses against racial, religious, and sexual minorities that majoritarian society has victimized. However, once such protections are codified through the legislative processes, they are incorporated into a governing system of laws and are treated as a reflection of public consensus. In this respect, they appear indistinguishable from older antiblasphemy laws. Like the governing philosophy of liberalism that it seeks to replace, multiculturalism faces difficulties of equal protection. When confronted by such cases as Piss Christ, the Jyllands-Posten cartoons of Mohammed, and Ku Klux Klan depictions of African Americans, for example, where are we to draw the line that separates protected free speech from hate speech that may be prohibited and punished? This question underscores the difficulty of framing a consistent standard of antidefamation.

conclusion Despite the novelty of the shift to protect nonhegemonic groups against hate speech, the contemporary semiotics of profanity exhibits some continuities with the past. The slurs—racial, ethnic, sexist, or homophobic—that are employed against victims of hate speech identify them by one trait, which is taken as the only one that matters. Thus, the N-word refers exclusively to skin color, reducing the vast range of dermal tones to only two: black and white. A further reduction eviscerates every other aspect of humanity of the victim, who is identified exclusively with this one trait, which metonymically stands in for the whole. These types of expressions play off the markers of identity that minorities themselves may proffer. What the one asserts as inviolable, requiring recognition and respect—racial or religious identity—is profaned by the other. Furthermore, the victim is made to stand for the class of all individuals who share this trait, so that violence may be exerted against the class or group as a whole by being directed against the person of the

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individual victim. One of the curiosities in the Jyllands-Posten cartoons is that, while many Muslims objected to what they saw as a specific denigration of the Prophet Mohammed and a violation of the prohibition against displaying his image, from the cartoonists’ perspective he was arguably unimportant in his own person and individuality. Instead he functioned as a representative of a larger entity, identified as terrorism, Islamic fundamentalism, or even Islam as a whole. The principle of substitution that governs the logic of such outbursts of sacrificial violence is inherently symbolic. And so are efforts to regulate it. The key difference that modernization or secularization has made in the treatment of symbolic offenses would appear to reside neither in the semiotics of profanation nor in the simple decline of the sacred, which has endured in some forms (such as the U.S. flag) that seem scarcely to depart from older modes of sacrality. The main difference appears to be that the logic of sacrifice has been extended to value the victim or scapegoat against the dominant combination of church and state. Returning to the example with which I began this chapter, the biblical h. erem represented the apex of a sacrificial logic that demanded purification through the extirpation of the other group: the Amalekites or the Canaanites, for instance. Not only the severity of the punishment imposed on the other but the very denigration of otherness has been challenged in modern democratic societies. The h. erem now has to compete with an alternative discourse that attenuates or even reverses its sacrificial logic. If we are to believe René Girard, this process has deep roots in Christianity, which, by revealing and rejecting the logic of scapegoating, elevated the moral status of the victim above that of the oppressor.68 Girard does not explain why Christianity throughout its long history has often been associated with the enforcement of laws against blasphemy and heresy and has sided with the hegemonic at least as often as the marginalized. Nor does his analysis explain why oppressed ethnicities and sexualities have begun only recently to receive some measure of liberation. Yet his general idea of social evolution as consisting in part of a rejection of scapegoating has some value as a description of certain aspects of the secularization of blasphemy. If we accept this evolutionary account, then the analogy between modernity and Christianity gives further reason both for hope and for concern. For just as Christ crucified gave way to Constantine’s imperial Christianity, current efforts to undo the sacrificial logic of the scapegoat could end by producing the opposite of what they intend: a new hegemonic order.

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notes I thank the editors and the anonymous reviewer for the press for their helpful comments and suggestions for the improvement of this essay. 1. I have taken the text and details of Spinoza’s excommunication from Asa Kasher and Shlomo Biderman, “Why Was Baruch de Spinoza Excommunicated?,” accessed March 4, 2014, www.tau.ac.il/~kasher/pspin.htm. 2. Jonathan Israel, Radical Enlightenment: Philosophy and the Making of Modernity, 1650–1750 (New York: Oxford University Press, 2001). 3. All translations are from the Revised Standard Version of the Bible, unless otherwise indicated. 4. See Phillip D. Stern, The Biblical H . erem: A Window on Israel’s Religious Experience (Atlanta: Scholar’s Press, 1991). 5. The last successful prosecution for blasphemy in the United Kingdom was the infamous 1977 Gay News case, discussed below. 6. Talal Asad, “Free Speech, Blasphemy, and Secular Criticism,” in Asad, Wendy Brown, Judith Butler, and Saba Mahmood, Is Critique Secular?: Blasphemy, Injury, and Free Speech (Berkeley: Townsend Center for the Humanities, 2009), 20–63; Mahmood, “Religious Reason and Secular Affect: An Incommensurable Divide?,” in ibid., 64–100. 7. As Leonard W. Levy shows in Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (New York: Alfred A. Knopf, 1993), in Latin Christian civilization, the category of blasphemy came to incorporate not only direct curses against God or invoking God’s name but all manner of religious deviations: heresy, profanity, and sacrilege. In what follows, I will make no distinction among these categories but will use the terms blasphemy and symbolic offense interchangeably to describe forms of expression, both verbal and pictorial, directed against sacred names, doctrines, and images, including acts of iconoclasm that, while constituting physical destruction or vandalism, appear to be directed against the power of the image itself. 8. Thomas Paine, The Age of Reason, Part II (London, 1795), 8. For a discussion of the impact of this work, see David Nash, Blasphemy in Modern Britain: 1789 to the Present (Aldershot, U.K.: Ashgate, 1999), 76–77. 9. Jeremy Bentham, “A Comment on the Commentaries” and “A Fragment on Government,” ed. J. H. Burns and H. L. A. Hart (London: Athlone, 1977), 407–8. 10. Rex v. Taylor (1676), involving the blasphemy trial of John Taylor. For a discussion, see Nash, Blasphemy in Modern Britain, 160–61. Blackstone quoted this proposition in his famous Commentaries on the Laws of England. See Samuel Warren, ed., Blackstone’s Commentaries, 2nd ed. (London, 1856), 1. 11. See the discussion in Robert A. Yelle, “Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,” Yale Journal of Law and the Humanities 17 (2005): 151–79. 12. Karl Marx and Friedrich Engels, The Communist Manifesto (1848), accessed March 4, 2014, www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm, ch. 1: “All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses, his real conditions of life, and his relations with his kind.”

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13. Karl Marx, Das Kapital, vol. 1 (1867), accessed March 4, 2014, www .marxists.org/archive/marx/works/1867-c1/ch01.htm#S4, ch. 1. 14. Giorgio Agamben, “In Praise of Profanation,” in Profanations, trans. Jeff Fort (New York: Zone Books, 2007), 75–77. 15. Ibid., 73–92. 16. This anticipates his use of carnival as an example of the “state of exception.” See Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), 71. 17. On such practices, see Natalie Zemon Davis, “The Reasons of Misrule,” in Society and Culture in Early Modern France (Stanford, CA: Stanford University Press, 1975), 97–151. 18. A. R. Radcliffe-Brown, “On Joking Relationships,” Africa 13 (1940): 195–210; Max Gluckman, Rituals of Rebellion in South-East Africa (Manchester: Manchester University Press, 1954). 19. Mahmood, “Religious Reason and Secular Affect,” 71–73. See also Webb Keane, Christian Moderns: Freedom and Fetish in the Mission Encounter (Berkeley: University of California Press, 2007). 20. See Robert A. Yelle, The Language of Disenchantment: Protestant Literalism and Colonial Discourse in British India (New York: Oxford University Press, 2013); Yelle, Semiotics of Religion: Signs of the Sacred in History (London: Bloomsbury, 2013), chs. 4–6. 21. Brian Vickers, “Analogy versus Identity: The Rejection of Occult Symbolism, 1580–1680,” in Occult and Scientific Mentalities in the Renaissance, ed. Vickers (Cambridge: Cambridge University Press, 1984), 95. Peter Gay had earlier articulated a similar idea, in “The Rehabilitation of Myth,” in The Enlightenment: An Interpretation, vol. 1, The Rise of Modern Paganism (New York: Knopf, 1966), 237–55. See, e.g., 250: “The Christian logos, for all its debt and resemblance to the logos of the Greeks, was tinged with mystery where the boundaries between the sign and the thing signified, reality and ideal, were wiped away and the human and divine met.” 22. Robert A. Yelle, Explaining Mantras: Ritual, Rhetoric, and the Dream of a Natural Language in Hindu Tantra (London: Routledge, 2003), chs. 4–5; Yelle, Semiotics of Religion, ch. 2. 23. See the discussion of Thomas Cranmer’s reform of the English liturgy in Yelle, Semiotics of Religion, 127–31. 24. On historiola in charms, see ibid., 28. 25. Levy, Blasphemy, 50, 529; Nash, Blasphemy in Modern Britain, 13, 156, 162–63. For a discussion of symbolic or analogical punishments, see Robert A. Yelle, “Rhetorics of Law and Ritual: A Semiotic Comparison of the Law of Talion and Sympathetic Magic,” Journal of the American Academy of Religion 69 (2001): 627–47. 26. See Levy, Blasphemy, 12–13. 27. Patrick Olivelle, trans., Upanishads (Oxford: Oxford University Press, 1996), 57. 28. Consider Maledicta: The International Journal of Verbal Aggression (1977–2005), an entire journal devoted to the history, usage, and meaning of curses, profanity, and expletives.

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29. See S. Brent Plate, Blasphemy: Art That Offends (London: Black Dog, 2006), 60: “Blasphemy is about impure crossings from one side of the sacredprofane divide to the other; about juxtaposing the sacred and the profane in times and places where they are expected to be kept separate; of twisting the profane so that it appears sacred, or making the sacred appear profane.” 30. Ernst Kris and Ernst Gombrich, “The Principles of Caricature,” British Journal of Medical Psychology 17 (1938): 319–42. 31. Yelle, “Rhetorics of Law and Ritual.” 32. Michael Servetus, for example, was burned in effigy (Levy, Blasphemy, 65) before he was captured and burned in person, while Lodowick Muggleton’s book was burned (ibid., 223). 33. Bruce Lincoln, Discourse and the Construction of Society: Comparative Studies of Myth, Ritual and Classification (New York: Oxford University Press, 1992), 103–27. 34. Levy, Blasphemy, 6. 35. United States v. Alvarez, 132 S. Ct. 2537 (2012), decided June 28, 2012. 36. Stolen Valor Act of 2005, 18 USC 704(b). 37. B. G. Burkett and Glenna Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History (Dallas: Verity, 1998). See, e.g., “The Purple Heart Flea Market,” 349–53. 38. 151 Cong. Rec. H. 5643. 39. 18 USC 704(a). 40. Ibid. See also Ramya Kasturi, “Note: Stolen Valor: A Historical Perspective on the Regulation of Military Uniforms and Decorations,” Yale Law Journal 29 (2012): 419. 41. 18 USC 702. 42. 18 USC 707. 43. 18 USC 711 and 711(a), respectively. 44. 18 USC 1912. 45. 18 USC 700(a)(1). 46. Texas v. Johnson, 491 U.S. 397 (1989). 47. Flag Protection Act of 1989, Pub. L. No. 101–131, 103 Stat. 777 (amending 18 USC 700). 48. United States v. Eichman, 496 U.S. 310 (1990). 49. Venerated Objects Law, Tex. Penal Code Ann. Sec. 42.09(a)(3). 50. For a discussion of civil religion as it relates to the Pledge of Allegiance to the U.S. flag, see Grace Y. Kao and Jerome E. Copulsky, “The Pledge of Allegiance and the Meanings and Limits of Civil Religion,” Journal of the American Academy of Religion 75 (2007): 121–49. 51. See Nash, Blasphemy in Modern Britain, 1. 52. Sheldon Nahmod, “The Sacred Flag and the First Amendment,” Indiana Law Journal 66 (1991): 512. 53. Émile Durkheim, The Elementary Forms of the Religious Life, trans. Joseph Ward Swain (New York: Free Press, 1965), 144, 148–49. 54. Yelle, Explaining Mantras, 114–16. 55. William E. Connolly, Why I Am Not a Secularist (Minneapolis: University of Minnesota Press, 1999), 86.

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56. Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction” (1936), translation at www.marxists.org/reference/subject/philosophy /works/ge/benjamin.htm. 57. “4-OP-B-7 United States Flag Etiquette,” Florida State University, January 1, 2014, http://policies.vpfa.fsu.edu/bmanual/flag.html. 58. Brian Palmer, “Don’t Burn after Reading: What’s the Right Way to Dispose of a Quran—or Any Other Sacred Text?,” Slate, February 22, 2012, www .slate.com/articles/news_and_politics/explainer/2012/02/afghan_quran_burning_ protests_what_s_the_right_way_to_dispose_of_a_quran_.html. 59. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) at 573; Brandenburg v. Ohio, 395 U.S. 444 (1969) at 447, 449. 60. Robert Post, “Hate Speech,” in Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein (New York: Oxford University Press, 2009), 123–38. 61. J. L. Austin, How to Do Things with Words (Cambridge: Harvard University Press, 1975); John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969). 62. Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997). For the Supreme Court decision, see R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 63. Peter G. Danchin, “Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred,” Duke Forum for Law and Social Change 2 (2010): 31–32. 64. Anthony Cortese, Opposing Hate Speech (Westport, CT: Praeger, 2006), 9. 65. David Edgar, “From the Nanny State to the Heckler’s Veto: The New Censorship and How to Counter It,” in Hare and Weinstein, Extreme Speech and Democracy, 585. For more on the Gay News case, see introduction, n. 3. 66. Butler, Excitable Speech, 76. 67. Michael Waltman and John Haas, The Communication of Hate (New York: Peter Lang, 2011), 2. See also 33. 68. René Girard, The Scapegoat (Baltimore: Johns Hopkins University Press, 1986), 198–212.

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Civility, the Sacred, and Human Rights

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chapter 6

Muslim Political Theology Defamation, Apostasy, and Anathema ebrahim moosa

Pakistan and Afghanistan are not only neighbors. In the first decade of the twenty-first century they are both epicenters of blasphemy-related violence, ranging from prosecutions and political mayhem to assassinations. And in Egypt, blasphemy-related prosecutions rose dramatically during the brief reign of the Muslim Brotherhood, mainly against Christians and a few secular figures.1 Anger over matters broadly identified as blasphemy frequently erupts in Muslim-majority countries in response to Western cartoons and media portrayals that are demeaning to Muslim religious figures. Malevolent acts of Qurʼan torching or salacious films and novels that cast Islam’s founding figures and personalities in a negative light all elicit a range of reactions around the Muslim world. These range from attitudes that ignore such provocations, peaceful protests, and scholarly responses to violent expressions of indignation. Yet Muslim reactions to provocations of a religious kind are not limited to South Asia or any specific region. In the past three decades, the conflict over Muslim religious values and beliefs has played out on multiple fault lines—religious, political, cultural, and economic, among others—in the full glare of a global media revolution. Local actors connect to global pathways of protest and debate about religion and politics; they highlight the differences between national sensibilities about religion in Muslim-majority countries and the sensibilities that international law and secular legal, political, and moral orders advance. Within national contexts, these debates about blasphemy 169

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highlight variation among different segments of Muslims. While the picture often pits those who propose a secular Muslim political order against those who demand a greater public role for religion, the matter is often more complex. A host of unidentified positions exist between these polar positions of secular versus religious. Following this chapter, Ron E. Hassner identifies important links between blasphemy and violence (see chapter 7), while Asma T. Uddin offers an in-depth analysis of Indonesia’s blasphemy law (see chapter 8). As both show, those in power often have to navigate the shoals of multiple constituencies. Often the authority of those in power is tested by large, highly diverse, and equally influential nonstate religious sectors whose motives vary considerably and cannot be easily plotted. If the picture becomes confusing in times of conflict, it is certainly clearer in Hassner’s careful scrutiny of what multiple actors achieve by mounting highly mediatized spectacles and global public campaigns against blasphemy. This chapter prepares the way for such subsequent analyses in this volume by considering the theological architecture of blasphemy.

events of blasphemy What frequently gets ignored in debates about blasphemy is how all the players across the board instrumentalize Islam and its teachings, ranging from Muslim political and religious figures to representatives of the international order, foreign governments, and their political leaders. In Muslim communities, both political and religious players compete with one another to defend what they view as normative teachings of Islam in order to sustain their legitimacy among their respective audiences. In combustible political environments, these become risky and deadly wagers. In 2011, Afghan president Hamid Karzai publicly condemned the torching of the Qurʼan in Florida by the American Christian zealot Terry Jones. Hours after Karzai’s denunciation, thousands of his compatriots took to street protests in various cities and went on a rampage at a United Nations compound, killing several employees. Many Afghans also died in ensuing clashes with police. A year later, in 2012, the burning of used Qurʼans as part of a disposal process by U.S. soldiers sparked protests and violence across Afghanistan, resulting in the deaths of at least forty Afghans and several U.S. soldiers. In neighboring Pakistan, a controversial blasphemy act dating back to colonial times and amended in the era of the dictator General Ziaul Haque is frequently used to vex and harass members of minority faiths.

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Attempts by political figures to amend this controversial statute have sparked angry public protestations and opposition from religious groups. Religious intimidation has paralyzed the country’s civilian government. The governor of Punjab Province Salman Taseer was gunned down by his security aide, who believed his boss had committed a religious offense in calling for the blasphemy laws to be reformed or abolished. Shabbaz Bhatti, a cabinet minister belonging to the Christian minority, was also gunned down, since he too believed that the blasphemy laws discriminated against members of his faith community. Opponents of the law claim that it has been abused and used for vexatious purposes, to target minorities such as Christians and the excommunicated Muslim sects of Qadianis and Ahmadis. But Pakistan’s blasphemy laws, some say, have also been used to settle private and political vendettas.2 All an accuser has to do is allege to the police that someone has blasphemed Islam. The accused can get entangled in an inextricable and menacing prosecutorial process lasting years. Advocates of the law insist that the current penalties for blasphemy be enhanced rather than liberalized in order to be brought in line with a strict interpretation of the Shariʻa. Beyond Pakistan and Afghanistan, even in Iranian Azerbaijan and other provinces of Iran, blasphemy trials are common. In Iran, the cleric Mohammad Javad Lankarani applauded the November 2011 murder of the Azeri activist Rafiq Tagi. He praised the killers for “sending the reprobate who insulted the Prophet to hell.”3 Occasionally one hears of charges of blasphemy in Indonesia or Malaysia. In Turkey, the religious sector has been more judicious and has successfully ignored those who have criticized Islam and its religious figures, sensibly deciding not to indulge the publicity-seeking strategies of provocateurs. Beyond recent history, there has been a consistent trend of using blasphemy as a means to silence critics of Islam. In the last quarter of the twentieth century, Sudan executed a high-profile religious figure, Mah. mu-d Muh. ammad T. a-ha-, at the same time that its formerly socialist president, Jaʼfar al-Numayrı¯, discovered his religious faith. In Egypt, an academic, Nas. r H . amid Abu Zayd, was famously prosecuted for publishing views that were deemed contrary to Islam’s a priori doctrines.4 He was judged to have left his faith, and Egypt’s highest court nullified his marriage, since a Muslim woman there was not allowed to remain married to a non-Muslim man. Abu- Zayd’s alleged apostasy elicited threats from militants claiming he deserved the death penalty, and he was thus driven into exile.

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The most celebrated case of blasphemy is, of course, the 1988 publication of the novel The Satanic Verses, authored by Salman Rushdie. A legal opinion (fatwa) issued by Ayatollah Ru-h. ulla-h Khomeini, the supreme leader of the Republic of Iran, stating that a person who insulted the Prophet Mohammed deserved the death penalty under Islamic law only inflamed the debate. While blasphemy charges were at the center of the Rushdie controversy, the event spiraled out of control and spilled into the domain of interstate relations, leading Iran and the United Kingdom to sever diplomatic ties. Debates about freedom of expression and the rights of religious minorities in Britain and later Europe also surfaced as a result. Throughout these controversies, the persistent charge was leveled that “Islam” was incompatible with liberal freedoms. In 2006, the Danish newspaper Jyllands-Posten published a provocative series of cartoons lampooning the Prophet Mohammed, sparking global outrage among Muslims that resulted in mayhem and deaths in several countries. Rushdie claimed that he was challenging certain static notions of religion, especially a fundamentalist interpretation of Islam, and experimenting with a literary mode of postmodernist satire to raise questions as a novelist and a cultural critic. The Jyllands-Posten cartoons appeared after the author of a children’s book on Mohammed said he could not find an illustrator brave enough to depict Islamic themes for his book, especially if they involved illustrations of holy figures, such as the Prophet. This then gave this right-wing newspaper the idea to solicit cartoons in order to break the alleged stranglehold that the growing Muslim community in Europe had on the cultural norms of the continent and, more broadly, the West. If Rushdie was contesting particular notions of Muslim religious imaginaries by desecrating or giving offense through his fictional characters, then Jyllands-Posten felt the need to protect European culture by challenging, even if it meant offending, the religious values and culture of a new Muslim citizenry in Europe. Some observers were generous to Jyllands-Posten when they claimed that it engaged in testing the limits of freedom of speech. Yet the newspaper was not an equal-opportunity agitator for religious freedom. In 2003 it refused to publish cartoons that depicted Jesus in a demeaning manner, because it was cautious not to offend its readers’ Christian sensibilities. Eighteen years after the Rushdie event, the depiction of the Prophet Mohammed in cartoons again focused on the religious culture of Muslim minorities in Europe and their alleged unwillingness to conform to, integrate with, or assimilate into the dominant culture. It was not only

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a matter of the cartoons; tensions lurked in the background about Muslim immigration to Europe and the display of Muslim religious symbols, as in the head scarf controversy in France. The ongoing wars in Afghanistan and Iraq, amid growing European fears of religiously inspired acts of terrorism pursued by Muslims in Europe, only further inflamed the global context. As the unrest of the offensive cartoons spread to Muslim-majority countries, Denmark’s political and economic interests were subject to boycotts and condemnation. Even though the defenders of the Danish newspaper continued to pose the cartoon controversy as a symbol of a war of civilizations, this was an unsustainable argument. Doudou Diène, a United Nations special rapporteur, best summarized the issue: “These newspapers’ intransigent defence of unlimited freedom of expression is out of step with international norms that seek an appropriate balance between freedom of expression and religious freedom, specifically the prohibition of incitement to religious and racial hatred.” “The debate sparked by the publication of the cartoons,” he added, “has revealed the emergence in some intellectual, media and political circles of a rhetoric of clash of cultures and civilizations that divides the world into secular, democratic and civilized countries that protect freedom of expression, and obscurantist, retrograde and backward States that enshrine religious freedom and the position of religion in society. . . . This line of argument . . . draws on the same spirit of caricature as the drawings in the Danish newspaper.”5 At the heart of the cartoon debate are different, and perhaps incommensurable, sensibilities about religion. Indeed, these differences are located in different understandings of culture. They are also evident in Muslim self-understandings of religion, especially on the topic of blasphemy.

political theology Culture and its artifacts give meaning to life. Enmeshed in the highly publicized European debates on Islam is the Muslim theological doctrine of blasphemy. Corporal punishments linked to blasphemy derive from cultural norms and practices dating back to early practices of Muslim societies. Over time, Muslim sensibilities have acclimated to these penalties as a norm, although some Muslim scholars contest their application as part of national codes of law in modern times on theological and ethical grounds. Debates hinge on notions of Islamic reform

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and the embrace by secular elites and rejection by a substantial section of Muslim orthodoxy of modern sensibilities that support untrammeled freedom of expression, including blasphemy. The most fervent arguments center on the salience of political theologies—theories of how political practice is related to salvation—crafted during periods of Muslim empire and their relevance to societies modeled on democracy, equality of citizenship, free speech, and religious diversity. The requirement of reverence and respect for religious figures, especially the person of the Prophet, is part of a substantive theological value commitment and spiritual practice for Muslims. Each individual believer upholds love and honor for Mohammed as a religious value. Over time this value became linked to the theological and political dimensions of Muslim public life in successive empires. Alongside the political, as Islam’s discursive tradition developed and morphed, those authorized to interpret the Muslim tradition, the ʻulama-, became the gatekeepers of the Prophet’s legacy. Hence, the ʻulama-’s discursive tradition, its methods, and their authority became coterminous with Mohammedan charisma. Infractions of certain teachings involving the authority of the tradition are often couched as violating the authority of the Prophet and frequently trigger charges of anathema (takfı¯r), blasphemy, and apostasy. What Europeans and even modern educated Muslims were surprised to learn of was a Trojan horse of doctrines relating to Muslim political theology that proscribe satire directed at the Prophet Mohammed, his family, and his companions. The guardians of this political theology are mainly the religious scholars, the ʻulama-, and in some places the Islamic state, such as Saudi Arabia, Iran, Pakistan, and Sudan. What further surprises Muslims of a liberal stripe is that the ʻulama- extend the sanctity attached to the Prophet to the methodology they and their forebears have crafted to interpret the Prophet’s teachings. Therefore, many who are engaged in critical scholarship find themselves on the receiving end of anathematizing ʻulama- critiques that declare them to be persona non grata in terms of Muslim theology. Individual scholars are often accused of breaching and challenging an interpretative framework deemed sacrosanct by the ʻulama- precisely because a consensus-driven political theology has legitimated it over the centuries. It is to this political theology that I now turn. Take, for example, the consequences of leaving Islam as a faith community or of criticizing the Prophet Mohammed. The penalties prescribed are a product of political theology and require some explana-

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tion. Despite the fact that Muslim political theology developed over centuries under varying conditions of empire, elements of it resonate to this very day. So what is political theology? It is, in the words of Jan Assmann, the “ever-changing relationships between political community and religious order, in short, between power [or authority, Herrschaft] and salvation [Heil].”6 Muslim thinkers such as the jurist of Muslim political theory Abu- al-H . asan al-Mawardı¯ have articulated a similar idea, albeit through the prism of leadership and governance: “Leadership [ima-ma] was designed in order to succeed the role of prophecy by protecting the order of salvation [dı¯n] and managing the affairs of the world.”7 In Ma-wardı¯’s view, there was a conjunction between the religious order and the political order. But what made Muslim political theology different from its counterpart in Christianity was that in Islam, the political theological was intimately related to the idea of prophecy, which is the pathway to salvation. The political in Islam, therefore, paved the way for a public sphere committed to advancing the common welfare that was also in part related to the order of salvation. (While this model was applicable in the early constructions of Islam, it is open to question whether it is still sustainable in newer political and cultural regimes.) With the end of the Prophet Mohammed’s prophecy, the role of guiding the community passed to his pious political successors or to members of his household, depending on whether you follow a Sunnı¯ or a Shı¯ʻa interpretation of succession, respectively. Muslim culture reveres those designated as the guardians of the knowledge that stemmed from the Prophet. Since salvation was a core idea of Islam as a dı¯n (collective practices of salvation), the knowledge of practices was integral to that order of salvation. In order to reproduce, explain, and interpret practices over time, a discursive tradition emerged. It elevated the status and the power of those who mediated the learned tradition, namely the scholars. This discursive tradition, validated by a variety of subtraditions in Islam, acquired a quasi-sacrosanct character. Soon the learned were seen as the true of heirs of the prophetic charisma. Statements attributed to Mohammed declare that the learned of his community are the heirs to the prophets.8 Given the equivalence between the learned and the prophets of yore, the ʻulama- and their tradition acquired power and authority as the mediators of salvation. Their interpretative methodology gradually gained authority and sanctity over the centuries, becoming inseparable from the prevailing models of Muslim political theology.

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Another way of putting this is that the Prophet had, so to speak, two bodies.9 These continuously inhabited the moral imaginary of the faith community (umma). The two imagined bodies of the Prophet paralleled the two primary roles and functions that he performed in his earthly role.10 The first was the Prophet’s political body, in his capacity as the political axis of the Muslim community—God’s messenger who established a political order that favored the transcendent good. Through the routinization of the prophetic charisma, the political body of Islamdom was continuously inhabited and nourished through functions of stewardship—khila-fa in Sunnism and the imamate in Shı¯ʻism. The need for a political order in large part stems from the fact that the God of the Qurʼan is the personification of sovereignty, especially through his attribute of omnipotence.11 In Islam, at least according to the historical tradition, the fulfillment of the will of God is the “installation of the terrestrial reign of that will, thanks to the obedience that is due to the Prophet.”12 Hence prophets are allowed to use force to subdue those who try to frustrate and resist the implementation of the will of God, described as “the way of God” on earth.13 The second body of the Prophet reflects his role as the teacher of the transcendent good and wisdom (yuʼallimuhum al-kita-b waʼl hikma); his embodied life (sunna) became the exemplar of transcendent good. The body of knowledge that the Prophet provided was preserved, if not sacralized, by the Muslim knowledge tradition and its curators, the ʻulama-. Muslims revere the Prophet at both the collective and individual levels, in both public and private spheres of salvation. The Prophet’s two bodies—political and religious—became intertwined and interlinked. In the view of some, they were not easily separable. When contemplating certain aspects of what is today deemed blasphemy, one should bear in mind this inseparability of the roles of the Prophet in both the popular and the learned religious imaginary of Muslims. The political theology espoused by most Muslim thinkers, Sunnı¯ and Shı¯‘a alike, views the Prophet as a central ontological fact, not only an epistemological referent. In other words, he is the equivalent of a sovereign: the symbolic sovereign, higher than any earthly sovereign. Indeed, every earthly Muslim sovereign, or anyone pursuing politics on behalf of the Prophet, invariably acts as his successor and in his name, as khalı¯fatu rasu-l alla-h (successor of the Messenger of God). Some might press further to argue that the sovereign identity of the Prophet is coterminous with the identity of the Muslim community. If such a religious

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imaginary is at work, then few Muslims would be persuaded that the classical law of blasphemy devised in the imperial period of Islam requires alteration and updating today. Some cling to the old law on the grounds that the Prophet is the symbolic figure of the earthly Muslim community. In defense of his honor, a certain amount of founding violence was necessary and is required today, to protect a key symbol of their faith. Therefore, in political terms, the one who insults Mohammed becomes a damned person. To use the language of the Italian political theorist Giorgio Agamben, such an offender or damned person must be killed but not sacrificed.14 In his view, such a person would be a homo sacer. Any change or rethinking in the question especially of blasphemy, and to a lesser degree apostasy, would require reconfiguring an established Muslim political theology to which both Sunnı¯s and Shı¯ʻas tenaciously subscribe. Grasping that nettle would require some serious rethinking of how the Sharı¯ʻa is imagined and formulated. One important consideration is whether Muslim thinkers will take on board the varieties of knowledge and the experience of the present when adjudicating normative values of Islam of this magnitude.

a shift in methodology A key shift in methodology has been the cause of some mutation and transformation in the intra-Muslim debate challenging the doctrinal validity of some of the penalties relating to the offenses of blasphemy and apostasy. Briefly, the default methodological position among Muslim scholars has been to appeal to a hermeneutics-centered canonical tradition. Both the Qurʼan and the prophetic tradition, Sunna, were viewed as equally authoritative sources. The interpretative process (hermeneutics) trusted the authority of tradition and valorized the pious exemplars at the founding of Islam with some consideration for change that allowed for a reasonable dialogical relationship among text, time, and context. Canonical variation and multiple interpretations were tolerated on the basis of different communities of learning in multiple contexts who exercised discrete forms of reasoning—formal reasoning or affective methods of communal reasoning with shared beliefs, conduct, and aspirations. Since the end of the nineteenth century, and perhaps slightly earlier, methodological shifts have produced alternate ways of imagining the canonical tradition. While there is some continuity with the traditional

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canonical method, there is also some discontinuity. Modern Muslim thought—including elements of Muslim traditionalism—has begun to view the canon in a more instrumental manner. The goal is to see revelation as a reservoir of outcomes-based knowledge supported by a belief that the primary purposes of the Muslim revelation are totally transparent and knowable. In fact, some modern Muslims often claim that the classical and postclassical canonical tradition, mired in the cultural practices of the past, often failed to grasp Islam’s transcendent values. Hence an emerging juridico-moral lexicon is gradually gaining popularity and displacing the established canonical tradition and its methodology. Advanced in the guise of Islamic reform, this new method stresses the overarching purposes (maqa-s. id) of the Muslim revelation and states that morals and values are based on certain interests (mas. lah. a, pl. mas. alih. ). Revelation is designed to preserve religion, life, reason, property, and family. In this redesigned method, the Qurʼan becomes the primary source of religious and moral instruction. While the prophetic tradition, hadith, is not ignored, it is subject to greater scrutiny. This method appeals to some Muslim traditionalist figures among the ʻulama-, but it is the favorite approach of the non-ʻulama- intelligentsia. As a result, a number of teachings that were previously based on the authority of hadith have been questioned, such as apostasy and blasphemy, especially when the values of the hadith clash with the broader purposes of the Qurʼanic teachings or when the Qurʼan is silent, as on matters such as the penalties for blasphemy and apostasy. This reformist and Qurʼanbased approach, even though it is challenged by some sectors of orthodoxy, has generated a great deal of debate and proposes new ways of thinking about fairly weighty matters that were once unquestioned but are now subject to reinterpretation.

blasphemy and anathema in islam Blasphemy as a media term is widely used to describe restrictions and limits evident in passionate intra-Muslim arguments or as Muslim disapproval of the ways in which Islam is portrayed. Bear in mind that in Western moral philosophy and theology, this term covers a variety of things. Any “profane speaking of God or sacred things” or any kind of “impious irreverence” or “reproach of a sacred figure” constitutes blasphemy.15 The Muslim discursive tradition uses several terms to signal the violation of doctrinal boundaries and teachings. Muslim theology tolerates

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disagreement within acceptable discursive boundaries. But when a disagreement is construed as tantamount to a rejection of an a priori doctrine of Islam, then it triggers charges of anathema (takfı¯r) for the author or holder of such offensive views.16 In both the premodern and modern periods, theological and doctrinal adversaries hurled this highly injurious epithet at one another as contentious groups and individuals contested meaning and authority. Tradition counsels caution in order to restrict the use of mutual anathematizing to instances of necessity only. Yet a reader of the writings of modern traditional Muslim authorities will note the widespread use of the anathema label to silence dissent among rival groups of ʻulama- and among their non-ʻulama- rivals. Surely the use of the rhetoric of anathema fragments the moral consensus among Muslims. Yet it nevertheless creates discursive tension among Muslims and foments a vibrant religious public sphere, provided such debates do not spill over into violence. When some of these disagreements are contested in modern secular courts, then the discursive disagreements mutate into political offenses and the perpetrator, if found guilty, is viewed as a criminal. This was true in the case of Mah. mu-d Muh. ammad T. a-ha- of Sudan, Nas. r H . amid Abu Zayd of Egypt, and other individuals who were prosecuted for theological offenses in secular courts in the twentieth century.17

insulting the prophet Two other offenses, insult to the Prophet Mohammed and apostasy, incur severe penalties and are part of an established Muslim theological vocabulary. Muslim political theology views the use of satire, lampooning, and personal insult known as sabb al-rasu-l (insult to the Messenger) as a grievous offense. Taqı¯ al-Dı¯n Ibn Taymı¯ya (d. 1328), a renowned fourteenth-century jurist, and Taqı¯ al-Dı¯n al-Subkı¯ (d. 1355) both made the case that insulting remarks and satire directed at Mohammed constituted not only a major sin in Islam but is also an offense deserving capital punishment. The religious imaginary views it as unthinkable for a Muslim to intentionally insult the Prophet. According to later Muslim scholars, a person adhering to another faith—say, a Jew, Christian, Zoroastrian, or Hindu—who lived in a premodern Islamic imperial domain and insulted Mohammed would be in breach of the contract of indemnity he or she enjoyed. Early scholars held a different view, arguing that such persons would not be in breach of their contract.

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For Muslims, though, guilt for defaming the Prophet is expiated by the severe consequences of capital punishment in Shariʻa law. To insult Mohammed not only signifies an intention to leave Islam, since reverence for him is a central requirement of the faith, but amounts to something worse: defamation. In short, many scholars view insult and defamation of the Prophet as a sui generis offense independent of apostasy. Others treat it as an extreme version of apostasy, since capital punishment is the prescribed penalty for both, but there are differences in the formalities of each. Blasphemy-related penalties most likely stem from the pre-Islamic Arabian cultural milieu in which Islam was founded. The word for satire is hija- in Arabic. However, it signifies a range of meanings from the lofty to the coarse, from the amoral to the immoral.18 In addition to “satire,” the word also means “lampoon,” “invective,” and “abuse.” With the advent of Islam, the anthropocentric Arabian ethos fused with Islam’s theocentric ethos to create new moral sensibilities. Already in the pre-Islamic Arabian milieu, hija- elicited physical punishment. One of the reasons to deter hija- was its destabilizing effect on communities, including the endangering of solidarity.19 The use of hija- in the Islamic “shame culture”—with its ethical strictures to protect peoples’ reputations and honor—came to signify a serious offense, of “dishonoring” someone. So the penalties for satire enforced via tradition in Islamic law could plausibly have early Islamic precedents.20 Drawing on these precedents, Ahmad ibn ʻAbd al-Halı¯m Ibn Taymı¯ya confidently writes that defamatory satire of the Prophet is a “unique crime” (jina-ya mufrada).21 He goes on to show that when the Prophet conquered Mecca, he ruled in favor of the death penalty for a number of people who issued defamatory statements in their poetry and speech, while adversaries who did not engage in defamation enjoyed amnesty. Those among the Prophet’s companions who avenged his defamation received special honors as the “aides of God and his messenger” (na-siran lilla-hi wa rasu-lihi), according to Ibn Taymı¯ya.22 Traditionalist or orthodox Sunnı¯ and Shı¯ʻa scholars uphold the binding authority of this precedent. However, in the twentieth and twentyfirst centuries, some traditionalist scholars and a spectrum of scholars belonging to other persuasions disagreed over its meaning, interpretation, and binding authority. Supporters of the death penalty for defamation of Mohammed cited this precedent as conclusive evidence. Those who demurred argued that the persons executed were killed for capital crimes they had previously committed, not for defaming the Prophet.

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Furthermore, some argued that the Qurʼan does not prescribe a penalty for the defamation of the Prophet, even though it condemns any physical or emotional injury caused to him. By contrast, supporters of the blasphemy penalty argue that the very verses of the Qurʼan that condemn those who cause emotional and physical injury to the Prophet imply the gravity of defaming and dishonoring him. Yet advocates are at pains to substantiate the claim that the death penalty for this offense is derived from the Qurʼan. At best, such authority derives from the hadith where Mohammed elicits the help of his companions to put Kaʻb bin al-Ashraf to the sword because “he had offended God and His Prophet.”23 Opponents of the death penalty for defamation of the Prophet say that if he did enact such a penalty, then it was on the grounds of political expediency and not for religious reasons. However, the naysayers also, of course, have the burden of explaining why the blasphemy rule has been retained throughout Muslim history in a virtually unbroken juridical consensus as part of the law of apostasy.

apostasy The doctrine of apostasy (riddah) is also among those penalties that have prompted discussions among experts of Islamic law. As for defaming the Prophet, the Qurʼan includes no penalty for apostasy. The tradition found in prophetic reports, hadith, establishes the authority for this penalty. A statement attributed to Mohammed states, “Whoever changes their religion should be killed” (Man baddala dinahu fa ʻl-yuqtal). The meaning and interpretation of this report give rise to multiple perspectives. According to some authorities, the precedent for the death penalty for apostasy derives from the Prophet Mohammed’s decree to execute a handful of persons at the conquest of Mecca, mentioned above, for their alleged apostasy in having abandoned their faith in Islam. Unlike with the penalty for defamation of the Prophet, which very few scholars have challenged, a good number have entered the fray to contest the penalty for apostasy. T. a-ha- Ja-bir al-ʻAlwa-nı¯, a foremost traditional scholar once active in the United States but now residing in Cairo, has argued that the traditional death penalty for apostasy militates against Islam’s principle of “no coercion in matters of religion.”24 After an extensive survey of doctrines, he concluded that the meaning of apostasy was a contested teaching in early Islam. If it was enforced, then it was as part of Islam’s

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doctrines of political adjudication, not any sort of religious adjudication. Since ʻAlwa-nı¯ believes that disagreement on apostasy goes back to the early centuries of Islam’s history, he also challenges the claim of an unbroken consensus in favor of the death penalty for it. He does not give much credence to the hadith that commands that the one who changes his faith should be killed. The more well-known and in some circles controversial Qatar-based cleric Yu-suf al-Qarada-wı¯ has argued that there are two types of apostasy.25 The first is a form of subversive propaganda to mislead and confuse Muslim communities in order to undermine a society’s identity, public order, and stability. Anyone who urges others to leave Islam, Qarada-wı¯ argues, should be punished. The second is less public, a private form. In this kind, an individual leaves Islam without inviting others to do the same. This form of apostasy, in Qarada-wı¯’s view, is not punishable. In Muslim theology it amounts to a sin, but one is accountable for such an offense only in the hereafter, in his view, with no thisworldly consequence. Mawla-na- Vah. ¯ıduddı¯n Kha-n, a moderate-minded orthodox Indian scholar, wrote extensively in order to refute the orthodox position on apostasy and blasphemy. The evidence supporting blasphemy penalties is questionable, in his view. And such punishments, he argued, militate against Islam’s mandate to constantly invite people onto its path of salvation (daʼwa).26 In Pakistan, Javed Ahmad Ghamidi, a prominent Muslim public intellectual, has argued that the penalty for “apostasy has arisen due to a misunderstanding of a prophetic report [h. adı¯th].”27 He offers an explanation for the much-debated prophetic report mentioned above, “Whoever changes their religion should be killed.” Instead of rejecting this as inauthentic, Ghamidi believed its context was misunderstood. In their prophetic role, Mohammed and other prophets before him envisioned a cutoff point at which they would alert their communities that the “period of announcing their respective gospels” (itma-m al-hujja) had come to an end. After this time had elapsed, prophets would be allowed to present ultimatums to their communities and to demand compliance with their teachings in order to create a unified group of believers. They would not countenance any subversive activities that would undermine their nascent communities. For this reason, Ghamidi explained, the Arabs of seventh-century Arabia—only the people ethnically related to the Prophet—were required to convert to Islam or else face the sword. The greater strategic rationale was to make Moham-

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med’s Arab group an all-Muslim hegemony that would form the nucleus of a community that would invite other people to the new faith. This rule’s application was not universal, Ghamidi clarified, but only onetime, to the Arabs of seventh-century Arabia, who were known as the ummiyyu-n: the spiritually unlettered ones. The prophetic report in question, he averred, was addressed to them. In other words, if any of these spiritually unlettered ones reverted back to paganism after they had accepted Islam, then the consequence of such apostasy would be the death penalty.28 However, this was a historically contingent and timesensitive rule, according to Ghamidi, that no longer had any application. Needless to say, the majority of orthodox Muslim scholars do not accept this innovative interpretation. Similarly, a rising traditional cleric affiliated with the Deoband School in Pakistan, ʻAmma-r Kha-n Na-s. ir, has argued that Muslim law schools were not unanimous about the death penalty for insulting the Prophet.29 While he does not deny the viewpoint of the majority of law schools, he points out that credible figures in the H . anafı¯ school did allow for an offender to recant. The other Sunnı¯ law schools do not allow someone who had defamed the Prophet to recant, but they do allow apostates to recant. An influential minority of H . anafı¯ scholars offered an apostate the opportunity to recant and save himself from the death penalty. Na-s. ir has attempted to open a conversation among traditional scholars in order to present a more tolerant and realistic face of Islamic teachings in Pakistan. Criticized for circulating ideas that challenge hegemonic views, he continues to soldier forth in the cause of ideas and debate. Among thinkers who follow Shı¯ʻa theology there has also been a vibrant debate on the viability of the penalties for apostasy and insult to the Prophet. A number of scholars, such as the Iranian Mohsen Kadivar, argue that the death penalty for apostasy violates Islamic notions of the right to freedom of belief.30 Similarly, Sayyid Muh. ammad H . asan al-Amı¯n, a prominent Lebanese Shı¯ʻı¯ thinker, invites scholars to consider overhauling Islamic religious thought if they wish to be relevant to the contemporary world, in which Muslims live and share the globe with people of other faiths.31 Disagreement on some of the toughest issues pertaining to religion, culture, tolerance, and freedom of speech is evident from the preceding debates. At the same time, productive disagreement also provides room for discussion among the orthodox ʻulama-, who are the most influential in altering the direction of religious thought. While these are small

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revisionist steps, some of them hardly radical, they do suggest that there is sufficient concern and interest in Muslim scholarly circles around the world to address some of the rules that are increasingly being challenged.

thinking about islam in a diverse geopolitical context While ideas, values, and principles might tend to be universal and appeal to reason, they are also the products of their times and locations. To ignore historical realities is to fall into a trap. Such ignorance misleadingly presents a view that people are without history. Social continuities and traditions might give us the sense that things have been the same over time in a changeless and seamless universe. Closer scrutiny shows that traditions adapt and words earn new glosses and meanings. The same word, say ʻaql, can mean “reason” or “formal reason” during one stage of history and “rationality,” “scientific or empirical reason,” and “common sense” in another. Canons of law and doctrines of theology might use the same terminology in the interest of continuity, but they also mean very different things in different times and places. The Muslim religious tradition, in a variety of ways, acknowledges the historicity of God’s communication with humanity. There is a general acknowledgement that the purpose of a human being’s earthly sojourn is to pursue a redemptive relationship with God, the importance of the idea of dı¯n—to follow a path of salvation by performing certain prescribed acts. To accept indebtedness to God is to observe dı¯n. Muslim theology claims that the idea of dı¯n is a constant in all religious traditions. However, it equally acknowledges that the form and modus operandi of this salvation practice change in history. The how is the modality, the modus and means, of performing salvation, and hence the Sharı¯ʿa or other path is contingent. That is why Muslims explain that the heavenly installments of faith took different forms and therefore even the Abrahamic traditions looked so different among themselves. Yet this very question of history is complex. Do we live in time or through time? The first imagines time only as a vessel or an atmospheric range through which we pass, relatively separate from it; time becomes a means, vis-à-vis which we can retain a certain kind of objectivity. But more recent reflections suggest that we live through time; in other words, we are constituted, shaped, and formed by time. Without time we have no existence and no being, because we human beings are the

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embodiment of time. How does this notion relate to history? If time is objective and separate from us, we are unaltered and unchanged by history. If, however, human beings are the very embodiment of time, then we change as time changes and time changes as we change. And our portraits of the past continue to change as our self-understanding deepens and alters our view of the human condition. The idea of history is central to the modern Muslim predicament, especially in the realm of religious thought and the debates about the reformation of Muslim thought. Clearly, there is a spectrum of viewpoints. There are those who believe that we live in time and have agency independent it. Therefore, they think that one can retain the inherited values and imprimaturs of the past, because these are unrelated to time. Some proponents of this view do take history seriously and hence advocate radical change, while others would allow only moderate change and alteration. Another construction of Muslim history implicitly understands that we live through time and that humanity’s inheritance and ideas are all part and parcel of the mutation of time. Our experiences make us who and what we are. This is a more dynamic understanding of history but equally challenging and even threatening to certain versions of Muslim orthodoxy. The South Asian poet-philosopher Muammad Iqbal understood these two registers of time, one of which he called pure duration and the other serial time.32 As a modernist, he believed that the entirety of Islamic thought would have to be recrafted for our times. Yet he was equally aware of the lack of equilibrium in power between those wielding the tools to impose change through the knowledge of modernity, the West, and those dispossessed or unable to wield this power, the rest, including Muslims. This lack of power was something that constantly troubled him, and he could not entirely shake off his resentment of coloniality or the coloniality of power. This dilemma that Iqbal experienced has not yet passed, nor has it been resolved. The coloniality of power, a concept that the Peruvian thinker Aníbal Quijano coined, distributes epistemic, moral, and aesthetic resources in such a way as to both reflect and reproduce empire through the hegemony of Eurocentric knowledge systems.33 While Iqbal was suspicious of power encoded in knowledge systems and forms of life, he also understood that Muslims too were now part of that emerging knowledge system. His rhetoric may have been defiant, even polarizing at times, but he was a realist when it came to religious thought.

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conclusion It might be helpful to ask what role the rules on apostasy, defamatory blasphemy, and the anathematizing of adversaries play in Muslim societies today. These types of laws were coherent in an imperial theocratic political context. But political systems no longer make freedom of speech and political choices contingent on one’s religious status. One’s religious commitments no longer threaten societal well-being, at least in healthy democracies. It might well be possible to conceive of diversity and pluralism as modes of Shariʻa and thereby sustained as cherished societal goals. In a multireligious and multicultural society, Shariʻa values could plausibly place the accent on notions of reciprocity. Of course, society must encourage its citizens to display the best conduct and not denigrate other people’s beliefs, for such actions will only elicit angry reactions. But when something offensive is said about one’s belief, the first recourse should be dialogue and an exchange of perspectives in terms of the highest standards established in Islamic erudition, civility, and etiquette (adab).

notes 1. Ben Hubbard and Mayy El Sheikh, “Islamists Press Blasphemy Cases in a New Egypt,” New York Times, June 18, 2013, www.nytimes.com/2013/06/19 /world/middleeast/islamists-press-blasphemy-cases-in-a-new-egypt.html?_r=0. 2. The bishop of Faisalabad some time ago said that among Christians, a “sense of helplessness, insecurity, and anguish had crept in.” Blasphemy cases “have impelled a senior Christian school teacher to decline a promotion to headmaster because ‘I knew any disgruntled [Muslim] teacher or student could send me to prison by accusing me of blasphemy.’ Another non-Muslim history teacher was asked in class which of the two periods of Muhammad’s life was the better—the years in Mecca or Medina. Upon his answer, the teacher was charged with blasphemy.” Persecution of Christians Worldwide: Hearing before the Subcommittee on International Operations and Human Rights of the Committee on International Relations, House of Representatives, 104th Cong., vol. 4, 32–33 (February 15, 1996). 3. Shalom Goldman, “A Writer’s Murder Raises Fears of Death-by-Decree,” Religion Dispatches, February 15, 2012, www.religiondispatches.org/archive /atheologies/5619/a_writer%E2%80%99s_murder_raises_fears_of_death-bydecree. 4. Kilian Bälz, “Submitting Faith to Judicial Scrutiny through the Family Trial: The ‘Abu Zayd Case,’ ” Die Welt des Islams 37, no. 2 (1997): 135–55; Charles Hirschkind, “Heresy or Hermeneutics: The Case of Nasr Hamid Abu Zayd,” American Journal of Islamic Social Sciences 12, no. 4 (1995): 463–77; Baber Johansen, “Apostasy as Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments,” Social Research 70, no. 3 (2003): 687–710.

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5. Doudou Diène, U.N. special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, “Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination: Situation of Muslims and Arab Peoples in Various Parts of the World,” E/CN.4/2006/17 (February 13, 2006), 188, 195. 6. Jan Assmann, Herrschaft und Heil: Politische Theologie in Altägypten, Israel und Europa (Munich: Hanser, 2000), 24, quoted in Hent de Vries, introduction to Political Theologies: Public Religions in a Post-secular World, ed. De Vries and Lawrence E. Sullivan (New York: Fordham University Press, 2006), 25. 7. Abu- al-H . asan al-Mawardı¯, Al-Ah . ka m al-s. ult. a niyya (Cairo: Al-Maktabah al-Tawfı qı yah, 1973), 5. See also Aziz Al-Azmeh, Muslim Kingship: Power and the Sacred in Muslim, Christian and Pagan Polities, paperback ed. (London: I. B. Tauris, 2001), 174; ʻAzı¯z al-ʻAzma, Al-Ma-wardı¯ (Beirut: Riad El-Rayyes Books, 2000), 216. 8. Al-Azmeh, Muslim Kingship, 103. 9. This imagery was inspired by promptings from Christian political theology that in my view find resonance in readings of Muslim political theology. See Ernst Hartwig Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, [1957] 1997). 10. Ebrahim Moosa and SherAli Tareen, “Revival and Reform,” in The Princeton Encyclopedia of Islamic Political Thought, ed. Gerhard Böwering, Patricia Crone, and Mahan Mirza (Princeton, NJ: Princeton University Press, 2012), 462–70. 11. Rémi Brague, The Law of God: The Philosophical History of an Idea (Chicago: University of Chicago Press, 2007), 78. 12. Ibid., 79. 13. Qurʼan 11:19–20. 14. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, ed. Werner Hamacher and David E. Wellberry, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998), 8. 15. Oxford English Dictionary, s.v. “blasphemy.” 16. Sherman A. Jackson, On the Boundaries of Theological Tolerance in Islam: Abu- H . a mid Al-Gha zalı¯’s Fays. al “Al-Tafriqa Bayna Al-Islam Wa AlZandaqa,” Studies in Islamic Philosophy 1 (Karachi: Oxford University Press, 2002). 17. Bälz, “Submitting Faith to Judicial Scrutiny”; Hirschkind, “Heresy or Hermeneutics”; Johansen, “Apostasy as Objective and Depersonalized Fact.” 18. G. J. H. van Gelder, The Bad and the Ugly: Attitudes towards Invective Poetry (Hija-ʼ) in Classical Arabic Literature, publication of the De Goeje Fund (Leiden, Netherlands: E. J. Brill, 1988), 1. 19. Ibid., 13–15. 20. By contrast, the use of satire was accepted in the religious debates of the eighteenth-century English-speaking North Atlantic. See Christopher S. Grenda’s chapter 1. 21. Ahmad ibn ʻAbd al-Halı¯m Ibn Taymı¯yah, Al-Sa-rim al-maslu-l ʻalá sha-tim al-rasu-l, ed. Ibra-hı¯m Shams al-Dı¯n (Beruit: Da-r al-Kutub al-Ilmı¯ya, 1975), 209. 22. Ibid., 208. See also Gelder, Bad and the Ugly, 21.

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23. Ibn Taymı¯yah, Al-Sa-rim, 211. 24. Ta-ha- Ja-bir Alwa-nı¯, La- ikra-h fı¯ al-dı¯n: Ishka-liyat al-ridda wa-al-murtaddı¯n min sadr al-isla-m hattá al-yawm (Cairo: Maktabat al-Shuru-q al-Dawlı¯ya, 2003). 25. Yu-suf al-Qarada-wı¯, Jarı¯mah Al-Riddah . . . Wa ʻuqu-bah Al-Murtadd Fı¯ Daw Al-Qurʼa-n Wa Al-Sunnah (Cairo: Maktabah Wahbah, a.h. 1416/1996), 44–63. 26. Vah. ı¯duddı¯n Kha-n, Shatm-I Rasu-l ka- masʼalah: Qurʼa-n va Ḥadı¯s aur fiqah va ta-rirkh kı¯ roshnı¯ men (New Delhi: Goodword Books, 2007). 27. Javed Ahmad Ghamidi, The Penal Shariʻah of Islam, trans. Shehzad Saleem (Lahore: Al-Mawrid Institute of Islamic Sciences, 2004), 36. 28. Ibid., 39. 29. Muh. ammad ʻAmma-r Kha-n Na-s. ir, Bara-hı¯n (Lahore: Da-rulkita-b, 2011), 445–604. 30. Haydar Hubb Alla-h, Al-ʻUnf wa al-hurriya-t al-dı¯nı¯ya: Qira-ʼa-t wa-ijtiha-da-t fı¯ al-fiqh al-isla-mi, 2 vols. (Bayrut: Muʼassasat al-Intisha-r al-ʻArabı¯, 2011), 1:77– 123. 31. Ibid., 33–73. 32. Allama Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (Lahore: Shaikh Muhammad Ashraf, 1960), 55–60. 33. Aníbal Quijano, “Coloniality and Modernity/Rationality,” Cultural Studies 21, nos. 2–3 (2007): 171.

chapter 7

Protesting Sacrilege Blasphemy and Violence in Muslim-Majority States ron e. hassner

In September 2005, a Danish newspaper, Jyllands-Posten, published a series of cartoons depicting the Prophet Mohammed. One showed the Prophet donning a turbanlike bomb, inscribed with the Islamic creed, with an ignited fuse. Another showed an anxious cartoonist sketching a portrait titled Mohammad while nervously straining to hide his work from view. The cartoons unleashed a flurry of reactions in Denmark, including formal protests by ambassadors from Muslim countries; the severing of diplomatic ties by Syria, Libya, and Saudi Arabia; and judicial charges of blasphemy against the newspaper.1 The cartoon controversy might have ended there had it not been for a delegation of Muslim clerics from Denmark who embarked on a campaign to circulate the cartoons throughout the Muslim world. In addition to the cartoons, their dossier contained information and images concerning the mistreatment of Muslims in Denmark, including offensive photos unrelated to the cartoons. The response to these materials and to the republication of the cartoons in several European papers proved violent. Angry mobs torched Danish embassies in Syria, Lebanon, and Iran and attacked the Norwegian and Austrian embassies in Damascus, European Union offices in Gaza, and the Italian consulate in Benghazi, Libya. In Nigeria, Pakistan, Libya, and Afghanistan, more than one hundred anti-Danish rioters died in riots and clashes with police.2 When police in Denmark and Germany exposed death threats, assassination attempts, and terror plots related to the 189

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table 7.1 No Riots

occurrence of cartoon riots in muslim-majority states Riots

Algeria, Azerbaijan, Bahrain, Bangladesh, Afghanistan, Indonesia, Iran, Lebanon, Bosnia and Herzegovina, Brunei, Burkina Libya, Nigeria, Pakistan, Palestinian Faso, Chad, Comoros, Cote d’Ivoire, Territories, Syria Djibouti, Egypt, Eritrea, Ethiopia, the Gambia, Guinea, Guinea-Bissau, Iraq, Jordan, Kazakhstan, Kosovo, Kuwait, Malaysia, Maldives, Mali, Mauritania, Morocco, Niger, Oman, Qatar, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Tajikistan, Tanzania, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan, Yemen

affair, it became clear that the Mohammed cartoons had ceased to be a laughing matter. Denmark’s “biggest international crisis since World War II,” according to Danish prime minister Anders Fogh Rasmussen, resulted in nearly two hundred fatalities and one thousand casualties across eight Muslim states.3 How did the publication of twelve cartoons in a local European paper lead to the most violent Muslim protests against the West since the publication of Salman Rushdie’s Satanic Verses?4 As far as Western leaders were concerned, the responsibility for the riots lay squarely on the shoulders of authoritarian regimes, accused of manipulating their populations for political purposes. At the same time, a spate of blasphemy-related violent incidents in the Muslim world seemed to suggest that the cartoon riots expressed genuine Muslim outrage.5 Complicating these contrasting accounts—of political manipulation on the one hand and of religious outrage on the other—was the unique geographic pattern that the cartoon riots assumed.6 Violence was not confined to states ruled by authoritarian regimes, nor did riots occur primarily in countries dominated by radical Islamist movements. Peaceful protests took place in both types of states and did not correlate with obvious economic or social indicators. Thus one way of shedding light on the causes is to ask: why did riots in response to the Danish cartoons occur in nine states where Muslims form a majority of the population (Afghanistan, Indonesia, Iran, Lebanon, Libya, Nigeria, Pakistan, the Palestinian Territories, and Syria) but not in the forty-three others (see table 7.1)?

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I will show that the locations of the cartoon riots are best explained by combining insights from the study of politics with arguments from the sociology of religion. Radical Islamist movements, alarmed by the moral threat that the blasphemous cartoons posed, mobilized protests. Authoritarian regimes were able to suppress or capitalize on these protests, resulting in subdued or orchestrated demonstrations. But in states characterized by significant political rights and civil liberties, regimes responded haphazardly, leading to confrontations between security forces and angry rioters. In the first part of this chapter, I introduce several bodies of literature, from political science, anthropology, and comparative religion, that underpin conventional explanations for the cartoon riots. These research programs focus on violence as a by-product of either authoritarian rule or religious extremism. In the second part, I introduce a moral threat argument, drawn from sociology, that offers an alternative account of the causes of the cartoon violence. This structuralist approach subsumes both on the one hand the political structures that enable and constrain violence and on the other the religious symbols that drive violence into a single framework. My moral threat argument links theories about pollution and social revulsion with findings regarding threat perception and the behavior of social movement under authoritarian rule. I rely on these readings to form three hypotheses in the third part of this chapter: the political manipulation hypothesis, the religious outrage hypothesis, and the moral threat hypothesis. I then turn, in the fourth part, to test these hypotheses by exploring patterns across cases. I examine salient cases in detail to explicate the evolution of protests into riots and identify the instigating actors and the role of regimes in constraining or encouraging violence. The analysis confirms a weak correlation between political indicators and the presence or absence of riots, undermining the political manipulation hypothesis. I also show that the presence of Muslim communities characterized by strict interpretations of blasphemy is insufficient in accounting for instances of violence, thus challenging the religious outrage hypothesis. In most cases, the moral threat argument fares better than the others: confrontations tended to ensue where powerful Islamist groups tried to attack Western symbols but were constrained from doing so by relatively liberal Muslim regimes. I conclude this chapter by evaluating the strengths and weaknesses of the three hypotheses and by examining the implications of my argument for the study of religion and violence in general. Rather than adopt essentialist explanations that reduce religiously motivated violence to

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politics or religion, we should combine insights from political science and religious studies to shed light on the political conditions under which religion is most likely to result in conflict. Such a methodology should proceed from the religious microfoundations of a political phenomenon, constructing successive layers of explanation, each more removed from the religious and closer to the political, until it arrives at the outcome to be explained.

theoretical background Were the cartoon riots orchestrated by authoritarian Muslim regimes, were they an expression of grassroots outrage over blasphemy, or were they organized by radical social movements driven by a political-religious agenda? Four distinct research programs from political science, anthropology, and the comparative study of religion can shed light on these questions and help resolve the riddle regarding the geographic distribution of the cartoon riots. Authoritarianism and Violence As the death toll from violence mounted, Western observers of the Danish cartoon crisis converged on a parsimonious political explanation for the violence: authoritarian regimes were orchestrating the protests to penalize the West and distract their citizens from domestic discontent. Iran and Syria, Secretary of State Condoleezza Rice argued, “have gone out of their way to inflame sentiments and use this to their own purposes. The world ought to call them on it.”7 Sean McCormack, a State Department spokesperson, opined that “things like burning down embassies don’t happen by accident in Damascus.”8 Like Rice, Danish premier Rasmussen suspected that “Syria and Iran have taken advantage of the situation because both countries are under international pressure.”9 British prime minister Tony Blair seemed to believe that the Iranian government was using the cartoon crisis to divert attention from scrutiny of its nuclear program, stating that “it is not a coincidence that the moment this row emerges over the cartoons, that Iranians leap straight into the middle of it.”10 These claims mesh well with the literature regarding the role of authoritarian regimes in fomenting violence. The lack of transparency that characterizes such regimes, the absence of constraints on repressing their populations, and the control that they exert over the security appa-

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ratus of the state would facilitate the staging of riots such as those that occurred in response to the Danish cartoons. Moreover, the normative variant of the democratic peace argument suggests that unlike democracies, which are driven by shared norms of persuasion and compromise to settle both domestic and international disputes peacefully, authoritarian regimes are less hesitant in employing violence to resolve conflicts.11 Authoritarian Muslim regimes may also have exploited the cartoons in order to create a “rally around the flag” effect. Authoritarian leaders can exploit high-profile events, such as international conflicts, to provoke a surge of patriotic instincts, increase national cohesion, mute criticism of the regime, and raise public approval of leadership, national political institutions, and policies.12 These effects create incentives for regimes to engage in diversionary violence or scapegoating, most commonly by initiating international conflict.13 Taboos and Transgressions Whereas the literature on authoritarianism and violence emphasizes a political logic, a second set of explanations, drawn from anthropology, emphasizes a religious logic. This literature requires some elaboration, since it strays far afield of the comfort zone of most political scientists and into the study of religious taboos and their transgression. The concept of blasphemy—the dishonoring of a deity, its messengers, or its precepts—plays a central role in this explanation. As Ebrahim Moosa emphasizes in the previous chapter, demeaning or malevolent treatment of sacred objects and persons can provoke anger, even violence. Taboos are restrictions enforced by fear of supernatural penalties.14 The anthropologist James Frazer, who dedicated an entire volume of his encyclopedic The Golden Bough to the topic, catalogued all manner of taboos, from prohibitions on eating, touching, or even looking at certain objects to more esoteric taboos, such as the prohibition on stepping over persons, superstitions against knots, and prohibitions against calling particularly sacred or dangerous items by their name.15 Because certain cultures do not distinguish holiness from danger, sacred persons and sacred things can be both threatening and threatened at the same time. Taboos act as “electrical insulators” that surround the sacred with prohibitions, symbols, and rituals designed to emphasize the danger of crossing or blurring the boundary between sacred and profane.16 Bans on figurative imagery offer one example of such a taboo. Where portraits are believed to capture the soul or essence of a person, taboos

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prohibit paintings or photos of humans in order to protect the subjects from harm. Taking an image is believed to remove a person’s soul or to allow the image taker to inflict injury by harming the image. The taboo on figurative images is often employed to protect the most revered (or dangerous) subject in a community, be it the deity, a priest, a prophet, or a king.17 Muslim Aniconism and Blasphemy The taboo relevant for explaining the Danish cartoon riots is not, strictly speaking, rooted in a Muslim prohibition on depicting the Prophet Mohammed, since no such prohibition exists in Muslim jurisprudence.18 The Qurʼan prohibits idolatry but has little to say about figural representation, and formal jurisprudence is indifferent but not hostile to human images in art.19 Rather than prohibit images, Islam, like most religious movements, limits the types of images that can be used and the manner in which they can be used. It is the underlying meaning of a representation, not the fact of representation as such, that is potentially offensive to Muslims.20 Traditionally, copies of the Qurʼan were not illustrated, and Islamic official and religious (albeit not private) art avoided the use of figures and images.21 Depictions of the Prophet were rare and, in practice, eschewed.22 According to some historians, Muslim disinterest in icons stems from a lack of need for religious images, since God cannot be represented, there are no intercessors to depict, and there is no continuous Qurʼanic narrative amenable to illustration.23 According to others, the paucity of figural representation in Islam can be traced to the movement’s puritanical roots, which associated figural imagery with luxury, frivolous and prideful display, and distraction from devotion. The belief that figurative art excessively glorifies both the artist and the individual portrayed found backing in hadith, oral traditions about the Prophet, in which he was said to chastise those who made or owned pictures.24 This convergence between the lack of interest in images and suspicion of their negative effects has become increasingly entrenched in Muslim practice. In popular custom, the aversion to iconography now amounts to an all-out prohibition against any depiction of the Prophet, despite significant variation across traditional Muslim schools of thought regarding this complex issue. Formally speaking, however, the transgression that the Danish cartoons committed is not desecration (mishandling a sacred object or person) but blasphemy (speaking ill of a sacred object or person).

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The Qurʼan depicts blasphemy as a grave sin, deserving of hell.25 Islam’s sensitivity to this particular offense can be traced to the early experience of hostility to the Qurʼanic message by the Arab clans of Mecca. Mohammed’s opponents heaped ridicule and abuse on him, accused him of lunacy, and rejected his revelation as a lie.26 In retaliation, Qurʼanic passages condemn “hypocrites” who deny its true message, even direct relatives of the Prophet, to a fiery death.27 Mohammed is said to have ordered the assassination of poets who composed insulting verses about the Prophet and his followers. Sura 9:61 of the Qurʼan warns that “those who annoy the Messenger of Allah shall have a grievous punishment,” a threat that, combined with the precedent provided by the poets’ assassination, guided Ayatollah Khomeini’s decision to issue a death sentence against Salman Rushdie.28 The taboo transgressed by the Danish cartoons, like the taboo transgressed by Rushdie’s Satanic Verses, was thus a prohibition against insulting the Prophet, not a prohibition against depicting him.29 The cartoons elicited outrage not because they were drawings but because they were cartoons, that is irreverent drawings. A transgression of this magnitude requires an act of expiation. In some societies, according to Frazer, physical means are used to purge the ills brought about by transgressions of taboos.30 If the offender is unwilling or unable to redeem himself for his blasphemous actions, then the community must do so in his stead. Islamic law provides various procedures for removing contamination, such as confession, repentance, freeing a slave, fasting, and charity.31 Such acts are said to cover, blot out, or drive away the fault caused by the transgression.32 Blasphemy, however, constitutes a unique transgression because it is often interpreted not as mere unbelief (kufr) but as apostasy (riddah), a capital crime. Leveraging Muslim notions of blasphemy to explain the cartoon riots requires identifying the social movements most likely to act violently in response to acts of blasphemy. Islamism A final research program that underlies conventional explanations of the cartoon riots associates them with radical Muslim movements. These movements reacted sharply to the publication of the Danish cartoons and played a key role in justifying, organizing, and leading the ensuing riots. The term Islamism captures a broad array of fundamentalist and revivalist movements, ranging from the revolutionary to the reactionary.33

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Islamists have adopted a strict interpretation of Muslim law regarding apostasy and heresy. They share the belief that the nascent Muslim community during the Prophet’s lifetime offers the model for the ideal society. To re-create this authentic Muslim way of life, ruling regimes should be reformed or overthrown so that Islamic law becomes both state law and political ideology, shaping politics, economics, and social justice.34 Islamists believe that the primary obstacle facing this revivalist goal is Western influence, which has infiltrated the Islamic world with its corrupting laws and customs. The resulting betrayal of authentic Islamic values is tantamount to idolatry.35

the moral threat argument To bridge the gap between the purely materialist explanation offered by the literature on authoritarianism and the ideational explanation offered by the literature on taboos and transgressions in Islam, I now propose an alternative explanation, which emphasizes a moral threat logic. My argument rests on a series of claims from sociology and anthropology that investigate how groups respond to perceived attacks on their moral order. My approach here is structuralist, subsuming both on the one hand the political structures that enable and constrain violence and on the other the religious symbols that drive it into a single framework. Structuralism, as developed by Émile Durkheim, Alfred RadcliffeBrown, E. E. Evans-Pritchard, and others, seeks to explain social elements in terms of their contribution to a coherent system of beliefs and practices. Mary Douglas’s Purity and Danger, a structuralist contribution to the study of pollution, is particularly relevant to the topic of blasphemy because it highlights the relationship between a social group’s beliefs regarding desecration and that group’s perceptions of imminent threat. I combine Douglas’s argument with insights from the literature on threat perception and the analysis of social movements to arrive at an understanding of the conditions under which perceptions of threat may result in violence. Desecration and Disgust At the core of Douglas’s Purity and Danger lies the claim that humans make sense of their existence by imposing order on the universe, making distinctions and performing separations. The result is a systematic ordering and classification scheme, or “symbolic system.”36 Like Dur-

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kheim, Douglas suggests that sanctity is exemplified by appropriately distinguishing things into mutually exclusive categories. The blurring of categories, the crossing of lines that distinguish things from one another, constitutes desecration.37 Douglas takes the argument further than Durkheim, asserting that desecration endangers not only the symbolic system of which that prohibition is part but also the society that gave rise to that system, indeed, the very concepts of society and order. A society might respond to acts of desecration by performing rites of purification or restitution.38 Alternatively, it might employ violence against desecrators to rid itself of contamination and reestablish its boundaries.39 Actions designed to prevent or punish desecration, while not identical to rules that uphold the moral principles of a society, serve to clarify and buttress these rules. Where moral disapproval lags or where society is incapable of wielding effective sanctions against improper behavior, pollution rules step in to threaten the perpetrator with divine sanction and social opprobrium.40 As Durkheim had already concluded in his study of moral education, punishments by the group are designed to restore the moral status quo ante by reestablishing the hegemony of a taboo.41 We are thus likely to observe powerful social responses to breaches of these rules when a society both perceives that its boundaries are threatened and feels helpless in its attempts to secure those boundaries. The philosopher John Kekes built on Durkheim’s and Douglas’s arguments by focusing on the role that fundamental prohibitions play in buttressing the moral order of a society. According to Kekes, moral rules are designed not merely to protect the boundaries of a particular society, as Douglas proposes, but to form the very bulwark of what that society considers to be civilization. “Gross, flamboyant, flagrant transgressions,” such as cannibalism or incest, that flout fundamental rules, provoke “deep disgust” and threaten to subvert the moral foundations of a society.42 Unlike regular disgust, deep disgust is an instinctive, kneejerk response driven by an observer’s identification with the victim of a transgression and fear that the transgression will invade the observer’s own life. Threat Perception and Social Movements These theories about moral transgressions as challenges to the social order leave two primary questions unanswered: Which threats are most likely to provoke extreme responses? And under what conditions are social

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movements likely to respond violently to such provocations? The literature on threat perception offers a partial answer by investigating how the identity of perpetrators primes the viewers’ interpretation of an act, in this case the perception of a religious offense.43 Transgressive acts that might be interpreted as accidental or insignificant when perpetrated by members of the in-group will be seen as intentional, salient, and hostile when perpetrated by outsiders, particularly if those outsiders are perceived as threatening. The more powerful, proximate, hostile, and unfamiliar the outsiders seem, the more threatening their actions are likely to appear. The literature on social movements and repression adds the final component to this argument by relating the level of violence that a social movement practices to the level of repression in its society.44 Doug McAdam, Sidney Tarrow, Charles Tilly, and others have proposed that social movements are not inherently violent or peaceful. Instead, political and social conditions determine their behavior.45 When regimes promote democratic rights, such as the rights of assembly, association, and collective voice, they create a thriving environment for social movements.46 When these movements are disenfranchised, however, their agenda shifts from reform to revolution and their activism becomes polarized. They may then opt for violence as a survival strategy. Public violence and acts of sacrifice thus become part of the social movement’s repertoire, attracting adherents, signaling the support of a significant constituency, and spreading the movement’s message.47 Several authors have drawn on these ideas to explain the causes of religiously induced violence. Natalie Zemon Davis, for example, has shown that Catholic-Protestant mob violence in sixteenth-century France was not solely driven by economic or political motives but fulfilled religious purposes as well. Mobs that wanted social cohesion and purity restored initiated violence to either urge the political authorities to perform their duties or wrest political control from their hands and perform social purification of their own.48

hypothesis formation Hypothesis 1: Political Manipulation The literature on authoritarian violence offers the most parsimonious hypothesis for explaining the cartoon riots, the political manipulation hypothesis. Since contemporary proponents of this hypothesis have blamed authoritarian states for initiating the riots, testing its validity

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requires ascertaining whether states where riots did and did not occur fall along democratic or authoritarian lines, as coded in conventional indexes such as that of the Polity Project or the Economist Intelligence Unit’s Index of Democracy. Hypothesis 2: Religious Outrage The literatures on blasphemy and Islamism, on the other hand, propose that religious outrage drove the cartoon riots. To test this hypothesis, we need to examine statements by the protesters, to establish whether they perceived the publication of the cartoons as an insult to the Prophet amounting to blasphemy and apostasy and whether they conceived of their actions as an expiation of this act. Such statements, however, can provide little more than anecdotal evidence, since they cannot explain how individual protesters organize into violent movements. The religious outrage hypothesis identifies Islamist movements, defined above, as the most likely candidates for organizing protest in response to acts of religious outrage. If this hypothesis is correct, then the presence of powerful Islamist movements in a given state should correlate with riots there. To prevent bias in my selection, I adopt Olivier Roy’s list of significant Islamist movements.49 Hypothesis 3: Moral Threat The third and final hypothesis combines insights from both prior hypotheses with my moral threat argument. It postulates that violent protest by social movements is the result of the perception of an imminent threat to their moral order. Drawing on Douglas and Kekes, we should expect groups to respond vehemently to blasphemy if they identify with the object of the desecration and feel that the blasphemy poses a real danger to their way of life. A group’s response to blasphemy should be most extreme if it lacks confidence in the ability of authorities to stem the threat yet also feels powerless to confront the danger by itself. Thus, like the religious outrage hypothesis, the moral threat argument expects Islamist movements to emerge as the most likely candidates for fomenting riots. These groups considered the cartoons more than just offensive. The illustrations, which inflamed both their imaginations and their fears, provoked deep disgust: protesters were able to place themselves in the position of the target of the blasphemy, experiencing revulsion both on their own behalf and on behalf of the Prophet and dreading that the

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disgusting offense would invade their lives, that they would not be able to “keep the horror at bay.”50 The cartoons, which might have been disregarded or played down had they originated in the Muslim world, appeared as yet another menacing gesture from an anti-Muslim West. Yet unlike the religious outrage argument, the moral threat argument does not expect Islamist movements to engage in violent protest across the board. Authoritarian regimes can be expected to suppress or co-opt Islamist protest, resulting in subdued or orchestrated demonstrations. Islamist movements that enjoy representation in liberal regimes can be expected to stage peaceful demonstrations. Counterintuitively, violence is most likely under regimes characterized by significant political rights and civil liberties in which Islamist movements are disenfranchised. These states permit Islamist protest against moral threats but fail to protect Islamists from these threats by enacting censorship or penalizing religious offenders. Disenfranchised Islamists in these liberal states can be expected to protest violently, leading to confrontations between the security forces of the state and angry rioters. Testing whether the moral threat argument provides a good explanation for the locations of the Danish cartoon riots thus requires distinguishing among Islamist groups based on whether they perceived the cartoons as a menacing threat, the degree to which they enjoy formal political representation, and the extent to which the state where they act extends political rights and civil liberties to its citizens. To determine the presence of an influential Islamist group in a given state, I employ the same list of movements as for the religious outrage hypothesis. To code for political rights and civil liberties, I rely on the Freedom House rankings for 2006–7, sorting states into “free” on the one hand and “partially free” and “not free” on the other. The Freedom House index offers an advantage over alternatives because it focuses on political rights and civil liberties, such as the right to assemble and the freedom to protest, and thus gives a better estimate of the extent to which Islamist protest in response to the cartoons was permitted, resisted, or suppressed.51

hypothesis testing Testing the Political Manipulation Hypothesis Empirical evidence from the cartoon riots offers some support for the political manipulation hypothesis. Many authoritarian Muslim regimes that had previously prohibited demonstrations permitted protests

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against the cartoons. In several of these states, the government paid to bus in demonstrators. In Iran and Syria, police forces seemed to stand idly by as protesters set fire to European embassies, leading Denmark, Norway, Sweden, and the United States to accuse these regimes of failing to act in good faith to restrain the violence.52 Efficient crackdowns by Iran’s and Syria’s internal security apparatuses during prior instances of protest even led several European diplomats to suspect that the regimes had orchestrated the cartoon riots.53 Syrian machinations were also identified in neighboring Lebanon, where religious and political leaders suspected a foreign hand in the instigation of violence. Lebanon’s social affairs minister, Nayla Mouawad, characterized the Lebanese riots as “an organized attempt to take advantage of Muslim anger for purposes that do not serve the interests of Muslims in Lebanon but of others beyond the border.”54 The noted Islamism scholar Olivier Roy summarized these suspicions: “What is happening in the Middle East is primarily political manipulation—Syria taking revenge for its expulsion from Lebanon, Hamas striking back at the European Union for its rebuff on financial aid, Afghans anticipating the replacement of U.S. troops by European ones, and Iranians lashing back at the E.U. for its stance on the nuclear issue.”55 On closer observation, however, the political manipulation argument does not provide a satisfying explanation for the locations and nature of the cartoon riots, on several counts. For one, five of the nine states where protests turned violent were not authoritarian at all and were classified as relatively free in 2006. Freedom House ranked Lebanon, Nigeria, and Afghanistan as “partially free” based on its assessment of their political rights and civil liberties, yet in all three, protests escalated into riots. The Palestinian Territories held democratic elections only a week prior to attacks on European institutions in the West Bank and Gaza. Riots also took place in Indonesia, a full-fledged democracy. Moreover, any explanation that links the cartoon riots to the authoritarian regimes under which they occurred must account for peaceful demonstration in numerous authoritarian Muslim states, from Morocco to Qatar. The political manipulation argument thus fails to explain not only the majority of cases in which violence did happen but also some two dozen cases in which it did not. The Muslim states of Sudan, Turkmenistan, and Uzbekistan, for example, all ranked lowest among regimes worldwide in terms of civil liberties and political rights, yet no riots occurred there. And if, as an editorial in the Washington Post suspected, regimes had instigated violence because it provided “a convenient refuge

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for authoritarian regimes,” why did protests in Egypt and Saudi Arabia stop short of the threshold of violence?56 Grassroots Riots in Libya and Pakistan Even where riots did occur under authoritarian regimes, the actions of these regimes did not always comport with the expectations of a political manipulation argument. Unlike Syria and Iran, the Libyan and Pakistani regimes did not stand idly by as protests took place but attempted to defend Western institutions from attacks. In Libya, for example, fatalities resulted from fighting between protesters and Libyan police forces attempting to protect the Italian consulate in Benghazi. The Libyan demonstration occurred after Reforms Minister Roberto Calderoli, a leading member of Italy’s Northern League, announced that he would wear a T-shirt displaying one of the Danish cartoons. Given his prominent role in blocking immigration from Libya so as to promote the “Christian identity” of Italy, it was not unreasonable for protesters to conclude that his gesture was a slight aimed directly at a Libyan audience. More than a thousand demonstrators reacted to Calderoli’s televised appearance by hurling rocks and bottles at the Italian consulate, then entering the grounds and setting fire to the building.57 Police responded with gunfire and tear gas in a futile attempt to disperse the crowd as firefighters tried to put out the fire. Eleven people, including both police and protesters, were killed in the exchanges that followed, while the staff of the Italian consulate escaped unharmed. The Libyan government “strongly denounced” the violence and issued a formal apology to the Italian ambassador.58 The absence of parallel demonstrations at the Italian embassy in the capital, Tripoli, suggests that the riots, far from being instigated by the government, were the product of weakening state authority in the outskirts of Libya.59 The Pakistani regime’s response to protests over the cartoons paints a more complicated picture. Initially it sanctioned peaceful protest, and elected officials often supported demonstrations.60 Gradually, mainstream opposition parties, hard-line Islamic groups, and fundamentalist movements came to assume control of the protests. They represented varied political platforms: some pressed for democratic reforms, others opposed President Pervez Musharraf and his alliance with the West, and yet others represented constituents angered by corruption in the Pakistani judiciary and executive.61 While many were driven by political agendas, outrage over the cartoons provided a cohesive element that

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drew angry crowds to the streets. Leading the more violent protests were members of Sipah-e-Sahaba, a Deobandi Islamist movement, and Laskhar-e-Tayyaba, a banned jihadist group, as well as members of the United Council of Action (Muttahida Majlis-e-Amal, or MMA), Pakistan’s largest Islamic party. Only on grasping the extent of the violence and identifying its organizers did the regime launch an aggressive campaign to ban all protest and arrest agitators.62 President Musharraf had initially denounced the cartoons, commenting in mid-February 2006 that “the most moderate Muslim will go to the street and talk against [the cartoons] because this hurts the sentiments of every Muslim.”63 In the days that followed, three thousand students rioted in the diplomatic enclave in Islamabad, fifteen thousand protesters in Lahore attacked Western businesses, and seventy thousand protesters in Peshawar went on a rampage, assaulting Christian and Western institutions. Security forces, initially indifferent to these protests, attempted to control the crowds by means of tear gas and batons but ultimately resorted to gunfire, killing three rioters in Lahore and two in Peshawar and injuring scores of others.64 The riots in Islamabad, Lahore, and Peshawar led to a dramatic escalation in government repression. The regime deployed thousands of paramilitary and police forces in major cities to close schools and colleges, guard government and foreign installations, block streets leading to potential protest venues, and control major intersections. All rallies in East Pakistan and Islamabad were banned indefinitely. Police arrested hundreds of ban-defying protesters and rounded up religious activists, clerics, opposition lawmakers, and religious-school administrators, including the founder of Laskhar-e-Tayyaba and the head of the MMA.65 After the ban on protests was lifted, they continued to attract massive crowds yet proceeded peacefully.66 The reasons why protests turned violent in Libya and Pakistan and the responses of their governments to the cartoon riots fly in the face of the political manipulation argument. Casualties in both cases resulted from confrontations between rioters and security forces attempting to control the protests. The contrast between these two cases and the riots in Iran and Syria, where government manipulation was evident, is stark. Religion as a Missing Variable Even where the political manipulation hypothesis can account for state orchestration of riots, as in Syria, it still fails to explain why the Danish

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cartoons provided a useful tool for the manipulation of local populations. By conceiving of the cartoons as a mere pretext for violence, the political manipulation hypothesis marginalizes the role of religious interests, which causes difficulties as one tries to generalize its claims to non-Muslim authoritarian states. If authoritarian rule rather than Islam best explains these violent responses to blasphemy, then we would expect authoritarian regimes associated with other religious movements to respond similarly to opportunities for political manipulation. Yet the Nepalese monarchy has not used repeated Muslim-Hindu conflict over the desecration of sacred sites in India and Pakistan as an excuse for mobilizing anti-Muslim riots, despite its identification with Hinduism. Authoritarian regimes in majority-Christian states, such as Swaziland and Zimbabwe, have not incited violence in response to major blasphemy controversies surrounding art, literature, or films deemed offensive to Christians,67 nor did the Vietnamese regime seize on insults to Buddhism, such as the destruction by the Tamil Tigers of the Temple of Buddha’s Tooth in Sri Lanka in 1998, in order to orchestrate anti-Hindu riots. An explanation anchored exclusively in politics cannot illuminate aspects of the cartoon riots that led to a violent outcome in this case but did not lead to violence in cases involving other religious movements. This explanation also fails to consider the justification for violence that the participants provided: blasphemy and insult to Islam. Testing the Religious Outrage Hypothesis At the grassroots level, outrage was evident in indignant reactions by protest participants throughout the Muslim world. One Pakistani protester described his response to the cartoons as “a great shock . . . a lightening bolt that struck the heart of those who love the Prophet.” Another explained, “Muslims keep on being killed all over the world and we stay quiet. But love for the Prophet [pause] is such that we cannot bear anyone ridiculing it. There is nothing to be explained, it’s not a scientific thing or a contract. It’s not that kind of relation: it’s a relation of love.” A third rioter emphasized a different set of emotions: “They had been rude to our Holy Prophet . . . and I got angry. I swear I would kill the guy who’s done these cartoons if ever he comes in front of me!”68 To ascertain systematically whether this outrage provides the best explanation for the cartoon riots, we need to test for the presence of

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Islamist movements in states where riots did and did not occur. Islamist movements have attracted supporters around the Muslim world by drawing on familiar Islamic themes and images. Because they are able to use mosques as mobilization sites and network hubs, they have prospered even in autocratic states, where they often form the only effective opposition movement.69 Influential Islamist movements include Jamaat e-Islami in Pakistan, Hezbollah in Lebanon, Hamas in the Palestinian Territories, the Taliban in Afghanistan, the Islamic Movement in Nigeria, and the Islamic Defender Front in Indonesia. Only the Islamic Revolution in Iran has succeeded in establishing an Islamist state. There were thus active Islamist movements in all states where the Danish cartoons prompted unrest, with the exception of Libya and Syria, which had successfully suppressed their Islamist movements. Nonetheless, the presence of an Islamist movement is insufficient for predicting religiously motivated rioting in a given state. After all, Islamist movements have arisen in most Muslim states. Some of the most powerful of these organizations are active in states where violent protest did not take place. These include states where Islamist movements are integrated into the politics of the ruling regime, such as the Felicity Party in Turkey, the Congregation for Reform in Yemen, and multiple Sunni and Shiʻa parties in Bahrain. In other states where rioting was absent, Islamist parties were excluded from the political process in 2006–7 and opposed the regime, like the Islamic Salvation Front in Algeria, the Muslim Brotherhood in Egypt, Jamaat e-Islami in the Indian subcontinent, the Islamic Resistance Party in Tajikistan, the Supreme Council for the Islamic Revolution in Iraq, the National Islamic Front in Sudan, and the Islamic Courts Union in Somalia. In the absence of an argument that can delineate the political conditions under which Islamist protest is likely to result in violence, the concept of Islamism is of limited utility for linking notions of blasphemy to the cartoon riots. The weakness of the religious outrage argument thus mirrors the weakness of the political manipulation argument. Where the one focuses on the religious interests of radical movements without delineating the political conditions for their effectiveness, the other emphasizes the political interests of elites to the exclusion of the religious interests being manipulated. Harnessing the strengths of both arguments requires a combination of religious and political logics that can link the motivations of the Islamist movements that fomented the rioting with the motivations of the regimes that confronted the riots, resulting in casualties.

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Testing the Moral Threat Hypothesis The moral threat hypothesis expects intense grassroots protest where Islamist movements lacked confidence in the ability of the ruling regime to fend off a threat to the moral order. It suggests that mass protest offered the only means for Islamist groups to draw attention to the threat that blasphemy posed where these groups were excluded from the political process. Islamist movements acted to expunge the threat by scapegoating, attacking Western institutions, irrespective of nationality, that symbolized the source of the threat. “The government didn’t take any action on this,” one Pakistani rioter explained. “Only the people did something.”70 However, where the political framework of the state incorporated Islamist movements, they used their formal influence and political clout to take official action against the cartoons. In these states, Islamist political groups staged organized and peaceful protests or issued formal condemnations of the cartoons. This argument thus divides all existing Islamist movements into two sets: those disenfranchised by the ruling regime of their host state and those subsumed into the political structure of their host state. Where did riots ensue? Authoritarian regimes were able to crack down on Islamist dissent prior to the eruption of riots. Under these regimes, in such states as Egypt, Jordan, Somalia, and Sudan, protest was quashed before it even began. On the other hand, regimes that afforded their citizens the freedom to assemble and protest faced severe constraints in confronting Islamist protesters. Limited in the means they were willing to employ to suppress dissent, these regimes often responded haphazardly to the protests. In Pakistan, for example, “the police sent mixed signals: in some parts of the procession it displayed empathy, chanting slogans with the crowd, in others it used repression.”71 The resulting confrontations between the security apparatuses of these regimes and angry rioters produced the cartoon riot casualties. Weak state capacity was neither sufficient not necessary for the outbreak of riots, though it seems to have played some part in the Pakistani case, as I discuss below. Riots occurred not because relatively liberal Muslim states were unable to suppress protest but because they were unwilling to do so. As table 7.2 illustrates, the moral threat argument divides states with Islamist movements into four categories. States in the top-left quadrant are authoritarian and have disenfranchised influential Islamist movements. No riots occurred in these states, with the exception of Pakistan,

Protesting Sacrilege | 207 table 7.2 cartoon protests and riots in states with significant islamist movements Few political rights and civil libertiesa Islamists in opposition

protest Azerbaijan, Algeria, Egypt, Iraq, Pakistan, Somalia, Sudan, Tajikistan Islamists in government riots Iran

Significant political rights and civil libertiesb riots Afghanistan, Indonesia, Lebanon (Muslim Brotherhood), Nigeria protest Bahrain, Jordan, Kuwait, Lebanon (Hezbollah), Palestinian Territories (Hamas), Turkey, Yemen

Italics designate states in which riots occurred in response to the Danish cartoons. a

Based on the Freedom House ranking of “not free” for 2006–7.

b

Based on the Freedom House rankings of “free” and “partially free” for 2006–7.

because their regimes were able to stem dissent, often arresting Islamist leaders, controlling demonstrations with overwhelming police force, or prohibiting protest altogether. Riots were also absent from states in the bottom-right quadrant, for obverse reasons. Here Islamist groups found ample opportunities for expressing dissent by peaceful means. Since the regimes in these states afforded Islamist parties a voice in the political process, violent protest proved unnecessary. Riots occurred under one of two conditions. First, regimes that were characterized by significant political and civil rights but that marginalized Islamist movements, represented in the top-right quadrant, left these groups with no alternative but to express their grievances by protesting. In Iran, on the other hand, the state itself represented Islamist interests. In line with the suspicions of Western leaders but for reasons other than those that the political manipulation hypothesis proposes, the Iranian government orchestrated the cartoon riots in Tehran. Deadly Protests in Indonesia, Nigeria, Lebanon, and Afghanistan Evidence from the riots in Indonesia, Nigeria, Lebanon, and Afghanistan lends credence to the moral threat hypothesis: as in Pakistan, protests that Islamist movements initiated in these states degenerated into violence when security forces lost control over demonstrations and resorted to deadly force.

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In Indonesia, the Islamic Defender Front (Front Pembela Islam, or FPI), a hard-line Islamist group that has confronted Western and secular incursions with violence in the past, organized the riots. On February 3, 2006, hundreds of FPI members went on a rampage in the lobby of the Jakarta building that houses the Danish embassy but failed to get past security.72 Three days later, a mob in Surabaya attacked and smashed windows at the Danish consulate, then moved to the U.S. consulate, where they threw rocks and bottles and tried to breach a security wall. Police fired warning shots to disperse the crowd and scuffled with protesters, wounding one protester and two police officers. “We did not ban the demonstration,” Surabaya’s police chief explained, “but when it turned violent, with attempts at destruction, we had to stop it.”73 Foreign ministry spokesperson Yuri Thamrin added that “the government does not condone violent protests. . . . Indonesians have the right to protest, but must do it within the law.”74 Two weeks after the attacks in Surabaya, hundreds of Muslims attempted to storm the U.S. embassy in Jakarta, smashing the windows of a guard post but failing to push through the gates.75 It remains unclear who led the riots in Nigeria, which resulted in more than 120 deaths in a single week.76 Protests did, however, originate from mosques of the Movement for Islamic Revival (Ja’amutu Tajidmul Islami), an Islamist Shiʻa movement led by Abubakar Mujahid.77 The violence began in northeastern Nigeria, where Muslims protested the cartoons and the alleged desecration of a Qurʼan by a Christian teacher.78 Attempts by police to disperse the demonstrators with tear gas turned the mob against the local Christian population. Protesters burned thirty churches and looted shops owned by Christians during a three-hour rampage, killing eighteen people. Hundreds of soldiers and paratroopers joined police armed with rifles to patrol city streets throughout Nigeria, killing at least one protester.79 Christian Nigerians avenged these attacks by assaulting Muslims in majority-Christian cities in the east with machetes and shotguns, looting Muslim homes and shops, killing fifty Muslims, and burning two mosques.80 Lebanese leaders were quick to place the blame for the violence in Beirut on outside “infiltrators,” presumably Syrians.81 Indeed, of the 174 protesters arrested, 76 were Syrian.82 Nonetheless, the Lebanese branch of the Muslim Brotherhood (al-Jamaa al-Islamiyya), an Islamist movement led by Faisal Mawlawi, organized the more violent protests.83 Twenty thousand protesters clashed with two thousand security forces after demonstrators set fire to the building housing the Danish

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and Austrian consulates. The mob vandalized cars, police vehicles, office buildings, and a Maronite church in the predominantly Christian Achrafieh section of East Beirut.84 One protester, trapped by flames, died after jumping from the third floor of the consulate building. Lebanese security forces required two hours to regain control, using water cannons and tear gas. Twenty-one members of Lebanon’s security forces were injured in the exchanges.85 In Afghanistan, thirteen protesters died over three days in four clashes with police. Afghani officials blamed al-Qaeda and Taliban militants for instigating the riots but could offer no evidence to substantiate these accusations. Afghani observers described the riots as “a massive uprising” in response to “an incredibly emotive issue [that] really upset Afghans.”86 One of the protest organizers in Kabul, for example, was a twenty-three-year-old baker who wanted “to teach a lesson to the infidels that they should not repeat this.”87 The location of Afghan riots lends credence to the idea that the clashes were rooted in popular anger rather than in insurgent efforts to weaken U.S. troops. Whereas coalition operations against the Taliban and other antigovernment forces were concentrated in southern Afghanistan, the riots occurred in the north.88

evaluating the evidence The moral threat argument combines elements from the political manipulation and religious outrage hypotheses while overcoming many of their inherent weaknesses in order to accurately predict where riots did and did not happen. The political manipulation argument hints at regime type as the crucial condition for religiously motivated rioting but cannot explain why most riots occurred in states characterized by civil and political liberties. The religious outrage argument correctly points to Islamist movements as the most likely instigators of anti-Western riots yet cannot differentiate states with active Islamist movements where riots did not happen from states where violent protest did occur. The moral threat argument offers an explanation for deadly clashes between liberal Muslim regimes and Islamist movements responding to the social menace that the cartoons posed. It sheds light on the identity of rioters, their targets, and the reasons for fatalities. It accurately predicts spontaneous and orchestrated riots, as well as peaceful and subdued protest, and can thus explain not only where violence did and did not occur but also why it occurred and what shape it assumed.

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Though the moral threat argument offers an explanation for the majority of the cartoon riots, it cannot explain violence in states without significant Islamist movements. This leaves some room for the other hypotheses to explain riots that occurred under extreme political or religious circumstances. The Syrian riots, which showed all the signs of orchestration by the regime, fit well with the political manipulation argument.89 Similarly, the al-Aqsa Martyrs’ Brigades, a violent offshoot of Fatah, organized riots in the Palestinian Territories a week after the Hamas victory in the first Palestinian parliamentary elections. Fatah, still exerting authoritarian rule, orchestrated the riots before Hamas had the opportunity to form a government or assume responsibility for the internal security of the Palestinian areas.90 The riot in Libya, on the other hand, exemplifies the religious outrage argument: popular anger in response to a specific religious provocation was sufficient in and of itself to explain rioting, even in the absence of an Islamist movement. Two cases seem to present a challenge for the moral threat argument. The first is Pakistan, an authoritarian regime that should have suppressed the riots, as did its counterparts in Egypt, Sudan, and Algeria, for example. The two variables driving the moral threat argument can explain Pakistan’s decision. Pakistan is one of the few authoritarian Islamic regimes that grant their citizens significant freedom of assembly and protest.91 At the same time, it harbors the largest Salafi-influenced population in the Muslim world and one of the largest Shiʻa communities in the world.92 Pakistan’s liminal political status combined with the formidable challenge that its Islamists pose helps explain why the riots there resembled those in Afghanistan and Nigeria more than the subdued protests under other authoritarian regimes. The riots in Lebanon present an additional challenge, since Hezbollah, an influential Islamist party, held 14 of 128 seats in the Lebanese parliament at the time. Yet a closer look at the events of February 2006 confirms the moral threat intuition. The Muslim Brotherhood and, by some accounts, the Salafi Hezb al-Tahrir party and Wahhabi elements from the Palestinian Ein el-Helweh refugee camp instigated the Lebanese riots. Hezbollah, on the other hand, called for calm and staged peaceful protests.93

implications My findings have implications for our understanding of violent responses to religious provocation in and outside the Muslim world. At the same time, the moral threat argument has implications for the study

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of religion and international relations in general because it exemplifies a novel approach for exploring the microfoundations of religiously motivated political behavior. Are Muslims inclined to respond disproportionately to acts of blasphemy? The condemnation of apostates in Egypt, Turkey, and Bangladesh; the lynching of a Christian teacher in Nigeria for allegedly desecrating the Qurʼan; the conviction of a British schoolteacher in Sudan for naming a teddy bear Mohammed; and the deadly riots in response to rumors about the desecration of Qurʼans in Guantanamo Bay have led some to conclude that Muslims are exceptionally sensitive to perceived slights against their religion.94 Several scholars who share this view have offered essentialist arguments about the relationship between blasphemy and Islam. Richard Webster has traced Muslim intolerance of blasphemy to Islam’s failure to undergo a “conscience-centered revolution” parallel to the Protestant Reformation. Because the Qurʼan and the Prophet have retained their status as external sources of authority in Islam, Webster argued, Muslims continue to construe acts of blasphemy as attacks against their religion, whereas Puritans and their modern-day followers, for example, have internalized blasphemy laws, judging blasphemy a mere moral offense.95 Scott Atran has drawn attention to the importance of honor as a sacred value in Islamic societies.96 If blasphemy is perceived as an insult, Muslims might be expected to defend their honor irrespective of the economic or political costs. Daniel Pipes has explained the violent aftermath of the Rushdie affair in terms of Muslim “literal-mindedness,” the perception that art expresses the personal opinion of its creator and entails truth claims. This, combined with a “conspiratorial mentality,” is said to lead Muslim readers to interpret blasphemous art as part of a larger Western campaign against Islam.97 In this chapter, I have offered an alternative to such essentialist arguments by demonstrating that the riots in response to the Danish cartoons cannot be reduced to either a political or a religious logic. Like members of other religious communities, Muslims respond to religious provocations under particular circumstances. Most Muslim communities did not respond with riots to the publication of the cartoons, even where Islamist movements predominated. Violence occurred primarily where radical groups enjoyed the freedom to organize and protest but lacked state protection of their sacred values. The moral threat hypothesis is the least parsimonious of the three hypotheses presented here, and its strength lies in its generalizability. A

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moral threat approach can explain religiously provoked violence by fundamentalist movements worldwide. By identifying the actions most likely to threaten a given fundamentalist movement, we can forecast where and when it is most likely to respond violently to religious provocations. Doing so requires both understanding the principles and practices that specific movements hold sacred and identifying the perpetrators whose transgression members of the movement are most likely to interpret as threatening. Fundamentalist Jews in Israel, for example, have not responded violently to blasphemous imagery. For reasons readily traceable to Jewish belief and practice, the desecration of the Sabbath amounts to a far greater offense than does blasphemous action or speech. Fundamentalist Jews perceive the desecration of the Sabbath as a particularly heinous offense when committed by secular Jews in the holy city of Jerusalem. While they are free to protest such transgressions in Israel, they must also suffer the costs of residing in a liberal democratic society that seems uninterested in protecting their most sacred values. Consequently, ultraorthodox protesters in Jerusalem have attacked secular Israelis driving through their neighborhoods or going to movies on the Sabbath.98 There are no parallels to these assaults in Jewish communities outside Israel, where the interaction between ultraorthodox communities and non-Jews is minimal. It is the unique combination of a sacred value and its transgression by an opponent perceived as threatening that sparks fundamentalist Jewish violence in Israel but not elsewhere. The Jewish sensitivity to Sabbath desecration in Jerusalem is mirrored by a Hindu sensitivity to slights committed by Muslims against Hindu relics and shrines in India. Protestant fundamentalists in the United States, on the other hand, see abortion as the primary secular threat to their sacred value system. Extremist Hindu violence in response to desecration of sacred space and Protestant attacks on abortion clinics are unique to India and the United States, respectively. In these environments, fundamentalists are confronted by transgressive acts committed by opponents and are permitted the public expression of religiously motivated anger. Yet they receive no legal state protection against the transgressions that they consider so harmful to their fundamental values. Beyond its implications for explaining violence motivated by offenses to religious values, my argument dovetails with a burgeoning literature on religion and violence that strives to combine observations about religious belief and practice with an understanding of political incentives and constraints.99 These analyses exemplify an emerging methodology

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in the study of religion and international conflict that emphasizes a sensitivity to religious detail, be it the theology, organizational structure, iconography, rituals, or beliefs of the religious groups involved, but also a willingness to generalize from particular religious movements, regions, or instances to arrive at broader conclusions for international relations. With a nod toward Clifford Geertz, one might call such an approach to the study of religion and international affairs thick religion.100 Instead of striving, fruitlessly, to reduce religiously motivated violence to either religion or politics, this methodology starts at the religious microfoundations of a political phenomenon and then tries to construct successive layers of explanation, each more removed from the religious and closer to the political, until it arrives at the outcome to be explained. This approach rests on the assumption that the study of religion and international politics is necessarily an interdisciplinary exercise. In addition to politics, we ought to study religion directly, be it through the sociology of religion, comparative religious analysis, or theology. Merely viewing religion through a political lens will not do.

notes I thank the editors of International Studies Quarterly for permission to reprint this article, which appeared in vol. 55, no. 1 (March 2011): 23–45. For their constructive comments on previous drafts of this paper, I thank Emily Bech, Jonathan Blake, Daniel Byman, Jennifer Dixon, Raymond Duvall, Tanisha Fazal, Steven Fish, Andrius Galisanka, Philip Gorski, Khurram Hussain, Robert Jervis, Sigrun Kahl, Nina Kelsay, Ronald Krebs, Andrew Kydd, Amy Nelson, Ben Oppenheim, Ivo Plsek, Jay Purcell, Tonja Putnam, Vivek Sharma, Jack Snyder, Rachel Stern, Laura Thaut, Monica Toft, and George Wilcoxon. I am grateful to participants in the Macmillan Center Initiative on Religion, Politics and Society at Yale University, the Columbia University International Politics Seminar (CUIPS), the Berkeley IR Colloquium (MIRTH), the Minnesota International Relations Colloquium, and the Wisconsin International Relations Colloquium for their comments and suggestions. I thank the anonymous reviewers for their helpful comments. I am particularly thankful to Len Weiss for inspiring this research. 1. Dan Bilefsky, “Denmark Is Unlikely Front in Islam-West Culture War,” New York Times, January 8, 2006, 3; Alan Cowell, “More European Papers Print Cartoons of Muhammad, Fueling Dispute with Muslims,” New York Times, February 2, 2006, A12; Craig S. Smith and Ian Fisher, “Temperatures Rise over Cartoons Mocking Muhammad,” New York Times, February 3, 2006, A3. 2. Carlotta Gall and Craig S. Smith, “Muslim Protests against Cartoons Spread,” New York Times, February 7, 2006, A8; Hassan M. Fattah, “At Mecca Meeting, Cartoon Outrage Crystallized,” New York Times, February 9, 2006,

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A2; Ian Fisher, “Italian Quits over Cartoons; 15 Die in Nigeria,” New York Times, February 19, 2006, 16. 3. Karl Ritter, “Danish PM Says Nation Unfairly Portrayed,” Associated Press Online, February 13, 2006, available at at www.apnewsarchive.com; Jan M. Olsen, “Danish FM: Al-Qaeda Will Exploit Uproar,” Associated Press Online, February 20, 2006. 4. Political scientists have made few attempts to examine the Danish cartoon incident and no attempts to provide an overarching explanation for the ensuing violence. See Marion G. Mueller and Esra Oezcan, “The Political Iconography of Muhammad Cartoons: Understanding Cultural Conflict and Political Action,” PS: Political Science and Politics 40 (April 2007), 287–91; Matthew J. Nelson, “Who Speaks for Islam? ‘Authenticity’ and the Interpretation of Islamic Law in America’s War on Terror,” Australian Journal of International Affairs 61, no. 2 (June 2007), 247–66. 5. Similar differences of opinion have characterized analyses of the response to Salman Rushdie’s Satanic Verses, with interpreters divided over whether the motives for the backlash against Rushdie are best viewed as power driven or faith based. For explanations of the Rushdie affair anchored in politics, see Z. Sardar and M. Davies, Distorted Imaginations: Lessons from the Rushdie Affair (London: Grey Seal Books, 1990); W. Weatherby, Salman Rushdie: Sentenced to Death (New York: Carroll and Graf, 1990). For rejections of the political account based on a religious logic, see Daniel Pipes, The Rushdie Affair (New York: Carol Publishing, 1990); Kalim Siddiqui, “The Implications of the Rushdie Affair for Muslims in Britain,” speech at the Muslim Institute for Research and Planning, London, April 1, 1989. 6. My investigation in this chapter is limited to Muslim-majority states. I define riots as mob violence against persons or property resulting in damage or fatalities. This excludes individual acts of murder, terror, or assassination. 7. Lara Sukhtian, “Are Extremists Fanning Cartoon Outrage?,” Associated Press Online, February 9, 2006; David R. Sands and Bill Sammon, “Rice Accuses Syria, Iran in Riots; Says Nations Incite Cartoon Outrage,” Washington Times, February 9, 2006, A01. 8. “US Keeping Response to Arab Cartoon Controversy ‘Low Key,’ ” Bulletin’s Frontrunner, February 10, 2006. 9. “Global Muslim Protests over Prophet Cartoons Grow Violent; European Embassies Burned in Middle East,” Facts on File World News Digest, February 9, 2006. 10. United Press International (UPI), “Blair: Iran Military Action ‘Possible,’ ” February 7, 2006, available at www.UPI.com. See also Gall and Smith, “Muslim Protests against Cartoons Spread.” 11. William J. Dixon, “Democracy and the Peaceful Settlement of International Conflict,” American Political Science Review 88, no. 1 (1994): 14–32; Dixon, “Democracy and the Management of International Conflict,” Journal of Conflict Resolution 37 (1993), 42–68; Michael W. Doyle, “Liberalism and World Politics,” American Political Science Review 88 (1986): 1151–69; Zeev Maoz and Russett, “Normative and Structural Causes of Democratic Peace,” American Political Science Review 87 (1993): 624–38; Michael Mousseau,

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“Democracy and Compromise in Militarized Interstate Conflicts, 1816–1992,” Journal of Conflict Resolution 42, no. 2 (April 1998): 210–30; Bruce Russett, Grasping the Democratic Peace (Princeton, NJ: Princeton University Press, 1993); Michael Stohl and George Lopez, eds., Government Violence and Repression (Westport, CT: Greenwood, 1986). 12. John E. Mueller, War, Presidents, and Public Opinion (New York: Wiley, 1973); Richard A. Brody, Assessing the President (Stanford, CA: Stanford University Press, 1991); Kenneth A. Schultz, Democracy and Coercive Diplomacy (Cambridge: Cambridge University Press, 2001); Suzanne L. Parker, “Toward an Understanding of ‘Rally Effects’: Public Opinion in the Persian Gulf War,” Public Opinion Quarterly 59 (1995): 526–46. 13. Jack S. Levy, “The Diversionary Theory of War: A Critique,” in Handbook of War Studies, ed. Manus I. Midlarsky (Boston: Unwin Hyman, 1989), 259–88; Richard N. Rosecrance, Action and Reaction in World Politics (Boson: Little, Brown, 1963); Michael Stohl, “The Nexus of Civil and International Conflict,” in Handbook of Political Conflict, ed. Ted Robert Gurr (New York: Free Press, 1980), 297–330. 14. William Robertson Smith, Religion of the Semites (London: Black, 1894), 149–50. See also Arthur Charles James, “Taboo among the Ancient Hebrews” (thesis, University of Pennsylvania, Philadelphia, 1925), 11. 15. J. G. Frazer, Taboo and the Perils of the Soul, vol. 2 of The Golden Bough: A Study in Magic and Religion (London: Macmillan, 1911). For a literature review that summarizes and critiques the exploration of taboos in Frazer, William Robertson Smith, Alfred Radcliffe-Brown, Margaret Mead, Sigmund Freud, and others, see Franz Steiner, Taboo (London: Cohen and West, 1956). 16. Frazer, Golden Bough, 224. See also Émile Durkheim, The Elementary Forms of the Religious Life, trans. Joseph Ward Swain (New York: Free Press, 1915); Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London: Routledge, 1996), 22. 17. Frazer, Golden Bough, 96–100. 18. The false claim that Islam prohibits depictions of the Prophet appears in coverage of the riots by the New York Times and other papers, as well as Mueller and Oezcan, “Political Iconography of Muhammad Cartoons.” 19. Oleg Grabar, “Islam and Iconoclasm,” in Iconoclasm: Papers Given at the Ninth Spring Symposium of Byzantine Studies, ed. Anthony Bryer and Judith Herrin (Birmingham: Center for Byzantine Studies, University of Birmingham, 1977), 45–47. 20. Thus early Muslims permitted their Christian subjects to worship with icons but took offense at the Christian adoration of the crucifix. In Muslim eyes, the symbol of the cross, not depictions of biblical characters or saints, was provocative, because it symbolized the resurrection of Jesus, a blasphemous notion to Muslims. G. R. D. King, “Islam, Iconoclasm, and the Declaration of Doctrine,” Bulletin of the School of Oriental and African Studies 48, no. 2 (1985), 267–77. 21. Figural representation was common in private Muslim art and decorates the palaces of most Muslim dynasties, particularly those of the twelfth and the mid-fourteenth century, after which its popularity declined. Grabar, “Islam and Iconoclasm,” 47–48.

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22. Muslim manuscripts produced in the Ottoman and Safavid courts are often illustrated with figures and images. Where images of Mohammed exist, most often in Shiʻa and Sufi depictions of the narrative in chapter 17 of the Qurʼan, they are meant not as icons but as illustrations of historical or literary texts. Some of these leave the Prophet’s face visible, but most cover his face and even his body with a veil. 23. “Art,” in Encyclopedia of Islam and the Muslim World, ed. Richard C. Martin, vol. 1 (New York: MacMillan, 2004), 78–79. 24. Marshall Hodgson, “Islam and Image,” History of Religions 3, no. 2 (Winter 1964): 240–41; Hodgson, The Venture of Islam, vol. 1 (Chicago: University of Chicago Press, 1964), 247, 368–69; Diane Apostolos-Cappadona, “Iconoclasm,” in Encyclopedia of Religion, ed. Lindsay Jones, rev. ed. (New York: Macmillan, 2005), vol. 6, 4279–89. 25. Blasphemy can take the form of insult to God, the Prophet, or an important aspect of Islam (sabb); vilification of God (shatm); infidelity to God or rejection of his revelation (kufr); heresy (zandaqah); or, at worst, apostasy (riddah). See, for example, suras 4:140, 5:73, 6:108, 9:74, 28:55, 39:08, and 39:33. 26. Carl W. Ernst, “Blasphemy: Islamic Concept,” in Jones, Encyclopedia of Religion, vol. 2, 974–77. 27. See, for example, sura 111, in which Abu Lahab, a half-brother of Mohammed’s father, is consigned to hell with his wife for their treatment of Mohammed. 28. Khomeini justified the death sentence by admonishing Rushdie for “[daring] to insult the Islamic sanctities.” “No Iranian Forgiveness for Salman Rushdie,” Associated Press Online, December 27, 1990. 29. The leader of Hezbollah in Lebanon, Sheikh Hassan Nassralah, made the similarity between the two transgressions explicit, declaring that “if there had been a Muslim to carry out Imam Khomeini’s fatwa- against the renegade Salman Rushdie, this rabble who insult our Prophet Mohammed in Denmark, Norway and France would not have dared to do so.” Agence France-Presse (AFP), “Hezbollah: Rushdie Death Would Stop Prophet Insults,” February 2, 2006, available at www.afp.com. 30. Frazer, Golden Bough, 214. Such physical practices are detailed in Hutton Webster, Taboo: A Sociological Study (Stanford, CA: Stanford University Press, 1942), 35–39; Alfred Radcliffe-Brown, Structure and Function in Primitive Society (Glencoe, IL: Free Press, 1952), 135; Sigmund Freud, Totem and Taboo: Some Points of Agreement between the Mental Lives of Savages and Neurotics (New York: W. W. Norton, 1989). 31. Kevin Reinhart, “Impurity / No Danger,” History of Religions 30, no. 1 (August 1990): 1–24. 32. J. Chelhod, “Kaffara,” in Encyclopedia of Islam, ed. P. Bearman, T. Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden, Netherlands: Brill, 2008), vol. 4, 406. 33. On Islamic fundamentalism and Islamism, see John L. Esposito, ed., Voices of Resurgent Islam (New York: Oxford University Press, 1983); Olivier Roy, The Failure of Political Islam, trans. Carol Volk (Cambridge, MA: Harvard University Press, 1994); Giles Kepel, Jihad: The Trail of Political Islam, trans. Anthony F. Roberts (Cambridge, MA: Harvard University Press, 2002); Bernard

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Lewis, The Crisis of Islam: Holy War and Unholy Terror (New York: Random House, 2004); Roy, Globalized Islam: The Search for a New Ummah (New York: Columbia University Press, 2006); Roy, Secularism Confronts Islam, trans. George Holoch (New York: Columbia University Press, 2007); Roy, The Politics of Chaos in the Middle East, trans. Ros Schwartz (New York: Columbia University Press, 2008). 34. Roy, Globalized Islam, 58–59; Roy, Secularism Confronts Islam, 63. 35. Lewis, Crisis of Islam, 24, 134. 36. Douglas, Purity and Danger, 36, 170. For evaluations and critiques, see Melford E. Spiro, “Purity and Danger: An Analysis of Concepts of Pollution and Taboo by Mary Douglas,” American Anthropologist 70, no. 2 (April 1968): 391–93; William McCormack, “Purity and Danger: An Analysis of Concepts of Pollution and Taboo by Mary Douglas,” Journal for the Scientific Study of Religion 6, no. 2 (Autumn 1967): 313–14. 37. Douglas, Purity and Danger, 54–55; Durkheim, Elementary Forms of the Religious Life. 38. Ibid., 124–26, 137. See also Levy-Bruhl, Primitives and the Supernatural (New York: Haskell House, 1936). 39. Douglas, Purity and Danger, 40–41. See also Caroline Ford, “Violence and the Sacred in Nineteenth-Century France,” French Historical Studies 21, no. 1 (Winter 1998): 101–12. 40. Douglas, Purity and Danger, 133. 41. Émile Durkheim, Moral Education: A Study in the Theory and Application of the Sociology of Education, trans. Herman Schnurer and Everett K. Wilson (Glencoe, IL: Free Press, 1961), 165–67. 42. John Kekes, “Disgust and Moral Taboos,” Philosophy 67, no. 262 (October 1992), 442–43. 43. On threat perception in social and political psychology, see Henry Tajfel, ed., Differentiation between Social Groups: Studies in the Social Psychology of Intergroup Relations (London: Academic Press, 1978); Tajfel and John C. Turner, “An Integrative Theory of Intergroup Conflict,” in The Social Psychology of Intergroup Relations, ed. W. G. Austin and S. Worchel (Monterey, CA: Brooks-Cole, 1979), 1–39; Markus Kemmelmeier and David G. Winter, “Putting Threat into Perspective: Experimental Studies on Perceptual Distortion in International Conflict,” Personality and Social Psychology Bulletin 26, no. 7 (July 2000): 795–809. On threat perception in political science, see Stephen Walt, The Origins of Alliances (Ithaca, NY: Cornell University Press, 1987); David L. Rousseau and Rocio Garcia-Retamero, “Identity, Power and Threat Perception: A Cross-National Experimental Study,” Journal of Conflict Resolution 51, no. 5 (October 2007): 744–71. 44. I thank one of the anonymous reviewers for directing me to these texts. 45. Sidney Tarrow, Doug McAdam, and Charles Tilly, Dynamics of Contention (Cambridge: Cambridge University Press, 2001); Tarrow, Power in Movement: Collective Action, Social Movements and Politics (Cambridge: Cambridge University Press, 1994). 46. Charles Tilly, Popular Contention in Great Britain (Boulder, CO: Paradigm, 2005); Tilly, Social Movements, 1768–2004 (Boulder, CO: Paradigm, 2004).

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47. Charles Tilly, “From Interactions to Outcomes in Social Movements,” in How Social Movements Matter, ed. Marco Guigni, Doug McAdam, and Tilly (Minneapolis: University of Minnesota Press, 1999), 253–70; Tarrow, Power in Movement. 48. Natalie Zemon Davis, “The Rites of Violence,” in Society and Culture in Early Modern France (Stanford, CA: Stanford University Press, 1975), 51–91. 49. Roy, Globalized Islam, 60–75. 50. Kekes, “Disgust and Moral Taboos,” 435. 51. Like all efforts to quantify social science indicators, Freedom House’s coding of freedom is not value free, though there is no reason to assume that it biases my results toward or away from particular Muslim-majority states. Given the logical impossibility of a value-neutral index, Freedom House offers several advantages over available alternatives. Other estimates of state freedom, such as data included in the Polity Project (www.systemicpeace.org/polity/polity4.htm) or the Economist Intelligence Unit’s Index of Democracy (http://www .eiu.com/), emphasize constitutional attributes relevant for distinguishing democratic from authoritarian regimes, such as the nature of elections and executive authority, which are less useful for estimating regime reactions to protests. Moreover, whereas the Freedom House index (www.freedomhouse.org/) has data on all Muslim-majority states for 2006 (with the exception of the Palestinian Territories, which held parliamentary elections a week before the riots), the Polity Project lacks crucial data for Afghanistan, Iraq, and Somalia for that year. 52. Gall and Smith, “Muslim Protests against Cartoons Spread.” 53. Jeffrey Fleishman, “Muslims Torch Embassies over Muhammad Cartoons; Iran Threatens to Cut Off Trade with Nations Where the Drawings Appeared,” Houston Chronicle, February 5, 2006, 22; Sonja Pace, “Latest Cartoon Protests May Have Political Dimension,” Voice of America News, February 6, 2006, available at www.voanews.com. 54. Bassem Mroue, “Some See Gov’t Roles in Cartoon Protests,” Associated Press Online, February 5, 2006. 55. Marc Perelman, “Iran, Syria Said to Be Stoking Riots; Dictators Seek to Blunt Push of U.S., Europe,” Jewish Daily Forward, February 10, 2006, http:// forward.com/articles/1628/iran-syria-said-to-be-stoking-riots/. 56. “The Use of Cartoons,” Washington Post, February 8, 2006. 57. Riaz Khan, “Nine Die in Cartoon Protests in Libya,” Associated Press Online, February 17, 2006, ; Khaled el-Deeb, “Libya Suspends Official after Deadly Riots,” Associated Press Online, February 18, 2006. 58. UPI, “Cartoons Cause Death, Rioting in Libya,” February 17, 2006. This apology did not prevent Muʻammar Qaddafi from capitalizing on the protest. He later threatened that he could not ensure the safety of the Italian embassy and consulate in Libya unless Italy compensated Libya for years of colonial rule. “World Briefing Africa: Libya: Italy Says Threat Does Not Help Ties,” New York Times, March 4, 2006, 6. 59. El-Deeb, “Libya Suspends Official.” 60. John Lancaster, “Cartoon Protests Rage for Third Day in Pakistan,” Washington Post, February 16, 2006, A18.

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61. Salman Massod, “Pakistan’s Violent Protests over Cartoons Taking Political Turn,” New York Times, February 16, 2006, 13; “5,000 in Pakistan Protest Prophet Cartoons,” Associated Press Online, February 7, 2006. 62. Brian Murphy, “Conflicts Cited at Christian Conference,” Associated Press Online, February 20, 2006; “Anti-cartoon Protests Fuel Domestic Political Unrest in Pakistan,” Voice of America News, February 24, 2006. 63. Riaz Khan, “Police Battle Cartoon Protests in Pakistan,” Associated Press Online, February 13, 2006. 64. John Lancaster, “Protests over Cartoons Shake Pakistan; Demonstrators Storm Diplomatic Enclave, Attack Western Businesses,” Washington Post, February 15, 2006, A14; Salman Massod, “2 Die as Pakistan Cartoon Rage Turns Violent,” New York Times, February 15, 2006, 6; Sadaqat Jan, “Cartoon Protesters Tear Gassed in Pakistan,” Associated Press Online, February 14, 2006; UPI, “Cartoon Riots in Pakistan Leave 2 Dead,” February 14, 2006; Asif Shahzad, “Prophet Cartoon Protesters Torch Western Businesses in Pakistan, Two Killed in Shooting,” Associated Press Financial Wire, February 14, 2006; Riaz Khan, “Cartoon Riots in Pakistan Kill Three,” Associated Press Online, February 15, 2006. 65. Tanveer, “Cartoon Protesters Arrested in Pakistan”; “Pakistan Bans Cartoon Protests after Violent Demonstrations,” Voice of America News, February 18, 2006; UPI, “Pakistan Tries to Block Cartoon Protests,” February 19, 2006; “Thousands Rally against Prophet Cartoons in Karachi, Pakistan,” Voice of America News, February 26, 2006; Zarar Khan, “Pakistan Police: 25,000 Protest Cartoons,” Associated Press Online, February 27, 2006. 66. “Tens of Thousands Rally against Prophet Cartoons in Pakistan,” Voice of America News, March 5, 2006; Asif Shahzad, “Thousands Protest Cartoons in Pakistan,” Associated Press Online, March 17, 2006. 67. These have included, most famously, the film The Miracle (1951), The Last Temptation of Christ (novel in 1951, film in 1988), the film Monty Python’s Life of Brian (1979), Andres Serrano’s photograph Piss Christ (1989), and Chris Ofili’s painting The Holy Virgin Mary (1999). A comprehensive review of blasphemy incidents can be found in Richard Webster’s A Brief History of Blasphemy (Suffolk, U.K.: Orwell, 1990). 68. Amelie Blom, “The 2006 Anti–‘Danish Cartoons’ Riot in Lahore: Outrage and the Emotional Landscape of Pakistani Politics,” South Asia Multidisciplinary Academic Journal 2 (2008): http://samaj.revues.org/1652, pars. 22, 24, 63. 69. Lewis, Crisis of Islam, 133. 70. Blom, “2006 Anti–‘Danish Cartoons’ Riot in Lahore,” par. 63. 71. Ibid., par. 65. 72. UPI, “Jakarta Muslims Protest Mohammed Cartoon,” February 3, 2006; Colin Nickerson, “Islamic Anger Widens at Mohammed Cartoons,” Boston Globe, February 3, 2006, A12; “Denmark Withdraws Ambassador, Embassy Staff from Indonesia,” Voice of America News, February 11, 2006; “Indonesian Minister Says Danish Embassy Staff Pullout Hasty,” Voice of America News, February 12, 2006. 73. UPI, “Indonesian Cartoon Protest Grows,” February 6, 2006; Griff Witte and Ellen Nakashima, “Cartoon Protests Stoke Anti-American Mood; Three Killed outside U.S. Base in Bagram,” Washington Post, February 7, 2006, A15.

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74. Nancy-Amelia Collins, “Denmark Advises Citizens to Leave Indonesia, as Protests over Political Cartoons Sweep Asia,” Voice of America News, February 7, 2006. 75. Ali Kotarumalos, “Muslims Assault U.S. Embassy in Indonesia,” Associated Press Online, February 19, 2006. 76. “World Briefing Africa: Nigeria: Sectarian Riots Continue,” New York Times, February 25, 2006, 5. 77. On the Nigerian Movement for Islamic Revival, see David Finkel, “Crime and Holy Punishment; In Divided Nigeria, Search for Justice Leads Many to Embrace Islamic Code,” Washington Post, November 24, 2002, A01; Dan Isaacs, “Nigeria’s Firebrand Muslim Leaders,” BBC World News, October 1, 2001. 78. Lydia Polgreen, “Nigeria Counts 100 Deaths over Danish Caricatures,” New York Times, February 24, 2006, 8. 79. Olly Owen, “15 Killed in Cartoon Riots in Northern Nigeria,” World Market Analysis, February 20, 2006; Fisher, “Italian Quits over Cartoons”; Daniel Balint-Kurti and Jonathan Clayton, “Curfew after 16 Die in Protests,” Times (London), February 20, 2006, 32. 80. “World Briefing Africa: Nigeria: Death Toll Rises in Sectarian Violence,” New York Times, February 23, 2006, 6. 81. Gall and Smith, “Muslim Protests against Cartoons Spread.” 82. “Lebanese Minister Resigns after Riots in Beirut,” Irish Times, February 6, 2006, 1. 83. Rory McCarthy, “Cartoon Furore: Media Points Finger at Syria for Violent Rallies as Lebanon Fears for Its Fragile Sectarian Peace,” Guardian, February 7, 2006, 18. 84. Katherine Zoepf and Hassan M. Fattah, “Beirut Mob Burns Danish Mission Building over Cartoons,” New York Times, February 6, 2006, 3. 85. Robert Fisk, “The Fury; Violent Protests Sweep Europe and Middle East as Cartoon Crisis Escalates,” Independent (London), February 6, 2006, 4. 86. Daniel Cooney, “Cartoon Protests Rage in Muslim World,” Associated Press Online, February 7, 2006. 87. Griff Witte, “Protests Spread in Afghanistan; At Least 3 Killed during Clash in North over Depictions of Muhammad,” Washington Post, February 8, 2006, A15. 88. Scott Baldauf, “A Nuanced Response in Parliament,” Christian Science Monitor, February 8, 2006, www.csmonitor.com/2006/0208/p11s01-wosc. html. 89. “Syrian Protesters Torch Danish and Norwegian Embassies over Prophet Cartoons,” Voice of America News, February 4, 2006; Karl Vick, “Cartoons Spark Burning of Embassies; Syrians, Angry at Drawings of Prophet Muhammad, Target Danes and Norwegians,” Washington Post, February 5, 2006, A15; Fleishman, “Muslims Torch Embassies over Muhammad Cartoons”; Pace, “Latest Cartoon Protests May Have Political Dimension.” 90. Eli Lake, “Scandinavia Becomes Islamist Target, “ New York Sun, January 31, 2006; Ibrahim Barzak, “Masked Gunmen Briefly Take Over EU Office,” Associated Press Online, January 30, 2006; Smith and Fisher, “Temperatures

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Rise over Cartoons Mocking Muhammad”; UPI, “Cartoon Incident Draws Protest,” February 2, 2006; Barzak, “Protests over Muhammad Cartoons Escalate,” Associated Press Online, February 2, 2006; Joshua Mitnik, “Gunmen in Gaza Close EU Office,” Washington Times, February 3, 2006; “Palestinians Protest against Cartoons Mocking Prophet Mohammed,” Voice of America, February 3, 2006; Joel Brinkley and Ian Fisher, “U.S. Says It Also Finds Cartoons of Muhammad Offensive,” New York Times, February 4, 2006. 91. Although the Freedom House index ranks Pakistan as “not free” (compared to “partially free” Afghanistan and Nigeria, for example), other indexes assign it a more ambiguous classification. Both the Polity Project and the Economist Intelligence Unit’s Index of Democracy, for example, ranked Pakistan as more democratic than Afghanistan in 2006. The Economist Intelligence Unit also ranks Pakistan as more democratic than Nigeria. 92. According to Robert Pape, Pakistan, with forty-three million Salafi-influenced people, and Nigeria, with thirty-seven million, are the two states with the largest Salafi-influenced populations, followed by Indonesia, Egypt, and Sudan. Pakistan and Nigeria thus account for more than half of the world’s Salafi-influenced population. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2005), 117. The world’s largest Shiʻa populations, in descending magnitude, are in Iran, Pakistan, India, Iraq, Turkey, Yemen, Azerbaijan, Afghanistan, and Syria. “Mapping the Global Muslim Population,” Pew Research Center’s Forum on Religion and Public Life (October 2009), www.pewforum.org/2009/10/07/mapping-the-global-muslim-population/ 93. Fisk, “Fury.” 94. Apostasy cases are listed in Frank Griffel, “Toleration and Exclusion: Al-Shafiʼi and al-Ghazali on the Treatment of Apostates,” Bulletin of the School of Oriental and African Studies 64, no. 3 (2001): 340. Christianah Oluwatoyin Oluwasesin, a Christian teacher in Nigeria, was lynched by her pupils on March 21, 2007, for allegedly desecrating the Qurʼan; Gillian Gibbons was convicted of insulting Islam and briefly imprisoned in November 2007; allegations of Qurʼan desecrations at Guantanamo led to riots across the Muslim world in May 2005. 95. Richard Webster, Brief History of Blasphemy, 26–31. 96. Scott Atran, “The Moral Logic and Growth of Suicide Terrorism,” Washington Quarterly 29, no. 2 (Spring 2006), 127–47, citing J. Peristiani, ed., Honor and Shame: The Values of Mediterranean Society (Chicago: University of Chicago Press, 1966). 97. Pipes, Rushdie Affair, 112, 131–32. For claims by the Iranian regime that the Danish cartoons were “a Zionist plot,” see Sukhtian, “Are Extremists Fanning Cartoon Outrage?”; “Iran Leader Denounces Prophet Cartoons,” Associated Press Online, February 7, 2006. 98. See, for example, Reuters, “Jerusalem Police Clash with Orthodox Protesters,” New York Times, September 6, 1987, 17; Joel Greenberg, “Jerusalem Road Is Secular-Religious Battleground,” New York Times, July 15, 1996, 3. 99. See, for example, Daniel Philpott, “Explaining the Political Ambivalence of Religion,” American Political Science Review 101, no. 3 (August 2007), 505– 25; Isak Svensson, “Fighting with Faith: Religion and Conflict Resolution in

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Civil Wars,” Journal of Conflict Resolution 51, no. 6 (December 2007), 930–49; Michael C. Horowitz, “Long Time Going: Religion and the Duration of Crusading,” International Security 34, no. 2 (Fall 2009), 162–93. 100. Clifford Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures (New York: Basic Books, 1973), 213–31.

chapter 8

The Indonesian Blasphemy Act A Legal and Social Analysis asma t. uddin

On April 19, 2010, I was present when the Indonesian Constitutional Court issued its eight-to-one decision upholding the country’s Law on the Prevention of Blasphemy and Abuse of Religion, also known as the Blasphemy Act. This legal decision confirming the legitimacy of blasphemy regulations and prosecutions was deeply disappointing for a modern democratic society such as Indonesia, the largest Muslimmajority nation in the world. The decision marked a major setback for freedom of religion and expression in Indonesia. The meanings of those concepts—religious freedom and free speech—are hotly contested today. Some suggest they are compatible with the criminalizing of expression that insults religion or offends religious sensibilities even when that expression does not incite imminent violence. Such views often seek to limit free speech in the name of public order or to protect religious sensibilities in the name of human rights. The deeply problematic nature of such views, based on subjective and ill-defined legal formulae, is evidenced in the increasingly absurd effects the Blasphemy Act has had on Indonesian citizens. For example, in 2006, Muhammad Yusman Roy was sentenced to two years in prison merely for reciting Muslim prayers in the Indonesian language instead of Arabic. In 2007, Sumardi Tappaya was sentenced to six months in prison for deviancy after a relative accused him of whistling during prayers.1 Under the Blasphemy Act and related regulations, the government has also targeted minority religious groups, even those that consider 223

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themselves Muslim. Targeting such Muslims has the chilling effect of significantly narrowing, in both cultural and legal terms, the range of legitimate religious expression. In 2008, for example, the minister of religious affairs, the attorney general, and the minister of the interior issued a joint ministerial decree prohibiting the Ahmadiyya Muslim sect from promulgating its beliefs.2 Three years later, the government issued at least eight new local regulations similarly prohibiting the Ahmadiyya community from exercising even limited religious rights such as communally gathering for public worship.3 More recently, Alexander Aan, an atheist, was sentenced to two and a half years’ imprisonment and a fine of one hundred million rupiah (US$10,600) for insulting Islam and the Prophet Mohammed. His crime was posting a cartoon titled The Prophet Muhammad Had Been Sleeping with His Wife’s Maid and denying the existence of God on the Facebook page he moderated for atheists. One of Aan’s status updates also included a version of a standard atheist refrain, “If you believe in god, then please show him to me.”4 Such incidents are not isolated. More than 150 people have been detained merely for speaking critically about religion without any incitement to violence.5 What compels the government to imprison the Ahmadiyya merely for stating their beliefs or to prosecute a man for whistling during his prayer? Are these restrictions results of the state cowing to extremist forces, or do they reflect the popular will? Exactly who or what is being protected? In recent decades, Indonesia has been on the path to democratization—yet during that same period it has also seen an increasing number of blasphemy convictions.6 Why? This chapter addresses such questions by exploring issues of blasphemy, rights, and democracy in Indonesia. It begins with an overview of the Blasphemy Act and an analysis of the Indonesian Constitutional Court’s reasoning in upholding it. The chapter then attends to the cultural and legal dynamics of blasphemy in Indonesia, including how they might be changed through legal reform. Such reform requires engaging the reigning understandings of religious freedom, free speech, and human rights presently extant in Indonesia, the largest Muslim-majority democracy in the world today.

context Indonesia’s importance in global discussions about the place of religion in modern society would be difficult to overemphasize. It is the world’s

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third-most-populous modern democracy and is home to the largest Muslim population in the world.7 Approximately 90 percent of Indonesians are Muslim, and the remaining 10 percent belong to a wide range of faiths.8 The spread of Islam in Indonesia in the decades following World War II helped integrate a variety of religious and ethnic groups into a larger umbrella culture.9 Many of these groups then facilitated Islam’s expansion by melding it with indigenous cultures and faith traditions.10 Indications of this multicultural layering are still evident. For example, rhythmic drumming characteristic of native ceremonies often precedes the Muslim call to prayer, and some Muslim groups imbibe wine in celebration, in spite of clear Qurʼanic prohibitions on alcohol consumption.11 Indonesia prides itself on being a moderate Muslim country and has been held up as an example of harmonious religious plurality due to its inclusive culture.12 The American weekly Newsweek described it as the home of “the smiling Islam.”13 British prime minister David Cameron commended Indonesia for its democratic transition, hailing its triumph over despotic rule without compromises of security or religious freedom as a model for other Muslim-majority countries in the throes of political change.14 Indonesian president Susilo Bambang Yudhoyono has made at least nineteen public statements encouraging religious harmony.15 Given its commitment to religious pluralism and its pride as a leader among Muslim-majority countries, Indonesia’s enforcement of the Blasphemy Act and the recent decision by its highest court to uphold the act seem incongruous at best and hypocritical at worst. What are the conditions that make possible the existence and enforcement of the Blasphemy Act? And what do they tell us about the future of democracy in Muslim-majority countries?

overview of the blasphemy act The Blasphemy Act was issued by President Soekarno as a presidential stipulation on January 27, 1965, and became law four years later.16 It was part of the president’s Nasakom (nationalist) initiative, designed to advance his political power by mobilizing the cultural forces of nationalism, religion, and communism.17 The act’s purpose, in other words, was overtly political, serving the interest of the government and its notion of national solidarity in a postcolonial communist society. It represented, among other things, a direct response to the rise of minority religions, which the government depicted as “ ‘exceedingly detrimental

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to existing Religions,’ ‘fracturing National unity,’ and ‘blasphem[ing] religion.’ ”18 Appreciating the political purposes of the Blasphemy Act is critical for understanding its impact. The act was not simply about protecting particular conceptions of theological truth but about mobilizing favored political forces and norms against disfavored, often minority perspectives. The fact that such political motivations inform Indonesia’s Blasphemy Act is illustrative of blasphemy rules and regulations more generally. Paul Finkelman’s chapter 4 draws our attention to similar dynamics at play in blasphemy prosecutions in the early nineteenth-century United States. He correctly emphasizes that charges of blasphemy are not just about religion but involve attempts to protect the way that social institutions, cultural norms, and political power are structured. Postcolonial Indonesia highlights this fact as well as early nineteenth-century America. In 1967, Soeharto succeeded to the presidency following the collapse of Soekarno’s regime and Indonesia’s violent anticommunist purge. In order to suppress atheism, which was associated with communism, the new regime advanced a law requiring all Indonesians to choose a religion, which would be printed on their identification card.19 The choice was limited to orthodox versions of five legally recognized and protected religions—Islam, Catholicism, Protestantism, Buddhism, and Hinduism—with Confucianism added later. Then, in 1969, President Soeharto elevated the Blasphemy Act to law status.20 The Blasphemy Act, however, directly contradicts Indonesia’s constitutional protections. The human rights chapter added to the Constitution in 2001, Chapter X-A, protects Indonesian citizens’ rights to their beliefs, to worship freely and practice their religion of choice, and to freely associate, assemble, and express their opinions.21 Additionally, Articles 28 I(1) and 28 D(1) of the Constitution, original provisions from 1945, protect the rights to freedom of religion, thought, and conscience and the rights to due process and equal protection of the law.22 The Blasphemy Act is also somewhat in tension with Pancasila, the philosophical basis for the Indonesian state. The philosophy of Pancasila strives for “unity in diversity” through the following five basic principles: belief in the one and only God; just and civilized humanity; unity of Indonesia; democracy; and the realization of social justice for all.23 Framing monotheistic belief as a central tenet of Indonesia’s statehood calls the citizenship and rights of atheists and polytheists into question. However, Pancasila also encourages unity and broad social justice. The Blasphemy Act violates these principles.

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Contrary to Indonesia’s broad constitutional protections for religious freedom, the Blasphemy Act makes illegal the intentional public communication or solicitation of support for an “unofficial” religion, meaning one other than the six that the state recognizes. The act also criminalizes any unapproved interpretation of one of the official six religions, obviously narrowing options even for adherents of these faiths.24 The act’s purpose is thus to “channel . . . religiosity”25 into the particular religious channels approved by the state.26 In this way, the government establishes its protection of its official religions by punishing those who either insult them or attempt to persuade others to follow unapproved religions.27 Such strictures require no incitement to violence or even to hostility. They thus represent the type of capacious legal prohibition that Jeroen Temperman cautions against in chapter 10, hindering expression even more than the hate speech prohibitions increasingly common in democratic societies across the globe. The Blasphemy Act, however, does more than simply punish those who insult approved religions or proselytize unapproved beliefs; it also places restrictions on those within each approved religion, making it illegal to advocate religious teachings that deviate from those “considered fundamental by scholars of the relevant religions.”28 The case of Sumardi Tappaya, the Muslim man prosecuted for whistling while he prayed, aptly demonstrates this aspect of the law.29 Government officials will warn a first-time offender of the act,30 but a second-time offender will be officially banned (if it is an organization), thus losing all legal privileges that undergird an organization’s social presence, such as the ability to own property or express its beliefs publicly.31 Offenders may also face criminal prosecution. Article 156(a) of the Indonesian Criminal Code punishes offenses under the Blasphemy Act with up to five years in prison.32 Article 157 prohibits the media from publishing anything that might be deemed offensive to an official religion.33 The government monitors blasphemy violations, giving the attorney general the authority to maintain public order in the face of blasphemous statements that, from the government’s perspective, “potentially endanger people and country.”34 Given the prominence of the concept of danger in public order statutes across the world, it is worth emphasizing that the “potentially endangering” behavior in question need not be perceived as a cause of imminent or physical danger. It need not include any incitement or even advocacy of violence. The attorney general, moreover, is assisted throughout Indonesia by local monitoring

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teams that function as surveillance committees. They are called Tim Koordinasi Pengawan Aliran Kepercayaan Masyarakat, or PAKEM.35 The Blasphemy Act contributes to an environment of religious intolerance and persecution that has yielded further laws criminalizing many peaceful religious practices that the government considers injurious to the state-approved religions.36 One prominent example is the 2008 joint decree against the Ahmadiyya, whom the majority of Muslims do not recognize as Muslim, due to doctrinal differences between groups.37 The decree came five months after a government-appointed team began monitoring the Ahmadiyya at the request of the MUI, the Indonesian Ulama Council.38 While the religious denunciation of groups is fully within the parameters of religious freedom and broad rights to religious expression, the decree goes much further. It orders, with the backing of state force, that the Ahmadiyya stop the public dissemination of their beliefs. This makes the state the arbiter of religious orthodoxy and thus of what the Ahmadiyya may believe and how they may exercise those beliefs. The MUI’s influence in this regard is not unique. According to the United States Commission on International Religious Freedom’s 2012 report, dozens of extremist groups in Indonesia hold a level of influence that is highly disproportionate to their size. These minority groups often succeed in pressuring local officials to detain and restrict other minority groups allegedly deviant in their religious beliefs or perspectives. It is hardly surprising that this type of local harassment results in increased religious tension and societal violence, which is not constructive for the creation of what might be called democratic capital, that is, the spreading of equal-respect sentiments and pluralist values.39 For example, in 2007, when al-Qiyadah al-Islamiyah members were arrested on blasphemy charges, they were released only after repenting and agreeing to adhere to the government’s approved understanding of Islam.40 The al-Qiyadah sect is considered deviant because it disputes that the five pillars of Islam—declaration of faith, five daily prayers, Ramadan fast, payment of charity, and performance of the hajj—are compulsory.41 The group also considers its leader, Ahmad Moshaddeq, to be a new prophet, in contravention of the Islamic creed, which holds that Mohammed was the last prophet.42 These beliefs prompted the MUI to issue a fatwa declaring the group heretical (a religious designation) and to relay its conclusions to the police in the hope that Moshaddeq would be prosecuted for blasphemy (a civil designation).43 Police raids commenced henceforth.

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The Blasphemy Act thus functions to maintain the hegemony of government-backed religious groups over dissenting minority members of the same religion, reminding us of the larger political and social dimensions of blasphemy charges. The act empowers the state over the individual, allowing it to use religion to validate its power and to convert religious charges of heresy into civil blasphemy charges. These goals, born amid postcolonial nationalism, continue in problematic ways into the present.

the becket fund’s efforts to repeal the blasphemy act Through my work as legal counsel at the Becket Fund for Religious Liberty, a nonprofit law firm, I have encountered the many pernicious effects of blasphemy laws from Africa to Southeast Asia. The firm has advocated against such laws in several countries, particularly Egypt and Pakistan, and my work on these initiatives has disclosed severe infringements on freedoms of religion and expression as well as significant prosecutorial abuse. Moreover, state regulations on religion—such as blasphemy laws—routinely lead to the politicization of religion, as they mix it with matters of national security and public order.44 For example, the Egyptian blasphemy law, Article 98(f) of the Egyptian Penal Code, punishes the “use of religion in propagating . . . extreme ideas for the purpose of inciting strife, ridiculing or insulting a heavenly religion or a sect following it, or damaging national unity” with a fine or imprisonment of six months to five years.45 Under the Hosni Mubarak regime, government officials regularly abused this vaguely worded article,46 interpreting it to place broad restrictions on speech so that it criminalized proselytism and human rights activism.47 For example, two human rights activists, Adel Fawzy and Peter Ezzat, were detained and accused of propagating anti-Islamic material on a website that details the persecution of Coptic Christians in Egypt.48 While Christians have also been prosecuted, Muslims constitute the majority of the victims of Egypt’s blasphemy laws. A well-known case in Egypt is that of Abdel Karim Suleiman. In 2007, Suleiman, a former student of al-Azhar University, was sentenced to four years in prison for blaspheming Islam, provoking sectarian strife, and criticizing then-president Mubarak. Suleiman had written blog posts criticizing the Muslim role in the 2005 Alexandria attacks on Coptic Christians, calling Mubarak a “dictator,” and calling al-Azhar “the university of terrorism” and accusing it of limiting free thought.49

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In Pakistan, the abuse endemic to its blasphemy laws stems from both government and mob action. The laws’ language invites such abuse, being vague and expansive in criminalizing mere sounds, gestures, placement of objects, and indirect defamation in addition to written and spoken words. Such blasphemy offenses are punishable by fines, imprisonment, or death.50 Recently, Rifta Masih, an eleven-year-old Christian Pakistani girl with Down syndrome, faced the death penalty for allegedly burning the Qurʼan.51 She was accused by her neighbors in August 2011 and severely beaten by local vigilantes before being arrested by the police on blasphemy charges.52 The accusation resulted in angry protests demanding that the approximately nine hundred Christians living on the outskirts of the city of Islamabad leave the neighborhood where they have lived for almost two decades.53 Blasphemy laws in Pakistan have led to the routine persecution of the Ahmadiyya community in particular, a plight it has faced since 1953.54 It is the only minority religious group referred to by name in the more recently enacted blasphemy laws. As an example of the expansive and abusive effects of those laws, in February 2012, Abdul Qudoos, the president of the Ahmadiyya Muslim community in Rabwah, Punjab, was illegally detained for thirty-five days55 and brutally tortured into confessing to a murder that he did not commit, even though there was no evidence connecting him to the crime.56 He was also pressured to falsely implicate the Ahmadiyya leadership. The callous treatment of Qudoos during his thirty-five-day confinement led to internal injuries that soon proved fatal.57 No charges were ever brought against his assailants. Like Pakistan, Indonesia imposes severe restrictions on the Ahmadiyya community, as evidenced by the 2008 government-issued joint decree that violates the sect’s religious freedoms.58 This decree is a product of the culture of fear created, perpetuated, and legitimized by the Blasphemy Act. The act enables and encourages such persecutory measures by inviting the violation of religious freedom and free speech in the name of preventing so-called religious defamation—that is, the expression of denigrating language about religions. Though proponents of such defamation prohibitions offer the pretense of balancing religious and expressive freedoms with respect for religions and religious persons, the actual effects of such policies are unambiguously discriminatory, belying the claims of evenhandedness. The Blasphemy Act promotes not respect but religious intolerance, which has devastating

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repercussions for dissenters and adherents of minority faiths. It is also detrimental to the building of a democratic culture guided by pluralist values and respect for different faiths. In the absence of such a civic culture, democratic legal procedures face a difficult future. As such, when the opportunity arose to work on the repeal of the act—the first time it would be challenged59—I hoped the Indonesian Constitutional Court would see it for what it truly is: not only an unconstitutional infringement of its citizens’ rights to freedom of expression, religion, and conscience, bad enough in itself, but also, more broadly, an oft-accepted invitation to the harassment and abuse of minority religious groups. The day the court announced its decision was one of anticipation at the prospect that Indonesia would finally embrace more robust understandings of these freedoms for its diverse people and their developing democratic society. Such hopes, however, were dashed. The Constitutional Court’s Opinion: Upholding the Blasphemy Act The Indonesian Constitutional Court grounded its eight-to-one decision upholding the Blasphemy Act on the following three claims: 1. The philosophical foundations of the Indonesian state and its concerns about maintaining public order circumscribe its obligations under international law. 2. National values embedded in the constitutional scheme circumscribe the individual freedoms that Indonesia’s Constitution affords. 3. While the legislature has reason to reconsider various elements of the Blasphemy Act, any judicial repeal before legislative action would create a dangerous legal vacuum, in which vigilante action and injury to public order are likely to occur. In addressing Indonesia’s obligations under international law, the Constitutional Court asserted that “the respect of the State towards various conventions and other international law instruments . . . shall be in compliance with State philosophy and the constitution of . . . Indonesia.”60 This statement reflects the court’s overall approach throughout its opinion of contrasting Indonesian and Western rule-of-law principles. The court used the United States as a point of contrast to illustrate that, unlike the United States, Indonesia is not a secular country. For

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example, it asserted (incorrectly) that the U.S. Constitution bars the teaching of religion in public schools, whereas in Indonesian schools, adherence to Pancasila makes religious studies mandatory.61 Moreover, in the court’s view, Indonesia differs from the United States because Indonesian society values a belief in God and does not have space for atheism—as the court made clear, Indonesia would never “allow campaigns on freedom from religion” and “freedom to anti-religion.”62 The court furthermore contrasted Indonesia from the West by stating that “the rule of law principle upheld by Indonesia” is one of “a law-based state that enshrines the principles of belief in one God as the main principle . . . not a state that separates religion and the state, and not merely based on individualis[tic] . . . principles.”63 Even while painting this stark contrast, however, the court sought to demonstrate the legitimacy of the Blasphemy Act within the framework of international law. It invoked the International Covenant on Civil and Political Rights (ICCPR), Article 19, Paragraph (3), which includes the provision that “the right to freedom of religion shall also be conducted with responsibilities”:64 “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals.”65 The court also relied on the ICCPR’s Article 18,66 which states that religious freedom “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”67 The court held that these limits justified the Blasphemy Act’s state-backed censure of religious interpretations that “could trigger reactions that threaten security and public order if [they are] expressed or practiced in public.”68 In other words, the government could limit blasphemous statements as a means of preserving public order, including a mere statement of belief by a minority religious group deemed blasphemous for its nonconformity to state-defined orthodoxy. The court struck a similar tone with regard to the Indonesian Constitution. According to the court, the Constitution was the product of a “compromise process among two schools of thought.”69 “The principle of a secular state was declined as well as an Islamic state,”70 but the Constitution reflects an agreement that “the State shall be based upon the belief in the One and Only God.”71 As such, “in the name of free-

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dom, no individual or group shall be allowed to undermine the spiritual level of the society that has been inherited as the values that constitute various laws and regulations in Indonesia.”72 Claiming that the Constitution’s “mutual agreement among [the] Indonesian people”73 rejects the concept of religion as merely a private matter, the court explained that “limitation shall not always be interpreted as discrimination.”74 In fact, “if a limitation is aimed at protecting other people’s rights and applied in the orderly life of the . . . state . . . it . . . shall be regarded as a protection of other people’s human rights” and as a protection of the Indonesian people’s “cultural . . . and religious identities.”75 These last points are key. In upholding the Blasphemy Act, the court indicated it was respecting identities and protecting human rights. However, especially in keeping with its earlier contrast between Indonesia and the West, it makes clear that it defines human rights differently than the West. For one, in Indonesia there is greater emphasis on communal rights (as opposed to individual rights).76 Individual rights cannot trump the rights of the larger group. Moreover, the rights in question are not the rights to choose or change one’s religion or freely to express oneself in the public square. Rather, the language of human rights is used in this context to delineate a supposed right not be offended or insulted in one’s religious sensibilities, as if they were a kind of property the law protects against trespass. To define human rights in this way means criminalizing not only the intentional mocking or ridiculing of religion but also genuine doctrinal disagreement. To be an Ahmadiyya Muslim in this context is to violate the rights of other Muslims, regardless of how respectfully one expresses one’s views. To express Ahmadiyya beliefs, in other words, is to violate human rights. By describing the Blasphemy Act as within human rights norms, the Indonesian court thus used the language of human rights to put severe limits on the freedoms of religion and expression. Such use renders genuine dialogue extremely difficult, as the language of human rights becomes more an ideological tool than a meaningful standard. Such a reading of human rights is all the more problematic given that after defending the Blasphemy Act on international law and constitutional grounds, the court conceded that it had been applied in problematic ways. The court viewed the abuses endemic to the act, however, as simply incidental, stemming merely from a problematic application of the law, which thus did not necessitate its repeal: “The Court is of the . . . opinion . . . that the imperfection of the application of the Law on the Prevention of Religious Blasphemy at the contextual level occurred

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due to misapplications; therefore it does not necessarily nullify the norms enshrined in the Law on the Prevention of Religious Blasphemy.”77 The court feared that repealing the act without first enacting a better substitute would lead to “horizontal conflicts, anarchism and religious misuse in the society.”78 This would also leave a legal vacuum, an “absence of general guarantee of protection which raises the concern about vigilante actions because [the] law enforcement apparatus will forfeit their legal basis . . . to prevent religious misuse and/or blasphemy.”79 The irony is that the types of vigilantism and disruptions to public order that the court sought to avoid were already occurring under the guise of the Blasphemy Act it upheld.

the constitutional court’s flawed reasoning The court’s reasoning is severely flawed in three primary respects. First, it misinterprets both the U.S. legal standard of “incitement to violence” and the public order exception of the ICCPR’s Article 18(3). Second, it focuses on the protection of religions rather than of religious adherents. And third, it confuses the relationship between secularization on the one hand and broad free speech and religious freedom rights on the other. Misunderstanding the Public Order Exception There are numerous problems with the court’s reasoning, foremost among them that it fails to properly understand Indonesia’s obligations under international law. Indonesia is a signatory to the ICCPR and the Universal Declaration of Human Rights (UDHR) and has further outlined its commitment to these international instruments in its Human Rights Act of 1999 (HRA), whose preamble states, “As a member of the United Nations, the nation of Indonesia has a moral and legal responsibility to respect, execute, and uphold the [UDHR] promulgated by the United Nations, and several other international instruments concerning human rights ratified by Indonesia.”80 The HRA goes on to acknowledge that these instruments are “legally binding in Indonesia.”81 Indonesia ratified the ICCPR in 2006 without reservations and, in doing so, pledged to protect the complementary freedoms of expression, association, and equal protection, for both religious majorities and minorities.82 While the ICCPR states that these rights may “be subject to certain restrictions . . . (a) For respect of the rights or reputations of others; (b)

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For the protection of national security or of public order (order public), or of public health or morals,” it notes that “these shall only be such as are provided by law and are necessary.”83 Though the concept of necessity is potentially vague, it at least suggests the least intrusive means of achieving the allowable restrictions. Yet the Constitutional Court’s interpretation of these limits broadens their scope to the point where they threaten to swallow the rights themselves. As the UN Human Rights Committee’s official commentary on the ICCPR’s Article 18(3) makes clear, the limiting clause is to be construed very narrowly: “Restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be . . . applied in a discriminatory manner.”84 The Indonesian attorney general’s authority to prosecute expression that might “potentially endanger people and country”85 far exceeds the ICCPR’s public order exceptions. The word potentially itself is an open-ended invitation to prosecutorial discretion. Moreover, linguistically, “public order” encompasses far less than the court held it did. For example, the French version of the ICCPR sheds greater light on the circumstances that the court claims justify the limitations imposed by the Blasphemy Act. Rather than the term ordre publique, the French ICCPR uses the term la protection de l’ordre, which strongly suggests that concrete violent disturbances posing imminent safety threats are what trigger permissible interferences with religious freedom.86 This conception of public order is at the heart of the “incitement to violence” standard in U.S. free speech jurisprudence, the contours of which shed light on what constitutes a legitimate threat to public order under international law. In Brandenburg v. Ohio, the U.S. Supreme Court held that the government can punish inflammatory speech if and only if it is not only directed to inciting but likely to incite imminent lawless action: “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”87 Under this standard, even laws that target generalized advocacy of violence are struck down as overly broad.88 In Noto v. United States, the court confirmed that the “mere abstract teaching . . . of the moral propriety or even moral necessity for a resort

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to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”89 Even with such stringent standards, the U.S. Supreme Court consistently recognizes that the public order argument is easily misused, and cautions strongly against limitations on speech: “When clear and present danger of riot, disorder . . . or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.”90 The ICCPR mirrors this standard under both Article 18’s public order exception and Article 20’s incitement clause,91 the latter of which Jeroen Temperman examines in detail in chapter 10. The UN special rapporteurs for racism and freedom of religion or belief have stated that lowering this threshold is likely to promote an atmosphere of religious intolerance.92 In stark contrast, the Indonesian Constitutional Court construed the ICCPR’s “public order” limit as referring merely to general public sentiment, which makes it notably more subjective and vastly more prohibitive of speech and expression. Also instructive are the three elements that the European Court of Human Rights (ECHR) requires to be satisfied before the ICCPR’s Article 18 rights can be limited. First, “limitations can only be imposed by law, and in particular, by laws that comport with the rule of law ideal.”93 Thus, “limitations may not be retroactively or arbitrarily imposed on specific individuals or groups; neither may they be imposed by rules that purport to be laws, but are so vague that they do not give fair notice of what is required or they allow arbitrary enforcement.”94 Second, a limitation will not be valid unless it is enacted in furtherance of the strictly construed social ends listed in the ICCPR’s Article 18(3), that is, public safety, public order, health and morals, or rights and freedoms of others.95 And third, there must be genuine necessity,96 which the ECHR has said cannot be found unless the limitation on religious freedom responds to a “pressing social need” in a manner “proportionate to the legitimate aim pursued.”97 Discriminatory and arbitrary governance cannot pass the genuine necessity test.98 Again, unlike broad blasphemy laws that purport to respect the “rights and freedoms of others”—as the Indonesian Constitutional Court claimed the Blasphemy Act does—ECHR- and ICCPR-justified limitations on speech must be narrowly tailored to serve a legitimate aim (and according to the ECHR-ICCPR framework, protecting individuals from insult or

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ideas from criticism is not a legitimate aim). Moreover, the restrictions must be necessary, proportionate, nondiscriminatory, and nonarbitrary. The Blasphemy Act does not meet any of these conditions. It makes it unlawful “to, intentionally, in public, communicate, counsel, or solicit public support for an interpretation of a religion or a form of religious activity that is similar to the interpretations or activities of an Indonesian religion but deviates from the tenets of that religion.”99 Advocacy of interpretations that deviate from the teachings “considered fundamental by scholars of the relevant religions”100 (Islam, Protestant Christianity, Catholicism, Hinduism, Buddhism, and Confucianism) is subject to civil and criminal penalties,101 including up to five years in prison102 for an expression or act “which principally ha[s] the character of being at enmity with, abusing or staining a religion adhered to in Indonesia” or has “the intention to prevent a person to adhere to any religion based on the belief of the almighty God.”103 The act thus discriminates in favor of the six approved religions and against all others. Even within those faiths, it protects only those interpretations “considered fundamental” by some scholars and not others. Moreover, the Blasphemy Act’s vague language results in subjective interpretation and prosecution, increasing the potential for abuse by government officials and creating legal uncertainty. While the act threatens citizens with reprimands, sanctions, and prison for engaging in “religious activities [that] are similar” to those of government-approved religions and “interpretations and activities thereof” that “deviate” from the “tenets of the religion,”104 it provides virtually no instruction to law enforcement (or to Indonesian citizens) as to the scope of such “deviant” behavior. The Constitutional Court’s reassurance that a judge will have the authority to “assess the gravity of punishment in accordance on case-by-case basis”105 does little to alleviate such concerns. Indonesia also cannot successfully argue that the act responds to a “genuine necessity.” Although the court alluded to potential “horizontal . . . conflicts and . . . hostilities in the society,”106 it offered no evidence besides the “high sensitivity level of religiousness of the Indonesian people”107 to support its contention that diversity of religious expression would lead to violence. In fact, the court admitted that whether or not annulment of the law would result in anarchism and vigilantism was essentially a toss-up: “There is no guarantee that the above-mentioned two possibilities will happen.”108 However, according to the court, “the current condition in Indonesia has shown that there are some groups in the society [that] commit vigilante violence due to the blasphemy

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committed against their religion. . . . Hence, for the sake of public protection and to anticipate conflicts in the society . . . the Law on the Prevention of Religious Blasphemy is important.”109 This view is exactly backward. It shifts the standard for prohibiting expression from a speaker intending to incite likely imminent violence to some groups desiring to use violence as a response to unwanted expression. It thereby incentivizes violence as a tool that various groups can employ to hamper or prevent speech they deem undesirable. Thus despite the court’s concerns about the effect of a legal “vacuum,” repealing the act would go a long way toward more effectively achieving public order. Analyzing sociological data on just this point, Brian J. Grim and Roger Finke explain that “while governments typically view religious regulation as a necessity to maintain order and reduce potential violence, the irony is that more regulation leads to increased persecution, which means less order and more violence, as shown by the data.”110 Grim adds that “data shows that countries with no restrictions on conversion, in particular, tend to have higher levels of fundamental freedoms, better lives for women, and less overall armed conflict.”111 The laws a government enacts incentivize certain kinds of behavior, and blasphemy laws incentivize the violent intolerance of minority opinion. This approach thus produces a culture of impunity, invariably leading to more, not less, social violence. Indeed, as the former U.S. diplomat and international affairs scholar Thomas F. Farr observes, state repression of religious expression “reflects and portends” religious extremism.112 Allowing government authorities to pick winners and losers in the “marketplace of (religious) ideas” induces a form of market failure: ideas that are given a monopoly on truth are isolated from competition, allowing that which might not stand up to critical review or popular sentiment to avoid the natural consequences of such rejection.113 The deleterious effects of protecting such monopolies of opinion from competition have been decried for centuries, as Christopher S. Grenda’s chapter 1 indicates. By the same token, ideas entirely excluded from the public square ferment in isolation, taking on more extreme contours than they would in the light of day.114 Rather than clamping down on all manner of peaceful speech that might potentially offend the highly sensitive, Indonesia can protect public order through effective enforcement of already existing criminal statutes—punishing violent behavior by enforcing laws against, for example, battery, assault, murder, and arson. There is no legal vacuum

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threatening social anarchy so long as law and order is maintained through legal pressure on those threatening or inflicting actual violence. Protecting Ideas, Not People The Indonesian Constitutional Court expressed concerns that public dissemination of contrarian religious views “could trigger reactions from the people, which in the end could trigger social chaos, because the related religious community would feel religiously blasphemed and insulted by the said deviant interpretation.”115 Indeed, far from being a narrowly tailored restriction or legislation of last resort, the Blasphemy Act functions preemptively, asking almost nothing of adherents of the government-approved religions in the way of controlling their own hostile reactions. In this way it fails to comport with the rule of law as understood in most liberal democracies. The Blasphemy Act, by restricting the expression and exercise of religions that “deviate from the tenets of [an approved religion],” places more importance on protecting religious ideas than on protecting religious adherents.116 In so doing, it undermines the foundation of human rights law, which is the protection of the individual human being, not religions, ideologies, or governments. Advocates of blasphemy laws, however, argue that human rights protections should include beliefs as well persons. Because such beliefs are associated with minority views in some contexts and formerly colonized societies in others, this use of human rights language can be alluring.117 The reality, however, is that the appropriation often performs a very different, rigidly stifling, function. As a signatory to several international documents, including the UDHR and the ICCPR, Indonesia is obligated to uphold human rights to conscience, speech, assembly, and the press. The UDHR and the ICCPR protect the individual human being and state that everyone is free and “equal in dignity and rights” and “endowed with reason and conscience.”118 The principal ICCPR religious freedom articles explicitly protect expression of thought, conscience, and religion, without regard to the content of this expression. It is important to note this critical distinction, as the ICCPR does not guarantee protection of particular ideas from distortion or challenge in the public square but instead ensures that those expressing such beliefs—particularly minority or unpopular beliefs—are protected. Rather than using the power of the state to protect an individual’s right to freely express unpopular (or even popular) thought, the Blasphemy Act

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sanctions state repression of individual speakers’ rights. Free to act on their prejudices, local officials and judges empower violent actors against critics and dissenters. Yet the ability to express disagreement and dissent on the most sensitive matters is precisely what international law seeks to protect. By deviating from the state’s legitimate role in protecting each speaker’s right of expression, Indonesia has made itself the arbiter of which ideas warrant protection and which do not.119 The 2009 arrest of members of the Sion City of Allah Christian sect perfectly illustrates both the tragic and the absurd effects of the act. The police alleged that the sect blasphemed Protestant Christianity120 because (1) its teachings are based on the Bible’s Book of Jeremiah alone, (2) it prohibited church attendance on Sundays, and (3) it rejected communion and wedding ceremonies conducted by the Timor Evangelical Church, the largest Protestant organization in the province.121 The Timor Evangelical Church, whose teachings the state claimed it was protecting, was not consulted and did not approve of the prosecution. Not only did the state use the Blasphemy Act to inject itself into internal religious questions, but it did so to “protect” a religion from practices that the allegedly aggrieved organization did not deem offensive. As the head of the local police unit responsible for investigating the incident remarked, “We hope the church will not interfere into the case.”122 Conflating Broad Rights with Secularization In its opinion upholding the Blasphemy Act, the Indonesian Constitutional Court noted repeatedly that Indonesia is, in apparent contrast to the Western world, an intrinsically religious country. The court added that the Blasphemy Act furthers the constitutional directive to “protect all the people of Indonesia” by protecting its six officially sanctioned religions from public reproach. This, in turn, ensures that the public at large will remain committed to religious principles.123 However, the court was mistaken in equating broad religious freedom and free speech rights with antireligious sentiment. While advocates for these rights do envision a place for “irreligious” ideas in the public square, efforts to repeal the Blasphemy Act do not seek to undermine Indonesia’s spiritual foundations. In fact, it is precisely because “Indonesia is a nation that believes in God and not an atheist nation”124 that the freedom to engage in contentious religious discourse is so vital. The court was not incorrect in noting that “an interpretation can lead to the truth but also has the potential to be wrong.”125 It is, how-

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ever, ultimately a great strain on a religious society when the marketplace of religious ideas is not open and free.126 Much as free competition in the marketplace for consumer goods necessitates improvement and responsiveness to one’s constituency, the free marketplace of religious ideas forces religious speakers to improve their rhetoric, refine their preaching, and reflect on their teachings.127 Moreover, openly questioning religious precepts allows believers to arrive at the answers intellectually and through sincere spiritual conviction, which can lead to religious flourishing. Legislation cannot and should not serve to ensure a state of religious homeostasis. Religious flourishing is relevant to both majority and minority religions in Indonesia, and to theological and other discourses. The Blasphemy Act makes it difficult for people of all faiths to debate the issues of the day in their religious tradition for fear of challenging status quo (and government-backed) interpretations and facing criminal prosecution for blasphemy. In a deeply religious nation, this effect is clearly harmful.

notes I thank the Becket Fund interns Abrar Qadir and Iten Naguib for their assistance with this chapter. 1. Richard C. Paddock, “Separation of Mosque, State Wanes in Indonesia,” Los Angeles Times, March 20, 2006, A1; U.S. State Department, “International Religious Freedom Report 2007,” “Indonesia” section, accessed December 29, 2009, www.state.gov/j/drl/rls/irf/2007/90137.htm. 2. Minister of Religious Affairs Muhammad M. Basyuni, Attorney General Hendarman Supandji, and Minister of the Interior H. Mardiyanto, “Indonesian Joint Ministerial Decree (SKB) against Ahmadiyah,” June 9, 2008, accessed December 18, 2009, www.thepersecution.org/world/indonesia/docs/skb.html (hereafter cited as Joint Decree). 3. Asian Legal Resource Centre, “Indonesia: Attacks on Religious Minorities Remain Largely Unchallenged by Justice Institutions,” Persecution of Ahmadiyya Musilm Community, www.persecutionofahmadis.org/indonesia-attackson-religious-minorities-remain-largely-unchallenged-by-justice-institutions/. See also U.S. State Department, “International Religious Freedom Report 2008,” “Indonesia” section, accessed February 28, 2013, www.state.gov/j/drl /rls/irf/2008/108407.htm. 4. Asian Human Rights Commission, “Indonesia: Blasphemy Law Should Be Repealed to Show Indonesia’s Commitment to the Protection of Freedom of Expression,” June 7, 2012, www.humanrights.asia/news/alrc-news/humanrights-council/hrc20/ALRC-CWS-20-04-2012. 5. “Annual Report of the United States Commission on International Religious Freedom,” Indonesia chapter, May 2009, accessed February 28, 2013, www.uscirf.gov/images/AR2009/indonesia.pdf. See also U.S. Department of

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State, “International Religious Freedom Report 2008,” “Indonesia” section, which details many examples of local enforcement of blasphemy laws. 6. Melissa Crouch, “The Indonesian Blasphemy Case: Affirming the Legality of the Blasphemy Law,” Oxford Journal of Law and Religion 1, no. 2 (July 2012): 1–5. 7. “Indonesia Profile,” BBC News, accessed September 5, 2010, www.bbc .co.uk/news/world-asia-pacific-14921238. 8. Brian Padden, “Tensions Test Indonesia’s Moderate Muslim Image,” Voice of America, August 1, 2010, www.voanews.com/english/news/asia/TensionsTest-Indonesias-Moderate-Muslim-Image-99757334.html. 9. Joko Mirwan Muslimin, “Islamic Law and Social Change: A Comparative Study of the Institutionalization and Codification of Islamic Family Law in the Nation-States Egypt and Indonesia (1950–1995)” (PhD dissertation, University of Hamburg, 2005), 97 (on file with author). 10. Arskal Salim, Challenging the Secular State: The Islamization of Law in Modern Indonesia (Honolulu: University of Hawaii Press, 2008), 123. 11. Michael Finkel, “Facing Down the Fanatics,” National Geographic, October 2009, 76, available at http://ngm.nationalgeographic.com/2009/10 /indonesia/finkel-text/1. 12. International Institute for Democracy and Electoral Assistance, “Religious Pluralism,” www.idea.int/publications/country/upload/11_religious_pluralism.pdf. 13. See M. Syafiʼi Anwar, “The Paradox of Indonesia’s Democracy and Religious Freedom,” Freedom at Issue (blog), Freedom House, June 21, 2012, www. freedomhouse.org/blog/paradox-indonesia%E2%80%99s-democracy-andreligious-freedom#.Uvyc70JdU5A. 14. Gonzalo Vina, “Cameron Says Indonesia’s Democracy Offers Hope to the Muslim World,” Bloomberg, April 11, 2012, www.businessweek.com /news/2012-04-11/cameron-says-indonesia-s-democracy-offers-hope-tomuslim-world. 15. “W. Java the ‘Least Tolerant Province,’ ” Jakarta Post, December 20, 2011, www.thejakartapost.com/news/2011/12/20/w-java-least-tolerant-province .html. 16. Soekarno issued it exactly one week after withdrawing Indonesia from the United Nations. Presidential Stipulation No. 1/PNPS/1965, cited by Trisno S. Sutanto, “The Challenges of Religious Freedom: An Indonesian Experience,” paper delivered at the 56th General Assembly of Ekumindo (Consortium of European Missions), Stuttgart, Germany, September 14–16, 2006, 5, accessed December 23, 2009, www.scribd.com/doc/20317516/The-Challenges-of-Religious-Freedom-in-Indonesia. 17. Adrian Vickers, A History of Modern Indonesia (Cambridge: Cambridge University Press, 2005), 146. Nasakom is an abbreviation of nationalisme (nationalism), agama (religion), and komunisme (communism). 18. Elucidation of Enactment of the President of the Republic of Indonesia No. 1/PNPS of 1965 Concerning the Prevention of Religious Abuse and/or Defamation, § I(2) (hereafter cited as Elucidation). The Blasphemy Act was rarely enforced prior to 1998. Since then, however, there have been about 120 indi-

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viduals convicted under it because of their alleged deviant religious views. Crouch, “Indonesian Blasphemy Case,” 2. 19. Sutanto, “Challenges of Religious Freedom.” The present-day citizen identification card regulations require a declaration of each person’s official religion. See Crouch, “Indonesian Blasphemy Case,” 4. 20. Presidential Stipulation No. 1/PNPS/1965 was formalized as Law No. 5/1969, the Law on the Prevention of Blasphemy and Abuse of Religion (hereafter cited as Blasphemy Act). 21. The 1945 Constitution of the Republic of Indonesia, ch. X-A, art. 28 E(1)–(3) (hereafter cited as Constitution). 22. Ibid., art. 28 I(1): “The right to freedom of thought and conscience, [and] the right to embrace a religion . . . are basic human rights that may not be derogated under any circumstances”; ibid., art. 28 D(1) guarantees that “every person shall have the right of recognitions, guarantees, protection, and certainty before a just law, and of equal treatment before the law.” Translations are from www.embassyofindonesia.org/about/pdf/IndonesianConstitution.pdf. 23. Opinion of the Court, [3.34.1]. The opinion was published in Bahasa. All quotes from it here are the work of a translator I hired. 24. Blasphemy Act, art. 1, makes it unlawful “to, intentionally, in public, communicate, counsel, or solicit public support for an interpretation of a religion or a form of religious activity that is similar to the interpretations or activities of an Indonesian religion but deviates from the tenets of that religion.” 25. Elucidation, § I(3). 26. Ibid., § 11, art. 1. 27. Ibid., I(4). 28. Ibid. 29. U.S. State Department, “International Religious Freedom Report 2007,” “Indonesia” section, accessed December 29, 2009, www.state.gov/j/drl/rls /irf/2007/90137.htm. 30. Blasphemy Act, art. 2(1). 31. Blasphemy Act, art. 2(2). 32. Criminal (Penal) Code of the Republic of Indonesia, art. 156(a), available at www.papuansbehindbars.org/?page_id=212 (hereafter cited as Criminal Code). Article 4 of the Blasphemy Act adds Article 156(a) to the Criminal Code. The penalty applies to any expression or act “which principally ha[s] the character of being at enmity with, abusing or staining a religion adhered to in Indonesia” or has “the intention to prevent a person to adhere to any religion based on the belief of the almighty God.” 33. Criminal Code, art. 157. 34. Public Prosecution Act, Law No. 16/2004, art. 30(3), states that the attorney general maintains public order and safety by “(c.) supervising the distribution of printed material; (d.) supervising forms of belief that potentially endanger people and the nation; (e.) preventing the mistreatment and/or contamination of religion.” 35. Freedom House, “Policing Belief: The Impact of Blasphemy Laws on Human Rights—Indonesia,” October 21, 2010, www.refworld.org /docid/4d5a700a2d.html; Melissa Crouch, “Judicial Review and Religious

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Freedom: The Case of Indonesian Ahmadis,” Sydney Law Review 34 (2012): 545–72; letter of instruction issued by PAKEM Central Bureau, No. 34/Pakem/ S.E./61 (April 7, 1961), cited in Sutanto, “Challenges of Religious Freedom,” 4. 36. Elucidation, § I(1). Blasphemy laws have allowed prosecution for “unreasonable” and “offensive” speech. These standards have been read to include giving charitable aid, criticizing a religious belief, or even telling someone that God would be happier if that person followed a different religion. There is no religious believer—including those who promote such laws—who does not value the ability to assert that his or her beliefs about religious truths are not only better but true. Indeed, freedom of conscience and its expression are rooted in the truth of the inherent dignity of the human person, not in the fickle will of the state. 37. Joint Decree. 38. U.S. State Department, “International Religious Freedom Report 2009,” “Indonesia” section, October 26, 2009, www.state.gov/g/drl/rls/irf/2009/127271. htm. General Soeharto created the MUI, a council of Muslim leaders, “as a means of mobilising Muslim support for the government’s development policies.” The Indonesian minister of religion in 1985 stated that its function was “to translate government policy into language that the ummah [Muslim community] understands,” such as by issuing fatwas to give legitimacy to these policies. See Tim Kell, The Roots of the Acehnese Rebellion, 1989–1992 (Ithaca, NY: Cornell University Press, 1995), 50. The MUI was not envisioned as restricting the speech of others but as an organization for community outreach, which is a legitimate and commendable form of government interaction with religious groups. 39. United States Commission on International Religious Freedom, “USCIRF Annual Report 2012—The Commission’s Watch List: Indonesia,” March 20, 2012, www.refworld.org/docid/4f71a66bc.html. 40. U.S. State Department, “International Religious Freedom Report 2009,” “Indonesia” section. 41. See Islamic Path, “Pillars of Islam,” July 3, 2013, http://islamicpath.org /pillars-of-islam/. 42. The creed states that there is no God but God, and that the Prophet Mohammed is the last prophet and messenger of God. Qurʼan 33:40 says, “Muhammad is not the father of any one of your men, but the Messenger of God, and the Seal of the Prophets; God has knowledge of everything” (A. J. Arberry, The Koran Interpreted [London: Allen and Unwin, 1955], 126). See also Ahmad Shafaat, “Muhammad—the Last Prophet,” Islamic Perspectives, August 2004, www.islamicperspectives.com/MuhammadTheLastProphet.htm. 43. Patung, “Al-Qiyadah al-Islamiyah: Mini Theocracy in Bogor and Padang,” Indonesia Matters, October 10, 2007, www.indonesiamatters. com/1435/theocracy. 44. Asma Uddin, “Blasphemy Laws in Muslim Majority Countries,” Review of Faith and International Affairs 9, no. 2 (Summer 2011): 47–55, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1885757. 45. Penal Code No. 58 of 1937 (Egypt), art. 98(f). 46. Amnesty International, “Egypt: Muzzling Civil Society,” MDE 12/021/2000, September 19, 2000, www.unhcr.org/refworld/docid/3b83b6e817 .html.

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47. Freedom House, “Policing Belief: The Impact of Blasphemy Laws on Human Rights—Egypt,” October 21, 2010, www.refworld.org/cgi-bin/texis /vtx/rwmain?docid=4d5a700b2d. 48. “Police Arrest Two Christian Activists from Canada-Based Coptic Group over Anti-Islamic Postings,” Worldwide Religious News, August 9, 2007, http:// wwrn.org/articles/25891/?&place=africa§ion=orthodox. 49. “Egypt Blogger Jailed for ‘Insult’ ” BBC News, February 22, 2007, http:// news.bbc.co.uk/2/hi/middle_east/6385849.stm. 50. Pak. Penal Code §§ 295A–295C. § 295A states, “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.” 51. However, as is often the case in such circumstances, there are varying accounts as to what happened and whether anyone saw her burn anything at all. Jon Boone, “Pakistani Girl Accused of Qurʼan Burning Could Face Death Penalty,” Guardian, August 19, 2012, www.theguardian.com/world/2012 /aug/19/pakistan-christian-tensions-quran-burning-allegations. 52. Qaiser Zulfiqar, “11-Year-Old Mentally Challenged Christian Girl Jailed For Blasphemy,” Express Tribune, August 19, 2012, http://tribune.com.pk /story/424084/11-year-old-%20mentally-challenged-christian-girl-jailed-forblasphemy/. 53. Boone, “Pakistani Girl Accused of Qurʼan Burning.” 54. Aziz Ahmad Chaudhry, The Promised Messiah and Mahdi (Tilford, Surrey: Islam International Publications, 1996), 136. Pakistan’s government condemned the anti-Ahmadi demonstrations of 1953 as a threat to public order and treated Ahmadi persecution as an attack on its policies. See Amjad Mahmood Khan, “Persecution of the Ahmadiyya Community in Pakistan: An Analysis under International Law,” Harvard Human Rights Journal 16 (Spring 2003): 224. The Muneer Inquiry, a 387-page report by Lahore High Court Justice Muhammad Muneer and Justice M. R. Kiyani on the cause of the 1953 riots against Ahmadis, condemned the political motivation of Muslim fundamentalist groups. 55. Asian Human Rights Commission Urgent Appeals Programme, “Pakistan: In a Hate Campaign against the Ahmadis the Police Tortured to Death an Innocent School Teacher,” April 3, 2012, www.humanrights.asia/news/urgentappeals/AHRC-UAC-057-2012. 56. Usman Ahmad, “A Murder Most Foul: How Master Abdul Qudoos Was Tortured and Killed,” Pak Tea House, April 2, 2012, http://pakteahouse. net/2012/04/02/a-murder-most-most-foul-how-master-abdul-qudoos-wastortured-and-killed/. 57. “UK: Shaheed Master Abdul Qudoos Death by Torture Matter Raised during Parliamentary Q&A,” Ahmadiyya Times, April 30, 2012, http://ahmadiyyatimes.blogspot.com/2012/04/uk-shaheed-master-abdul-qudoos-death-by. html. 58. Joint Decree.

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59. Melissa Crouch, “Judicial Review and Religious Freedom,” 550. 60. Opinion of the Court, [3.34.9]. 61. Ibid., [3.34.4]. 62. Ibid., [3.34.11]. 63. Ibid., [3.34.10]. 64. Ibid., [3.34.17]. 65. International Covenant on Civil and Political Rights, December 16, 1966, S. Treaty Doc. No P5-20, PPP U.N.T.S. 171, art. 19, http://treaties.un.org /Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (hereafter cited as ICCPR). 66. Opinion of the Court, [3.52]. 67. ICCPR, art. 18(3). 68. Opinion of the Court, [3.52]. 69. Ibid., [3.34.7]. 70. Ibid. 71. Constitution, art. 29, par. (1). 72. Opinion of the Court, [3.34.5]. 73. Ibid., [3.34.25]. 74. Ibid., [3.34.24]. 75. Ibid., [3.32.23]. 76. Crouch, “Indonesian Blasphemy Case,” 3. 77. Opinion of the Court, [3.65]. 78. Ibid., [3.42]. 79. Ibid., [3.41]. 80. Act Concerning Human Rights (Law No. 39/1999), Preamble (d) (Indon.). 81. Ibid., art. 7(2). 82. ICCPR, arts. 19, 21, 26, 27. 83. Ibid., art. 19 (emphasis added). 84. UN Human Rights Committee, General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, ¶ 8, UN Doc. CCPR/C/21/Rev.1/Add.4 (Sept. 27, 1993) (emphasis added). 85. Law No. 16/2004 on the Public Prosecution Service (Undang-Undang Kejaksaan Republik Indonesia), art. 30(3). 86. Manfred Nowak and Tanja Vospernik, “Permissible Restrictions on Freedom of Religion or Belief,” in Facilitating Freedom of Religion or Belief: A Deskbook, ed. Tore Lindholm, W. Cole Durham Jr., and Bahia G. Tahzib-Lie (Leiden, Netherlands: Martinus Nijhoff, 2004), 152n23. 87. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). But see Gitlow v. New York, 268 U.S. 652 (1925), where the Supreme Court employed a “bad tendency” standard for limiting free speech, which resembled the Indonesian court’s “potentially endangering” standard. The U.S. Supreme Court, however, subsequently rejected this standard in Herndon v. Lowry, 301 U.S. 242 (1937). 88. See Herndon v. Lowry, 301 U.S., where the court held that Georgia could not criminalize participation in the activities of a political party simply because its doctrine may refer to an ultimate resort to violence against organized gov-

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ernment at some indefinite point in the future; Yates v. United States, 354 U.S. 298 (1957), where the court held that a trial judge’s instructions were unconstitutional because they allowed for conviction of mere advocacy of forcible overthrow of the government in the absence of evidence regarding the potential efficacy of such advocacy. 89. Noto v. United States, 367 U.S. 290, 298 (1961). 90. Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). 91. UN Doc. A/HRC/2/3 (September 20, 2006), pars. 39, 47, 50. 92. Ibid. 93. Sunday Times v. the United Kingdom, 30 Eur. Ct. H.R. (ser. A) at 30 (1979). 94. Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, Eur. Ct. H.R., App. No. 40825/98 (July 31, 2008), § 71. 95. Ibid. 96. Sunday Times, 30 Eur. Ct. H.R. (ser. A) at 30. 97. Kokkinakis v. Greece, 17 E.H.R.R. 397 (1994) (Eur. Ct. H.R., May 25, 1993), par. 49. 98. Sahin v. Turkey, Eur. Ct. H.R., App. No. 44774/98 (Grand Chamber, November 10, 2005); Dogru v. France, Eur. Ct. H.R., App. No. 27058/05 (April 3, 2009), pars. 116, 118. 99. Blasphemy Act, art. 1. 100. Ibid., § I(4). 101. Ibid., art. 2. 102. Criminal Code, art. 156(a). 103. Blasphemy Act, art. 4. 104. Ibid., art. 1. 105. Opinion of the Court, [3.67]. 106. Ibid., [3.51]. 107. Ibid., [3.61]. 108. Ibid. 109. Ibid., [3.70] (emphasis added). 110. Brian J. Grim and Roger Finke, “Religious Persecution in CrossNational Context: Clashing Civilizations or Regulated Religious Economies?,” American Sociological Review 72 (August 2007): 654. 111. Brian J. Grim, “Religious Freedom: Good for What Ails Us?,” Review of Faith and International Affairs 6, no. 2 (Summer 2008): 5. 112. Thomas F. Farr, “The Widow’s Torment: International Religious Freedom and American National Security in the 21st Century,” Drake Law Review 57, no. 4 (2009): 853. 113. “Roger Trigg: On Religious Freedom and Religious Extremism,” Berkley Center for Religion, Peace and World Affairs, Georgetown University, September 9, 2011, http://berkleycenter.georgetown.edu/rfp/essays/roger-triggon-religious-freedom-and-religious-extremism. 114. “Jean Bethke Elshtain: On Religious Freedom and Religious Extremism,” Berkley Center for Religion, Peace and World Affairs, Georgetown University, September 9, 2011, http://berkleycenter.georgetown.edu/rfp/essays /jean-bethke-elshtain-on-religious-freedom-and-religious-extremism.

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115. Opinion of the Court, [3.55]. 116. See Blasphemy Act, art. 1. 117. For example, see Elizabeth Burns Coleman’s chapter 9. 118. Universal Declaration of Human Rights, G.A. Res. 217, UN GAOR, 3d Sess., UN Doc. A/810 (1948), art. 1. 119. In a like manner, Muslims attempting to enforce an “anti-vilification” law very similar to “defamation of religions” measures argued in a court case in Victoria, Australia, that “truth is not a defense” when the defendant, a Pakistani Christian pastor, attempted to read from the Qurʼan during his court testimony to show that his statements regarding Islam were Qurʼanic. Local authorities have already used this law to forbid the reading of the Qurʼan in public because some Muslims deemed certain passages, read out of context, to be defamatory of Islam. “Islamic Council of Victoria v. Catch the Fire Ministries, Inc., Australia, (2005),” Becket Fund, accessed February 24, 2014, www.becketfund.org /islamic-council-of-victoria-v-catch-the-fire-ministries-inc-australia-2005/. 120. Yemris Fointuna, “Seven Declared Suspects of Blasphemy,” Jakarta Post, June 4, 2009, www.thejakartapost.com/news/2009/06/04/seven-declaredsuspects-blasphemy.html. 121. Yemris Fointuna, “Religious Leaders Regret Police Arrests of ‘Defiant’ Sect Figures,” Jakarta Post, June 9, 2009, www.thejakartapost.com/news/2009 /06/06/religious-leaders-regret-police-arrests-defiant039-sect-figures.html. 122. Ibid. 123. Opinion of the Court, [3.34.23]. 124. Ibid., [3.34.3]. 125. Ibid., [3.52]. 126. Grim and Finke, “Religious Persecution in Cross-National Context,” 654. 127. Farr, “Widow’s Torment,” 853.

chapter 9

Profound Offense and Religion in Secular Democracies An Australian Perspective elizabeth burns coleman

In debates concerning the treatment of sacred objects, symbols, and figures in multicultural societies, questions often arise as to what it means to treat beliefs with respect. Responses from a Millian liberal tradition have generally argued that the idea of treating beliefs with respect is inconsistent with freedom of expression and that it is illogical to expect people to respect beliefs and practices with which they fundamentally disagree. This chapter explores this response in relation to an episode in which an Aboriginal Australian claimed that a book should be pulped for advocating that girls learn to play the didgeridoo. Drawing on sociological and philosophical accounts of identity and civility, the chapter provides an alternative understanding of what it means to treat beliefs with respect. It argues that “respect for beliefs” is best understood as respect for the social identity of persons and consists in ordinary codes of politeness. In 2008, the then director of Melbourne University’s Centre for Indigenous Education and general manager of the Victorian Aboriginal Education Association, Mark Rose, attacked the HarperCollins book company for publishing a book, The Daring Book for Girls, which includes a suggestion that girls might learn to play the didgeridoo. Rose stated that this was a danger equal to “encouraging someone to play with razor blades,” as the didgeridoo is a men’s ceremonial instrument that would cause infertility in girls if they touched it.1 Moreover, he thought that this was a particularly serious cultural faux pas, a point he 249

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underscored by pointing out that he would not let his daughters touch a didgeridoo, “out of cultural respect.” Calling for the book to be pulped, he opined that the chapter was objectionable for the manner in which it displayed ignorance of Aboriginal culture and cheapened it through tokenism. The company initially questioned whether all Aboriginal people would be equally offended and declined to respond to Rose’s demands but later apologized “unreservedly” to any Aboriginal Australians who were offended and agreed to replace the relevant chapter in subsequent reprints.2 A liberal society, as Peter Jones has noted, “stands opposed to a society in which people are compelled to live in accordance with beliefs they do not share or which, in other ways, pays no heed of the conscientious convictions of those who make up its citizens.”3 Rose, though, clearly argued from different premises. He did not advocate criminal punishment for women who play the didgeridoo. He did, however, successfully seek to censor the mere suggestion of a religious transgression. A liberal might acknowledge Rose’s right to publicly oppose girls playing the didgeridoo but would see censorship of the idea of girls playing the instrument as an unwarranted restriction on the right of citizens to express their opinions. Remarkably, while the incident was widely reported in the Australian and international press, it did not cause public debate or controversy. The response from HarperCollins, which focused on the offense to Rose and other Aboriginal people, suggests that it did not accept the premise that a woman would lose her fertility or that the authors and publishers were causing harm to young women. There was also complete silence on the question of whether offense was sufficient reason to pulp a book or to remove a chapter. There are obvious ways in which breaking religious taboos might be considered problematic for cross-cultural relations. From at least one perspective, women and girls playing the didgeridoo is the equivalent of something like blasphemy or sacrilege, and advocating that they should break this taboo might be seen as the equivalent of incitement to crime. Moreover, there are elements of cross-cultural forms of appreciation that seem entirely innocent, such as aesthetically appreciating a ceremonial mask, that the producer society may perceive as akin to blasphemy.4 However, the idea of a specific moral sense of blasphemy or sacrilege has largely been lost in mainstream Australia.5 In 1992, the Australian Law Reform Commission recommended that blasphemy be removed from federal legislation and that legislation that protects religious sensi-

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bilities be recast in terms of “offensive material,” a recommendation that was not followed.6 In any case, there has been no successful prosecution for blasphemy since 1871, and few cases since then.7 This long disuse appears to have produced a society in which there is no moral distinction made between blasphemy and offensiveness. This chapter explores what respect for beliefs might mean in an Australian context and whether this example has any implications for rethinking liberal theory. It is in two parts. The first part uses this incident as a case study to show there is a stalemate in Australian public and academic discourse that liberal theory does not adequately address. It begins with a critical examination of Rose’s position through the framework of Jones’s argument that the idea of respecting belief is incompatible with an argument for freedom of expression based on truth and collapses into absurdity.8 Through this framework, it is clear that Rose’s views are not liberal. This next section shows that the argument for freedom of expression from truth is unlikely to sway someone like Rose because it is based in an objectivist account of truth that he rejects as an ideology of colonial domination. The second part of the chapter explores public debate and cross-cultural engagement in Australia with a view to bringing this discussion back to critique Jones’s interpretation of respect for beliefs. The first section in this part briefly discusses political correctness, exploring the reasons that some indigenous Australians have expressed for wishing to suppress facts about their communities, and recognizing academics’ reasonable fears of offending indigenous people or of seeming to be unsympathetic. But against the interpretation that all self-censorship is bad, it presents an argument for a right not to be offended, as a way in which to analyze the morality of public debate. The second section argues that the concept of respect for beliefs is best understood as a deference code of politeness, and the final section draws together observations from this Australian experience to suggest some very general conclusions about the moral limits of debate in multicultural societies. The morality of expression is logically distinct from its legality and from what the legal limits of expression should be. Accordingly, this chapter will not address the desirability or otherwise of blasphemy laws or religious or racial vilification statutes.

a liberal position extended In his influential article “Respecting Beliefs and Rebuking Rushdie,” Peter Jones responded to Muslim protests over the publication of

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Salman Rushdie’s novel The Satanic Verses with what may be considered a standard liberal interpretation of the limits of society to restrict the acts and expressions of its members.9 In the novel, the central character, Mahound, is a secularized version of the Prophet Mohammed. He is represented as an insincere businessman and, in the words of Shabbir Akhtar, “a calculating opportunist devoid of conscience, making and breaking the rules as he pleases, confusing (or perhaps deliberately identifying) good with evil as the mood takes him.”10 The depiction of Mohammed in this manner led to international protests by Muslims and a widely criticized fatwa imposing the death penalty on Rushdie for his blasphemy. Jones begins from the widely accepted premise that in order to achieve a liberal society, we should agree to the principle that everyone should be able to live according to their own beliefs and desires, so long as these do not harm others. This is known in political philosophy as the harm principle, first developed by J. S. Mill in On Liberty (1859). According to Mill, the only exceptions to this principle concern people who do not have responsibility for their actions, such as children and people with a mental illness or infirmity.11 The harm principle justifies laws that would prevent girls from playing the didgeridoo if doing so actually caused infertility.12 Yet as Jones notes, it does not restrict others from criticizing a belief or from acting in a manner contrary to it.13 The harm principle allows women to choose to play the didgeridoo (irrespective of whether it causes them harm) and parents to decide whether their children should be allowed to play. Offense to Others While Mill suggests that the only legitimate grounds a society may have for restricting actions or speech is based on harm, Joel Feinberg has pointed out that liberal democracies also restrict behavior simply on the grounds that it is offensive.14 Similarly, there is a widespread moral intuition that perhaps we should limit what may be said or done in relation to other people’s most cherished religious beliefs on this basis. People can acknowledge that something may cause offense to others, even when they do not share the beliefs in question and consider them to be mistaken.15 Offense is an unpleasant state including a wide range of experiences that may be displeasing, annoying, irritating, or disgusting. Other forms of offensive behavior against which liberal states have laws concern

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feelings, such as respect for the dead, reflected in laws against the desecration of graves. Feinberg suggests that all experiences of offense are a type of harm, although liberal states do not protect people from all kinds of offensive experiences. Feinberg distinguishes between two types of offense: an “offensive nuisance” is caused by proximity to something unpleasant; a “profound offense” may be deep in that it upsets people emotionally and potentially traumatizes them, even when caused by the sheer knowledge of something’s existence. Feinberg argues that the legal restriction of offensive nuisance is compatible with freedom of expression, although legally restricting profound offense is not. One way of distinguishing between the two kinds of offenses is that if mere offense is morally wrong, it is wrong because it is offensive, while profound offense is considered offensive because it is believed to be morally wrong.16 It might be thought that Rose’s dislike of The Daring Book for Girls was caused by the fact that it advocated breaking an Aboriginal religious taboo concerning women and girls playing the didgeridoo. If so, his concern must be based on a profound offense, as he was offended by the bare knowledge that this had been advocated.17 It might be the case that Rose, or some other Aboriginal person, is very distressed by the idea that, somewhere in Australia, women and girls are playing the didgeridoo. But this distress cannot be the basis of a legal restriction in a liberal society. As H. L. A. Hart emphasized, if this kind of distress is considered a harm, “the only liberty that could coexist with this extension of . . . the principle is liberty to do those things to which no one seriously objects.”18 So a law protecting people from profound offense cannot be made consistent with liberal principles. A legal principle of offense is also considered problematic because what offends one person might not offend another. In addition, individuals take different levels of offense. The strength of the offense taken cannot be considered a clear indication of how offensive something is, as there may be manufactured offense, and some people take offense far too easily, with very little reason. The extremity of Rose’s sensitivity can be highlighted by means of comparison with what Muslim groups were responding to when they expressed outrage over the publication of The Satanic Verses. Shabbir Akhtar explained why he found the novel offensive: “The Satanic Verses is written in a language that is at times gratuitously obscene and wounding. In the controversial sections about Mahound, the locales Rushdie selects are almost always sexually suggestive . . . and sometimes even degrade human nature.”19 In contrast,

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The Daring Book for Girls did not intentionally ridicule or deride Aboriginal beliefs. The book did not encourage girls to play the didgeridoo as a provocative gesture. In addition, Rose’s views may be considered extreme in comparison with other Aboriginal peoples’ views. The Koori Mail, an Aboriginal fortnightly paper with a small circulation, was the only newspaper that questioned whether Rose’s view was representative of those of other indigenous groups. It reported that the Yolngu people did not share his claim that women and girls, especially Westerners, should not play the didgeridoo. Its reporters interviewed Dhangal Gurruwiwi, who helps her brother, a yidaki (the term for didgeridoo in the Yolngu language) custodian, Djalu Gurruwiwi, run a yidaki business that includes holding workshops about how to play for people of both genders. The Mail reported her as saying, “Djalu says that it is okay for other nationalities to play yidaki.” However, one of its journalists reported that when she attended the Garma festival (a yearly festival organized by Yolngu), she had observed Yolngu women playing yidakis but was told by other Yolngu people that women never play the instrument.20 This contradiction between action and statement is not irresolvable. The ethnomusicologist Linda Barwick states that while it is true that in northern Australia women do not play in traditional ceremonies, there are few restrictions on women playing in an informal capacity. “The area in which there are the strictest restrictions on women playing and touching the didgeridu,” she observes, “appears to be in the south east of Australia, where in fact didgeridu has only recently been introduced.”21 The Garma Festival Yidaki Statement of 1999 set out the appropriate use of didgeridoos. It was proposed by Yolngu clan elders, and the anthropologist Karl Neuenfeldt reports that “the statement asserts the clan elders’ custodianship of the yidaki as including ‘the right to permit the use and teaching’ of it, and it seeks to find ‘ways that Yolngu and Balanda [white/colonial Australia] worlds can coexist on the basis of mutual respect, shared rituals, and reciprocal obligations.’ ”22 In 1997, the Yolngu elder Mandawuy Yunupingu, “an important media spokesman for his clan,” commented that “Yolngu understand the Yidaki has become an Australian icon and accept that non-Yolngu people throughout the world now use it for informal purposes and enjoyment. Be aware, however, that its origins are sacred and secret to Yolngu men. . . . In Yolngu society women are forbidden to play it, as its origins are sacred to men.”23 Neither the Festival Yidaki Statement nor the comment by Yunupingu assert that non-Aboriginal women and girls should not play the didgeridoo. Rather, they assert that the cultural origins of

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the instrument should be acknowledged and respected. It is the group with the fewest ties to the didgeridoo and the most intolerant attitudes that Rose represents. This raises the questions of who has authority to speak for Aboriginal Australians and why none of them publicly responded to this kind of “ultraorthodox” representation of their beliefs. However, the answers to such questions could only be speculative. Needless to say, there could be no freedom of expression if the level of offense taken by the most illiberal groups in a society were used as the basis for laws concerning what could be seen or read. The intuition that people’s sensibilities about their most cherished religious beliefs should be protected does not extend to an intuition that others should not be able to make representations that are contrary to those beliefs. As Jones points out, blasphemy law evolved in Christian societies to allow freedom of expression so long as the “decencies of controversy” were observed. This allowed even the very foundation of Christianity to be attacked in debates over the existence of God.24 If this same intuition were applied in relation to Aboriginal beliefs, it would still allow people to argue that Creation Beings did not form the earth and that touching or playing a didgeridoo does not cause infertility in women. Indeed, this intuition would allow such beliefs to be condemned. The assertion that didgeridoo playing causes infertility has strong similarities to the religious claim that masturbation leads to infertility: both dress morality as fact. The claim that women would become infertile is an instrument of control that aims to justify their exclusion from participation in certain roles in religious ceremonies. Sexism remains a problematic area in relation to multicultural and indigenous rights, in that a person committed to equality in society could not condone discrimination against women in Aboriginal societies.25 Accordingly, a liberal feminist might suggest that as the belief is false and a method of social control, the cultural practice and belief should be not only ignored but condemned. What this person would not do, and could not do, is respect such beliefs. Respect for Beliefs While HarperCollins focused on the issue of offense, Rose emphasized not just the religious sensitivities of a particular group but respect for Aboriginal culture in general. As he explained in an interview, “I would say from an indigenous perspective,” The Daring Book for Girls was “an extreme mistake, but part of a general ignorance that mainstream

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Australia has about Aboriginal culture.” “I won’t even let my daughter touch [a didgeridoo],” he continued, out of “cultural respect.” Rose feared that the inclusion of the didgeridoo lesson in the book sent out a “tokenistic” message about Aboriginal culture. “That’s the issue that perturbs me the greatest,” he said.26 Appealing to a principle of respect for beliefs changes the nature of the moral issue. According to Jones, the moral wrong of offending others is consequentialist. If no one is offended, then there is no moral wrong. In contrast, “respect for beliefs,” as Jones presents it, is a rightsbased notion based on the dignity of persons. The argument for this right is that people are entitled to respect, and, as they identify with their beliefs, an attack on their beliefs is an attack on them.27 The object of concern is not the belief itself but the person who holds it. Jones suggests that if a principle were to be drawn from the idea of respect for beliefs, it would mean that all citizens (regardless of their religion or lack thereof) should display mutual respect by avoiding confronting one another’s beliefs. Jones hypothesizes that the intuition we have about respecting beliefs is limited. Such respect would concern not all the beliefs a person might have but only those that are central to a person’s life and being, as Robert Yelle’s chapter 5 also notes. Moreover, some argue that respect for beliefs is something a person can demand as a condition of “their accepting the obligations of citizenship”—such as being forced to live according to laws with which they may not agree.28 To suggest that there is a requirement on citizens of a liberal society to respect other people’s beliefs implies that “not only should people be allowed to conduct their lives in accordance with their most deeply held beliefs, [but] they should not have to endure attacks on those beliefs.”29 Accordingly, the injunction to respect beliefs would demand that no one challenge the beliefs of others with criticisms designed to undermine those beliefs. A liberal, however, could not accept this as a moral principle. Mill’s argument for freedom of expression based on truth is crucial here. According to Jones, “If we are serious about wanting to possess true beliefs, and presumably anyone who professes a ‘belief’ must be concerned that it is a true belief, we must be willing to live in a society in which all beliefs are open to question and none is immune from scrutiny.” But as he points out, such an argument would not persuade a person who believes in revelation as a source of truth, as they think the truth of their beliefs are without question and “ordinary standards of evidence are irrelevant.” Jones emphasizes, “The fact that people take

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this view does not entail that they rightly take that view.”30 In addition, he concludes, the suggestion that truth is not an issue in religious belief would, or should, be unwelcome by religious adherents who regard their beliefs as true. But ultimately, Jones argues that the idea that subjecting a belief to serious examination means not treating the belief with respect leads to absurdity. He argues that it is more insulting to have one’s beliefs treated as though their truth or falsity were of no consequence, as then they would not be treated seriously as beliefs. Beliefs aim at truth; we cannot hold a belief and not believe it to be true. But if we were to accept that people are entitled to have their beliefs respected, then all beliefs would need to be treated as equal. This view falls into contradiction as soon as we realize that beliefs both overlap and contradict. When beliefs contradicted one another there would be a need to choose among them, to determine which were worthy of protection and who the victim(s) and the assailant(s) were. There can be no neutral way of sorting this out. Jones concludes that “the only way of honouring the principle that noone’s beliefs should be subject to attack, either explicitly or implicitly, would be to require, absurdly, that no-one ever give voice to a belief.”31 The importance of truth is also fundamental to the reason that Jones rejects the idea that it is important to maintain traditional beliefs and customs. He points out that multiculturalists often fall into the position that what is particularly important is that there should be a diversity of opinions and beliefs about the world. Jones claims that to think diversity is important is to think “it matters less that peoples’ lives should be grounded in falsehood than that their existing beliefs, and the ways of life grounded in them, should remain undisturbed.” This, according to him, is to “freeze beliefs in a social museum, reducing them to mere objects of curiosity.”32 Yet what if the problem is not knowledge but ignorance? Throughout his discussion, Jones assumes that the beliefs in question are known. The context of Rose’s concern is different. He worries about people’s ignorance of Aboriginal culture, or what in another context he has called “the silent apartheid.” This apartheid, he believes, enables the misappropriation of indigenous culture at the same time as it denies the validity or truth of indigenous knowledge systems. As Rose has explained, this kind of knowledge segregation is “one of the last bastions of colonial endeavour, the ‘colonisation of the mind.’ The silence of this apartheid is aided by its invisibility. In it there are no segregated buses, schools, diners or washrooms on which to target rage, but rather

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an ever consuming intangible ignorance which is harder to recognise.”33 The result of this is that non-Aboriginal Australians know little about Aboriginal culture other than that Aboriginal people are spiritual and have a deep connection with the land. Yet though Rose decries the widespread ignorance about many Aboriginal beliefs, he would not likely wish to see the truth of those beliefs interrogated as Jones suggests. Nor would he see open debate about such beliefs as a sign of respect. Rather, he indicates that Aboriginal customs should be observed even when no Aboriginal people are present because he defines respect for beliefs as the acceptance of beliefs. He views such acceptance as necessary for the “cultural competency” required for cross-cultural engagement, where cultural competency means “the ability to understand and value Indigenous perspectives.”34 Rose is clearly not a liberal. He does not endorse individual liberty short of harm to others but suggests that people should observe the most intolerant Aboriginal beliefs and customs, such as taboos concerning the didgeridoo. Nor does he accept that people should be free to read what they choose, but calls for the suppression of books if their content is inconsistent with those customs. For him, respect does not mean “genuine respect,” in Jones’s sense of considering something worthy of debate and subject to tests of its truth claims. Rather, Rose wants non-Aboriginal people to gain information about Aboriginal beliefs and customs and to “respect” them without debate. Rose’s view of respect derives from a different understanding of the nature of knowledge and truth. He is correct that the religious or spiritual beliefs that advocates often refer to as “indigenous knowledge” are excluded from the academy. The explanation for this is not simply that academics do not know what Aboriginal people believe but that it is rejected as genuine knowledge. There are two reasons for this: first, because religion and religious authority are central to this knowledge, and second, because the epistemology of indigenous knowledge prohibits its critical interrogation. “Indigenous Knowledge” and Truth Rose has developed what he describes as an indigenous research methodology combining elements of narrative inquiry with Japanangka, Errol West’s indigenous standpoint theory.35 The Japanangka paradigm is an “Aboriginal cultural holistic” comprising “a set of diverse and sophisticated cultural norms and practices” that ensure “a context of

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comprehensive cultural maintenance . . . through the capacity to value all information, expression, theory, action and re-action in the context of the eight Japanangka sub-paradigms.” These subparadigms are categorized as cultural, spiritual, secular, intellectual, political, practical, personal, and public. What is particularly interesting about this paradigm is that the “sub-paradigms . . . provide the capacity to comfortably retain conflicting views, competitive concepts and antithetical hypotheses without causing conflict or confusion that may block the analytical processes.”36 West combines this paradigm with standpoint theory, a variety of perspectivism.37 This suggests that there are many different “truths,” some of which may contradict one another. Rose has adopted an epistemology based on narrative inquiry rather than standpoint theory. Narrative inquiry may be described as “a form of epistemology” that, based on a premise that “humans are storytelling organisms who, individually and socially, lead storied lives,” is used in education research on the view that “education is the construction and reconstruction of personal and social stories.”38 The significance of this different view of knowledge and truth cannot be overstated. Millian liberals, such as Jones, accept that truth and the objectivity of knowledge are possible. These are achieved through what Jones describes as the “ordinary” requirements of evidence and rules of logic, such as the law of noncontradiction. Acceptance of this epistemology is fundamental to engagement in rational debate.39 Jones might possibly concede that people learn and make sense of the world through narrative (making it a useful educational tool or framework), but he would also think that this is entirely consistent with people holding false beliefs or holding beliefs for poor reasons. In addition, West’s theory places great emphasis on the difference between Western and indigenous knowledge. The basis of indigenous knowledge is spiritual: “Western epistemology differs from Koori epistemology in that . . . we, as Aborigines, the traditional ‘owners’ and ‘first owned’ of this continent, already know the origin, nature, methods and limits of our knowledge systems. . . . The secret of our knowledge is the unbreakable connection between the spiritual realm and the physical Earth Mother.”40 The Earth Mother is not generally a feature of “traditional” Aboriginal religions, which describe spirits and ancestors creating the land.41 What is interesting in this context, however, is the connection between the religious and the spiritual in an ontology that is considered final or secure.

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West’s perspective on epistemology may be compared with that of the devoutly religious person Jones mentions, who does not accept the “ordinary” criteria for the evaluation of knowledge, if these involve a process of empirical evidence and debate according to rational argument. According to West, this process would be “ordinary” only in Western societies. In all probability, an indigenous person who accepts religious knowledge as the foundation of a relationship with land and law would feel him- or herself deeply at odds with the argument for freedom of expression from truth and with Mill’s process for establishing that something is true. This is because some religious knowledge is secret, and this secrecy is fundamental to the structure of Aboriginal societies. As the anthropologist Peter Sutton has reported, in the Western Desert region of Australia, “men’s religious supremacy and the power of senior men over others traditionally rested squarely on their highly elaborate secret life in ritual and their secret knowledge of the many hidden narratives of the landscape.” Social sanctions to maintain secrecy included “the threat of physical execution.”42 Execution for disclosing religious secrets emphasizes just how illiberal some indigenous cultures were and underscores just how hostile Aboriginal people may be to other people knowing what these beliefs are, let alone to debate on a belief’s veracity. The process of debate would involve holding up belief, and even secret-sacred knowledge, for evaluation. This process itself would undermine traditional custodians’ authority. Even if all their beliefs were found to be true based on a rationalist and empirical methodology, their religious knowledge would no longer be secret. Like West, Rose identifies Aboriginal identity with spirituality. On one web page he refers to his Aboriginal identity and the call of the ancestors, writing, “I stand as a testimonial to their power, influence and wisdom. . . . For I am a Blackfella.”43 Rose also appears to agree with West’s categorization of knowledge into “Western” and “Indigenous” knowledge. For Rose, empiricism is a weakness of Western epistemology and is politically aligned with the colonization of indigenous people. As he explained, “The Western system, without being too critical, has been tied up in measuring. Charles Darwin used to measure our skulls to see how human we were or weren’t. In the search for measurable realities a whole lot of other realities have been dissipated.” He continued, “We’re working collaboratively looking at drawing on [indigenous community] knowledge . . . [and] over-turning the destruc-

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tive experience that research has had in the lives of many Aboriginal people. It was research that under-pinned the removal of many of our people like my father.”44 It is unclear what the causal connection between the issue of “knowledge,” or empirical research techniques, and the removal of children from indigenous families may be. As stated, it may be interpreted as a form of ad hominem argument, designed to undermine any knowledge based on empiricism and rationalism by associating it with an injustice. Yet Rose has a point. In the nineteenth century, both liberal and socialist thinkers agreed that the “great nations” were civilized and carriers of historical progress, while smaller nationalities were “primitive and stagnant, and incapable of social or cultural development.”45 Ideas of progress and freedom of expression are intimately connected to the sense of superiority of Western nations over indigenous peoples. Mill valued scientific discovery and truth, arguing that the progress of civilization depends on this openness to debate. He contrasted societies that accepted such debate and liberal freedoms with those bound by custom and tradition and argued that the colonization of the latter was justified on the basis of the superiority of “civilization” over custom and tradition.46 For Mill, the improvement of such societies justified policies of paternalism. Both standpoint theory and narrative theory are based on a concept of knowledge as experience and of truth as “relative to a culture, form of life or standpoint, and therefore, ultimately representing a particular perspective and social interest.” As Rob Moore and Johan Muller have pointed out, these experiential truths are in contrast not with falsity of belief but with a so-called dominant knowledge, which is identified as bourgeois, male, or white, that marginalizes this knowledge. The critique of the claim to objective knowledge (and the undermining of the status of science, reason, and rationality by representing it as simply the expression of a dominant group) “is understood as facilitating a move from social and educational exclusion to inclusion and social justice.”47 Moore and Muller further draw out the contrast between the two epistemologies by explaining, “Whereas critical rationalism as an historically radical force systematically attempted to separate knowers claims from knowledge claims (things are not true simply because the Chief, the party or Pope says so),” narrative and standpoint theories privilege the knower or the knower’s imputed membership of a group as the truth criterion.48 The problem with this approach is that it introduces criteria that cannot be subjected to evaluation, such as personal experiences or

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feelings. In doing so, these theories introduce an absolutism about truth and an authoritarian form of argument. Standpoint and narrative theories can be considered what Basil Bernstein described as “horizontal discourses.” These are realized in events, cultural situations, and practices and lack the structure or procedure for generating nonarbitrary knowledge claims. Vertical discourse, in contrast, takes “the form of a coherent, explicit, and systemically principled structure, hierarchically organised, as in the sciences, or it takes the form of a series of specialised languages with specialised modes of interrogation and specialised criteria for the production and circulation of texts as in the social sciences and humanities.”49 Because of this, Rose would recognize what Jones considers a respectful interrogation or debate about the truth of belief, or taking those beliefs seriously, not as a form of respect but as a form of colonialist imposition that marginalizes Aboriginal knowledge. There may be good reason for this. There may also remain the scent of the sense of “superiority” of people who accept rationalist epistemologies in their engagement with those who do not. The philosopher T. M. Scanlon notes this in passing when he writes, “I firmly believe that ‘creation science’ is bogus and that science classes should not present scientific theory and religious doctrine as alternatives with a similar and equal claim to the same kind of assent. I therefore do not think it is intolerant per se to oppose creationists. But I confess to feeling a certain kind of partisan zeal in such cases, a sense of superiority over the people who propose such things and a desire not to let them win a point even if it does not cost anyone very much.”50 One suspects he is not alone in his partisan zeal. In addition, for a standpoint or narrative theorist, any attempt at interrogating the truth of an idea is literally an attack on the person who holds it, by questioning the equality of their belief or the authority of their perspective. The issue of the equality of people becomes confused with the issue of equality of belief, and all beliefs are not equal. If West and Rose are correct that for indigenous people, deeply held metaphysical concepts are foundational concepts that cannot be questioned, and West’s claim that a desirable epistemology for indigenous research needs to disregard the law of noncontradiction is true, then there is a deep impasse in relations between Aboriginal Australians and those non-Aboriginal Australians who subscribe to freedom of expression based on the argument from truth. For Jones, to treat religious belief with respect would be to treat Aboriginal beliefs as truth claims that may be rigorously examined. However, what counts as “respect for

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beliefs” for a liberal academic, and the respect demanded by an indigenous standpoint, which takes religious belief as a starting point or foundational belief that cannot be examined, means that the two positions cannot address each other in terms that the other will accept. The political importance of these different ideas about knowledge and truth is that the disjunction between them makes “rational debate” an impossible method for resolving differences of opinion. The “victim” here is predetermined—it is the indigenous individual or group, whose knowledge is marginalized. Any attempt to engage on the basis of empirical evidence and logic will be regarded not as respect for belief but as the imposition of a dominant and indeed colonialist ideology. It is tempting to conclude, as Jones suggests, that if respecting beliefs means not affronting the beliefs of other people, then it appears the only way to universalize the position is to withhold one’s opinion, or self-censorship.

public debate, lack of it, and political correctness The decision by HarperCollins to remove the chapter on the didgeridoo from The Daring Book for Girls appears to be a clear case of submission to political correctness. Despite disagreeing that the book would harm girls or even that all Aboriginal people would find it offensive, the publisher removed the chapter, presumably to avoid harm to its brand and the sale of the book. Much resentment toward political correctness concerns the association (rightly or wrongly) of formerly “acceptable” words or actions with racist or sexist processes that performatively rearticulate disadvantage and discrimination in society.51 The idea that giving offense is wrong and associating offense with intolerance (such as sexism, racism, or religious bigotry) may be an effective strategy for suppressing the speech of others. Concern about being accused of racism may have played a part in the silence over Rose’s comments regarding the didgeridoo. While he equivocated about whether the issue was harm to girls, profound offense at the breaking of a religious taboo, or cultural respect, he definitely accused non-Aboriginal people of cultural insensitivity. Moreover, there is no way to criticize or reason about his beliefs, or the indigenous beliefs that he discusses, that he would not take as a form of colonial domination.52 In relations between indigenous and nonindigenous Australians, the fear of being seen as a colonialist or a racist appears to be common and well founded. Peter Sutton provides evidence that some indigenous

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people attempt to silence nonindigenous commentators, generally by accusing them of racism. For example, the anthropologist Dianne Bell and her coauthor Topsy Napurrula Nelson faced severe criticism for a 1989 paper on the topic of domestic violence and sexual abuse in indigenous communities: “Their paper was met with severe opposition from twelve Aboriginal women. . . . The group disputed that intra-racial rape was ‘everyone’s business.’ It was ‘our business how we deal with rape and have done so for the past 200 years quite well. We don’t need white anthropologists reporting business that can be abused and misinterpreted by racists in the wider community. They feed like parasites to this type of thing.’ ”53 This group of women was also reported as saying that “sexism does not and never will prevail over racial domination in this country.” Such a race-centered narrative intentionally diverts the attention from the abuse of women. Bell subsequently reported that a number of qualified researchers in the area were “intimidated,” “appalled,” or simply “tired” by the “tenor and raw emotions of exchanges such as these” that occur at public events and as a result were “tempering their reporting and withholding information for fear of attack on their personal and professional integrity.”54 Sutton goes on to describe a practice, termed mau-mauing, of publicly disciplining “guilty white liberals,” presumably through embarrassment and intimidation.55 Yet in fairness, the Aboriginal women in the above quotations are also expressing what seems to be a widespread distrust of the media and politicians to report about Aboriginal issues and without sensationalism. For instance, Sam Jeffrey asserts, “There’s this uncanny ability by the media and politicians to create a perception that dysfunction is rife in a [an Aboriginal] community when it’s an incident that involved ten or twelve people maybe, you know?”56 Muriel Bamphlett is even more emphatic, claiming that the media are “the ones that persecute us, they’re the ones depriving us of rights, they’re the ones that are disempowering us. They actually make us hated in our own country. . . . The only time you ever read anything it’s bad. . . . The media has to change and they have to be held accountable for what they’re doing to Indigenous people in Australia.”57 This distrust of academics, media, and politicians illustrates that some Aboriginal Australians do not see any space for open debate in civil society, even if they wanted it, on the basis that their communities’ reputations would be damaged or individuals would lose dignity in the process. Meanwhile, many non-Aboriginal Australians fear the response if they speak out without the “authority” or permission of an Aboriginal community.

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Mill accepted that there is a morality that should inform the use of freedom of expression and called on its abuse to be roundly condemned.58 Indeed, he thought the worst offense that a polemic could commit “is to stigmatize those who hold a contrary opinion as bad and immoral men.”59 This stigmatization is the point of accusing those people who think that it is wrong to be offensive of being “politically correct” or indeed accusing people who disagree with Aboriginal opinions or criticize Aboriginal societies of being “racist.” What is unfortunate is that public debate should descend to this level of name-calling at all. While political correctness is a problem, one should not think that all self-censorship is based on such negative reasons for withholding opinion. There can also be positive reasons for silence, such as concern for the dignity and peace of others. It is worth going back to Jones’s position that if respecting beliefs means not affronting the beliefs of others, then the only way to universalize the position is to withhold one’s opinion. This would clearly be inconsistent with freedom of expression, but only if universalizable means “absolute.” However, his conclusion is overstated. Jeremy Shearmur has argued that self-censorship is consistent with the argument for freedom of speech from truth.60 In our daily lives, people generally live according to what he calls “necessary fictions.”61 These are the views we have of ourselves and the world that we implicitly take to be correct and that we are not interested in having challenged. The point of withholding one’s criticism of such a fiction may be to protect someone from needing to defend themselves on a daily basis. For instance, a person who holds an unpopular religious or political position may simply not wish to debate it, because constantly defending the belief is exhausting. This wish might be respected, even if the belief is not. Another reason for withholding one’s criticism is that some people are not accustomed to having their beliefs challenged in a vigorous academic fashion, and to challenge them in this way would be to drag them into an unfair contest, in which they, as the weaker debater, would lose and might well become distressed in the process. Withholding criticism of beliefs for these kinds of reasons is not inconsistent with freedom of expression. The argument from truth requires that there be a context in which such things as the truth of religious belief are discussed, such as academic journals, not that all issues be discussed in all contexts. Jones suggests that withholding criticism of religious beliefs is paternalistic because it treats a person’s point of view as something less than rational, a preference like a judgment of taste. Moreover, it treats

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the person who holds that belief as unequal intellectually or educationally. Shearmur accepts Jones’s point that to have one’s point of view or one’s capacity for rational thought and argument discounted in this manner is patronizing, and potentially insulting. Withholding criticism in order to protect a person from having to defend their beliefs is paternalistic, but, Shearmur thinks, it may be justified paternalism. He suggests that an individual opens themselves to debate about the truth of their necessary fictions only if these ideas impinge on those of other people or if they begin proselytizing about them. Needless to say, Rose, who has four degrees (a bachelor of arts, a diploma of teaching, a master of education, and a PhD in management education) and is now a professor and holds a chair in indigenous knowledge systems in the Institute of Koorie Education at Deakin University, would not qualify for such paternalism. We can safely assume he is accustomed to academic discussion. Moreover, he seems to think it appropriate to impose his ideas on other people. His ideas about whether girls should play the didgeridoo should be debated. A similar moral reasoning for restricting our speech and actions extends beyond debates about truth and respect for belief in Jones’s sense. Contrary to the opinion that there is no right not to be offended, there is a good argument for such a position. The political philosopher Alan Haworth has presented an argument of this kind that appears to be sound and recognizes the consequentialist nature of the harm. He begins with the obvious point that what is offensive to one person will not be offensive to others. An equally evident point is that to offend someone is to do something bad to them, something hurtful, disrespectful, or insulting—the evidence of this comes from the meaning of the terms themselves. The Oxford English Dictionary defines offend as “to cause to feel annoyed, upset, or resentful” and offensive as “causing someone to feel deeply hurt, upset, or angry.” The logical conclusion from these two truths is that “if you are someone who considers the feelings of others—who tries to avoid hurting, disrespecting, or insulting them, for example—you have a reason for not behaving in ways which are offensive to them, even when it is your own opinion that the behaviour in question is not at all offensive.” And, as Haworth concludes, “since there is a duty—if only a duty of politeness—not to offend other individuals, then there must be a corresponding right on the part of those individuals not to be offended—ergo, there is such a thing as a right not to be offended.”62 It might be thought, as many philosophers do, that the rules of politeness are quite different from the rules of ethics

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and that therefore this fails as a moral argument for a right not to be offended. However, this contrast that philosophers like to make is mistaken, because it ignores the elements of manners and politeness that relate to care and consideration for others, as well as their role in virtue ethics.63 Behavior or speech that is acceptable in one situation is unacceptable in another when it might be offensive to people. So the conclusion to be drawn from a right not to have one’s beliefs affronted would not be absolute, and only if it were absolute would it be a direct contraction of freedom of expression. Haworth points out that a right not to be offended is a prima facie right. It may be overridden in certain circumstances, for example in the public interest, such as when communities are unsafe because of violence, rape, or child abuse. While Aboriginal people may have good reasons for distrusting the sensationalism of the press and feel justifiable offense when their societies are uniformly represented as dysfunctional, they cannot justifiably argue that their hurt in such situations is sufficient moral reason for demanding that some issues should not be addressed publicly. To insist that feelings of offense and insult should override others’ rights to safety may be considered as failing to prioritize one’s values appropriately. Corresponding to the nature of offense as a feeling, taking offense can also be criticized as irrational. A feeling of fear may be considered irrational if it is not supported by empirical evidence, such as in the case of phobias. Whether one is right to be offended and whether other people should sympathize with that offense depends on the rationality of the offense taken. Rose, in this case, appeared to be taking offense irrationally. Given the ubiquity of didgeridoos and their wide availability from Aboriginal sources, people have assumed that it is acceptable for women and girls to play them. It is difficult to believe, in a context in which Aboriginal people produce didgeridoos, sell them to non-Aboriginal people, and teach non-Aboriginal women and girls to play, that women and girls would or should not feel perfectly free to play. This is a situation of implied consent, and it is hard to interpret the suggestion that girls should learn to play the didgeridoo as a cultural faux pas. The belief that it is acceptable for non-Aboriginal women and girls to play the didgeridoo is entirely consistent with Aboriginal peoples’ behavior. A second reason for considering Rose’s suggestion that the Daring Book for Girls was offensive is his claim that it is a symptom of a tokenistic approach to Aboriginal culture, evidence of a lack of knowledge of that culture. It may well be true that non-Aboriginal people know little

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about Aboriginal culture and should know more. The Daring Book for Girls chapter offered one avenue for acknowledging indigenous culture and explaining Aboriginal peoples’ claims about the rights to produce and use the instrument. But to demand respect for a substantive belief that didgeridoo playing will cause infertility in women—or to call it indigenous knowledge—appears to misrepresent Aboriginal peoples’ beliefs. There is little evidence that many Aboriginal people genuinely believe this, or they could not in good conscience produce and sell didgeridoos. Even in those societies (such as the Yolngu) where people pay lip service to this belief, women play the didgeridoo in nonceremonial contexts. It easier to believe that the spoken consent to this belief is a result of the authoritarianism of Aboriginal society concerning religious dogma rather than that it is a belief to which many people are committed. Other Aboriginal societies have endorsed experiments on the health benefits of playing didgeridoos. It is against the weight of this evidence that Rose should be prepared to explain how his view is representative of contemporary Aboriginal cultures or of indigenous belief. To acknowledge that individuals have a right not to be offended does not imply that they have a right to control what other people might do when they are not present or that this right should take precedence over other rights, such as the right to safety. Finally, those people who take offense may be criticized when their offense does not meet standards of rationality. The claim that respect for beliefs leads to an absurdity when it is held to be consistent with freedom of expression is false. Withholding certain speech acts for paternalistic reasons in some situations or condemning the immorality of certain speech acts that are gratuitously offensive cannot be considered forms of censorship incompatible with freedom of expression. Reconciliation and the Rules of “Civility” It might be argued, as this chapter’s introduction suggests, that the primary reason why Australians should show special concern for Aboriginal religious sensibilities is the process of reconciliation. This seems to imply that what is acknowledged here is some kind of group right. However, the argument presented above was based on universal grounds and need not be presented in the context of group rights or identities at all. Moreover, it makes no reference to particular historical context. Yet the attempt to reconcile throws into sharp relief that there is something not quite right with much liberal discourse about freedom of expres-

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sion, in particular the claim that freedom of expression is absolute, regardless of the content of the opinion expressed. The process of reconciliation for many Australians, Aboriginal and non-Aboriginal, involves the recognition that indigenous people in Australia “have been injured and harmed throughout the colonization process and just recompense is owed.”64 As Larissa Behrendt has written, “In the heart of many Aboriginal people is the belief that we are a sovereign people. We believe that we never surrendered to the British. We never signed a treaty giving up our sovereignty or giving up our land. We believe that we are from the land, that we are born from the land. . . . Land, in our culture, cannot be bought or sold. It always was Aboriginal land. It always will be Aboriginal land.”65 For some time, Australian sovereignty was justified under the legal fiction of terra nullius. The Aboriginal population was thought of as a backward people whose laws and customs were not equal to those of their English colonizers and who therefore did not own land.66 The reconciliation process, long and painful as it has been, acknowledges that the occupation of their land and the dispossession of Aboriginal people is Australia’s unfinished business. This political context, in which two groups of people with a violent colonial past attempt to engage and resolve problems, makes its own demands on what can be expressed, how, and when. In particular, it creates a perceived need to avoid giving offense. A recent case that illustrates this is the condemnation of an opposition federal parliamentarian, Dennis Jensen, who told an Aboriginal woman on Twitter that she was “being a victim” and to “get over” colonization. Indigenous Affairs Minister Jenny Macklin commented that “it’s extremely disappointing to see comments like this from a Member of Parliament. We should all be working towards reconciliation.” Jensen later issued a statement in which he regretted using the medium of Twitter and expressed a desire to engage with the indigenous community “constructively” and for “true indigenous advancement.”67 The medium of communication, however, is only one aspect of this issue; the content is another. If Jensen were “working towards reconciliation,” as Macklin suggests he and others should, presumably he would have been required to withhold the sentiments he expressed in that form. In confronting the stance he believed the woman was taking (that of a victim), he undermined any chance he may have had for addressing the broader policy issues he is interested in, which is whether affirmative action policies have failed Aboriginal people and are inequitable. His

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comments, regardless of whether one agreed with them in that context, were widely understood as a lapse in civility. Civility is a socially accepted code of behavior (often termed politeness)68 that displays a preparedness to engage with another person regardless of what one thinks of them. In doing so, it enables people to maintain the possibility of cooperation “by offering token reminders” that they regard others as “worthy of respect, tolerance, and consideration.”69 Erving Goffman described these token reminders as deference codes. They contain, he argues, a kind of pledge to treat others in a certain way, affirming “that the expectations and obligations of the recipient, both substantive and ceremonial, will be allowed and supported by the actor.” Deference codes are internalized codes of communication that recognize an individual’s social role and maintain their face. These codes include rituals such as salutations, invitations, compliments, and minor services, as well as avoidance behavior, which consists in the “verbal care that actors are obliged to exercise so as not to bring into discussion matters that might be painful, embarrassing, or humiliating to the recipient.”70 One might add that actors should also avoid matters that cause offense to people. The more general point of avoiding certain content, however, is to protect the face of individuals and their capacity to engage in social roles. This deference also protects the identity of people. Where face may be defined as “the public self-image every individual wants to claim for himself,”71 identity is “that part of an individual’s self-concept which derives from his knowledge of his membership of a social group (or social groups) together with the value and emotional significance attached to that membership.”72 Standard interpretations of the relationship between social identity and face are temporal and interrelated. Social identity is considered durative and is identified in terms of the punctual acts that are interpreted in relation to face, while explanations of punctual actions related to face refer to the durative characteristics of a social identity.73 Civility protects not only individuals’ sense of self-esteem but also socially disesteemed groups against “the emotional exhaustion of having to cope with others’ displays of hatred, aversion, and disapproval.”74 Deference codes, which are generally honorific and politely toned, may convey appreciation of the person to whom they are addressed in ways that are more complimentary than the actor’s true sentiment might warrant. Extra punctiliousness in the observance of the codes may conceal low regard for a person.75 Accordingly, one has ideals such as professional behavior, in which people can behave without introducing

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personal elements like feelings. Such codes are particularly important in tense or emotionally fraught situations, and the more fraught the situation becomes, the more useful such codes are for formalizing and containing the emotions.76 This is what occurs through the use of etiquette in courts of law, for instance. Similarly, this formality may be expected to structure and contain the emotions of discussions surrounding indigenous policies. Civility, then, provides an alternative model for what might be termed cultural respect, or respect for belief. Culture and religious belief are simply characteristics that may form an element of an individual’s identity but are no more or less important than physical characteristics such as gender or race. Civility involves deferential behavior toward a recipient’s social identity and face through symbolic acts and rituals. It is not genuine respect or tolerance, as genuine respect or tolerance requires a person to hold certain ideas or emotions.77 It is a symbolic display of respect in social interactions, which may or may not express the actor’s genuine thoughts or feelings. We cannot expect everyone to feel respect for others all the time, but we can expect them to engage in displays of respect as a precondition of cooperation. While civility is not the positive valuation or respect for beliefs that Rose desires, neither is it, as Jones suggests, a respect of beliefs on liberal terms. The possibility of superficiality should not be thought of as a problem for or lack in civility. We teach children to say “thank you” before we expect them to understand the concept of gratitude, and we hope that one day they will come not only to understand gratitude as a concept but to feel it when they use the phrase. Until such time, we accept the emptiness of the words as a condition for social engagement and cooperation. An argument against this interpretation of respect for beliefs might be that if everyone followed these deference codes, there would be a general lack of discussion or exchange of opinion and, if widely adopted, such deference would stifle freedom of expression. It might be thought that expression would be freer and in that regard better if society were less civil and less concerned for the feelings of others. This would be inconsistent with Mill’s views. He argued that offensive speech undermines rather than promotes freedom of expression: “In general, opinions contrary to those commonly received can only obtain a hearing by studied moderation of language, from which they hardly ever deviate even in the slightest degree without losing ground: while unmeasured vituperation employed on the side of prevailing opinion, really does

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deter people from professing contrary opinions, and from listening to those whose profess them.”78 This seems correct. As pointed out above, an attack of this kind makes political correctness so effective. Mill argues that “in the interests of truth and justice” it is necessary to restrain such disincentives to expression and to encourage people to listen to alternative opinions, but this should not be undertaken by legislation. Rather, he thought moral condemnation of offensive speech the most appropriate method of moderating expression: “Opinion ought in every instance, to determine its verdict by the circumstances of the individual case; condemning every one, on whichever side of the argument he places himself, in whose mode of advocacy either want of candour, or malignity, bigotry, or intolerance of feeling manifest themselves.”79 Free speech absolutists seem to assume that because there should be no legal restrictions on expression other than protecting people from harm, offensive speech is therefore morally acceptable. But this does not follow. To argue that speech should be less civil regardless of its offensiveness is to argue that the world would be better if it were less caring in respect of people’s feelings and sense of well-being. There is no such moral argument. Moral condemnation of offensive speech, even where this condemnation expresses the majority opinion, cannot be considered an unjust restriction, since it is desirable that people realize if their speech is offensive and wrong. It would be an unjust restriction on speech if other social sanctions were employed, such as shunning or exclusion or other actions that punish people for their beliefs. Finally, a critic might argue that civility, as a set of cultural conventions, cannot be a basis for intercultural engagement. The fundamental question, the critic might suggest, is who, exactly, is in whose country? Whose rules for civility apply? These questions suggest that there are two distinct cultures in Australia, with a sharp racial difference between them. But this misrepresents reality to the extent that it implies that what the term intercultural means is a bridging between distinct cultural groups. In many respects there are distinct Aboriginal and non-Aboriginal groups in Australia, but there are also urban Aboriginal peoples and individuals in outback Aboriginal communities who display a capacity for and are accustomed to political engagement with other peoples. As Francesca Merlan has suggested, there is another sense of the term intercultural, which drives social change and adaptation. This, she states, “is the ‘inter-’ of categories, understandings, modes of practical action, as reproduced and reshaped in interaction, interrelationship

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and event. . . . This directs us to consider the social conditions of the production of commonsense and practice.”80 While Merlan’s expression is obscure, she is interested in the cultural changes that emerge from shared environments and that shape individuals’ understanding of concepts such as education and its value but also of rights and practices, such as whether girls should play the didgeridoo. Reconciliation is something that must be created in the intercultural space of “Australia.” It is not simply undertaken between representatives with different group identities but emerges from the engagement of individuals in everyday life as they adapt their ideas and expectations. Rituals of deference also emerge in this context, such as the customary acknowledgment of country given at the beginning of an academic conference, the flying of the Aboriginal and Torres Strait Islander flags alongside the Australian flag on public buildings, and the recently introduced welcome to country as part of the opening ceremony of parliament. Such rituals acknowledge a difference between groups while introducing new protocols and codes of practice that have emerged from the engagement between indigenous and nonindigenous Australians. There is nothing particularly special about the idea of reconciliation that requires indigenous sentiments to be treated with greater respect than those of other groups. The intercultural context and the genuine attempts by Aboriginal and non-Aboriginal Australians to engage differently and to have a different future show that we cannot afford to offend minority groups in society. Many Australians are committed to liberal freedoms and as a consequence would not respect a society where rights and liberties were based on religious law, and religious authority and secrecy provide the foundation for the society’s structure, or people are executed for disclosing religious beliefs. However, civility requires them to withhold that judgment in certain contexts. Civility contains strong emotions while enabling social actors to engage and participate in joint activities, and it protects groups that have been disesteemed from emotional exhaustion in their daily lives. Moreover, Australians cannot afford incivility; without civility, our ideas cannot be heard and others may not be offered or listened to. It is entirely consistent with liberalism to believe that if other societies do not subscribe to liberal principles, such as freedom of expression, then they should. But the defense of freedom of expression does not require the defense of immorality, such as a lack of consideration for the feelings of others.

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Criticizing Jones There is much to be admired in Jones’s discussion of respect for beliefs. Yet his account does not entirely fit the kinds of issues that arise in countries such as Australia, with indigenous populations whose societies are not open but based on secret sacred knowledge. Such societies would not recognize as respect the open debate of their beliefs. It is all very well for liberals such as Jones to say that people should accept certain kinds of evidence and structures of reasoning, but this is likely to be ineffective; their intended audience is not necessarily listening, and if it is, it may not be willing to accept the advice. The terms of reference for discourse have not been accepted. But Jones’s account of respect for belief is also overstated. According to him, such a principle could not be made compatible with freedom of expression. If respect for belief meant that people should not accept attacks on belief, he reasoned, the only way to universalize the idea would be to withhold all beliefs. Yet as Shearmur’s argument shows, there may be good, if paternalistic, reasons for not holding other people’s ideas up for scrutiny, and this is not inconsistent with freedom of expression, which does not require that all beliefs be debated in all contexts. Moreover, while it is an appealing idea that what matters is the truth of those beliefs rather than the identity of the believer, this does not accord with the ordinary claims that people make about their desire for cultural or religious respect. In seeking respect for religious belief, a person requests not that that belief be debated and scrutinized but rather that they and their belief be treated with deference, in other words, with civility. People feel, and are, entitled to be treated with respect in social interactions, and this is well recognized as a precondition for social cooperation. Offense is a simpler manner of describing the issue at stake and adequately describes what people feel and why they feel it. Identity in the sense of “that part of an individual’s self-concept which derives from his knowledge of his membership of a social group (or social groups) together with the value and emotional significance attached to that membership” is part of what we protect when, through codes of deference, we maintain a person’s face in any given interaction.81 Identity can be based on any number of characteristics, such as gender, age, interests, religion, education level, place of origin, income, profession, or race. These kinds of attributes are the ordinary ways in which people discuss identity, and it is through observance of civility codes that their identity is ordinarily maintained.

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Multiculturalism as a policy debate fundamentally concerns what legal rights members of a cultural group should have to maintain the norms of that culture. In a strong version of multiculturalism, a liberal society would recognize such rights regardless of whether those norms maintain freedoms for individuals within it. A weaker version of multiculturalism might accord group rights except where they undermine other liberal principles and freedoms. The rights of indigenous peoples, however, are generally believed to involve particularly strong claims to the maintenance of culture and religious laws, on the basis that, unlike migrant groups, they have not chosen to become members of a society. Yet it should not be thought that this gives indigenous people special rights not to be offended on religious grounds. However, apart from the policy of multiculturalism and its problems of determining which rights should prevail, one may also recognize that, in fact, one does live in a multicultural society, which involves religious pluralism. Mill would welcome such diversity, though he would not subscribe to a view in which it was more important to maintain culture than to come to understand what is true. It is hard to imagine him changing his views regarding the value of truth or the means of obtaining it through open debate. Yet he also suggests that it is in the interests of truth and justice that everyone participate in that debate, or at least feel that they could, and have their ideas be considered fairly. While he would not agree to different rights based on religious or cultural membership, he was clear that freedom of expression requires moral regulation to ensure that different perspectives are both offered and heard. As such, although Mill may not have agreed that blasphemy law should be an instrument to maintain “the decency of expression” or to protect religious believers from offense, he did believe it appropriate that people observe propriety in their expression and be condemned when they fail to do so. He described this as the morality of discussion. I have argued that this involves maintaining the code of civility, which protects individuals’ dignity and their religious and cultural identities. Civility is a social code that is independent of any specific legal framework. I have not proposed that a new code be adopted but have described the code that exists and attempted to articulate why it is valuable. This argument does not apply merely in an Australian context. It is not an argument for the conclusion that Aboriginal Australians’ religious beliefs are any more important than those of any other group. What is special here is not that Australia is in a different situation than societies without indigenous populations or that indigenous people

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might have rights that other minority groups do not. Rather, a situation such as that in Australia shows how groups with very different political philosophies, if they are attempting to cooperate, will behave toward one another. In contemporary multicultural and religiously plural societies, selfcensorship plays an important role. Yet this self-censorship is not inconsistent with freedom of expression. First, where there is an inequality between the participants in a discussion, respecting beliefs by withholding comments may be a form of justified paternalism. What freedom of expression requires is that there should be appropriate contexts for debate, not that every idea should be subjected to scrutiny in every situation. Second, while there is a right not to be offended, it is prima facie rather than absolute. Third, the practice of civility does not produce conformity of opinion but encourages people to express different opinions, while incivility creates disincentives both to express and to consider opposing opinions. What may be lost in the color of public debate will be made up for by its health. One problem remains: how to explain the kind of situation with which I began the chapter. In the context of academic debate, where there is no reason for displays of paternalism, Rose cannot expect to be treated kindly. Moreover, he had no rational grounds for taking offense. Thus, he has no grounds for protection from open and public criticism. However, the silence that followed his comments is probably best interpreted simply as the response otherwise known as speechlessness. It’s not necessarily polite, but as H. P. Grice has pointed out, one also needs to be attuned to the implications of understatement.82

notes 1. “Aborigines Complain Daring Book for Girls Breaks Taboos by Urging Girls to Play the Didgeridoo,” Daily Mail, September 3, 2008, www.dailymail .co.uk/news/article-1052236/Aborigines-complain-Daring-Book-For-Girlsbreaks-taboos-urging-girls-play-didgeridoo.html. See also Angus Hohenboken, “Didgeridoo Advice for Girls ‘A Faux Pas,’ ” Australian, September 3, 2008, www.theaustralian.com.au/archive/in-depth/girls-should-not-play-the-didgeridoo/story-e6frgd9f-1111117376821; “Didgeridoos a Don’t for Girls: Expert,” ABC (Australian Broadcasting Commission) News, September 3, 2008, www .abc.net.au/news/2008-09-03/didgeridoos-a-dont-for-girls-expert/498040. 2. “Didgeridoos a Don’t for Girls;” “HarperCollins Removes Chapter from The Daring Book for Girls,” Australian, September 4, 2008, www.theaustralian.com.au/news/nation/girls-book-commits-didgeridoo-faux-pas/storye6frg6nf-1111117391344.

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3. Peter Jones, “Respecting Beliefs and Rebuking Rushdie,” British Journal of Political Science 20, no. 4 (1990): 421. 4. Elizabeth Burns Coleman, “Disrupting the Order of the World: Madonna with Piano Accordion,” in Negotiating the Sacred II: Blasphemy and Sacrilege in the Arts, ed. Coleman and Maria-Suzette Fernandes-Dias (Canberra: Australian National University E-Press, 2008): 37–53. 5. Anthony Fisher and Hayden Ramsay, “Of Art and Blasphemy,” Ethical Theory and Moral Practice 3 (2000): 137–67; Helen Pringle, “Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws,” University of New South Wales Law Journal 34, no. 1 (2011): 316–22. 6. Helen Pringle, “Regulating Offense to the Godly,” 320. 7. Common-law provisions for blasphemy continue in New South Wales, Victoria, and South Australia, though in Victoria, a judge has questioned this. It has been effectively abolished in the Australian Capital Territory, Queensland, and Western Australia (however, in Western Australia there is a reference remaining in the Jetties Regulations of 1940). See ibid. 8. Jones, “Respecting Beliefs.” 9. Ibid. 10. Shabbir Akhtar, cited in Richard Webster, A Brief History of Blasphemy: Liberalism, Censorship and “The Satanic Verses” (Southwold, Suffolk: Orwell, 1990), 39. 11. J. S. Mill, On Liberty, ch. 2, in “On Liberty” and Other Writings, ed. Stefan Collini (Cambridge: Cambridge University Press, 1989). 12. This empirical possibility has not been explored scientifically, but there is some evidence that didgeridoo playing may have health benefits. See Robert Eley and Don Gorman, “Didgeridoo Playing and Singing to Support Asthma Management in Aboriginal Australians,” Journal of Rural Health 26, no. 1 (2010): 100–104; Milo A. Puhan, Alex Suarez, Christian Lo Cascio, Alfred Zahn, Markus Heitz, and Otto Braendli, “Didgeridoo Playing as Alternative Treatment for Obstructive Sleep Apnoea Syndrome: Randomised Controlled Trial,” BMJ 332 (2006): 266–70, doi:10.1136/bmj.38705.470590.55 (published December 23, 2005). 13. Jones, “Respecting Beliefs,” 419. 14. Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice Hall, 1973) ch. 3. 15. Jones, “Respecting Beliefs,” 419. 16. Joel Feinberg, Offense to Others: The Moral Limits of the Criminal Law, vol. 2 (Oxford: Oxford University Press, 1987), ch. 9. 17. See ibid., 53–55. 18. H. L. A. Hart, Law, Liberty and Morality (Stanford, CA: Stanford University Press, 1963), 46-47, cited in ibid., 63. 19. Shabbir Akhtar, cited in Webster, Brief History of Blasphemy, 39. 20. Kirstie Parker with A.A.P., “Didgeridoo Book Okay for Whitefellas: Yolngu Elder,” Koori Mail 10 (September 2008): 6. 21. Linda Barwick, “Gender ‘Taboos’ and Didjeridus,” in The Didjeridu: From Arnhem Land to Internet, ed. Karl Neuenfeldt (Sydney: John Libbey, 1997), 89.

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22. Karl Neuenfeldt, “The Ongoing Debate about Women Playing Didjeridu: How a Musical Icon Can Become an Instrument of Remembering and Forgetting,” Australian Aboriginal Studies 2006, no. 1 (2006): 38. The Garma Cultural Festival Yidaki Statement may be viewed at www.didjeridu.com/wickedsticks/voices/moreyidaki.htm. 23. Neuenfeldt, “Ongoing Debate,” 39. 24. Jones, “Respecting Beliefs,” 420. 25. See Ayelet Shachar, “Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation,” Journal of Political Philosophy 6 (1998): 285–305; Susan Moller Okin, “Feminism and Multiculturalism: Some Tensions,” Ethics 108 (1998): 661–84. 26. “Didgeridoos a Don’t for Girls.” 27. Jones, “Respecting Beliefs,” 423. 28. Ibid., 422. 29. Ibid., 421. 30. Ibid., 427. 31. Ibid., 428. 32. Ibid., 429. 33. Mark Rose, “The Great Silent Apartheid,” October 11, 2007, www.bsl .org.au/pdfs/Mark_Rose_community_development_11Oct07.pdf, 2. 34. Mark Rose and David Jones, “Contemporary Planning Education and Indigenous Cultural Competency Agendas: Erasing Terra Nullius, Respect and Responsibility,” in ANZAPS 2012: Proceedings of the Australian and New Zealand Association of Planning Schools Conference (Bendigo, Victoria: La Trobe University, Community Planning and Development Program, 2012), 182 (italics added). 35. I am forced to try to understand Rose’s position through reading Errol West’s thesis, as it appears that Rose has not published his thesis. 36. Errol George West, “An Alternative to Existing Australian Research and Teaching Models—the Japanangka Teaching and Research Paradigm—an Australian Aboriginal Model” (PhD thesis, Southern Cross University, Lismore, NSW, 2000), 114. 37. For the view that there can be no objective facts, only perspectives of the world, see Thomas Mautner, The Penguin Dictionary of Philosophy (London: Penguin, 2005), 48. 38. F. Michael Connelly and D. Jean Clandinin, “Stories of Experience and Narrative Inquiry,” Educational Researcher 19, no. 5 (June–July 1990): 2–14. 39. Alan Haworth, Free Speech (London: Routledge, 1998), 93–115. 40. West, “Japanangka Teaching and Research Paradigm,” 237–38. 41. See Peter Sutton, “Aboriginal Spirituality in a New Age,” Australian Journal of Anthropology 21, no. 1. (2010): 71–89. 42. Peter Sutton, The Politics of Suffering: Indigenous Australia and the End of the Liberal Consensus (Melbourne: University of Melbourne Press, 2009), 78–79. 43. Mark Rose, excerpt of “Bridging the Gap: The Decolonisation of a Master of Business Administration Degree by Tactical and Pedagogical Alignment with the Capacity Building Needs of the Aboriginal and Torres Strait Islander

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Community” (n.d.), accessed April 12, 2013, www.rmit.edu.au/kooricohort /students/markrose. 44. Deakin Research Communications, “Understanding the Indigenous Knowledge Position,” May 18, 2009, www.deakin.edu.au/research/stories/2009/05/18/understanding-the-indigenous-knowledge-position. 45. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995), 53. 46. Mill, On Liberty, chs. 1, 3. 47. Rob Moore and Johan Muller, “The Discourse of ‘Voice’ and the Problem of Knowledge and Identity in the Sociology of Education,” British Journal of Sociology of Education 20, no. 2 (June 1999): 190. 48. Ibid., 194. 49. Basil Bernstein, “Vertical and Horizontal Discourse: An Essay,” British Journal of Sociology of Education 20, no. 2 (June 1999): 157. 50. Tim Scanlon, The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003), 196. 51. Geoffrey Hughes, Political Correctness: A History of Semantics and Culture (Malden, MA: Wiley-Blackwell, 2010), 95–97. 52. At the same time, Rose has expressed concern about political correctness, because it contributes to the silent apartheid as academics avoid discussing indigenous issues and cultures in their curriculum and, equally troubling, are “soft” on indigenous students, who then accept mediocrity as a standard. Rose, “Great Silent Apartheid,” 3. 53. Jackie Huggins et al., letter to the editors, Women’s Studies International Forum 14 (1991): 506-7, cited in Sutton, Politics of Suffering, 70. 54. Diane Bell, letter to the editors, Women’s Studies International Forum 14 (1991): 507–13, cited in Sutton, Politics of Suffering, 71. 55. Sutton, Politics of Suffering, 71. 56. Sarah Maddison, Black Politics: Inside the Complexity of Aboriginal Political Culture (Crows Nest, NSW: Allen and Unwin, 2009), 145. 57. Ibid., 215. 58. Mill, On Liberty, 61–63. 59. Ibid., 61. 60. Jeremy Shearmur, “Blasphemy in a Pluralistic Society,” in Coleman and Fernandes-Dias, Negotiating the Sacred II, 131–34. 61. Ibid., 131. 62. Alan Haworth, “Let’s Take Free Speech Seriously,” unpublished paper given at LGIR (Department of Law, Governance and International Relations) Staff Seminar, London Metropolitan University, February 20, 2008. 63. Elizabeth Burns Coleman, “Etiquette: The Aesthetics of Display and Engagement,” Aesthetics 23, no. 1 (June 2013): 68–91. 64. Mick Dodson, “Unfinished Business: A Shadow across Our Relationships,” in Treaty: Let’s Get It Right!, ed. Hannah McGlade (Canberra: Aboriginal Studies Press, 2003), 33, cited in Maddison, Black Politics, 219. 65. Larissa Behrendt, Aboriginal Dispute Resolution (Sydney: Federation Press, 1995), 97–98, cited in ibid., 47. 66. Mabo v. Queensland, 175 CLR 1, 31–32 (Brennan J) (1992).

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67. Dan Harrison, “Liberal Politician Tells Aborigine to ‘Get Over’ Victim Mentality,” Age, April 18, 2013, 6–7. 68. In this context, I am using the terms interchangeably. For an extended analysis of the relationship between the two, see Coleman, “Etiquette.” 69. Cheshire Calhoun, “The Virtue of Civility,” Philosophy and Public Affairs 29, no. 3 (2005): 266. 70. Erving Goffman, “The Nature of Deference and Demeanor,” American Anthropologist, n.s., 58, no. 3 (June 1956): 482. 71. Penelope Brown and Stephen C. Levinson, Politeness: Some Universals in Language Usage (Cambridge: Cambridge University Press, 1987), 61, cited in John E. Joseph, “Identity Work and Face Work across Linguistic and Cultural Boundaries,” Journal of Politeness Research 9, no. 1 (2013): 36. 72. Henri Tajfel, “Social Categorization, Social Identity and Social Comparison,” in Differentiation between Social Groups: Studies in the Social Psychology of Intergroup Relations, ed. Tajfel (London: Academic Press, 1978), 63, cited in Joseph, “Identity Work and Face Work,” 36. 73. Joseph, “Identity Work and Face Work,” 35. 74. Calhoun, “Virtue of Civility,” 260. 75. Goffman, “Nature of Deference and Demeanor,” 479. 76. Judith Martin and Gunter S. Stent, “I Think; Therefore I Thank: A Philosophy of Etiquette,” American Scholar (2001): 237–54. 77. Calhoun, “Virtue of Civility,” 266. 78. Mill, On Liberty, 62. 79. Ibid., 63. 80. Francesca Merlan, “Explorations towards Intercultural Accounts of Socio-Cultural Reproduction and Change,” Oceania 75, no. 3 (March–June 2005): 170. 81. Tajfel, “Social Categorization,” cited in Joseph, “Identity Work and Face Work,” 36. 82. H. P. Grice, Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989).

chapter 10

Blasphemy versus Incitement An International Law Perspective jeroen temperman

politicians versus experts Modern democracies harbor a fundamental contradiction at their core. On the one hand, they cherish the right to freedom of expression. On the other hand, they insist that citizens should be treated equally and protected from targeted discrimination and violence. States wary of written or spoken discrimination and violence may be inclined to combat forms of extreme speech. Indeed, some states have taken measures to outlaw sources of social unrest and hostility that are liable to upset individual feelings, notably religious feelings, by criminalizing speech through blasphemy, religious defamation, or hate speech laws. Critics of such policies respond that the only effective response to extreme speech is more speech. That is, they suggest that the free market of ideas should be permitted to do its work: in a liberal democracy, extreme statements will garner sufficient counterbalancing speech to ensure that fighting words will remain just that—fighting words. Still others argue that unbridled free speech sounds all well and good in states with a strong constitutional tradition of fundamental rights protection but is less well adapted to nonliberal or nondemocratic states or states with a history of religious or ethnic tensions. What, some ask, about “genocidal societies”?1 For those concerned with international human rights law, the phenomenon of hate propaganda is particularly acute and gets to the heart of the tensions in democratic speech laws. Does the risk of discrimination

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or violence ever warrant a priori prohibitions of—and thus state interference with—certain types of extreme speech? This chapter explores what equilibrium (if any)—between allowing free speech and avoiding hatredbased marginalization of groups—international law envisages. The key contention is that international human rights law is increasingly distinguishing between (unacceptable) laws that combat blasphemy, religious defamation, and unqualified forms of “hate speech” on the one hand and (acceptable) laws that specifically target forms of incitement to violence and discrimination on the other. The underlying rationale of this particular development is that unqualified defamation and hate speech laws are liable to foster governmental abuse. Specifically, governments—potentially working in tandem with the country’s dominant religion—could use such laws to stifle unpopular speech and retain the status quo.2 Proper “incitement” (to violence and discrimination) legislation, by contrast, could arguably—in the abstract—offer an important contribution to two of international human rights law’s foundational goals: equality and freedom from fear. This chapter outlines the substantial differences between acts of “defamation” of religion and acts of “incitement” and charts how international human rights law treats them. It is important to consider the latter body of law, given that most states that make up the world community of states have made specific agreements in the areas of free speech and extreme speech. We will see in what follows that international law does not force states to adopt blasphemy laws. Quite the contrary, international human rights law warns states against the risk that the religious sensitivities of dominant religious groups may hijack the debate on how free speech shall be. International human rights law not only finds fault with defamation and blasphemy laws but in fact concludes that all unqualified hate speech laws must be dismissed. However, its emphasis on “incitement” implies neither that the legal notion of “incitement” is completely clear as of yet nor that national incitement laws could not be abused in their own right. There is still much conceptualization necessary by monitoring bodies and scholars to ensure that national incitement legislation is triggered only in relation to the most heinous forms of incitement to (religious) violence. Specifically, it is necessary to ensure that incitement law’s main focus remains on imminent acts of violence (that is, less on possible acts of discrimination or hostility). Before analyzing current international standards and benchmarks, let us briefly take stock of the fundamentally opposed ideas of different players and stakeholders in the debate on how to deal with extreme speech.

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With respect to the issue of extreme speech about or motivated by religion, we have recently witnessed two contradictory developments in the United Nations. For more than a decade, political bodies such as the General Assembly and the Human Rights Council (and the former Commission on Human Rights) have pushed for more rigorous international and national measures combating so-called defamation of religion.3 Legal scholars have vehemently criticized the UN resolutions proposed by the Organization of the Islamic Conference (renamed the Organization of Islamic Cooperation), arguing that combating defamation of religion would be tantamount to destroying not only the core right of freedom of expression but also the right to freedom of religion.4 The latter includes the right to manifest beliefs that may be heretical, defamatory, or blasphemous to another person. As of 2011, the tone of these resolutions has been moderated to accommodate Western criticism: they are now titled “Combating Intolerance, Negative Stereotyping, Stigmatization, Discrimination, Incitement to Violence and Violence against Persons, Based on Religion or Belief.”5 On their face, the revamped resolutions accord better with standards of international human rights law. However, in Western legal scholarship there remains real anxiety that these political resolutions will serve as justifications for national practices that unduly stifle speech critical of majority religions.6 While the General Assembly and the Human Rights Council have pushed for restrictions on religious defamation, the UN’s independent experts have been pushing states to affirm existing international norms, especially by narrowing definitions of combatable speech. The timing of these expert interventions suggest that they are in direct reaction to ongoing developments in the political bodies of the UN (the General Assembly and the Human Rights Council). For instance, the UN special rapporteur on freedom of religion or belief has held that defamation of religion does not in itself adversely impact freedom of religion.7 Hence, the special rapporteur called national criminal bans on defamation of religion “counterproductive.”8 Since 2011, the Human Rights Committee—a UN body consisting of independent experts that monitor compliance with the International Covenant on Civil and Political Rights (ICCPR)9—has officially treated blasphemy and religious defamation bans as violations of international law and called for their removal. Its newly adopted General Comment No. 34 observes that “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant.”10 Thus, according to the

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committee, states must not combat unqualified forms of religious defamation (blasphemy, disrespect of religion, gratuitously offensive speech, satire, religious criticism, etc.). The genesis of this crucial section of the new general comment on the incompatibility of blasphemy laws with international human rights law is interesting and unique. The Human Rights Committee, steered by Professor Michael O’Flaherty, who functioned as the rapporteur for this general comment,11 has repeatedly sought the advice of stakeholders through dialogue with international organizations, nongovernmental organizations (NGOs), academic experts, and the wider civil society and received more than 350 submissions providing input. The different drafts were widely disseminated to receive feedback. The section on blasphemy laws underwent significant final amendments.12 Indeed, the (unofficial) travaux préparatoires (recorded drafting history)13 show that there was intense pressure from stakeholders, particularly liberalminded academics and human rights NGOs, to take an unequivocal stance against blasphemy and religious defamation laws.14 For instance, Article 19 (a free speech–oriented international NGO) argued that early drafts of the comment did not attack blasphemy or defamation of religions laws severely enough. It averred that “laws on ‘defamation of religions’ have a discriminatory impact in practice however they are framed, and the concept of ‘defamation of religions’ has been employed to stifle dissent and criticism from religious believers, religious minorities and non-believers around the world.”15 Other human rights organizations raised the same point.16 Not all committee members were immediately convinced that an outright condemnation of blasphemy laws can be derived from the covenant.17 Nevertheless, the official position—the adopted consensus formulation—of the Human Rights Committee presently is: blasphemy / general defamation of religion laws are ipso facto contrary to international human rights law. That is, states are not to combat disrespect or defamation of religion per se. However, Article 20(2) of the ICCPR sanctions states to combat statements that can be deemed advocacy of religious hatred constituting incitement to discrimination, hostility, or violence against persons. If antidefamatory provisions stand on tenuous legal grounds18 and existing standards on combating incitement would in fact provide better safeguards against possible abuse, then an investigation of the difference between defamation of religion / blasphemy and incitement is in order. Such research must include an investigation of how governmental abuse can indeed best be prevented.

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blasphemy versus incitement—or the “triangle of hatred” By ratifying the ICCPR, 160 states19 have pledged to prohibit by law “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (Article 20[2]). We will now consider exactly which types of acts are to be prohibited and how this differs from restrictions on blasphemy and “defamation of religion.” A careful examination of Article 20(2) supports the view that the threshold of this extreme speech provision is very high. The article’s complex and qualified formulation leaves no doubt as to the extreme nature of the speech required to trigger the ban. First, Article 20(2) does not ban hate speech outright but only requires the prohibition of certain qualified types of hate speech (religious, racial, national) that incite adverse responses (discrimination, hostility, or violence). The drafters of the ICCPR realized that the community of states is hardly in a position to ban all expressions of hatred, let alone hatred per se. The final text of Article 20, in the words of one of the delegates who proposed it, “included the word ‘hatred’ as the point of departure and as the prime cause of violence. Naturally, the draft Covenant could not deal with the subjective aspects of hatred but must condemn incitement to hatred only when it was externalized, at which point it was quite readily determined by the courts.”20 Given the qualified nature of the adopted prohibition, we must conclude that not even all externalized forms of hatred are subject to prosecution, only those externalizations that incite three specific forms of action: discrimination, hostility, or violence. Because the United Nations, including the UN Human Rights Committee, which oversees implementation of the ICCPR, has not offered a substantive definition of incitement, we must analyze the ICCPR’s incitement clause to generate tentative answers about which types of acts—such as speech or publication—come within its ambit and which acts do not (prima facie). Through a complementary analysis of other legal comments—historical travaux,21 contemporary workings of the Human Rights Committee, and legal scholarship—we can piece together some initial working definitions of the clause’s constituent terms. Until recently, the Human Rights Committee did not engage intensively with Article 20(2) ICCPR. Indeed, in addition to some remarks in the concluding observations on state reports, only a handful of cases filed with the committee touched on the issue of incitement. Moreover, these cases

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were one sided, inasmuch as they concentrated mostly on instances of Holocaust denial and other forms of anti-Semitism. As the following outlines, the committee has rediscovered Article 20(2) in its recent General Comment No. 34, on freedom of expression. “Advocacy” First, what is the meaning of advocacy as used by Article 20(2) ICCPR? The provision does not use hate speech or hate propaganda; also, it certainly does not use words such as defamation. What act does advocacy imply (in the context of a provision dealing with hatred)? From the travaux, it is unclear why advocacy was chosen and not propaganda (as is used in Article 20[1] ICCPR, on war propaganda); delegates throughout the debates often used the term hate propaganda. In fact, when advocacy was considered, it was often defined as “extreme propaganda.” For instance, one delegate held that advocacy must be understood as “systematic and persistent propaganda.”22 The drafters were never clear about how extreme hate propaganda must be to come within the ambit of “advocacy of hatred,” that is, within the meaning of the to-be-drafted incitement clause. For the Brazilian delegate in the Third Committee, it was “the repeated and insistent expression of an opinion for the purpose of creating a climate of hatred and lack of understanding between the peoples of two or more countries, in order to bring them eventually to armed conflict.”23 This presupposes a high threshold: fostering hatred with the ultimate intent of causing a war between peoples or countries. Against the implicit background of the ICCPR’s drafting efforts—the Holocaust and World War II—this reading makes sense. That said, since the war propaganda clause and the incitement clause were ultimately codified as two separate provisions (in the same article), it cannot be maintained that advocacy of hatred requires all those intentions on the part of the inciter. Nevertheless, understandings of advocacy in the travaux suggest a high threshold for Article 20(2) to be triggered. Throughout the travaux one finds references to “systematic and persistent propaganda” and “repeated and insistent expressions.” Thus most one-off types of (religious) defamation could not possibly qualify as advocacy of hatred within the meaning of the covenant. More important than the travaux are the contemporary workings of the global guardian of the ICCPR: the UN Human Rights Committee. Indicative of the complex and perhaps still controversial nature of the

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clause, the Human Rights Committee has not yet provided a set of working definitions of its constituent terms, including advocacy.24 This may mean the committee views states as having some discretion and not being obliged to literally copy “any advocacy”/“tout appel,” for instance opting instead for language such as “any hate propaganda” or “any hate speech” in their national laws. Alternatively, the committee may be preoccupied with convincing state parties that national laws prohibiting advocacy of certain types of hatred are mandatory—leaving precise definitions for later. Indeed, the relevant concluding observations that the Human Rights Committee has issued tend to be very general— unlike the much more sophisticated and demanding observations of the Committee on the Elimination of Racial Discrimination (CERD). In fact, CERD has used its concluding observations to communicate the message to states parties that the standards of domestic legislative acts corresponding with Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)25 are closely monitored. It consistently points out to states parties that newly adopted laws or amendments (or restrictive interpretations thereof in judicial practice) are still not fully in accordance with the requirements of Article 4 ICERD.26 When the laws in place are in accordance with ICERD, this committee uses its concluding observations to inform states parties that laws are inadequate by themselves under the convention: there is a duty to investigate relevant cases, perhaps even a duty to prosecute relevant cases. In that respect, the committee has at times indicated that a state’s hate propaganda laws have resulted in an alarmingly low number of convictions27 or indeed that more active prosecution is required.28 Also in its case law on individual complaints one will look in vain for comprehensive definitions of advocacy. The Human Rights Committee tends to take a commonsense approach here, suggesting that it more or less knows what constitutes advocacy when confronted with it. Accordingly, the hateful messages that Mr. T in J.R.T. and the W.G. Party v. Canada disseminated through a telephone system “clearly” constituted the advocacy that Canada had an obligation to prohibit under Article 20(2).29 This case revolved around tape-recorded messages that members of the public could listen to when they called T’s number. The antiSemitic messages warned callers of the alleged dangers of international Jewry. In this case the applicability of Article 20(2) impacted the admissibility of the case. But also in cases where Article 20(2) informs the consideration of the merits of the case, the committee does not dwell on whether the relevant publication or speech constitutes advocacy. For

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example, in Malcolm Ross v. Canada, the state and the applicant, a teacher, disagreed as to whether the latter’s off-duty anti-Semitic pamphlets amounted to advocacy.30 The committee implicitly and without extensive argumentation acknowledged that they did.31 The Human Rights Committee considered defining advocacy while drafting the general comment on freedom of expression but ultimately decided against it. An early draft of the comment stated, “By ‘advocacy’ is meant public forms of expression that are intended to elicit action or response.”32 This definition does not cite Human Rights Committee case law, concluding observations, or travaux. Michael O’Flaherty appears to have come up with it himself.33 The emphasis on public forms of expression makes sense and does tap into travaux discussion on these matters. This emphasis presumably was not meant to imply that only public figures can commit hate speech; the criterion rather requires a minimal degree of public dissemination of the relevant speech or publication. An exclusive focus on public authorities in defining the crime of hate speech would not have been unreasonable, given the historical backdrop: the state-instigated hate propaganda of the Nazis fostered the Holocaust. Yet the drafters realized that these forms of hate propaganda also occur horizontally among citizens. According to Stephanie Farrior, ever since the early French proposals on freedom of expression and incitement, most drafters understood that the relevant provisions were to protect against private actors as well.34 The human rights lawyer and scholar Manfred Nowak, in his seminal book on the ICCPR, argues that the ultimately adopted incitement clause requires national legislation and sanctions “applicable equally to private persons and State organs.” However, he also thinks that if we interpret Article 20 ICCPR in the light of its object and purpose, we must take account of “its responsive character with regard to the Nazi racial hatred campaigns, which ultimately led to the murder of millions of human being on the basis of racial, religious and national criteria.”35 This means that Article 20(2) “does not require States parties to prohibit advocacy of hatred in private that instigates non-violent acts of racial or religious discrimination. What the delegates in the [Commission on Human Rights] and the [General Assembly] had in mind was to combat the horrors of fascism, racism and National Socialism at their roots, i.e. to prevent the public incitement of racial hatred and violence within a State or against other States and peoples.”36 Accordingly, the incitement provision applies to private parties in addition to state organs, but only to their public statements. This means that hateful speeches or inciteful

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music at a private gathering of neo-Nazis would not necessarily engage domestic prohibitions derived from Article 20(2). Of course, any resulting violent acts against others would be subject to regular criminal law. Moreover, a group’s intentions and biases could be legally relevant elements of aggravated hate crimes. Yet such crimes do not necessarily come within the scope of Article 20(2), unless combined with the public dissemination of hatred (e.g., publish these views in a form that is available to a wider audience or organize more public gatherings). The “Camden Principles on Freedom of Expression and Equality,” a widely endorsed formulation of free speech principles by human rights lawyers, scholars, special rapporteurs, and other independent experts under the auspices of the INGO Article 19, similarly defines advocacy as “requiring an intention to promote hatred publicly towards the target group.”37 Consequently, all historical discussions and contemporary attempts to define advocacy share a notably high threshold. The second part of O’Flaherty’s (deleted) definition—“are intended to elicit action or response”—raises the crucial question of whether the offense of hate propaganda requires intention. O’Flaherty and supporters of the Camden Principles give a central role to intention in their respective definitions of advocacy. However, it seems aimed at slightly different results in the two definitions: “action or response” according to O’Flaherty and “promotion of hatred towards the target group” according to Article 19.38 In sum, thus far the minimal elements for a hateful expression to come within the scope of Article 20(2)–based prohibitions are: an advocator who promotes the hateful message, a publicly made message, and a target group. “Hatred” What is hatred within the meaning of Article 20(2) ICCPR? Only by highlighting the extreme nature of the speech that sets off this article can we appreciate the differences between the international incitement ban and domestic measures against blasphemy. The same early General Comment No. 34 draft attempted to define hatred: “By ‘hatred’ is meant intense emotions of opprobrium, enmity and detestation towards a target individual or group.”39 This definition is clearly based on the Camden Principles on Freedom of Expression

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and Equality.40 It purports to show the types of extreme scenarios we must think of when we consider the ICCPR’s hate propaganda clause: intense emotions of “opprobrium,” “enmity,” and “detestation.” This definition was also ultimately deleted from the final comment. Though it doubtless would have led to many debates among states parties (and scholars), one cannot but appreciate the attempt to devise working definitions in this area, especially when such definitions seek to narrowly demarcate the relevant forms of hate speech. The Camden Principles’ definition of hatred (and hostility)41 similarly speaks of emotions and outlines the relevant state of mind as composed of “intense and irrational emotions of opprobrium, enmity and detestation towards the target group.”42 Though irrational and emotions seem problematic in a legal definition, they—and especially the word intense—highlight the extreme type of speech required to set off the prohibition. Some of the case law of the Human Rights Committee is uninstructive regarding the definition of advocacy because it often uncritically accepts or rejects a claim that statements come within the ambit of “hatred.” For instance, in Faurisson v. France, the committee concluded that Robert Faurisson’s negationist statements when “read in their full context” were “of a nature as to raise or strengthen anti-semitic [sic] feelings.”43 In this notorious case, Faurisson, a British-French literature professor, was convicted in France under the Gayssot Act.44 He had publicly cast doubt on the existence of gas chambers for extermination purposes at Auschwitz and other Nazi concentration camps in various statements and writings from the 1970s onward. The committee’s views circumvent direct mention of Article 20(2). Nonetheless, they suggest that Faurisson’s crime under French law (revisionism) also amounted to a type of extreme speech to which ICCPR restrictions apply. Whereas the committee mobilized the normal Article 19(3) restrictions, both the state party45 and several committee members—notwithstanding sincere criticism regarding the overly abstract Gayssot Act—wanted to designate revisionism as “advocacy of hatred” in the meaning of Article 20(2). Rajsoomer Lallah held that it was “beyond doubt that, on the basis of the findings of the French Courts, the statements of the author amounted to the advocacy of racial or religious hatred constituting incitement, at the very least, to hostility and discrimination towards people of the Jewish faith which France was entitled under article 20, paragraph 2, of the Covenant to proscribe.”46 His explanation was premised mostly on the element of incitement. Elizabeth Evatt and

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David Kretzmer, in their concurring opinion, explain why Faurisson’s statements can rightly be labeled advocacy of hatred rather than “merely insulting speech.” For them what matters is that Faurisson not merely challenged the Holocaust but accused Jews of concocting the whole event, thereby inciting hostility to Jews.47 Essentially, these committee members sought to unveil a degree of opprobrium, enmity, and detestation vis-à-vis Jews on the part of the author of this communication high enough to engage Article 20(2). Conversely, in Maria Vassilari et al. v. Greece, the committee, again without much argumentation, rejected that the prima facie inciteful letter published in a local newspaper came within the ambit of “hatred” as required by Article 20(2). The anti-Roma letter was titled “Objection against the Gypsies: Residents Gathered Signature for Their Removal,” was the product of the representatives of local associations of four districts of Patras, and contained twelve hundred signatures of non-Roma residents who lived in the vicinity of a Roma settlement. This case is extremely interesting, for it concerns the first communication brought by alleged hate speech victims—as opposed to the typical scenario of a case brought by a person who was subjected to hate speech law restrictions, that is, an alleged inciter. According to the committee, the authors of this communication had “insufficiently substantiated the facts” in relation to Article 20(2).48 This resolution of the case may have hinged on the committee’s unwillingness at the time to declare Article 20(2) an autonomous human right (i.e., a fundamental “freedom from incitement”). Abdelfattah Amor convincingly argued in his dissenting opinion that Vassilari and others made a strong prima facie case in light of Article 20(2).49 Admittedly, his observations point more toward proof of incitement (to be discussed shortly) to certain adverse actions than to advocacy of hatred per se, but as he suggests, the communication satisfied the admissibility criteria. Whereas “advocacy of hatred” does not presuppose incitement in all cases, “incitement to discrimination, hostility or violence” is almost necessarily based on a degree of hatred, whether explicit or not. To determine what acts constitute hatred within the meaning of Article 20(2) and what acts do not, a case would need to be brought before the committee right on the borderline between intense or systematic religious defamation (falling short of Article 20[2]) and religious hatred within the scope of Article 20(2). Thus the committee would be urged to neatly demarcate the two concepts—punishable incitement versus unpunishable defamation—and provide reasons and factors why the

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statements would ultimately be punishable or not. The pending case concerning the allegedly inciteful statements that the Dutch politician Geert Wilders made about Muslims (M.R., A.B.S. and N.A v. the Netherlands) is precisely such a case. Most of his statements can—on their face—be clearly deemed religious defamation, but there was also a systematic pattern of behavior and speech underlying them that may further reveal “intense emotions of opprobrium, enmity and detestation towards a target individual or group.” Some of the statements clearly incite action. Wilders used fighting words such as must be stopped, fight, defend ourselves, and deportation, but only in relation to the religion of Islam and the ideology of Islamization, never in relation to the persons of Muslims. The distinction is important and perhaps determinative of whether the statements amounted to incitement. The crucial questions to be resolved by the committee are thus twofold: whether the call for action itself indicates opprobrium, enmity, or detestation, meaning whether the inciting of action is itself evidence of hatred, and whether one can act against a hated belief system or ideology without targeting the persons holding the beliefs or ideology. For now, the most instructive case on what constitutes “hatred” within the meaning of Article 20(2) remains Ross v. Canada. Ross worked as modified resource teacher for remedial reading in a school district of New Brunswick. He had made negationist and other antiSemitic remarks, though not in class but as part of his second life as a pamphleteer. Throughout the period of his teaching position, from 1976 to 1991, he published booklets or pamphlets—with such titles as Web of Deceit, The Real Holocaust, Spectre of Power, and Christianity vs. Judeo-Christianity—and made other off-duty yet public statements expressing his revisionist and anti-Semitic views, including during a television appearance and in letters sent to newspapers.50 A Jewish parent—whose children attended another school in the same district—filed a complaint with the Human Rights Commission of New Brunswick. The domestic procedures against Ross indicate what was likely the final straw for this parent to file the complaint: his daughter had wanted to watch a gymnastics competition at the school where Ross taught but was advised that she probably should not go there because that was “where the teacher who hates Jews works” (she eventually did go but felt very anxious for fear of being attacked).51 The parental complaint against the school board argued that unless this board took disciplinary action against Ross, it would be implicitly condoning his anti-Semitic attitude.52 Specifically, the parent submitted that the school board had

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breached a section of the New Brunswick Human Rights Code on equal access to publicly provided educational services (i.e., without discrimination on the basis of religion or ancestry).53 The Canadian Human Rights Commission established a Board of Inquiry to look into the complaint. The board concluded that Ross’s published writings and public comments were discriminatory against persons of Jewish faith and ancestry. He had called on people to hold persons of Jewish faith and ancestry in contempt and had invited people to join his fight against Jews.54 In the light of that, the Canadian Board of Inquiry recommended a set of sanctions, including a relegation to a nonteaching position, which the Canadian Supreme Court upheld.55 Ross complained before the UN Human Rights Committee that Canada had violated his freedom of expression. Among other arguments, Canada raised preliminary defenses against the admissibility of the communication based on Article 20(2) ICCPR, on the need to prohibit incitement.56 This case best illustrates the point that not all discriminatory speech is illegal incitement under international law. What mattered to the Canadian authorities and to the Canadian Supreme Court was not merely the finding that this teacher’s anti-Semitic publications denigrated the faith and beliefs of Jewish people but above all the fact that he portrayed Jews as the “enemy” of Canada and its predominantly Christian population. The Human Rights Committee seconded this: what mattered most was not so much that Ross questioned or criticized Jewish beliefs but that he had called on “true Christians” to hold persons of the Jewish faith in contempt, to identify Jews as the enemy, and to join him in his battle against Jews.57 Again we see the factors hatred and incitement come closely together: it is through his various calls for action (be it hostile action or acts of discrimination) that we get further insight into the man’s exact level of opprobrium, enmity, and detestation vis-à-vis Jews. In sum, triggers of Article 20(2) ICCPR must include an advocator of a publicly made hateful message aimed at a target group and indicating an intense degree of enmity (or opprobrium or detestation). The last factor distinguishes advocacy of hatred from nonqualified forms of defamation, insult, or blasphemy. Only rarely do jurisprudential efforts pinpoint what in a speech or publication amounts to hatred (the concurring opinions in Faurisson are good examples). Most often the element of hatred is identified with the element of incitement (as in J.R.T. and the W.G. Party and Ross v. Canada). This is understandable, since

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the ICCPR aims at eradicating not hate speech but hate speech “that constitutes incitement to . . .” The required advocacy of hatred itself is qualified. Accordingly, while the difference between defamation and hate speech is that the latter requires advocacy of intense opprobrium, enmity, and detestation toward a target individual or group, the difference between hate speech that falls within the ambit of Article 20(2) and that which does not lies in the element of incitement. We can thus discern three categories of extreme speech: unqualified forms of insult to the religious feelings of others— religious defamation and blasphemy—that do not necessarily amount to advocacy of hatred, since they lack an intense degree of enmity or an element of incitement; forms of extreme speech that may qualify as hate speech but fall short of the requirements of Article 20(2) because the element of incitement is lacking; that is, statements that seem to amount to advocacy of hatred without an express call on others to act in a specific adverse manner, such as an Internet forum post stating “I hate Jews” or “I hate blacks” (though other norms of international law may cover such statements, as racist or anti-Semitic speech);58 forms of inciteful hate speech that prima facie come within the scope of Article 20(2) because all required elements are present: an advocator of a publicly made message displaying an intense degree of enmity toward a target group and constituting incitement (see below) to discrimination, hostility, or violence (see below). “National,” “Racial,” or “Religious” An international law–driven discussion of extreme religious speech or extreme speech about religion inevitably focuses on the ICCPR. In the ICCPR, advocacy of religious hatred stands out because this is ground that the 1965 ICERD does not cover. The words national and racial, used by Article 20(2) ICCPR, resonate well with the definition of discrimination found in the ICERD. The fact that states must prohibit advocacy of national, racial, or religious hatred means, according to the Human Rights Committee, that national laws must mention all three grounds quite literally.59 Our main question is what religious means in this provision. Since the ICCPR elsewhere treats religion as a suspect ground of distinction (i.e., a prohibited ground for distinguishing people unless reasonable

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and objective arguments indicate otherwise) and as a fundamental right (the freedom to have and manifest a religion), we may reasonably look there for answers. The most elaborate views of the Human Rights Committee on religions that warrant the protection of the covenant are found in General Comment No. 22 on Article 18 (freedom of religion or belief). The definition is extremely inclusive: religion there is broadly construed to include metaphysical and nonmetaphysical beliefs, old and new beliefs, large and small beliefs.60 Such a broad construction raises the question of whether religious hatred means merely “all forms of hatred targeted at a religious group” or also “religiously motivated hatred.” Though hatred targeted at a religious group will typically be religiously motivated, religiously motivated hatred is not necessarily aimed at a religious group. One could conceive, for example, of religiously motivated hatred vis-à-vis homosexuals. With respect to this issue, we may first observe that under international law, it does not seem to matter how one’s hatred is motivated: the Human Rights Committee in its relevant case law does not assess this question in depth when establishing incidents of religious hatred. In fact, instances of hatred almost necessarily combine both intrinsic and extrinsic motivations. On the extrinsic side, characteristics of a religious group could be hated in and for themselves. Such hatred can point to an intrinsic motivation, such as thoughts of superiority. The inciter could make these thoughts explicit in the process of expressing the hate speech but may very well leave them entirely implicit. As the intrinsic motivation can be any belief the inciter holds, hatred without intrinsic motivation is nearly impossible. Accordingly, for the Human Rights Committee it is ultimately irrelevant whether, for instance, anti-Semitic schoolteachers or “historians” express themselves as they do because they hate Jews in and for themselves or because they are religious bigots who blame the Jews for crucifying Jesus. It is the fact that Jews are hated and incited against that matters for the committee; whether the inciter is intrinsically religiously motivated does not. For instance, though in Ross v. Canada the state party and the applicant extensively debated whether Ross’s views were “religious” or “Christian,”61 the Human Rights Committee largely ignored the question in considering the merits of the case, suggesting that the matter is immaterial for the application of Article 20(2).62 In such cases as J.R.T. and the W.G. Party and Faurisson, questions about the inciter’s possible personal religious motivations in expressing telephonic hate messages and Holocaust denial are absent altogether. In sum, according to the committee, religious in religious

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hatred (Article 20[2] ICCPR) chiefly if not exclusively relates to the verbally attacked group of persons who can be defined by their religious beliefs. Thus, the prohibition of advocacy of religious hatred covers in principle all forms of hatred aimed at a religious group. Semantically, religious hatred could (additionally) denote hatred specially characterized by certain religious beliefs that the inciter holds. For instance, a Jew could express hatred of Muslims (and vice versa) on account of doctrinal differences on religious issues. This example entails a religious person hating others defined by their differing religious affinity for religious reasons. Importantly, however, such religiously motivated hatred could be aimed at a group of persons defined not by their religious beliefs but by gender, sexual orientation, or ethnicity, among other characteristics.63 For example, a religious leader could express hatred of homosexuals, citing religious sources. A religious leader may incite to discrimination against women, invoking religious justifications. One could even think of incitement to violence against children “based” on religious authority (e.g., the burning alive of so-called child witches instigated by pastors in central African countries).64 Article 20(2) does not protect these atypical target groups if religious in religious hatred exclusively points toward a religious target group. As Manfred Nowak explains, “Incitement is only to be prohibited when it takes place by way of ‘any advocacy’ (‘tout appel’) of national, racial, or religious hatred. This means a contrario that incitement to violence against women, for example, does not fall under the prohibition of Art. 20.”65 The question is whether Nowak’s example would be legally different if the incitement to violence against women were expressly religiously motivated: would that amount to a form of religious hatred? Semantically, this certainly is the case. Moreover, even if religious in religious hatred exclusively points toward the target group, contemporary mainstreaming approaches focused on intersectionality66 may still bring the example of incitement to discrimination against women under the required heading (a religious target group). Specifically, incitement of violence against women by a religious hate preacher could target the women in the believers’ community or aim at demonizing (e.g., branding someone as “infidel”) women outside the community (or both). In the former instance, the target group’s main characteristic, gender, will always intersect with their belonging to this religious group. In the latter instance, the target group’s main characteristic, gender, still intersects with a religion characteristic: in this case, being deemed a religious outsider.

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Almost exclusively reflecting on the horrors of the Holocaust, the travaux on Article 20(2) did not anticipate these contemporary forms of intersectional incitement and thus do not help us much further.67 The Human Rights Committee missed out on an opportunity to settle this question when it adopted General Comment No. 34. We must wait for a case brought to the committee that revolves around intersectional incitement (or comment on this issue in the committee’s concluding observations on a state’s practice) to know the final dictum on this matter. An inclusive definition of the prohibited grounds for incitement would certainly be consistent with the UN’s gradual acceptance of intersectionality as a priority.68 As Nazila Ghanea has argued, intersectionality has “a bearing on our discussion of hate speech, firstly in how intersectional hate speech is suffered and secondly in how it is responded to.”69 “Incitement” The most critical term in Article 20(2) ICCPR is incitement. It significantly raises the threshold of the hate clause. Indeed, incitement is what defines the advocacy provision: it turns Article 20(2) ICCPR from a hate speech clause into an incitement clause proper. Incitement is perhaps best understood as an extreme subspecies of the genus hate speech. To the advocator and the target group, incitement introduces a third required actor: the audience. Consequently, incitement, unlike blasphemy and defamation of religion, is premised on a triangle of hatred. What we minimally need under Article 20(2) is an advocator who expresses his or her intense (religious) hatred of a target group and incites a third party, the inciter’s audience, to acts of discrimination, hostility, or violence toward the target group. Blasphemy and defamation of religion may insult the feelings of the target group, even provoke it to violence. Yet these considerations will be deemed utterly immaterial under the incitement clause. There we are exclusively interested in the question of to what extent a third party, the audience, is mobilized to commit acts of discrimination, hostility, or violence against the target group. Violence (etc.) committed by the target group could constitute a public order matter under the regular restrictions governing freedom of expression, but there can be no role for it in incitement legislation. In fact, under regular public order restrictions on free speech, public outcry by the target group must always be treated with much caution, lest all too easily overstated—and occasionally outright orchestrated— eruptions of religious sensitivities hijack a liberal society.

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Let us explore this important point in more detail. According to Article 20(2)’s incitement clause, only “advocacy of national, racial or religious hatred that constitutes incitement” must be prohibited. These words suggest that some forms of advocacy of national, racial, or religious hatred constitute incitement and some forms do not and that it is possible to distinguish between the two. But to make this distinction, do we look at the advocator, the audience, or both? To begin, in the abstract, incitement could be conceived as an expression of hatred that includes an express call for action (discrimination, violence, etc.). This would entail focusing on the advocator and specifically on the content of the speech. Second, incitement could be an expression of hatred that creates a risk or likelihood that such adverse acts (discrimination, violence, etc.) will result from the hateful statements. Though this notion still commences with the advocator’s hate speech, by focusing on risks we shift the emphasis to the larger context of the likelihood of the audience responding to the speech by attacking or discriminating against the target group. Third, in the abstract, incitement could focus on the likelihood of speech itself doing direct harm to the target group, without the agency of an audience. Let us begin by dispensing with the third conception. The language of Article 20(2) implies that the target group’s feeling victimized, outraged, or dehumanized is not a relevant factor in establishing the presence of incitement. The article requires incitement to discrimination, hostility, or violence, meaning there must be a relation between an advocator and an audience that could possibly engage in acts of discrimination or violence. Establishing the fact that the target group has directly experienced victimization does not address whether it is at risk of being harmed by the audience. It is true that Article 20(2) does not prescribe who must be engaged in the adverse acts (hostility, etc.). However, it is in line with the system of Articles 19 and 20(2) ICCPR primarily to consider the hate speech audience, not the target group. The word discrimination makes this point clear: that act always presupposes the audience. (It takes a truly ingenious hate speech for the target group to start discriminating against itself). “Hostility” and “violence” should be similarly construed as perpetrated by an audience. Certainly, a target group may become hostile or violent toward the advocator when confronted with hate speech. However, including the target group in our definition of incitement would mean the target group was always in a position to turn a statement into incitement and thereby require the state to interfere with free speech. Orchestrated outrage could then

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decide the limits to free speech. This outcome seems contrary to the robust free speech standards of Article 19 (which already includes the “regular” reputation of others and public order restrictions) and the principles of 20(2) (which defines incitement clearly as an extraordinary category). Also, the history of Article 20(2)—a reaction to the public incitement to racial and religious hatred, indeed to genocide, by the Third Reich—is exclusively linked to the audience as potential harmful factor. That leaves two plausible conceptions. First, incitement as expressly calling on the hate speech’s audience for certain actions against the target group (discrimination, violence, etc.). Second, incitement as an expression of hatred that creates a risk or likelihood that the audience will perpetrate such adverse acts (discrimination, violence) against the target group. We need to assess which conception resonates best with the meaning of Article 20(2). Indeed, do only statements that literally call for “discrimination, hostility or violence” trigger Article 20(2), or can statements in which an express incitement (“Go harm them”; “Go discriminate against them”) is absent still engage Article 20(2) because of the risk that “discrimination, hostility or violence” will ensue? And with respect to statements that do literally call for “discrimination, hostility or violence” (qua content), is Article 20(2) here automatically triggered to the extent that states must enforce their incitement legislation, or could a low risk of “discrimination, hostility or violence” by the hate speech’s audience (context) remove the prima facie incitement element? Until recently we had little information to go by to address this issue, as monitoring bodies had not been generous with working definitions in this area. Not even in the relevant international case law could we discern detailed conceptualizations of incitement. In the run-up to the adoption of General Comment No. 34, the Human Rights Committee and other stakeholders finally extensively reflected on the matter. The second revised draft of General Comment No. 34 defined incitement as “likely to trigger imminent acts of discrimination, hostility or violence against a specific individual or group.”70 This conception clearly hinges on likelihood: an advocacy has “constituted,” within the meaning of Article 20(2) ICCPR, incitement as soon as the likelihood of these adverse acts by a third party, the hate speech audience, against the speech’s target group is established. The earlier Camden Principles definition of incitement again resonates with Michael O’Flaherty’s (ultimately deleted) definition: “The

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term ‘incitement’ refers to statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups.”71 The focus on “imminent risk”—echoing the U.S. judicial doctrine of a clear and present / imminent danger—again implies that for the prohibition of Article 20(2) to be engaged, no causal link with already occurring acts of violence or discrimination but rather the likelihood—here risk—that such acts may occur in the very near future is required. And as we have seen, as far as the two just-quoted conceptualizations of incitement are concerned, context is certainly a major factor. Whether or not an advocacy “creates an imminent risk” or “is likely to trigger imminent acts” will depend partly on its nature but also significantly on the overall (social, political) context in which the speech is made. Questions concerning the content of speech may include: •

•

•

•

Are fighting words used, that is, are there any discernible express calls for adverse action(discrimination, hostility, or violence)? How intense are the statements, that is, are emotions of opprobrium, enmity, or detestation discernible? To what extent is the target group dehumanized or depicted as inferior in the speech? How many times is the hateful message repeated (from a one-off expression of hatred to a systematic hate campaign)?

Questions concerning the context of the hate speech may include: •

•

•

•

•

What is the position of the advocator: politician, religious leader, journalist, academic, artist, member of the public? How public is the speech; that is, what is its level of outreach and what is the size of its audience? Notably: What is the medium used (Internet, book, documentary, pamphlet, interview, newspaper article, newspaper letter or column, magazine, statement on TV, etc.)? What is the setting of the speech (e.g., a ticketed conference, debate, or film; a political rally in the street; a TV debate; a church service)? What is the profile of the target group and its position in society (e.g., religious minority or majority, with or without a history of recorded hate crimes against it)?

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Arguably, of the relevant cases brought before the Human Rights Committee to date, Vassilari seems to most comprehensively (prima facie) satisfy both content and context criteria.72 However, as alleged hate speech victims rather than a previously punished inciter brought this case, and as the committee (with the exception of member Abdelfattah Amor)73 did not yet dare to pronounce on the possibility of standing under Article 20(2) ICCPR, the committee chose to uncritically dismiss this case as inadmissible.74 The berated letter published in a local newspaper—an anti-Roma letter, calling for forceful “removal” and “militant action”—would prima facie seem to satisfy the incitement factor in the meaning of Article 20(2). Amor, underscoring both the fighting words used (such as militant action) and the vulnerability of the group (Roma minority), convincingly argued in his dissenting opinion that Vassilari and others made a strong case in light of Article 20(2). Accordingly, they should have been granted standing to argue their complaint, and the committee should have made a decision on the merits. These merits, however, would have been atypical when compared to standard Article 20(2) cases, where the main question typically is whether or not the article authorizes a state to interfere with the free speech of an alleged inciter. Here the merits of the case would have revolved around whether or not the letter amounted to incitement within the meaning of Article 20(2) and if so, whether Greece should have taken measures with respect to the authors of the letter. This context assessment, revolving around the position of the Roma and the risk to them that the hateful letter posed, unfortunately was cut short as a result of the committee’s questionable pronouncement on admissibility. Both content and context assessments can be found in other cases that the Human Rights Committee has decided. In Ross v. Canada, for instance, the committee scrutinized the content of Ross’s anti-Semitic pamphlets and came to the conclusion that beyond merely being offensive, they contain an objective incitement element.75 That is, the committee put great emphasis on his literal call on others (the audience) to act hostile vis-à-vis Jews. Context also appears to be significant for the committee in this case. Specifically, it was not satisfied with the mere fact that a literal call for adverse action can be discerned in Ross’s statements; it still made a risk assessment. Some of the harm had already been done, and the committee was in a position to simply affirm what the national authorities had concluded, namely that there was in fact a causal link between Ross’s hateful expressions and a “poisoned school environment.”76

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In Faurisson too, individual committee members used a mix of content and context factors to establish incitement within the meaning of Article 20(2). France repeatedly argued that Faurisson had committed incitement by denying the Holocaust.77 Therefore, it expressly invoked Article 20(2) of the covenant.78 Faurisson denied that his negationist statements could be construed as incitement.79 Given France’s direct invocation of Article 20(2) and the substantive disagreement between it and Faurisson as to the meaning and scope of incitement, it is all the more remarkable that the committee largely ignored this issue and opted not to reflect on Article 20(2) in any direct way. The committee largely resolved the case by reference to freedom of speech and the regular restrictions that Article 19(3) provides.80 Although one key sentence appears to hint at Article 20(2),81 the committee’s reasoning clearly falls short of a robust analysis of why the statements would amount to illegal incitement within the meaning of Article 20(2). To make that additional analysis, we need to assess the concurring opinions of individual committee members. Taking account of the context of the statements (rising anti-Semitism in present-day France), the committee members Elizabeth Evatt and David Kretzmer (in an opinion cosigned by Eckart Klein) accepted the French courts’ evaluation of Faurisson’s negationist statements as being “of a nature as to raise or strengthen anti-semitic [sic] tendencies.”82 Member Rajsoomer Lallah concurred with Evatt and Kretzmer and also accepted the French courts’ findings of illegal incitement.83 These concurring opinions imply that Holocaust denial can be deemed incitement depending on the specific social context, meaning that in another place or time, the conclusion may be different. In their criticism of the national law at stake (the Gayssot Act, which prohibits the act of denying wellestablished perpetrated crimes against humanity) in the Faurisson case, said committee members identified themselves as proponents of the “likelihood” definition of incitement. Evatt and Kretzmer criticized the fact that the Gayssot Act seems to criminalize not incitement proper but, much more broadly, the denial of crimes against humanity (specifically the Holocaust).84 Moreover, they contend, “the Gayssot Act is phrased in the widest language and would seem to prohibit publication of bona fide research connected with matters decided by the Nuremburg Tribunal. Even if the purpose of this prohibition is to protect the right to be free from incitement to anti-semitism [sic], the restrictions imposed do not meet the proportionality test. They do not link liability to the intent of the author, nor to the tendency of the publication to

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incite to anti-semitism [sic].”85 Lallah had roughly the same reservations.86 A contrario, then, these committee members would require national incitement laws to incorporate both a requirement of intent and a risk factor. Both of these would importantly prevent states from abusing incitement laws. The risk factor accords with Article 19 ICCPR’s requirements of necessity and proportionality with respect to restrictions on free speech. The requirement of intent would place a heavy burden of proof on states, ensuring that they can successfully combat only the most blatant and most harrowing instances of incitement to violence and discrimination. In support of this reading is the Human Rights Committee’s declaration that any Article 20(2)–based restriction must satisfy the “regular” conditions for making restrictions under Article 19(3) ICCPR.87 O’Flaherty was not mandated to adopt a general comment on Article 20, as he admits;88 it is nevertheless crucial that these important safeguards against governmental abuse of incitement laws have now been stipulated. Such a likelihood or risk factor, accordingly, is bound to feature twice in any human rights assessment of a case in which national incitement laws have been enforced. First, if “likelihood” (e.g., in an early draft of General Comment No. 34)89 or “imminent risk” (e.g., in the Camden Principles)90 is part of our very definition of incitement, this is bound to impact what types of acts may and may not be prohibited. Generally speaking, it will thus be clear that only extreme cases of hate speech are to be banned a priori: advocacy of hatred likely to trigger imminent acts of discrimination, hostility, or violence against a specific individual or group. Second, “likelihood” or “imminent risk” (etc.) is a factor that is bound to recur in any subsequent assessment of the necessity of the enforcement of a concrete hate speech law in a concrete case of alleged incitement.

violence versus discrimination and hostility Among the key terms in the covenant’s incitement clause, discrimination, hostility, and violence are most in need of conceptualization by the Human Rights Committee and legal scholars, with an express view toward preventing governmental abuses of extreme speech legislation. The ICCPR orders states parties to ban incitement to “discrimination,” “hostility,” or “violence”—three forms of rather, say, uncool behavior, yet all very different. Specifically, on their face, their degrees of gravity vary enormously. Let us attempt to understand the meaning of these terms in the specific context of the incitement clause.

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Discrimination resonates with the equality and nondiscrimination provisions of Articles 2 and 26 of the ICCPR (and General Comment No. 18 on Non-discrimination).91 That is, a distinction based on one of the “suspect grounds” (such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth) amounts to discrimination unless the criteria for such differentiation are “reasonable” and “objective.”92 In relation to religious discrimination specifically, the 1981 UN religious tolerance declaration contains concrete definitions.93 Whereas discrimination at least has a counterpart in the covenant, the same cannot be said for hostility or violence. The Human Rights Committee has not yet offered working definitions of these terms (neither do early drafts of General Comment No. 34, which did define, as we have seen, such notions as advocacy, hatred, and incitement). The Camden Principles define hostility as “intense and irrational emotions of opprobrium, enmity and detestation towards the target group.”94 That renders it indistinguishable from hatred, for which these principles give the exact same definition. If these notions are indeed synonymous, that would imply that incitement is achieved when the audience “simply” copies the hateful messages that the advocator has disseminated (i.e., without a need for additional acts of violence or discrimination). This seems to be too low a threshold. Hate speech may very well lead to more hate speech, but the necessity principle urges us to scrutinize the additional question of whether the rights of the speech’s target group are truly endangered. The INGO Article 19 seems to go a bit beyond the Camden Principles (with which it clearly engages directly): “Hostility implies a manifested action—it is not just a state of mind, but it implies a state of mind, which is acted upon. In this case, hostility can be defined as the manifestation of hatred—that is the manifestation of ‘intense and irrational emotions of opprobrium, enmity and detestation towards the target group’. . . . Of particular importance is to determine the level of hostility requested under article 20.”95 Neither the Human Rights Committee nor the Camden Principles defines violence. Article 19 provides the following definition: “Violence shall be understood as the intentional use of physical force or power against another person, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.”96 So when, then, is Article 20(2) engaged? What type of incitement is required? On the one hand, the word or seems clear enough: the message must incite one of these adverse reactions by the hate speech audi-

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ence vis-à-vis the speech’s target group. An older draft of General Comment No. 34 conceded as much: “It would be sufficient that the incitement relate to any of the three outcomes: discrimination, hostility or violence.”97 Though it seems obviously correct, this remark was dropped from the general comment. From the moment of the ICCPR’s drafting until today, many lawyers have found fault with the words hostility and discrimination in particular. The thresholds of incitement to these acts, evidently, do not compare to that of incitement to violence. In fact, a 1953 draft incitement provision purported to mediate in such early definitional and threshold debates. While some delegations, notably those from the United States and the United Kingdom, felt that only violence could be operationalized in judicial practice, other representatives wished to go much further.98 The proposal of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (one of the ICCPR drafting committees) had focused on “incitement to violence.” As a result of a Chilean amendment, its focus changed to advocacy of religious hostility “that constitutes an incitement to hatred and violence.”99 The and here is not without meaning: it is precisely the cumulative effect that was intended—thus appeasing those states that insisted that minimally real or imminent violence is required and those that argued “that any propaganda constituting an incitement to hatred was no less serious than that constituting an incitement to violence.”100 Because of the and, the threshold was exceptionally high at that particular stage of the drafting. At roughly the same time in the early post-WWII period, the U.K. representative in the Commission on Human Rights argued that extreme speech limitations must only attend to “conduct likely to cause a breach of the peace, that was to say, conduct which, whether or not it actually resulted in violence, a reasonable person would conclude to be likely to lead to violence.”101 Sir Samuel Hoare proposed this as an “objective” criterion, as opposed to more tricky subjective criteria that risk giving governments the power to make a decision “on whether an opinion offended against an accepted canon. No more useful weapon could be handed to a government disposed to abolish free discussion, or, perhaps, tempted to promote national hostility.”102 A Japanese delegate also seemed to imply that the hate propaganda provision may serve to combat only instances of incitement to violence. If states were free to adopt repressive measures in situations in which advocacy of national, racial, or religious hostility did not lead to violence, this would be “very detrimental to freedom of expression.”103

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As for the violence required, a related question of course is whether incitement to violence as such is enough to trigger the incitement clause or whether violence must be already visible (i.e., likelihood versus causality). A Saudi representative offered the following reaction to those delegations that insisted there must be violence before the prohibition could be enforced: “That was not the case. The phrase [‘incitement to violence’] clearly referred to propaganda and advocacy which were of a nature to incite to violence and not which had incited to violence. Thus, if a law enforcement officer overheard someone inciting a group of people to attack a place of worship, he could immediately detain that person as an inciter to violence.”104 One common thread between the debates of the 1950s and those of more recent vintage is anxiety about an overly broad range of adverse acts to which audiences can be incited. Some delegations in the 1950s deliberations clearly wished to concentrate exclusively on incitement to violence. Similar concerns still dominate legal discourse. Discrimination in Article 20(2) is particularly problematic: essentially the word deletes, in one fell swoop, the threshold that the phrase that constitute incitement so importantly raises. Is it, as Nowak prompts us to ask, even possible to advocate hatred without at least inciting to discrimination?105 Indeed, what would nondiscriminatory hate speech look like? Anyone who would go as far as articulating express hatred for another group based on their distinctive race or religion thereby incites some minimal degree of discrimination. In sum, the word discrimination significantly destroys the incitement threshold test, and we risk being back to square one, where all hate speech, regardless of actual risks to the rights of others, is to be combatted. That said, the object and purpose of Articles 19 and 20 ICCPR taken together surely cannot imply just that: Article 19 requires robust protection of free speech, and Article 20 stipulates extreme exceptions to that rule. Hence, we see attempts in the literature to enhance the meaning of discrimination. Using the object and purpose of the ICCPR (robust free speech protection with exceptions in the most extreme cases), one may attempt to upgrade the word or to and (i.e., incitement to discrimination and violence). Or we could contemplate posing extra robust requirements based on necessity and proportionality when Article 20(2) is engaged in relation to allegations of incitement to discrimination. For instance, an additional test could be that incitement to discrimination may be combatted only if the state proves that lesser interfering measures (e.g., education) would fail to secure the equality rights of the target group.106 This could be proved in extreme cases by

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focusing on context, for instance a recorded recent sharp increase in hate crimes vis-à-vis the target group. That would also mean that any such restrictive measures can only be targeted and temporary. Rather telling too is the fact that the UN special rapporteur on freedom of religion or belief and the UN special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance in their report on incitement to racial and religious hatred rather conspicuously omit the word hostility from their analysis.107 They emphasize that Article 20 was drafted against the background of incitement by the Nazis. “Accordingly,” the special rapporteur on freedom of religion or belief argues, “expressions should only be prohibited under article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group.”108

concluding remarks The Human Rights Committee’s unequivocal condemnation of blasphemy laws in 2011 was a milestone.109 Many unqualified hate speech bills that are enforced worldwide, however, are just as detrimental for free speech as blasphemy acts and defamation of religion bills. Although there is obviously a long way to go in conceptualizing the rather cryptic Article 20(2) ICCPR, it is clear that this covenant’s incitement clause is premised on tackling extreme situations and contains a host of built-in safeguards against governmental abuse. In order to ensure that those safeguards are indeed operational, it is essential that governments be informed about the dos and don’ts in this area. Most crucial, in that respect, is the point that the reactions of an extreme speech’s target group cannot regulate free speech. Difficult to stomach though this may be for such groups, the necessity and proportionality of incitement law restrictions on free speech can be meaningfully checked only by assessing the risk of speech that mobilizes a third party, the hate speech’s audience, to behave violently or discriminatorily. Fortunately, few instances of speech manage to achieve that.

notes 1. In the words of William A. Schabas, “The road to genocide in Rwanda was paved with hate speech.” Schabas, “Hate Speech in Rwanda: The Road to Genocide” McGill Law Journal 46 (2000): 144. 2. E.g., for the chilling effect of the Indonesian Blasphemy Act, see Asma T. Uddin’s ch. 8.

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3. E.g., Commission on Human Rights Res. 1999/82, Report on the 55th Session, March 22–April 30, 1999, UN Doc. E/CN.4/1999/167 at 280 (April 30, 1999) through Commission on Human Rights Res. 2005/3, Report on the 61st Session, March 14–April 22, 2005, UN Doc. E/CN.4/2005/135 at 21 (April 12, 2005). See also Human Rights Council Res. 4/9, Report to the General Assembly on the 4th Session of the Human Rights Council, March 12–30, 2007, UN Doc. A/HRC/4/123 at 19 (March 30, 2007) through Human Rights Council Res. 13/16, Resolution Adopted by the Human Rights Council, 13th Session, UN Doc. A/HRC/Res/13/16 at 1 (March 25, 2010); G.A. Res. 60/150, UN Doc. A/RES/60/150 (December 16, 2005) through G.A. Res. 64/156, UN Doc. A /RES/64/156 (December 18, 2009). 4. A selection: L. Bennett Graham, “Defamation of Religions: The End of Pluralism?,” Emory International Law Review 23 (2009): 69–84; Sejal Parmar, “The Challenge of ‘Defamation of Religions’ to Freedom of Expression and the International Human Rights System,” European Human Rights Law Review 3 (2009): 353–75; Jeroen Temperman, “Blasphemy, Defamation of Religions and Human Rights Law,” Netherlands Quarterly of Human Rights 26 (2008): 517– 45; Allison G. Belnap, “Defamation of Religions: A Vague and Overbroad Theory That Threatens Basic Human Rights,” Brigham Young University Law Review 2010, no. 2: 635–86; Rebecca J. Dobras, “Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religious Resolutions and Pakistan’s Blasphemy Laws,” Georgia Journal of International and Comparative Law 37 (2009): 339–80. Asma T. Uddin demonstrates in ch. 8 how the Indonesian Blasphemy Act, in addition to affecting freedom of expression, undermines the freedom of religion of both minority and majority (Muslim) believers. 5. E.g., G.A. Res. 66/167, “Combating Intolerance, Negative Stereotyping, Stigmatization, Discrimination, Incitement to Violence and Violence against Persons, Based on Religion or Belief,” adopted December 19, 2011 (A/RES/66/167); G.A. Res. 67/178, “Combating Intolerance, Negative Stereotyping, Stigmatization, Discrimination, Incitement to Violence and Violence against Persons, Based on Religion or Belief,” adopted December 20, 2012 (A/RES/67/178). 6. Robert C. Blitt, “Defamation of Religion: Rumors of Its Death Are Greatly Exaggerated,” Case Western Reserve Law Review 62 (2011): 347–97. 7. “Defamation of Religion and the Right to Freedom of Religion or Belief,” ch. 2 of “Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, and the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, Further to Human Rights Council Decision 1/107 on Incitement to Racial and Religious Hatred and the Promotion of Tolerance,” UN Doc. A/HRC/2/3 (September 20, 2006), pars. 36–39 (numbering omitted in quote). Jahangir prepared pars. 22–50 of this chapter. 8. Ibid., par. 42. 9. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.

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10. Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, CCPR/C/GC/34, adopted at its 102nd session, Geneva, July 11–29, 2011, par. 48 (emphasis added). General comments are the most authoritative, albeit strictly speaking nonbinding, interpretative pronouncements by UN treaty-monitoring bodies on both procedural and substantive human rights law. 11. Michael O’Flaherty, “Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No. 34,” Human Rights Law Review 12 (2012): 26. 12. Ibid., 26–27. Interestingly, on these pages O’Flaherty makes no secret of the fact that as far as he was concerned, the first formulation was fine and these final adjustments overstate the case. 13. The International Service for Human Rights (ISHR) made a series of invaluable notes during the public sessions dedicated to the drafting of this general comment. See “Human Rights Committee Adopts General Comment 34 on Freedom of Expression,” August 10, 2011, accessed March 26, 2013, www.ishr.ch/ treaty-bodies/1128-human-rights-committee-adopts-general-comment-34on-freedom-of-expression, which has further links. The Open Society Justice Initiative also made detailed notes; see “UN Panel Revises Draft Comment on Article 19,” April 8, 2011, http://freedominfo.org/documents/HRCnotesMarch2011.pdf. 14. Certain governments, on the other hand, provided comments to the effect that (religious) defamation laws may in fact serve a legitimate purpose under international human rights law. Germany, for instance, brought to the attention of the committee (in a legal memorandum titled “Germany’s Comments on Draft General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights”) the fact that states parties to the International Convention on the Elimination of All Forms of Racial Discrimination must fight certain racist and discriminatory statements. In light of that, it would not be right for the Human Rights Committee to regulate the matter in the most absolute (rejectionist) terms. 15. Article 19, “Statement on Draft General Comment No. 34 on Article 19 of the ICCPR on Freedom of Opinion and Expression upon Completion of the First Reading by the Human Rights Committee” January 2011, www.article19. org/pdfs/analysis/unhrc-comment-34.pdf, par. 47, “ ‘Defamation of Religions’ or Blasphemy Laws.” 16. The fifteen-page submission by the European Centre for Law and Justice, an INGO with a major focus on religious freedom, is almost entirely dedicated to persuading the committee to affirm that blasphemy and defamation laws are inherently incompatible with the ICCPR. ECLJ, “Draft General Comment No. 34 (Article 19 ICCPR),” 2011, http://eclj.org/pdf/eclj_draftgeneralcommentno34article19_20110201.pdf. 17. The ISHR recorded this debate in its (unofficial) travaux (see n. 13) as follows: “There was a clear divide on how to approach this topic with some members considering blasphemy laws to be inherently incompatible with article 19 and others insisting on their legitimacy. The divide and, at the same time, collaborative effort of the Committee was clearly illustrated with one member

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stating that ‘while he would like to ban blasphemy laws outright, he felt that this would not enjoy widespread support and would actually undermine the body of General Comments of the Committee.’ ” 18. A premise also supported by Asma T. Uddin’s conclusions in ch. 8, on the Indonesian Blasphemy Act, which cannot pass any genuine necessity test, as it covers an overly broad range of speech acts about religion. 19. I.e., all ICCPR states parties minus the seven that have entered reservations to Article 20 specifically. Australia, Belgium, Luxembourg, Malta, New Zealand, the United Kingdom, and the United States have deposited reservations or interpretative declarations that limit their obligations under Article 20(2), mostly to the effect that these governments hold that no further national legislation shall be required under the terms of this provision. The full text of these reservations is available at http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. A number of states have entered reservations to Article 20(1), on war propaganda. 20. UN Doc. A/C.3/SR.1082 (October 25, 1961), par. 5 (Brazilian delegate in the Third Committee). 21. Note that these are heavily politicized (because of the Cold War). 22. UN Doc. E/CN.4/SR.174 (May 8, 1950), 9 (Mr. Malik, Lebanon). 23. UN Doc. A/C.3/SR.1079 (October 20, 1961), par. 2 (emphasis added). 24. The committee has, however, repeatedly made the more general point that a national law corresponding with Article 20 ICCPR is totally lacking. E.g., A/60/40 vol. 1 (2005) 74 at par. 93(13) (Slovenia); A/50/40 vol. 1 (1995) 38 at par. 181 (New Zealand); A/50/40 vol. 1 (1995) 57 at par. 322 (Ukraine); A/59/40 vol. 1 (2003) 20 at par. 64(20) (Russia). 25. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969. 26. E.g., CERD, A/50/18 (1995) 23 at par. 71 (Cyprus): “While welcoming the enactment of Law 11 of 1992, which created offences regarding acts amounting to racial discrimination, a question is raised about whether the wording of certain passages in section 2A meet completely the requirements of article 4 (a) of the Convention.” See also A/54/18 (1999) 13 at par. 33 (Austria); A/54/18 (1999) 35 at par. 350 (Iraq); A/55/18 (2000) 38 at par. 197 (Zimbabwe); A/55/18 (2000) 17 at par. 37 (Australia); A/56/18 (2001) 24 at par. 92 (Georgia); A/56/18 (2001) 68 at par. 415 (Vietnam); A/57/18 (2002) 50 at par. 276 (Armenia); A/58/18 (2003) 47 at par. 254 (Tunisia); A/58/18 (2003) 53 at par. 311 (Albania); A/60/18 (2005) 40 at par. 197 (Luxembourg); A/60/18 (2005) 46 at par. 239 (Georgia). 27. E.g., CERD, A/51/18 (1996) 17 at par. 63 (Denmark): “It is noted with concern that only three convictions have been registered in the past six years against members of neo-Nazi groups, although instructions have been issued to prosecutors.” See also A/51/18 (1996) 22 at par. 116 (Hungary); A/52/18 (1997) 39 at par. 283 (Bulgaria); A/54/18 (1999) 39 at par. 394 (Latvia). 28. E.g., CERD, A/59/18 (2004) 58 at par. 316 (Madagascar): “The perpetrators should be brought to justice in accordance with relevant domestic legislation, promulgated pursuant to article 4 of the Convention.” See also A/57/18

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(2002) 69 at par. 425 (New Zealand); A/58/18 (2003) 35 at par. 159 (Poland); A/59/18 (2004) 14 at par. 64 (Brazil); A/59/18 (2004) 29 at par. 151 (Netherlands); A/60/18 (2005) 61 at par. 317 (Turkmenistan). 29. J.R.T. and the W.G. Party v. Canada, Communication No. 104/1981, UN Doc. CCPR/C/OP/2 at 25 (1984), par. 8(b). 30. Malcolm Ross v. Canada, Communication No. 736/1997, UN Doc. CCPR/C/70/D/736/1997 (2000), pars. 6.2–6.3 (state) versus par. 7.2 (applicant). 31. Ibid., par. 11.5. 32. Human Rights Committee, Draft General Comment No. 34, Article 19, 2nd Rev. Draft, CCPR/C/GC/34/CRP.3 (June 28, 2010), par. 53. 33. The Camden Principles definition may have served as a source of inspiration: “The term ‘advocacy’ is to be understood as requiring an intention to promote hatred publicly towards the target group.” Article 19, “The Camden Principles on Freedom of Expression and Equality,” April 2009, Principle 12.1(ii), www.article19.org/data/files/pdfs/standards/the-camden-principles-onfreedom-of-expression-and-equality.pdf. 34. Stephanie Farrior, “Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech,” Berkeley Journal of International Law 14 (1996): 23. 35. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed. (Kehl am Rhein: N. P. Engel, 2005), 475 (emphasis in original). 36. Ibid. (emphasis added). 37. Article 19, “Camden Principles,” Article 12.1(ii) (emphasis added). 38. See ibid. 39. Human Rights Committee, Draft General Comment No. 34, Article 19, 2nd Rev. Draft, CCPR/C/GC/34/CRP.3 (June 28, 2010), par. 53. 40. See Article 19, “Camden Principles,” Art. 12.1(i). 41. It is unclear why the Camden Principles lump together hatred and hostility. This does not flow logically from the system of Article 20(2) ICCPR, which after all speaks of religious and other forms of hatred that must furthermore constitute incitement to hostility (or violence, or discrimination). 42. Article 19, “Camden Principles,” Art. 12.1(i). 43. Robert Faurisson v. France, Communication No. 550/1993, UN Doc. CCPR/C/58/D/550/1993 (1996), par. 9.6. 44. Loi no 90-615 du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xénophobe. 45. Faurisson, pars. 7.7–7.8. 46. Ibid., individual opinion (concurring) by Rajsoomer Lallah. 47. Ibid., individual opinion (concurring) by Elizabeth Evatt and David Kretzmer, cosigned by Eckart Klein, par. 10. 48. Maria Vassilari et al. v. Greece, UN Doc. CCPR/C/95/D/1570/2007, Communication No. 1570/2007, Views of March 19, 2009, par. 6.5. 49. Ibid., individual opinion (dissenting) of committee member Abdelfattah Amor. 50. Ross v. Canada, pars. 2.1, 4.2.

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51. Ross v. New Brunswick School District No. 15, 1 S.C.R. 825 (1996), par. 40. On the domestic Ross case and other Canadian hate speech cases, see Richard Moon, “Hate Speech Regulation in Canada,” Florida State University Law Review 36 (2008) 79–98. 52. Ross v. Canada, par. 2.3. 53. Ibid., par. 3.4. 54. Ibid., par. 4.2. See also Ross v. New Brunswick, par. 38. 55. Ross v. Canada, pars. 4.6–4.8. 56. Ibid., par. 6.2. 57. Ibid., pars. 6.2 (Canada’s arguments), 11.5 (committee’s considerations, largely following those that Canada presented). 58. Notably, Article 4 ICERD. 59. E.g., concerning laws in New Zealand, the committee held, “The Committee is concerned about the fact that, while the Human Rights Act contains a provision corresponding to article 20, paragraph 2, of the Covenant, this provision does not include a prohibition of advocacy of religious hatred” (UN Doc. A/50/40 vol. 1 [1995] 38 at par. 181). 60. Human Rights Committee, General Comment 22, Article 18 (48th session, 1993), in “Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” UN Doc. HRI/GEN/1/Rev.1 at 35 (1994), par. 2. 61. Ross v. Canada, particularly pars. 2.1, 4.2 for the applicant’s views on this issue; pars. 5.2, 5.4 on his alleged defense of “Christianity.” 62. Ibid., par. 11.5. At no point did the committee debate Ross’s Christian views. An alternative reading of this excerpt could be that if Ross had called on “true Canadians” instead of “true Christians,” then Article 20(2) would not have applied. However, I submit that if that were the point of the committee’s considerations here, it would have provided much more detail along those lines. 63. E.g., in Vejdeland and Others v. Sweden, Application No. 1813/07, judgment of February 9, 2012, the European Court of Human Rights held that restrictions on homophobic speech (here leaflets distributed in a school calling homosexuality a “deviant sexual proclivity”) may be legitimate and not contrary to free speech. 64. Though being a child is not a suspect ground under equality standards, international human rights standards of course recognize children as a particularly vulnerable group. 65. Nowak, UN Covenant on Civil and Political Rights, 474–75. 66. I.e., taking stock of the reality of multiple discrimination, specifically the fact that certain suspect grounds, such as religion, gender, or ethnicity, could cause an accumulated discriminatory effect. 67. E.g., incitement against homosexuals, also major victims of the Holocaust, is almost completely absent in the travaux. 68. See Nazila Ghanea, “The Concept of Racist Hate Speech and Its Evolution over Time” (paper presented at the United Nations Committee on the Elimination of Racial Discrimination’s Day of Thematic Discussion on Racist Hate Speech, 81st session, August 28, 2012, Geneva), 6–7. 69. Ibid., 6.

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70. Human Rights Committee, Draft General Comment No. 34, Article 19, 2nd Rev. Draft, CCPR/C/GC/34/CRP.3 (June 28, 2010), par. 53. This definition was deleted in the final comment. 71. Article 19, “Camden Principles,” Article 12.1(iii). 72. Vassilari, pars. 2.1–2.7. 73. Ibid., individual opinion (dissenting) of committee member Abdelfattah Amor. 74. Ibid., par. 6.5. 75. Ross v. Canada, par. 11.5 (essentially seconding the finding by the Canadian Board of Inquiry; see par. 4.2). 76. Ibid., par. 11.6. 77. Faurisson, par. 7.5. 78. Ibid., par. 7.7. 79. Ibid., par. 8.3. 80. Ibid., par. 9.6. 81. “Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic [sic] feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism [sic].” Ibid. 82. Ibid., individual opinion (concurring) by Elizabeth Evatt and David Kretzmer, cosigned by Eckart Klein, par. 7. 83. Ibid., individual opinion (concurring) by Rajsoomer Lallah, par. 9. 84. Ibid., individual opinion by Evatt and Kretzmer, cosigned by Klein, par. 4. 85. Ibid., par. 9 (second and third italics added). 86. Ibid., individual opinion by Lallah, par. 6. 87. Human Rights Committee, General Comment No. 34, pars. 50–52. This final part of the comment is titled “The Relationship between Articles 19 and 20.” 88. O’Flaherty, “Freedom of Expression,” 21: “The rapporteur/present writer explained the inclusion of text regarding the relationship with Article 20. He acknowledged that he had not been mandated to develop general comment guidance on that article. Nevertheless, he argued that some analysis should be included in the General Comment because of the intimate nexus between the two provisions and the extent to which Article 20 may serve to restrict Article 19 rights.” 89. Human Rights Committee, Draft General Comment No. 34, Article 19, 2nd Rev. Draft, CCPR/C/GC/34/CRP.3 (June 28, 2010), par. 53. 90. Article 19, “Camden Principles,” Article 12.1(iii). 91. Human Rights Committee, General Comment 18, Non-discrimination (37th session, 1989), in “Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” UN Doc. HRI/ GEN/1/Rev.1 at 26 (1994). 92. Ibid., par. 13. 93. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, 36 UN GAOR Supp. (No. 51) at 171, UN Doc. A/36/684 (1981). See particularly Article 2.

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94. Article 19, “Camden Principles,” Article 12.1(i). 95. Article 19, “Towards an Interpretation of Article 20 of the ICCPR: Thresholds for the Prohibition of Incitement to Hatred—Work in Progress,” 7–8, www.ohchr.org/Documents/Issues/Expression/ICCPR/Vienna/CRP7Callamard.pdf. 96. Ibid., 7. 97. Human Rights Committee, Draft General Comment No. 34, Article 19, 2nd Rev. Draft, CCPR/C/GC/34/CRP.3 (June 28, 2010), par. 53. 98. Poland wanted to prohibit advocacy of “exclusiveness” and “contempt” (UN Docs. E/CN.4/SR.377 [October 16, 1953] at 4; E/CN.4/L.269), while the Yugoslav representative felt that the provision “ought to be directed . . . against all propaganda that constituted incitement to hatred and intolerance in every sphere” (UN Doc. E.CN.4/SR.377 at 6). 99. UN Doc. E/2447 (June 6, 1953) at 9. 100. Ibid. 101. UN Doc. E/CN.4/SR.377 (October 16, 1953) at 8 (emphasis added). 102. Ibid., 8–9. The Chilean representative found these remarks on “objective” versus “subjective” notions “a very interesting problem,” yet he wondered “what would be the opinion of lawyers on that point” (13). 103. UN Doc. A/C.3/SR.1079 (October 20, 1961), par. 22. 104. UN Doc. A/C.3/SR.1080 (October 23, 1961), par. 20. 105. Nowak, UN Covenant on Civil and Political Rights, 475. 106. Nazila Ghanea, “Expression and Hate Speech in the ICCPR: Compatible or Clashing?,” Religion and Human Rights 5 (2010): 175; Robert Post, “Religion and Freedom of Speech: Portraits of Muhammad,” Constellations 14 (2007): 83. 107. Jahangir and Diène, “Incitement to Racial and Religious Hatred and the Promotion of Tolerance,” UN Doc. A/HRC/2/3 (September 20, 2006). 108. Ibid., par. 47 (emphasis added). Jahangir prepared pars. 22–50 of this chapter, “Defamation of Religion and the Right to Freedom of Religion or Belief.” 109. Human Rights Committee, General Comment No. 34, par. 48: “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant.”

Afterword Blasphemy beyond Modernism david nash

When I commenced work on the history of blasphemy in 1992, it was a comparative backwater—largely forgotten, unstudied, and still less understood. As such, personal interest (and a lingering legacy of initial historical work on the Victorian secularist movement in Britain) spurred me on in what was lonely and, at this stage, arguably unpromising territory. The confluence of three partially related factors substantially caused this neglect. First, the legal community had every reason to believe that it had done its civilizing business to find ways of liberating and enfranchising all in the developed and democratic world. Moreover, the quest in the 1960s, 1970s, and 1980s for the extension of rights and cultural identities had focused almost exclusively on race and gender. Legislation equalizing employment rights and more progressive recognition that groups of citizens had been denied rights to live and express identity became intertwined features of a political and cultural project in the West. Second, the implication of this progressive stance was to see religion as, in some senses, a primitive, antimodern obstacle and stumbling block to the more modern aspiration of the achievement of rights and identities for all. In modernist parlance, it had seemingly justified slavery, been at least partly responsible for the especially slow emancipation of women, and retarded the advance of social justice. From the perspective of the late twentieth century, which enthusiastically embraced the apparent truism of secularization, religion was a quasiembarrassing part of our colonial, patriarchal, and pre-Enlightenment 315

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past. In short, religion was unwelcome and thought of as an anachronism when held up to the promise of our secular futures, assured by modernity. Third, historical studies included developments in social and economic (and even cultural) history which plotted teleologies and chronological pathways that served to marginalize arguments that saw religion as in any way instrumental or influential. The distance traveled since in the West since the early 1990s (which really does seem something of a dim and distant past) is evidenced by the vast plethora of work that has more recently made religion, religious toleration, and the history of religious strife utterly central to what we now think of as the culture we have beyond modernism. It is salutary indeed to discover from a major British publisher that the consumption of books in all disciplines is in a degree of recession—with the one exception of religion and religious studies, which is witnessing a modest (yet significant) year-on-year increase. Christopher S. Grenda’s chapter 1 gives us a useful and detailed history of philosophies for tolerance—at least as it was theorized on both sides of the Atlantic before 1800. In doing this, he notes how satire has an ongoing imperative that can be driven by short-lived reactions to events and by dynamics such as outrage, ridicule, and visible manifestations of identity such as class. Within his chapter the underlying history of manners is a subtext. The anticlerical Ralph Wallis, whose writings ridicule high church office, saw their “pomp” and species of pretension as themselves breaches of decorum and manners. In this, Christianity could come to be considered vulgar and arguably uncouth—an accusation that later emanated from Thomas Paine, G. W. Foote, and Abner Kneeland in different nineteenth-century blasphemy episodes. The concept of manners, however, was equally prominent in making tolerance appear credible. Equating the latter with desirable behavior was a useful stance that protected its overarching integrity and provided a cultural and practical defense against intellectual and physical assault. Toleration as an ideal was powerful and later proved effective and malleable in the hands of England’s creator of modern secularism, George Jacob Holyoake. As Grenda also notes, it established limits to state power that look, rightly, like the foundations of a modern liberalism that Mill would recognize. As Grenda says, “the self [became] an expressive agent of moral discernment.” In a different way this was also fostered by the deist position, which again identified the link between beliefs and situations rather than people as anathema and clearly to be avoided. It was

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institutions that promoted the idea of sin, which could be unfavorably juxtaposed to the individual’s “moral striving.” Commentators such as Daniel Defoe likewise focused on the want of manners that the failure to ensure tolerance provoked and were prepared to stick their necks out to demonstrate this uncomfortable fact. As Grenda also shows, Shaftesbury took this further, linking the philosophy of toleration intrinsically with the concept of politeness. This took tolerance beyond an aspiration and made it a tool of socialization, arguably one with still wider goals. As noble and apparently unimpeachable though this was, Grenda also reminds us that some spotted the ability that mere wit had to create disorder. This capacity for subversion had entered the busy mind of David Hume. The arrival of commentators like Paine altered the cultural landscape of this debate with the introduction of a greater emphasis on plain speaking and the underlying class critique that went with this. Paine’s critiques were more forthright and less polished than his deist intellectual ancestors’, and they certainly led others, such as Richard Carlile, further into this territory. Christianity was henceforth to be actively denounced rather than chided and gently shamed. In some sense, this set the pattern for blasphemy to go beyond acceptable criticism by expressing profanity, crudity, and salaciousness, which would be remembered and provoke reaction. Into modern times, such blasphemy retained a higher profile than sober, but no less heartfelt, criticism of Christian doctrines and their apparent amorality. Jacques Berlinerblau’s construction of the “profanity loop” contains a survey of growing elements of tolerance that characterized the middle of the twentieth century (see chapter 2). The optimism pervading this ideology of tolerance is scarcely unique and has many counterparts in many Western countries—indeed, Berlinerblau creates a minipantheon of questionable works and authors that could now evade the modern censor (James Joyce, D. H. Lawrence, Henry Miller, Vladimir Nabokov, and Allen Ginsberg). The liberal histories of such nations (and their individual pantheons) view the freedom of the artist as a social and cultural good. However, Berlinerblau’s assessment of Philip Roth goes beyond this liberal moment to provide us with an example of what an artist does in a society and culture that have become permissive. Exploring these moments after permissive paradise gives us an important insight into the artistic process. One issue that remained pertinent to Roth’s work, especially in the American context, was the fog around decision making in relation to

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censorship. While Berlinerblau is right to assert that a series of court decisions expanded and enhanced the impact of the First Amendment’s free speech clause, this scarcely unraveled the urge and will to censor. Still, as he suggests, the state was less closely involved than experts in judging literary fiction. But while the testimony of such individuals may have carried the day in courtrooms, it reinforced in the public mind the difference between national and local standards of decency. Arguably the law, the experts it consulted, and its final decisions polarized opinion around what was acceptable and unacceptable. This also served to feed the cultural politics that saw the national as amoral and cosmopolitan while viewing the local as sympathetic and in tune with the community—an understanding we have encountered throughout this collection more than once. This perhaps provides an answer to Berlinerblau’s question “How do we theorize the relation between the profane and the profaner in such liberal conditions?” As he notes, “ the obscene’ is what a given individual, community, or society claims to be obscene (the law, the final authority in such matters, may or may not concur).” Communities, both local and national, condition progress and make transitory apparent victories and defeats. Although Burstyn v. Wilson (1952) made prosecution for sacrilege unconstitutional in the United States, this did not stop lawyers and their clients from finding other avenues with which to explore the status of the offended.1 The repeal of the law in England that commences this book further emphasizes this issue. After blasphemous libel ceased to be an offense, an art gallery in Newcastle explored the alternative power of obscenity as a way of proscribing blasphemous content. In such circumstances, Berlinerblau’s chapter highlights, more than most, how profaner and profaned remain locked in a symbiotic relationship. While close together, the creation of offense and the response to it are ironically about distance and ways of maintaining it. Roth was obviously dissident as he also became parasitic on the culture he criticized. Those who in turn criticized him pulled together and reinvigorated idealized cultural concepts of what makes a culture viable and liable for reverence—a process that conservatives in many countries and historical contexts expect their cultural spokespeople to do. For all their powerful media of communication and information, the societies of the twentieth (and perhaps twenty-first) century rely on spokespeople who are empowered by the silence of others. Invoking and acting on behalf of silent majorities has a long history, and its systematic study over space and time would be an especially valuable project that could ultimately flow from this book.

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Some parts of Berlinerblau’s chapter provide a useful reminder that offense around issues associated with religion, gender, and race has a concrete existence, with real effects. When I commenced my work in the early 1990s, I occasionally encountered literary scholars who would tell me that I was, arguably, interested in the issue not of blasphemy but of transgression. In saying this they would emphasize the inherent playfulness of many literary constructions and how these should be revered for their internal, self-referential effectiveness. Such an outlook (and the process that it advocates) was difficult for me, as a historian, since it made such works exist solely in a vacuum, without context. But the anecdote is a useful reminder to me that Berlinerblau’s chapter uncovers and foregrounds a defense I have never thought to use—namely, that transgression relies on its context to be effective. Studying merely its apparent intelligence and accomplishments does not profoundly add to understanding its effects or importance. In this, the conception of the profanity loop becomes powerful and useful—precisely because it warns against isolated and isolationist readings of transgressive literary texts. Transgression is not a stance but feeds off the culture it transgresses and the reaction it garners from reading and viewing publics. This becomes evident in Roth’s contemplation of the “anti-Roth” reader he brings to mind when concocting an especially explicit or offensive anecdote and in precisely how this reader’s (imagined) response functions as a species of encouragement. We would also do well to consider Berlinerblau’s depiction of a more liberal moment in American culture, since it warns that liberalization is neither an unstoppable nor an irreversible process. Removing liberalization as an idea also opens our minds to considering blasphemous and profane works in a different light. Because such works offend authority, observers too readily consider this authority a norm that is transgressed. Investigating the works and thoughts of transgressors reveals their objections to real ideas, norms, and concepts, not simply pleasure in transgression. In Roth’s literary world, to transgress was to conduct an assault on “pastoral,” “hypocritical, shallow, artificial, and patently false conceptions of life.” This is where the artist has a link with the religious or political activist, who manifestly sees certain beliefs, and their upholding, as abhorrent. Thus those of us who seek to analyze profanity and blasphemy should never cease the search for motive and reason. Roth may deal with outrage “in the way that a sculptor deals with clay,” but we must never lose sight of the fact that discontent with the way civilization is provides the inspiration, or clay, to work with. As

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such, much raw material, or clay, is evidence to the artist or activist—a focus on its molding reinforces for us that blasphemy and profanity will always remain two-way processes. It is equally important to remember, as Berlinerblau has done, that such two-way processes can produce considerable energy and “can have aesthetically significant results.” In the context of the renewed and increasing interest in religion mentioned above, David Lawton’s excellent chapter 3 reminds us how important it is that informed and experienced scholars do more than simply catalogue profane and blasphemous events. Such events need to be read more effectively, unpacked and thought about—but most of all felt by members of modern societies, something of an onerous task given the ideological context described above. As such, Lawton’s chapter continues the valuable and interesting work that he commenced in his book Blasphemy (Philadelphia: University of Pennsylvania Press, 1993). Although some critics (myself included) didn’t realize it at the time, one needs to read this book alongside histories instead of imagining that it can replace them. As Lawton said, textual reading of events is a valuable counterpoint to endless attempts simply to place them in context. As such, he performs a valuable service in forwarding the argument that understanding the meanings of profane and blasphemous events can come only from being caught up in the feelings they provoke rather than being a mere spectator. Where the 1993 volume concentrates a great deal on texts, his chapter here notes the renewed primacy of the image and the constraints this places on those using it as a form of expression in the digital age. Following issues of personal reaction to the image, Lawton allows the understanding of blasphemy to wax and wane around definitions of offense and community. As he says, “community, even more than religion, is at blasphemy’s core.” Part of what is being said here is that blasphemy is a tool for demanding the participation of individuals in the work of art. Lawton’s analysis of Myra, HIM, and other works focuses on the fact that they actively and stridently demand a reaction from their audience. Such works, as Lawton invokes them, challenge or force audiences to rethink their conception of such things as evil, hate, belief, and religion. Thus, in a world where law and tolerance had drawn religious belief down to the realm of the personal, such works were an opening up of public space in which these issues might once again become publicly discursive and debated. Again this makes us think of how far medieval and early modern images were consumed and persuades us to speculate still further about a new culture dominated by

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the image. Text potentially no longer shapes thought; it is the image that is now the enduring aide-mémoire of hope, aspiration, and the speculations that medieval and early modern people must have made. From here it becomes still less possible to accept the assertion that unbelief was impossible before the dawn of the Enlightenment, as some have claimed. Lawton’s chapter also reminds us that religion has always provided the vocabulary (whether textual or visual) for thinking about states of being (even atheism), and he steers us now to a conclusion that it offers the most succinct and symbolically powerful vocabulary we possess for considering the claims of community. All this points to blasphemy having a vital role to play in the wider world. Because it is controversial, it sparks interest and transmits other, otherwise neglected messages alongside its perceived offensiveness and capacity for attention-grabbing headlines. Because the modern instances of blasphemy that Lawton describes emerge as a conglomeration of signs, symbols, and messages, they too, it should be noted, have the capacity to distort and shape culture anew. It is this cultural purpose that, arguably, persuades Lawton to assert the necessity of blasphemy’s imbuing those who undertake it with “a moral—and, one would hope, legal—right to be heard and defended.” But like some other rights, these come with conditions, and such individuals have to know the culture they are speaking about, have to have lived it and earned the right to be critical of it. This criticism becomes multiedged when it is placed adjacent to the many contexts and cultural transitions that some incidents and events unpack. Salman Rushdie, as a postcolonial interloper in two cultures, and Theo van Gogh’s interaction with the work of Ayaan Hirsi Ali provide stark evidence that identity politics is at the root of Lawton’s conception of recent blasphemy incidents. These incidents are about conflict, but again, as the chapter usefully reminds us, they are also about the unease lying close to the surface of communities that write their own history without being prepared to face their own night terrors. One section of Lawton’s chapter is titled “Blasphemy Disenchanted?” In it, disenchantment is a motif for describing the inevitability of theocratic societies and their dramatically enhanced vulnerability. While this may partly explain the proximity of forms of fundamentalism to claims and accusations of blasphemy, it perhaps also awakens us to another possible explanation of the term disenchantment. Where the triumphant secularization I described above sought to carry all before it, the recasting, refashioning, and renewed credibility of blasphemy still speak to us

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of a passing modernization moment. Religious sensibilities have persuaded the West to legislate and protect things it once thought primitive and anachronistic. As such, quietly but with a growing crescendo, blasphemy and its credible reconstruction have succeeded in producing a strong and convincing dialogue about the widespread disenchantment with modernism. Liberal assumptions about tolerance and the reliance on the forbearance of the citizen were questioned as they became arguably less tenable. Blasphemy was the one crime associated with species of violence that bucked the trend that Norbert Elias and his “civilising process” had outlined for histories of violence.2 In this Elias suggested that the state became progressively more interested in regulating and prescribing violence through ever more sophisticated laws and mechanisms of punishment and reformation. Blasphemy’s history contradicted this as liberal states did all they could to withdraw from direct regulation—leaving litigation to individual outraged citizens, who had to prove their offense in an uphill struggle against the liberalizing and modernizing tendencies already mentioned. Thus the civilizing process emerged as one strand of a broad modernist project that also included secularization as an ally and partner ideology. Disenchanted modernism saw blasphemy as a lingering flaw that would pull states back into a legislative relationship with what people held sacred. As such, the comparative willingness of Western democracies to permit litigation (in the guise of either blasphemy or hate crime prosecution) and the closure of the discursive clearly may not provide the optimistic outlook for the speech discussion and exploration that Lawton sees as utterly essential to blasphemy’s role in religious (and otherwise) communities. The danger is that we will be left with his conception of “postblasphemy,” in which everybody is capable of reaching for offense but is increasingly less sure of its provenance or why they are offended. This is part of the concern when cultures and legal systems claim to protect the feelings of others rather than more concrete belief systems. It is also evident in unfocused and perhaps emotional attachments to blasphemy as an idea where the movement to incitement laws occurs alongside a desire to retain some semblance of the previous offense. The protection of feelings—which have potentially ephemeral connotations and are harder for us to define, consider credible, or police—is an elision from religion. All who are in the business of communicating about religion, in whatever form, should ensure that such arguments are treated seriously. This protection could threaten literature and communication itself as we move to a literalist and instan-

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taneous culture—as we move, that is, to a world stripped of allegory, metaphor, and cultural references, where the supposed literal meaning is triumphant. Ironically, this is occurring when the technological tools for greater and deeper reflection exist for all to use. Paul Finkelman’s examination in chapter 4 of the Abner Kneeland case reminds us of the fact that judicial authority has not always been careful or scrupulous in its application of the law. Kneeland’s case is also probably one of the first modern instances when defendants benefited from the support of the intellectual community. This was also evident in the Foote case in England in the early 1880s and became widespread after that.3 Kneeland’s precise attacks on Christianity also remind us of the flippant nature of blasphemous utterance in the West—contrasting with the incidents that Moosa describes. Kneeland and his blasphemy also demonstrate how this threat could be absorbed by the perception of other social threats, with which it was conflated. The connection with family limitation via birth control was important here and was replayed and rehearsed in Britain and America until well into the twentieth century. Likewise, some of the details remind us that critics of religion had similar things to say on both sides of the Atlantic. The perception that his crime was somehow to deny salvation to others also echoed Tory responses to Jacobinism in England. This particular phenomenon might prompt us to consider how far the crime of any blasphemer is the witting or unwitting creation of its audience. Attention to the audience makes religious issues discursive, and as Finkelman states, “In our time, freedom of religion includes the right to denounce or mock the practices of other faiths.” Kneeland’s libertarian views on human relationships, as seen in his “Marriage Catechism,” closely mirrored the ideas that Carlile and his circle expressed in England. While we can draw parallels, it is equally true that some forms of social radicalism have their own context—in particular, Kneeland’s assertion of the benefits and rights associated with interracial marriage belongs to its time and place. Likewise, some pronouncements associated with such cases can also introduce elements that later become important elsewhere. The discussion in this pronouncement on the legacy of English common law of how Kneeland’s crime was associated very much with manner predates by approximately fifty years a similar reaction that occurred in England (in the final pronouncement on the law associated with the Foote case). The Kneeland case was also about protecting religious opinion in a recognizably modern way, since “the prosecution was not designed to protect

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either an established church from a theological schism or a confessional state from a challenge to its religious ideology.” Nonetheless, as Finkelman suggests, the authorities learned their lesson about rash and illconsidered prosecution, as they would again in late nineteenth- and early twentieth-century episodes. Robert A. Yelle’s chapter 5 is informative about the failure of notions of blasphemy and apostasy to disappear with the alleged coming of the secular. In particular, he notes how the twin notions of secularization and the secular constitute a mistaken triumphalist species of judgment that attaches the pejorative to the categories of blasphemy and apostasy. He also notes that this narrative had a historically significant existence, since modernity served to profane, by definition, all that was sacred, culminating in Karl Marx’s sneer that the creation of commodity fetishism was one of capital’s chief functions in modernity.4 Yelle also makes an important point in his suggestion that the encouragement and creation of profanity in so many Western rituals and structures surely argues against the discordant assumption that reverence was the norm in past (perhaps overly idealized) societies. As he also states, the Reformation’s introduction of a Protestantism that “posits the autonomy of the subject from the sign” problematized the image. It follows, as he suggests, that we should ask whether images were more important for those who revered them or those who destroyed them. Likewise, a commensurate growth in the scrutiny of verbal forms of expression enhanced speech and its power. The sincerity of speech was debated, and even in the same location and historical context, precise responses to its nature could be different.5 Yelle’s characterization of criticism and lampoon as agents of disenchantment has interesting implications because it posits the power of religious images to reenchant. As such, this criticism also relates to many postmodern conceptions of the religious that see its role as an express attempt to reenchant and, perhaps more important, to disenchant whatever passes for being saved in the secular world. As Yelle notes, there is a totemic tokenism that still inhabits the secular world, with reverence or respect given to inanimate objects invested with meaning and authority that should not be transgressed or usurped. A liberal secular society that maintains such ritualized protection quickly runs into its perennial dilemma of protecting individuals while fostering the conception of generalized freedom. Victims in such circumstances, as Yelle notes, also become totems, invested with everything from good wishes to rash, ungrounded assumptions.

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Ebrahim Moosa gives us important insights into Muslim political theology and a nuanced analysis of Muslim debates about religious authority and its connection with the state. In particular, his chapter 6 reminds us of the different thought processes that are at work in different approaches to blasphemy as a threat. There are important things said here that remind us that the debate has been ongoing for some time and that seeking to analyze the consequences of individual incidents may not be giving us the whole picture. Very quickly our polarization of sacred and secular tendencies is shown to be simplistic, as is any sense of Islam as a monolithic religion. As with Christianity, Moosa argues, debates about Islam involve issues of politics, authority, and the urge to establish legitimacy. This authority is not always directly connected with religion, and the chapter points out a number of incidents in which accusations of blasphemy have merely been attempts to silence criticism. Although he alludes to incidents outside Europe, Moosa is also critical of the context of some European blasphemy cases. In this he notes how criticism of Islam has gone beyond criticism of religion to embrace concerns about immigration and how freedom of speech has sometimes been merely a one-way street, with Western values designated for special protection. Islamic conceptions of theology and politics have involved a process, which occurred over a considerable period of time, in which the state increasingly reflected the reverence and belief that the individual offers to God. It is interesting to note that this is the reverse of what happened in the Christian West, where religious belief embodied in the state diffused and devolved to individuals. This clear difference may explain much of the conflict between the two belief systems over issues such as blasphemy. Whether the Western Enlightenment has enshrined the idea of freedom, political developments in Islam were “committed to advancing the common welfare that was also in part related to the order of salvation.” Connected with this were interpretations of the Prophet’s nature that envisaged a vibrant political role alongside an ability to be “the teacher of the transcendent good and wisdom.” This mingling of the political and the religious and their inseparability were important factors in the perception of certain expressions as blasphemous. While what Moosa has described here seems at first sight to suggest homogeneity among Muslim societies, an important section of his chapter describes conflicting views on the nature of the religious and political establishment of Islam as a belief system. What follows is an interesting elaboration on

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scholarly discussions about whether contemporary instrumentality or transcendent values should predominate, and it is interesting to speculate on whether such a discussion might be turned to look at aspects of Christian attitudes to governance. Once again we find blasphemy used readily as an accusation against opponents, and obviously this takes the issue beyond the discursive and into the realm of political offense. Likewise, there is equally not an obvious sense of satire or lampoon, which inhabits post-Enlightenment critiques of the Christian religion. Moosa notes that satire is considered to go beyond criticism, so thus it far more readily constitutes an offense within Islamic conceptions of religion. Toward the end of Moosa’s chapter there are various descriptions of Islamic scholars who are seeking “a more tolerant and realistic face of Islamic teachings,” in Moosa’s words, to make them “relevant to the contemporary world.” While we will all concur that such discussions are valuable, Moosa also notes that there remains a sense of “indebtedness to God,” which will not be outflanked or transcended through simple ideas and processes. Related to this is Moosa’s analysis of the perhaps understandably ambivalent responses of the modernist Muammad Iqbal. While Iqbal craved an urgent renewal of conciliatory Islamic approaches to the West, he still could never escape his antipathy to long-standing colonial tropes and manifestations of cultural assumption and power. Ron E. Hassner’s chapter 7 gives an excellent exposition of responses to the Jyllands-Posten Danish cartoons affair. Hassner produces useful evidence that generalizations cannot be drawn about Islamic political systems or their propensity to produce specific reactions. He powerfully dissects arguments about politics, religious outrage, and moral threat, noting a number of their limitations. Instead he suggests that context is important, as are less tangible modes of political expression, such as suspicion, rumor, and scarcely focused hostility. Nonetheless, Hassner feels confident that he has found a useful combination of these theories and, foregrounding the idea of “moral threat,” undermines some of the assumptions that Western critics have made about Islam. His moral threat argument, he suggests, may also be useful in predicting violent tendencies in nonreligious forms of expression. Certainly, as a historian, I am struck that the concept of moral threat that particular political and cultural circumstances trigger may have considerable mileage. The focus on the application of attention to religious detail, or Clifford Geertz–inspired “thick religion,” is something that historians have been doing for a while, with varying degrees of suc-

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cess. Taking this methodology back into the past may help with analyzing the outbreak of some blasphemy prosecutions, if not always explaining their trajectory or conclusion. Asma T. Uddin’s exploratory and wise commentary in chapter 8 on the recent Indonesian Blasphemy Act provides an important and salutary lesson to activists and legal scholars alike. While all situations have their own dynamics and context, it is clearly possible to see echoes in this case of past struggles, victories, and defeats. The first thing that is evident is the fundamental problem of governments that seek to define religious orthodoxy and dissent and that place each of these categories on either side of the line defining their legality. As such, the law regulating precisely the nature of religions to be tolerated undermines the intention of creating religious freedom and religious protection. The finality and the inflexibility of the law further demonstrate that our legislating for religious identity has little chance of keeping up with changes in belief and the nature of society. Thus an apparently moderate country that prides itself on its “religious plurality” and “inclusive culture” has placed itself in the position of excluding peaceable religious worshipers from the protection of the law. However, the creation of this law and the political circumstances surrounding it remind us of past occasions when blasphemy, as both an internal and an external threat, was an extremely useful enemy to legislate against. Medieval societies saw campaigns against blasphemers as central to maintaining God’s favor for individual monarchs or states. Likewise, early modern societies believed ensuring that action was taken against blasphemers would protect them from plague, invasion, or collapse. Indonesia, though, initially conceived of its law as a method of creating an inclusive national unity. This law ostensibly had no precedent, supportive case law, or lineage and in this respect resembled a later law in the Republic of Ireland that the Indonesian law later drew analogies with.6 Once again there is a comparison to be made, since both laws arguably were capable of placing restrictions on orthodox religious practices and statements. Immediately after the construction of Ireland’s law, the organization Atheist Ireland graphically demonstrated that many orthodox Christian religious pronouncements could be caught in its web. Once again we might conceive of another similarity, whereby those whom the law protects are given what Uddin describes as hegemony over religious minorities that might also be described as opponents or competitors. Both nations have appropriated the language of human rights to construct laws that limit freedom of religion and expression.

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As such, it would pay many of us to debate and observe whether decisions like this demonstrate the further eclipse of liberal democratic states via their inability to trust the function of their public spheres. The Indonesian case also reminds us of how far religion, in its strength and cohesiveness, is seen as an adjunct to a similarly conceived cohesive and coherent national state. Thus it is possible for such laws to move beyond individual speech acts and actions to instigate prior restraint on religious dissidence. As Uddin suggests, this prior restraint protects an individual’s right not to be offended, placing the onus entirely on the speaker or producer of utterance. Any language about religion can be caught in this particular web. This is in stark contrast to the progress of laws about profanity and blasphemy in the West, especially Europe. In these countries (e.g., Germany and France until the end of the twentieth century), individuals were responsible for ensuring that they were not offended. European cultures demanded that they observe, read, and act on warnings that those producing potentially offensive material gave them. This is perhaps one crucial difference between the slightly older, end-of-the-twentieth-century approach to law and the new use of hybridized human rights language and ideas recast as forms of protection. Movement in the latter direction enshrines the sanctity of the state at the profound expense of “pluralist values and respect for different faiths.” Moreover, human rights approaches far too readily argue that the needs of the state trump the needs of the individual group, or indeed of democracy itself. We might also lament the fact that signing international agreements and imposing external standards of justice had only a limited impact on the actions of certain nations in this particular circumstance. Paradoxically, religious societies such as Ireland and Indonesia, which should thrive in a culture of religious debate, have implemented laws that curtail such debate—condemning the religious and the nonreligious to a public sphere that excludes their questions. Elizabeth Burns Coleman’s chapter 9 is interesting and productive from a great number of perspectives. First, it is a valuable inventory of what we, in the twenty-first century, have discovered to be the destination of a number of Enlightenment-inspired projects. The Enlightenment focused on individual rights, discovering and assimilating knowledge about the world and about tolerance for the beliefs and lifestyles of others. Alongside this was a growing belief in the transcendent power of empirical and rational knowledge. Very quickly the incompatibility of the latter with issues of rights and tolerance around religious beliefs became apparent. While all of these emphases may have origi-

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nated in Europe, it was soon necessary that they be brought to bear in a colonial and eventually ex-colonial context. Coleman’s chapter outlines the current state of affairs around Aboriginal (potentially) sacred artifacts—in this case the didgeridoo and who has legitimate access to it. In this she uncovers a striving to address the agenda of political correctness—itself arguably a clear outcome of the Enlightenment agendas of equality and tolerance. Yet there is also clear evidence of the slumbering tension that indicts such attitudes for bringing with them species of condescension. This episode really demonstrates that it can be difficult to surrender the apparent inbuilt intellectual superiority of Western liberalism. It is difficult to make the whole issue of tolerance feel shared rather than gracefully, and most likely condescendingly, extended by a superior culture. The direct connection with blasphemy here comes from Coleman’s investigation of the ideas of Peter Jones and his arguments centering around the Rushdie affair and his creative use of John Stuart Mill’s “harm principle.” Essentially, Jones concludes that entertaining respect for the beliefs of others may not compromise imperatives for the maintenance of free speech. In rehearsing and analyzing this set of ideas, Coleman takes us through many of the philosophical pitfalls that have regularly attended this particular problem. As she argues, freedom of expression is under threat if a society is forced to concede the rule of law to the wishes of its most extreme groups. Likewise, empowering the individual, as the Enlightenment was supposed to do, introduces once again the concept of self-policing, in which individuals self-censor and regulate their exposure to potentially offensive material. Coleman equally notes that the public sphere may confer a legitimate power on individuals who seek to be offended easily, “with very little reason.” A corollary of this suggestion appears in her analysis of Jones’s argument around the idea of true beliefs. These are essentially seen as evidence of a quid pro quo, for “if we are serious about wanting to possess true beliefs, and presumably anyone who professes a ‘belief’ must be concerned that it is a true belief, we must be willing to live in a society in which all beliefs are open to question and none is immune from scrutiny.”7 Likewise, the role of the liberal state is to protect, but equally how can it “require us to treat all beliefs as equal,” since “beliefs both overlap and contradict”? There is also within this critique a noteworthy distance from orthodox multiculturalist positions. As Jones suggests, the multiculturalist touchstone of diversity as an intrinsic social good can often feel somewhat devoid of context, since it serves to

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“freeze beliefs in a social museum, reducing them to mere objects of curiosity.”8 Likewise, an important conclusion that Coleman reaches is that there is a great temptation to practice a form of tolerance by silence, maintaining the universal tolerance of beliefs only through the withholding of opinion in a fairly rigorous self-censorship. However, there is an extremely interesting dimension that becomes evident in viewing Coleman’s argument through the eyes of a historian. The conclusions of her chapter perhaps deserve to be placed alongside some of the implications of Lawton’s chapter, in particular the disenchantment of modernism. Certainly the latter process might sit comfortably alongside the inherent problems that Coleman outlines. However, there is another interesting theme that emerges from attempts to historicize what Coleman has told us. She reminds us that this negotiation between the “modern” and the “primitive” (with all the judgmental and pejorative baggage that goes with these terms) has never been resolved and arguably cannot be resolved. This sheds interesting light on previous teleological theories that traced the coming of civilized humankind as an unequivocal truism and shaped Western and henceforth global society. We encounter one such teleology in the work of Norbert Elias, where he portrays increased levels of interdependence as the essential element of modern life that makes us cooperate with one another. Moreover, such interdependence allegedly taught us how to manage our interactions and henceforth enjoy our lives as benevolent and happy citizens of the modern globalized world.9 The interactions that Coleman depicts, however, indicate that this process is scarcely at an end and will readily encounter obstacles in its attempts to smooth over the differences that threaten the security that interdependence provides. Coleman’s chapter also points to the wider and deeper history of politeness. It is especially noteworthy that she relies on the words polite and politeness. An adjunct to Elias and his civilizing process is a later history of politeness. Certainly in England this historiography was linked to the eighteenth century and was used to demonstrate a modernization of human relationships. In particular, the “coming of politeness” was seen as instrumental in altering expectations within marriage and the family unit. Importantly, a number of historians saw politeness as a crucial contributory factor to the removal of strife, conflict, and violence from marriage and family interactions. The development of codes of behavior served to marginalize those who transgressed them— in particular, from the eighteenth century onward, husbands who were violent toward their wives found themselves ostracized from polite soci-

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ety, even those on whom it had previously conferred forms of social and cultural status.10 Again, when Coleman highlights for us nonindigenous Australians’ “fear of being seen as a colonialist or a racist,” we can conceivably see this process still at work. As much of blasphemy’s history reminds us, many social processes and their historiographies, previously seen as complete, have been either long neglected through scholarly complacency or resurrected by a changed context and an unconscious revisiting of previous circumstances. Politeness and its implications also appear central to arguments in Coleman’s reiteration of Alan Howarth’s recognition of “the consequentialist nature of the harm” of offense. In the further assertion that “to offend someone is to do something bad to them, something hurtful, disrespectful, or insulting,” there is also the essence of the politeness debate. This assumes a very developed sense of self-censorship and policing. It presupposes that individuals know enough about their interactions to employ the machinery of politeness—thus evading and avoiding contentious issues that will provoke feelings of offense in others. In this context it is especially interesting how many blasphemy laws, to this day, assume that such politeness filters exist in all modern men and women. In this, such laws assume that intention automatically begets the act. Those who transgress have stepped beyond an established Western history of politeness and offense that should be so clear to all that it suggests the act of offense must be deliberate. Again, the absence of this intention, or as lawyers regularly term it, mens rea, has consistently been a criticism of all blasphemy laws—since it is notoriously difficult to establish the intention to offend. This was one reason why such laws occasionally took a step backward (as in, for example, the redrawing of England’s blasphemy law after the Gay News case of 1978; see introduction, note 3), seeking proof of publication and ignoring the opportunity to seek proof of intention to offend. Those who debated the power and truth of the gospels at the start of the twentieth century found themselves prosecuted for public order offenses after haranguing a crowd or answering the objections of hecklers.11 Thus it is salutary for Coleman to tell us at the start of the twentyfirst century that impulse and recklessness equally exist in the public sphere. The Australian parliamentarian Dennis Jensen, as we are reminded, found that he “regretted using the medium of Twitter,” whose online immediacy and inherent brevity constitute a new species of public order problem. Coleman concludes with a request that freedom of expression find a range of “appropriate contexts for debate, not [expect]

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that every idea should be subjected to scrutiny in every situation.” To a historian, this looks like the history of politeness, inspired by the problems that blasphemy and cultural conflict have bequeathed it, which will most likely open a new episode in it. In chapter 10, Jeroen Temperman reminds us of the classic dilemma of democracies—defending rights while protecting the vulnerable. This, he tells us, relates to another classic conception—the free market of ideas. To enable such freedom, he suggests, legal theory is addressing modern needs in distinguishing between unacceptable laws (blasphemy) and more acceptable ones (incitement to religious hatred). A significant part of his argument elaborates on the idea that blasphemy laws are discouraged while laws against incitement to religious hatred may be quite enabling in the longer term. The latter response may also strengthen the hand of the democracies that enact such laws, by ensuring that they punish only “the most heinous forms of incitement to (religious) violence.” Temperman lists a considerable range of opinion, both official and unofficial, that impresses on states the need to remove blasphemy laws. This is followed by similar material advocating high thresholds, which Temperman argues should not be lowered to catch lesser forms of expression. He then seeks to explore the labyrinth of defining hate and how this can inform the high threshold approach, quoting others on levels of irrational emotions, opprobrium, enmity, and detestation. He is right to do this, because in no credible legal code will we ever find that it is illegal to hate! Crucial to this line of thinking is a robust definition of the word incitement. This turns hatred from a thought, perhaps a wish, into an action with consequences. This reinforces, for me as a historian, the fact that we have moved from policing beliefs and opinions to policing deeds and actions. The endorsement by legal authorities of the use of incitement in these laws is also scarcely a surprise, since legal and policing authorities have, since the end of the nineteenth century, been comfortable with the conception of blasphemy and related crimes as a public order issue. They have also felt most empowered when assessing actual risk to individuals and the wider public peace. Nonetheless, as Temperman warns us, vigilance and scrutiny are required to ensure that appropriate tests of offensiveness do not slide into “governmental abuse of incitement laws.” Likewise, such laws should not give in to elevated levels of sensitivity. Temperman rightly contends that assessing incitement is the business of governments and legal authorities, not of offended individuals. Equally he quotes robust opinion from the Commission on Human Rights that governments need

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to be watched closely, since such laws potentially empower them to interfere with free speech. Temperman concludes by asserting that overwhelming opinion is now ranged against countries that operate blasphemy laws. Widespread discredit has come to these countries, but nonetheless, ensuring the removal of such laws is neither a straightforward nor an easy task. Thus, taken together, the contributions to this book produce a range of insights indicating that blasphemy is a fruitful area for the application of a number of methodologies. It is a place where the discipline of history and its conclusions have important things to say to contemporary perceptions. Historical understanding should also inform contemporary analyses of law, and these fields must maintain a symbiotic relationship, to ensure the best possible outcomes for both. The insights from other disciplines, such as literary studies, religious studies, the history and theory of representation, and film studies, add much to the development of blasphemy studies as a subject. There is emphatically more to say, but this collection has taken a major step forward in enabling us to say it.

notes 1. Burstyn v. Wilson 343, U.S. 495 (1952). See also David Nash, Blasphemy in the Christian World: A History (Basingstoke: Palgrave Macmillan, 2007), 177. 2. Norbert Elias, The Civilising Process, ed. Eric Dunning, Johan Goudsblom, and Stephen Mennell, trans. Edmund Jephcott (Oxford: Wiley Blackwell, 2000). 3. For material on the Foote case, see David Nash, Blasphemy in Modern Britain, 1789 to the Present (Aldershot: Ashgate, 1999), ch. 4. For an examination of blasphemy cases in the context of contemporary literary history, see Joss Lutz Marsh, Word Crimes: Blasphemy, Culture and Literature in the Nineteenth Century (Chicago: University of Chicago Press, 1998). 4. Karl Marx and Friedrich Engels, The Communist Manifesto (London, 1848); Marx, Das Kapital, vol. 1 (London, 1867), pt. 1, ch. 1. 5. For a detailed exposition, see Francesca Loetz, Dealings with God: From Blasphemers in Early Modern Zurich to a History of Religiousness (Aldershot: Ashgate, 2009). 6. Blasphemy was illegal under Article 40.6.1.i of the 1937 Irish Constitution but was confirmed and strengthened under Article 36 of the Irish Defamation Act (2009). 7. Peter Jones, “Respecting Beliefs and Rebuking Rushdie,” British Journal of Political Science 20, no. 4 (1990): 427. 8. Ibid., 429.

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9. Elias, Civilising Process. 10. See, for example, Elizabeth Foyster, “Creating a Veil of Silence? Politeness and Marital Violence in the English Household,” Transactions of the Royal Historical Society, 6th ser., 12 (December 2002): 395–415. 11. See Nash, Blasphemy in Modern Britain, ch. 5.

Contributors

chris beneke is an associate professor of history at Bentley University. He is the author of Beyond Toleration: The Religious Origins of American Pluralism (2006) and the coeditor, with Christopher S. Grenda, of The First Prejudice: Religious Tolerance and Intolerance in Early America (2011). jacques berlinerblau is an associate professor of Jewish civilization at Georgetown University. He is the author of five books, the most recent of which have attempted to make sense of the confusing and confused concept of secularism. He also writes on and teaches about Jewish American literature and serves as an editor of the scholarly journal Philip Roth Studies. elizabeth burns coleman is a lecturer in communications and media studies at Monash University, where she lectures on freedom of communication and communication ethics. She has written numerous chapters and journal articles on blasphemy and the negotiation of the sacred and has coedited four books on this theme, Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society (2006), Negotiating the Sacred II: Blasphemy and Sacrilege in the Arts (2008), Religion, Medicine and the Body (2009), and Religious Tolerance, Education and the Curriculum (2011). paul finkelman, the President William McKinley Distinguished Professor of Law at Albany Law School, is the author of more than 150 scholarly articles and more than 35 books, including An Imperfect Union (1981), March of Liberty (2012), and Slavery and the Founders (3rd ed., 2014). He was the chief expert witness in the lawsuit over the constitutionality of the Alabama Ten Commandments Monument, and the U.S. Supreme Court and numerous other courts have cited his scholarship on legal and constitutional history. He has published op-eds in the New York Times, the Washington Post, the Baltimore Sun, USA Today, the Huffington Post, and the Root.

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Contributors

christopher s. grenda is a professor of history at Bronx Community College of the City University of New York. He is the coeditor, along with Chris Beneke, of The First Prejudice: Religious Tolerance and Intolerance in Early America (2011). His work has also appeared in the Journal of Church and State, the Journal of Law and Religion, and Politics and Religion. ron e. hassner is an associate professor of political science at the University of California, Berkeley, and the codirector of its Religion, Politics, and Globalization Program. He studies the role of symbols and ideas in international security, with particular attention to the relationship between religion and conflict. He is the editor of Religion in the Military Worldwide (2013), a collection of essays on religious practices in contemporary professional armed forces, and War on Sacred Grounds (2009), an analysis of the causes and characteristics of disputes over sacred places around the globe and the conditions under which these conflicts can be managed. david lawton is a professor of English at Washington University in St. Louis. His works include Faith, Text, and History: The Bible in English (1991), Blasphemy (1993), and Public Interiorities: Voice in Later Medieval English Literature (2009). He is currently working on The Norton Chaucer: Complete Works. He has published many articles in English literary and cultural studies and in medieval studies and is a founding coeditor of the journal New Medieval Literatures. He has taught at the University of Sydney, the University of Tasmania, the University of East Anglia, and the University of Oxford. ebrahim moosa is a professor of religion and Islamic studies in the Department of Religion at Duke University. His work includes Ghazali and the Poetics of Imagination (2005), named the Best First Book in the History of Religions by the American Academy of Religion, and What Is a Madrasa? Practices and Politics of Salvation in Contemporary Islam (forthcoming). He coedited Islam in the Modern World (2014) and Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-colonial Challenges (2010). He is also the editor of the last manuscript of the late Professor Fazlur Rahman, Revival and Reform in Islam: A Study of Islamic Fundamentalism (2000). david nash is a professor of history at Oxford Brookes University. He has written two books (Blasphemy in Modern Britain [1999] and Blasphemy in the Christian World [2007]) and a number of articles on the subject of blasphemy. He has also given advice on blasphemy in the contemporary world to members of the British, Australian, and Irish governments and to the United Nations. jeroen temperman is an associate professor of public international law at the Erasmus University Rotterdam and the editor in chief of Religion and Human Rights: An International Journal. He has (co)authored and edited several books on international human rights law, including State-Religion Relationships and Human Rights Law (2010); Human Rights, coauthored with Kristin Henrard (2011); a book on socioeconomic rights in the European Union coauthored with Rob Buitenweg and Kathalijne Buitenweg (forthcoming); and The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (2012).

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asma t. uddin is legal counsel at the Becket Fund for Religious Liberty. She is also the founder and editor in chief of the web magazine Altmuslimah, which explores topics in gender and Islam. In her Becket Fund and Altmuslimah capacities, Uddin has spoken nationally and internationally. Most recently, she convened a working group on free speech and religious freedom at the 2013 U.S.-Islamic World Forum in Doha, Qatar. robert a. yelle is an associate professor of history at the University of Memphis and, in 2013–14, the joint Tikvah / Senior Emile Noël Fellow at the Tikvah Center for Law and Jewish Civilization and the Jean Monnet Center for International and Regional Economic Law and Justice at New York University School of Law. A former Guggenheim Fellow, Yelle is the author of Explaining Mantras (2003), The Language of Disenchantment (2013), and Semiotics of Religion (2013) and a coeditor of After Secular Law (2011).

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Index

Aan, Alexander, 224 Aboriginal Australians: beliefs of, 4, 13, 268, 329; distrust of the media, 264, 267; and identity, 260–61; knowledge of, 258; relationship with land, 260, 269; rights of, 275–76; right to speak for, 255 - Zayd, Nas. r H Abu . amid, 171, 179 action vs. speech, 144, 148, 158–59 Act of Toleration (1689), 30, 32 advocacy, meaning of, 311n41 Afghanistan riots, 207, 209 Agamben, Giorgio, 146–47, 177 The Age of Reason (Paine), 45–46, 145 Ahmadiyya, 224, 228, 230, 233, 245n54 Aikenhead, Thomas, 142 Akhtar, Shabbir, 252–53 Alcott, Bronson, 131 Allen, Mary, 67 al-Qaeda, 209 Alter, Robert, 67–68 Alvarez, Xavier, 152 al-ʻAlwa-nı¯, T. a-ha- Ja-bir, 181–82 al-Amı¯n, Sayyid Muh. ammad H . asan, 183 Ammar, Héla, 96 Amor, Abdelfattah, 291, 301 “Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred,” 9 The Anatomy Lesson (P. Roth), 62–63, 72–73

Angoff, Charles, 67 antebellum America, 130–35 anti-Ahmadi demonstrations (1953), 230 anti-Muslim gestures, 200 Antiochus IV Epiphanes, 150 anti-Semitism, 285–86, 292–93 Anti-terrorism, Crime and Security Act (2001), 15n4 anti-vilification laws, 248n119 apostasy in Islam, 181–84, 195, 199, 211, 221n94 Appeal (Walker), 122–23 Appleby, R. Scott, xii–xiii al-Aqsa Martyrs’ Brigades, 210 artistic expression, 11, 58–59 artwork: destruction of, 83, 85; global context of, 103–12; Muslim, 215n21; offensive, 83–103; overview of, 82–83; protests against, 85, 112–13n11 Asad, Talal, 143 Astell, Mary: Bart’lemy Fair: Or, An Enquiry after Wit, 35–36, 52n67 atheism, 224 Atheist Ireland, 327 Atran, Scott, 211 Auden, W. H., xiv Austin, J. L., 158 Austin, James T., 128 Australia: cultures of, 272; decriminalization of blasphemy in, 250–51, 277n7; indigenous knowledge, 258–63

339

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Index

Austrian blasphemy laws, 2, 9, 16n7 authority, limitation of, 29 Bamphlett, Muriel, 264 Bancroft, George, 131 Bar Code to Concentration Camp Morph (Schechner), 93–94, 94fig. Bart’lemy Fair: Or, An Enquiry after Wit (Astell), 35–36, 52n67 “Bart’lemy-Faire Method,” 35 Barwick, Linda, 254 Beach, John, 40 Becket Fund for Religious Liberty, 229 Behrendt, Larissa, 269 Bell, Dianne, 264 Bellah, Robert, xii Beneke, Chris, 47 Benjamin, Walter, 156 Bennett, Keith, 85 Bentham, Jeremy, 145–46 Berger, Peter, 6–7 Berlin, Isaiah, 8 Berlinerblau, Jacques, 11, 37, 135, 147, 317–20 Bernstein, Basil, 262 Bhatti, Shabbaz, 171 Bible: Catholic vs. Protestant, 137n12; treatment of, 145 birth control advocacy, 122, 137n10 Blackstone, William, 145 Blair, Tony, 192 blasphemy. See also secular blasphemy: analysis of, 333; as an artist’s tool, 82–83; based in community, not religion, 106, 320, xi; decriminalization of, 1, 147, 250–51, 277n7; definition of, 15n5, 76n17, 193; differences among religions, 106; history of, 307–20, 322–23; internationalization of, 6–9; legislation against, 1–6, 123, x; meaning of, 178–79; and modernity, 11; moral threat posed by, 199–200; overview of, 13–14; as a positive disruptive power, 11; vs. profanity, 76nn15,17; prosecution of, 132–33, 139n47, 180–83; redemption for, 195; scholarship on, 9–13; significance of, x; toleration of, 130–35; typology of, 107–8; use of word, ix–x; violence related to, 169–70, 322 —laws, by country: Austrian, 2, 9, 16n7; Canadian, 4–5; Dutch, 29, 48n7; Egyptian, 229; English, 6, 36, 331; German, 2, 15–16n6, 309n14;

Indonesian, 12–13, 170, 328; Iranian, 3; Irish, 2, 16n8; Pakistani, 3, 171, 186n2; Saudi Arabian, 17n14; Sudanese, 3; Turkish, 17–18n18 Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Levy), 10 Blasphemy Act (1698), 52n66 Blasphemy (Lawton), 320 Blasphemy (Preston), 111 Bloom, Claire: Leaving a Doll’s House, 69 Blount, Charles, 30–32; “The Deist: A Satyr on the Parsons,” 30, 49n18; Oracles of Reason, 32 Boston Investigator, 119, 123 Brady, Ian, 85 Bramly, Serge: I.N.R.I., 98 Brandenburg v. Ohio, 157, 235 The Breast (P. Roth), 62 Brennan, William, 58 British Board of Film Classification, 15n3 Burger, Warren, 58 Burstyn v. Wilson, 318 Butler, Judith, 158 Cabantous, Alan, 23n49 Calamita Cosmica (Dominicis), 89 Calderoli, Roberto, 202 “Camden Principles on Freedom of Expression and Equality,” 289–90, 299–300, 303–4, 311n41 Canadian blasphemy laws, 4–5 Canadian Human Rights Commission, 293 The Canterbury Tales (Chaucer), 27 capitalism, 146 Carlile, Richard, 317, 323 Carlin, George: “Seven Words You Can Never Say on Television,” 150 carnivals, 147 Carter, James, xiii cartoons and caricature, 150–51 Catholics, attacks on, 134, 140n52 Catholic vs. Protestant Bible, 137n12 Cattelan, Maurizio: HIM, 87–89, 88fig., 109, 320 Caution! Religion!, 90 censorship: debate on, 76n5, 77n21; of literature, 57, 70; self- vs. legal, 46, 276, 331 CERD (Committee on the Elimination of Racial Discrimination), 287 Channing, William Ellery, 120, 131 Chaplinsky v. New Hampshire, 157

Index

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Characteristicks of Men, Manners, Opinions, Times (Shaftesbury), 33–35 Chaucer, Geoffrey: The Canterbury Tales, 27 children as a vulnerable group, 312n64 Christianity vs. Judeo-Christianity (Ross), 292 Christ in the House of His Parents (Millais), 108 Christ You Know It Ain’t Easy, 108 Church of England, 36 Church of Jesus Christ of Latter-Day Saints, 134–35, 140n55 civil religion, xii Coleman, Elizabeth Burns, 4, 10–11, 13, 160, 328–32 Collins, Anthony, 37–38; A Discourse Concerning Ridicule and Irony in Writing, 37, 52–53n80 Commission on Human Rights, 283, 332–33 Committee on the Elimination of Racial Discrimination (CERD), 287 Common Law of Blasphemous Libel (2008), 2 Common Sense (Paine), 45 Commonwealth v. Aves, 130 communal rights vs. individual rights, 233, 328 community identity vs. personal identity, 99–100 Congregation for Reform, 205 Connolly, William, 155–56 context and content, 301 Cooley, Charles Horton, 76–77n18 Cooper, Alan, 70 Cortese, Anthony, 159–60 The Counterlife (P. Roth), 59–60, 63, 76–77n18 creationism, 262 Crime and Disorder Act (1998), 15n4 Criminal Justice Act (1967), 14n1 crucifix, 215n20 cultural competency, 258 curses, 141–42, 164n28

Defamation Act (2009), 2, 16n8 deference codes, 270–71, 273 Defoe, Daniel, 52n67, 317; The ShortestWay with the Dissenters, 32, 50n30; The True-Born Englishman: A Satyr, 32–33 “The Deist: A Satyr on the Parsons” (Blount), 30, 49n18 deist beliefs, 31 desecularization, 6–7, 20n29 Le désenchantement du monde (Gauchet), 105–6 Dewey, John, xiv Diagoras of Melos, 151 Dialogues Concerning Natural Religion (Hume), 39, 53n89 Dickinson, Jonathan, 39–40; The Nature and Necessity of Regeneration, 39; The Scripture Bishop, 39 didgeridoo: assumptions made about, 267; The Daring Book for Girls on, 249; health benefits of, 277n12; infertility caused by, 252, 255, 263, 267–68; sacredness of, 329 Diène, Doudou, 173 dignity threatened by critical expression, 9 A Discourse Concerning Ridicule and Irony in Writing (Collins), 37, 52–53n80 disenchantment, 321–22, 330 distrust of the media, 264, 267 diversity, 7 Doctor Faustus (Marlowe), 109 Dominicis, Gino de: Calamita Cosmica, 89 “Don’t Ask, Don’t Tell,” 158–59 Douglas, Mary: Purity and Danger, 196–97 Dryden, John, 28 Duchamp, Marcel: Fountain, 146 Dunlap, Andrew, 124 Durkheim, Émile, 155, 196–97 Durrani, Tehmina, 98–99 Dutch blasphemy laws, 29, 48n7 Dworkin, Ronald, 46 The Dying Animal (P. Roth), 62

Dadaism, 146 Danchin, Peter, 159 Danish cartoons of Mohammed, 1–2, 12, 143 The Daring Book for Girls, 249–50, 254–56, 263, 267–68 Darwin, Charles, 260 Davis, Natalie Zemon, 198 defamation: and free speech, 4, 17n16; meaning of, 4; of religion, 248n119, 282–84, 291–92

Earth Mother, 259 Ebadi, Shirin, 17n12 Ecce Homo (Wallin), 107 Ecclesiastical Characteristics (Witherspoon), 41 ECHR. See European Court of Human Rights Edgar, David, 159 Egyptian blasphemy laws, 229 electronic media, 6–7

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Index

Eleutherius Enervatus (Wetmore), 40 Elias, Norbert, 322, 330 Elisha’s curse, 141–42 Ellis, George, 131 el-Saadawi, Nawal, 98–99 Emerson, Ralph Waldo, 120, 131 employment rights, 315 Engels, Friedrich, 146 English blasphemy laws, 6, 36, 331 English Blasphemy Statute (1698), 14n1 English common law, 36 Enlightenment, 11, 47, 325, 328 An Enquiry Concerning Human Understanding (Hume), 38 Ensler, Eve: The Vagina Monologues, 150 equality, 20–21n31 Erasmus, Desiderius, 27–29, 48n6; The Praise of Folly, 27 Ernst, Max, 101 ethnic identity, 4 Eurocentrism, 105 European Centre for Law and Justice, 309n16 European Commission for Democracy through Law, 9 European Commission on Human Rights, 10 European Court of Human Rights (ECHR), 1, 4, 9–10, 15n3, 17–18n18, 23n50, 236–37 Evans-Pritchard, E. E., 196 Evatt, Elizabeth, 290–91, 302 Everyman (P. Roth), 60 excommunication, 142, 144 Exit Ghost (P. Roth), 73–74 expletives, 164n28 Ezzat, Peter, 229 face as a means of identity, 99–100, 270 Faisalabad, bishop of, 186n2 false representation, 152–54 Fanny Hill, 136 Farr, Thomas F., 238 Farrior, Stephanie, 288 Fatah, 210 Faurisson, Robert, 290–91, 302 Faurisson v. France, 290, 295, 302 Fawzy, Adel, 229 Feinberg, Joel, 252–53 Felicity Party, 205 festivals, 147 “fighting words,” 157–58, 281, 292 figural representation in Muslim art, 215n21

figurative images, ban on, 193–94 Fillmore, Millard, 140n52 Finke, Roger, 238 Finkelman, Paul, 12, 226, 323–24 First Amendment, 8, 47, 131 Five Books of Moses, 145 flag desecration, 152, 154–57, 160 Foote, G. W., 316, 323 The Forbidden Phrases, 17–18n18 Fortuyn, Pim, 99 Fountain (Duchamp), 146 Fowler, Edward: Reflections upon a Letter Concerning Enthusiasm, 35 Frazer, James, 193 Freedom House rankings (2006–2007), 200–201, 218n51, 221n91 free speech: challenged by defamation laws, 4, 17n16; and civility, 272; and extreme speech, 281–82; vs. hate speech, 161, 282; legal protection of, 59; meaning of, 223 Freud, Sigmund, 109 fundamentalism, 7, 21n32, 104, 107–8 Galileo Galilei, 28 Garma Festival Yidaki Statement (1999), 254 Garouste, Gérard: L’Intranquille, 102; Passage, 102–3, 102fig., 108, 110 Garrison, William Lloyd, 131 Gauchet, Marcel: Le désenchantement du monde, 105–6 Gay News case, 15n3, 159, 331 Gayssot Act, 290, 302 Geertz, Clifford, 326–27 General Assembly, 283 General Comment No. 34, 299, 303, 305 Genesis Rabbah, 151 German blasphemy laws, 2, 15–16n6, 309n14 German criminal code, 2 Ghamidi, Javed Ahmad, 182–83 Ghanea, Nazila, 297 The Ghost Writer (P. Roth), 69, 71, 74 Gibbons, Gillian, 221n94 Gibson, Edmund, 37 Ginsberg, Allen: Howl, 58 Girard, René, 162 Girls Lean Back Everywhere (Grazia), 64 Giuliani, Rudy, 83 God, denial of existence of, 224 Goffman, Erving, 270 Gombrich, Ernst, 151 Goodbye, Columbus (P. Roth), 60, 66, 69

Index Gordon, Sarah Barringer, 139n47 government, forms of, xii government models of religious interaction, 21–22n35 Grazia, Edward de: Girls Lean Back Everywhere, 64 Grenda, Christopher S., 8, 11, 135, 145, 238, 316–17, xi Grice, H. P., 276 Grim, Brian J., 238 Gurruwiwi, Dhangal, 254 Gurruwiwi, Djalu, 254 Hale, Lord Chief Justice Matthew, 36, 145 Hamas, 205, 210 “Handling/Respect of the National Flag,” 156–57 Haque, Ziaul, 170 The Harm in Hate Speech (Waldron), 23n44 harm principle, 252 HarperCollins, 250, 255, 263 Harry Potter series (Rowling), 149–50 Hart, H. L. A., 253 Harvey, Marcus: Myra, 85–87, 86fig., 103–4, 320 Hassner, Ron E., 12, 170, 326, xii hate crimes, 158, 289 hate speech, 4–5, 18nn19,20, 152, 157–61, 282 Haworth, Alan, 266–67 heresy, 76n16 Herman-Peled, Horit, 93 Herndon v. Lowry, 246–47n88 Hezbollah, 205, 210 HIM (Cattelan), 87–89, 88fig., 109, 320 Hindley, Myra, 85–87, 86fig., 112–13n11 Hindu relics and shrines, 212 Hirsi Ali, Ayaan, 98–99, 321 Hitler, Adolf, 87–89; Mein Kampf, 103 Hoare, Sir Samuel, 305 Hodgson, Marshall: The Venture of Islam, xii Holocaust, 286, 288, 290, 312n67 Holocaust denial, 285–86, 302 Holyoake, George Jacob, 316 The Holy Virgin Mary (Ofili), 83–85, 84fig., 109, 111 homophobic speech, 312nn63,67 hostility, definition of, 304 Howarth, Alan, 331 Howe, Irving, 68, 72–73, 79n72 Howl (Ginsberg), 58 human rights, 233–35, 239, 281–82, 285–87, 309n13, 309–10n17. See also European Court of Human Rights

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Human Rights Act (1999), 234 Human Rights Committee, 284, 299, 303–4, 307, 309n14 Human Rights Council, 283 The Humbling (P. Roth), 62–63 Hume, David, 11, 40, 138n32, 317; Dialogues Concerning Natural Religion, 39, 53n89; An Enquiry Concerning Human Understanding, 38; Natural History of Religion, 38; A Treatise of Human Nature, 38 ICCPR (International Covenant on Civil and Political Rights): on blasphemy/ religious defamation bans, 283–84, 309n16; conceptualization of, 307; on human rights, 239; implementation of, 285; and Nazi hatred, response to, 288; public order exception in, 234–37; ratification of, 285; on religious freedom, 232, 239; reservations about, 310n19 —terms used in: “advocacy,” 286–89, 311n41; “discrimination,” 294, 298, 303–7, 312n66; “hatred,” 289–94; “hostility,” 303, 305; “incitement,” 297–303; “national,” 294–97; “racial,” 294–97; “religious,” 294–97; “violence,” 303, 304–5 ICERD (International Convention on the Elimination of All Forms of Racial Discrimination), 287 iconoclasm, 151–52 identity, 4, 99–100, 260–61, 270, 274 ignorance, 257–58 Ihsanoglu, Ekmeleddin, 23n44 images, power of, 149, 151, 193–94, 320–21 incitement to religious hatred: advocacy, 286–89; vs. blasphemy, 285–86; definition of, 2, 285, 332; discrimination as a result of, 303–7; legislation on, 282, 332–33; meaning of, 289–94, 297–303; national, 294–97; political opinions on, 281–84; violence as a result of, 303–7 Index of Democracy, 218n51 India, political dynamics of, 21n33 indigenous knowledge, 258–63 individual rights vs. communal rights, 233, 328 Indonesia: blasphemy laws in, 12–13, 170, 328; Constitution of, 226–27, 232–33; mandate of religious studies in schools, 231–32; Muslim population of, 223–25;

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Index

Indonesia (continued) population of, 224–25; riots in, 207–8; United Nations, withdrawal from, 242n16 Indonesian Blasphemy Act: context of, 224–25, 242n16, 327–28; enforcement of, 242–43n18; overview of, 225–29; punishable offenses, 227–28, 237, 244n36; purpose of, 225–26; repeal efforts, 229–34; upheld in Constitutional Court, 223–24, 231–41; vagueness of, 237, 310n18; vs. Western blasphemy laws, 328 Indonesian Criminal Code, 227 Indonesian Ulama Council (MUI), 228, 244n38 INGO Article 19, 289, 304 The Innocence of Muslims, 1 I.N.R.I. (Bramly), 98 intent to harm with blasphemy, 1 interdependence, 330 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 287, 309n14 International Covenant on Civil and Political Rights. See ICCPR International Service for Human Rights (ISHR), 309n13, 309–10n17 intolerance, 32, 263 L’Intranquille (Garouste), 102 Iqbal, Muammad, 185, 326 Iranian blasphemy laws, 3 Iranian revolution, xiii Iran’s penal code, 3 Ireland, 327, 328 Irish blasphemy laws, 2, 16n8 irreverence, xii ISHR (International Service for Human Rights), 309n13, 309–10n17 Islam: apostasy in, 181–84, 195, 199, 211, 221n94; blasphemy, acts of, 170–73, 178–79, 186n2, 195, 216n25; criticism, protection from, 2–3, 16n9, 17–18n18; geopolitical context of, 184–85, 325–26; hadith-based approach to, 178; history of, 12, 184–85; intolerance for blasphemy, xii; methodology, 177–78; political theology, 12, 169–70, 173–77, 186, 325; and the Prophet Mohammed, 151–52, 174–77, 179–81, 194, 215n18; Qur’an-based approach to, 178; salvation, 175; women of, 98–99 Islamdom, xii Islamic Courts Union, 205

Islamic Defender Front, 205, 208 Islamic Movement, 205 Islamic Resistance Party, 205 Islamic Revolution, 205 Islamic Salvation Front, 205 Islamism, 195–96 Islamist Movements, 199, 205 Israel, Jonathan, 141 It’s the Real Thing (Schechner), 91–93, 92fig., 95, 108 Jackson, Andrew, 124 Jamaat e-Islami, 205 Japanangka paradigm, 258–59 Jeffrey, Sam, 264 Jensen, Dennis, 269–70, 331 Jerry Springer: The Opera, 107 Jesus, depiction of, 107 Jesus, resurrection of, 215n20 Jesus of Montreal, 109–10 Jewish freedom in the United States, 134 Jews accused of blasphemy, 140n54 Jinnah, Mohammed Ali, 20–21n31 Johnson, Winnie, 85, 112–13n11 Jones, Peter, 256–60, 262–63, 265, 274–76, 329; “Respecting Beliefs and Rebuking Rushdie,” 251–52 Jones, Terry, 170 Joshua’s curse, 141–42 Joyce, James: Ulysses, 58 J.R.T. and the W.G. Party v. Canada, 287, 295 Jyllands-Posten cartoons: circulation of, 189; as freedom of expression, 172–73; iconoclasm of, 151–52; reaction to, 162, 189–92, 214n4, 326; riots over, 189–91, 190table, 214n6 Kadivar, Mohsen, 183 Karzai, Hamid, 170 Keane, Webb, 148–49 Kekes, John, 197 Kent, James, 133 Kha-n, Mawla-na- Vah. ¯ıduddı¯n, 182 - h. ulla-h, 6, 74, 172, Khomeini, Ayatollah Ru 195, 216n28 Kirkup, James, 15n3 Klein, Eckart, 302 Kneeland, Abner, 12, 316; blasphemy of, 124–30; early life of, 120–24; historical context of blasphemy case against, 135–36; jail experience of, 135, 140n56; libertarian views of, 323; prosecution of, 119–20, 323–24; A Review of the

Index Evidences of Christianity, 121; A Review of the Trial, Conviction, and Final Imprisonment of in the County Jail of the County of Suffolk, of Abner Kneeland for the Alleged Crime of Blasphemy, 135 Knowlton, Charles, 122 Koori Mail, 254 Kosolapov, Alexander, 90–91; This is My Blood, 90–91, 91fig.; This is My Body, 90–91, 91fig., 108 Krapac, Ben, 125, 126, 138n18 Kretzmer, David, 290–91, 302 Krupnick, Mark, 65 Kuru, Ahmet T.: Secularism and State Policies toward Religion, 21–22n35 Lady Chatterley’s Lover (Lawrence), 58 Lallah, Rajsoomer, 290, 302, 303 Lankarani, Mohammad Javad, 171 Larner, Jeremy, 66 Laskhar-e-Tayyaba, 203 The Last Temptation of Christ, 108–9 Latitudinarians, 29 Law on the Prevention of Blasphemy and Abuse of Religion, 12–13, 223. See also Indonesian Blasphemy Act Lawrence, D. H.: Lady Chatterley’s Lover, 58 Lawton, David, 11, 320–22, x; Blasphemy, 320 Leaving a Doll’s House (Bloom), 69 Lebanese riots, 207–9, 210 The Legacy of Abused Children: From Poland to Palestine (Schechner), 93, 95, 96fig. legal censorship vs. self-censorship, 46, 276, 331 Lemon, Denis, 15n3 A Letter Concerning Enthusiasm (Shaftesbury), 34, 52n69 Letting Go (P. Roth), 60 Levy, Leonard W., 126, 130–32, 151; Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie, 10 Lewis, Sinclair, 28 Liberator, 122–23 Libyan riots, 202, 210, 218n58 Das Liebeskonzil, 16n7 literature, censorship of, 57, 70 literature, obscenity in, 57–59 Locke, John, 47 Lolita (Nabokov), 58

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Loring, Ellis Gray, 131 Lumbrozo, Jacob, 140n54 Macklin, Jenny, 269–70 Madison, James, 43 Magna Charta (Wallis), 32 Mahmood, Saba, 143, 148–49 Malcolm Ross v. Canada, 287–88 Manitoba criminal code, 4–5 Manitoba Defamation Act, 4–5 Mannes, Marya, 67 Maria Vassilari et al. v. Greece, 291, 301 Marlowe, Christopher: Doctor Faustus, 109 marriage equality, 121–22 Marshall, Paul, 10 Marx, Karl, 146, 324 Masih, Rifta, 230, 245n51 Massachusetts act of 1782, 123, 137n12 - al-H al-Ma-wardı¯, Abu . asan, 175 Mawlawi, Faisal, 208 McAdam, Doug, 198 McCarthy, Mary, 66 McCormack, Sean, 192 Mead, George Herbert, 76–77n18 media, distrust of, 264, 267 media, electronic, 6–7 medievalism, 104 Mein Kampf (Hitler), 103 “Memoirs of a Woman of Pleasure” v. Massachusetts, 136 Merlan, Francesca, 272–73 military honors, fraudulent claims of, 152–54 Mill, John Stuart, 9, 256, 260–61, 265, 271–72, 275, 329; On Liberty, 252 Millais, John Everett: Christ in the House of His Parents, 108 Miller, Henry: Tropic of Cancer, 58 The Miller’s Son, 125 Miller v. California, 58 Millett, Kate: Sexual Politics, 67 minority groups, targeting of, 223–24 Mohammed (Prophet): depicted in Danish cartoons, 1–2, 12, 143 (see also JyllandsPosten cartoons); depicted in The Satanic Verses, 252; image of, 151–52, 216n22; insults against, 179–81, 204–5; and Islam, 151–52, 174–77, 179–81, 194, 215n18; as the Last Prophet, 228, 244n42; personal identification with, 4; prohibition on visual representation, 106–7, 162, 194, 215n18; successors of, 175; two bodies of, 176, 187n9 Molière: Tartuffe, 28

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Index

Moore, Rob, 261 The Moor’s Last Sigh (Rushdie), 74 Moors murders, 85 Moosa, Ebrahim, 12, 193, 323, 325–26, xii The Moralists, A Philosophical Rhapsody (Shaftesbury), 34 moral order, 197 Moral Physiology (Owens), 122 Mormons, 134–35, 140n55 Morse, J. Mitchell, 68 Moshaddeq, Ahmad, 228 Mouawad, Nayla, 201 Movement for Islamic Revival, 208 Mubarak, Hosni, 229 MUI (Indonesian Ulama Council), 228, 244n38 Mujahid, Abubakar, 208 Muller, Johan, 261 multiculturalism, 7, 21n33, 161, 275 Murray, James, 43–45; Sermons to Asses, 44–45; Sermons to Doctors in Divinity, 45; Sermons to Ministers of State, 44 Musharraf, Pervez, 202, 203 Muslim art, 215n21 Muslim Brotherhood, 169, 205, 208, 210 Muslim Council for Religious and Racial Harmony, 8 Muslim-majority approach to blasphemy laws, 3 Myra (Harvey), 85–87, 86fig., 103–4, 320 Nabokov, Vladimir: Lolita, 58 Nahmod, Sheldon, 155 name taboos, 149–50, 193 Na-s. ir, ʻAmma-r Kha-n, 183 Nash, David, 10, 82 Nassralah, Hassan, 216n29 National Islamic Front, 205 Natural History of Religion (Hume), 38 The Nature and Necessity of Regeneration (Dickinson), 39 Nazi hate propaganda, 288 “negative” liberty, 8–9 Nelson, Topsy Napurrula, 264 Neshat, Shirin, 98 Neuenfeldt, Karl, 254 New Brunswick Human Rights Code, 292–93 The New Life (Pamuk), 111 New York Free Inquirer, 125 Nigeria, 221n92 Nigerian riots, 207–8 9-11 terrorist attacks, xiii Noto v. United States, 235–36 Nowak, Manfred, 288, 296, 306

Noyes, George, 131 al-Numayrı¯, Jaʼfar, 171 obscene material, definition of, 58 obscenity, 57–59, 147 offense, definition of, 266 Ofili, Chris: The Holy Virgin Mary, 83–85, 84fig., 109, 111 O’Flaherty, Michael, 284, 288–89, 299–300, 303, 309n12 OIC (Organization of Islamic Cooperation), 2–3 Oluwasesin, Christianah Oluwatoyin, 221n94 On Liberty (Mill), 252 Oracles of Reason (Blount), 32 Organization of Islamic Cooperation (OIC), 2–3 Organization of the Islamic Conference, 283 orthodoxy, 76n16 Our Gang (P. Roth), 61–62 Owens, Robert Dale: Moral Physiology, 122 Paine, Thomas, 43–46, 135, 316–17; The Age of Reason, 45–46, 145; Common Sense, 45 PAKEM (Tim Koordinasi Pengawan Aliran Kepercayaan Masyarakat), 227–28 Pakistan, 221nn91,92; blasphemy laws of, 3, 171, 186n2; criminal code in, 3; riots in, 202–3, 210; secularism of, 20–21n31 Pamuk, Orhan: The New Life, 111 Pancasila philosophy, 226 Pape, Robert, 221n92 paradox of freedom, 105 Parker, Samuel, 123–24, 126–28 Parker, Theodore, 119, 131 Passage (Garouste), 102–3, 102fig., 108, 110 Penn, William, 29 People v. Ruggles, 133 persecution, 134–35, 140n55 personal identity vs. community identity, 99–100 philosophical method, 34 Pipes, Daniel, 211 Piss Christ (Serrano), 107–9, 150 The Plot against America (P. Roth), 60 politeness, use of, 39, 41, 330–31 political correctness, 279n52 political movements, 7 Polity Project, 218n51 Pope, Alexander, 28

Index Portnoy’s Complaint (P. Roth), 60–61, 65, 67, 69, 70 “positive” liberty, 8–9 Post, Robert, 158 postblasphemy, 110–11, 322 post-World War II era, x Practical Treatise on Regeneration (Witherspoon), 41 The Praise of Folly (Erasmus), 27 Preston, Douglas: Blasphemy, 111 Printemps des Arts, 96 profanation, meaning of, 146 profaneness/profanation, 147–52, ix–x profanity, 76nn15,17, 164n28 “profanity loop,” 59–60, 68–70, 74–75, 76–77n18, 135, 317 propaganda, 182, 286, 288 The Prophet Muhammad Had Been Sleeping with His Wife’s Maid, 224 protest: and aniconism, 194–95; background of, 192–96; ban on, 203; deaths resulting from, 203, 207–9; desecration, 196–97; government participation in, 200–201; implications of, 210–13; Islamism, 195–96; and the JyllandsPosten cartoons, 189–92; moral threat, 196–200, 206–7; overview of, 209–10; political manipulation, 198–204; religious outrage, 199, 204–5; riots, 189–91, 190table, 202–3, 206–10, 207table, 214n6; and taboo, 193–94; threat, perception of, 197–98; and violence, 192–93, 211 Protestant fundamentalists, 212 Protestantism, 324 Protestant literalism, 148 Protestant majority, 133–35 Protestant vs. Catholic Bible, 137n12 public order, 235 Public Order Act (1986), 19n22 Pufendorf, Samuel, 29 Pullman, Philip, 109 Puritans, xi Purity and Danger (Douglas), 196 Putnam, Samuel, 124, 129 Qaddafi, Muʻammar, 218n58 - suf, 182 al-Qarada-wı¯, Yu al-Qiyadah al-Islamiyah, 228 Qudoos, Abdul, 230 Quijano, Aníbal, 185 Qur’an: on blasphemy, 195, 216n25; desecrations at Guantanamo Bay, 211, 221n94; handling/treatment of, 157,

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347

169, 170; illustrations in, 194, 216n22; reading of, 248n119 Racial and Religious Hatred Act (2006), 2, 19n22 Racial and Religious Tolerance Act (2001), 5 racial identity, 4 Radcliffe-Brown, Alfred, 196 Ramadan, Tariq, 100 Rasmussen, Anders Fogh, 190, 192 R.A.V. v. City of St. Paul, 158 Rawls, John, 46–47 The Real Holocaust (Ross), 292 Reflections upon a Letter Concerning Enthusiasm (Fowler), 35 religion: defamation of, 248n119, 282–84, 291–92; and modernism, 315–16; religious, legal definition of, 294–97; as social regulation, 105 religious belief vs. religious person, 4, 17n17, 18n20 religious freedom, meaning of, 223 religious hatred, meaning of, 295 religious nationalism, 7, 21n33 Rembrandt, 28 “Respecting Beliefs and Rebuking Rushdie” (Jones), 251–52 reverence for sacred objects, 12 A Review of the Evidences of Christianity (Kneeland), 121 A Review of the Trial, Conviction, and Final Imprisonment of in the County Jail of the County of Suffolk, of Abner Kneeland for the Alleged Crime of Blasphemy (Kneeland), 135 Rex v. Taylor, 36 Ribalow, Harold, 66–67 Rice, Condoleezza, 192 ridicule, 34–35, 52–53n80 rights. See also human rights; ICCPR: of Aboriginal Australians, 275–76; communal vs. individual, 233, 328; employment, 315 The Rights of the Christian Church Asserted (Tindal), 52n67 Ripley, George, 131 Rome for Good News (Wallis), 30–31 Room for the Cobler of Gloucester and His Wife (Wallis), 28 Rose, Mark, 249–50, 253, 255–58, 260–63, 266–68, 278n35, 279n52 Ross, Malcolm, 287–88, 292–94, 312n62; Christianity vs. Judeo-Christianity, 292;

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Index

Ross, Malcolm (Continued) The Real Holocaust, 292; Spectre of Power, 292; Web of Deceit, 292 Ross v. Canada, 292, 295, 301 Roth, Henry, 74 Roth, Philip, 11; after obscenity hysteria subsided, 76n6; assessment of, 317–20; awards won by, 66, 77n19; and the censorship debate, 76n5, 77n21; and Christianity, treatment of, 63; criticism of, 66–69; and Judaism, treatment of, 61, 63, 66–67, 71–72; obscenities published by, 57–63, 147; outrage caused by, 66–69; profanities to invoke censure, 64–66, 78n45; “profanity loop,” 59–60, 68–70, 74–75, 76–77n18, 135; responses to critiques of, 69–73, 79n76 —works: The Anatomy Lesson, 62–63, 72–73; The Breast, 62; The Counterlife, 59–60, 63, 76–77n18; The Dying Animal, 62; Everyman, 60; Exit Ghost, 73–74; The Ghost Writer, 69, 71, 74; Goodbye, Columbus, 60, 66, 69; The Humbling, 62–63; Letting Go, 60; Our Gang, 61–62; The Plot against America, 60; Portnoy’s Complaint, 60–61, 65, 67, 69, 70; Sabbath’s Theater, 62; When She Was Good, 60 Roth v. United States, 57, 58 Rowling, J. K.: Harry Potter series, 149–50 Roy, Muhammad Yusman, 223 Roy, Olivier, 199, 201 Rushdie, Salman, 109; dual culture of, 321; fatwa (death sentence) against, 74, 108, 195, 216n28, 216n29; The Moor’s Last Sigh, 74; protests against, 252; The Satanic Verses, 6, 74–75, 172, 214n5, 251–53; as a target of Muslim outrage, xii Russia, Western influence on, 90 Sabbath breaking, 139n47, 212 Sabbath’s Theater (P. Roth), 62 sacred objects, 12, x, xii sacrilege, xi sacrilegious expression in Western culture, 11 Salafi Hezb al-Tahrir, 210 Salazar, John, 153 The Satanic Verses (Rushdie), 6, 74–75, 172, 214n5, 251–53 satire: acceptance of, 187n20; as an agent of religious tolerance, 11, 28–30, 33–34,

38–39; fun of, xiv; history of, 27–30; overview of, 46–47; penalties for, 180; popularity of, xi; Revolutionary, 43–46; in the 1700s, 30–43 Saudi Arabian blasphemy laws/penal code, 17n14 Scanlon, T. M., 262 Schechner, Alan: Bar Code to Concentration Camp Morph, 93–94, 94fig.; It’s the Real Thing, 91–93, 92fig., 95, 108; The Legacy of Abused Children: From Poland to Palestine, 93, 95, 96fig. Schudrich, Michael, 89–90 The Scripture-Bishop (Dickinson), 39 Searle, John, 158 secular approach to blasphemy laws, 3 secular blasphemy: beliefs, respect of, 249, 251–52; civility, 268–73; decline of sacred, 144–47; offense to others, 252–63; overview of, 141–44, 161–62, 249–51; political correctness, 263–68, 279n52; public debate, 263–68; vs. religious blasphemy, 143–44, 163n7; sacredness of secular objects, 146, 324; symbolic offenses in the United States, 152–57 secularism, 21–22n35 Secularism and State Policies toward Religion (Kuru), 21–22n35 secularization, 146, 324, ix, xii Select Committee of Religious Offenses in England and Wales, 15n2 self-censorship vs. legal censorship, 46, 276, 331 self-policing, 329 Sensation, 83–87 Sensus Communis (Shaftesbury), 34 separation of church and state, xi A Serious Apology for “Ecclesiastical Characteristics” (Witherspoon), 41, 42–43, 54n108 Sermons to Asses (Murray), 44–45 Sermons to Doctors in Divinity (Murray), 45 Sermons to Ministers of State (Murray), 44 Serrano, Andres: Piss Christ, 107–9, 150 Servetus, Michael, 165n32 “Seven Words You Can Never Say on Television” (Carlin), 150 sexism, 255 Sexual Politics (Millett), 67 Shaftesbury, Anthony Ashley Cooper, third Earl of, 33–36, 317; Characteristicks of Men, Manners, Opinions, Times, 33–35;

Index

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349

A Letter Concerning Enthusiasm, 34, 52n69; The Moralists, A Philosophical Rhapsody, 34; response to prosecution, 135; Sensus Communis, 34 Shariʻa, 171, 186 Shaw, Lemuel, 119–20, 128–30, 132, 137n12, 139n39 Shea, Nina, 10 Shearmur, Jeremy, 265–66, 274 Shiʻa population, 210, 221n92 The Shortest-Way with the Dissenters (Defoe), 32, 50n30 Shostak, Debra, 64 simplicity vs. vulgarity, 68, 79n72 Sion City of Allah, 240 Sipah-e-Sahaba, 203 Six Discourses on the Miracles of Our Saviour (Woolston), 37 Smith, Joseph, 135 Smokey the Bear, 153 social identity, 270 social movements, 198 Soekarno, 225–26, 242n16 Spanish Civil War, 151 Spectre of Power (Ross), 292 speech vs. action, 144, 148, 158–59 Spinoza, Baruch de, 141–42, 145, 149 Stolen Valor Act (2005), 152–54 structuralism, 196 Sub-Commission on Prevention of Discrimination and Protection of Minorities, 305 al-Subkı¯, Taqı¯ al-Dı¯n, 179 Submission, 95, 97fig., 98, 99 Sudanese blasphemy laws, 3 Suleiman, Abdel Karim, 229 Supreme Council for the Islamic Revolution, 205 surrealism, 146 Sutton, Peter, 260, 263–64 symbolic interactionism, 76–77n18 symbolic offense, 163n7 symbolic value of objects, 152–54 Syrian riots, 210 Syrkin, Marie, 67, 68, 71

Taymı¯ya, Taqı¯al-Dı¯nIbn, 179 Temperman, Jeroen, 4, 13, 227, 236, 332–33 Temple of Buddha’s Tooth, 204 Teplitz, Saul, 66 Texas v. Johnson, 154 Texas Venerated Objects Law, 154 Thamrin, Yuri, 208 “thick-skinned tolerance,” 8 Third Reich, 299 This is My Blood (Kosolapov), 90–91, 91fig. This is My Body (Kosolapov), 90–91, 91fig., 108 Tilly, Charles, 198 Tim Koordinasi Pengawan Aliran Kepercayaan Masyarakat (PAKEM), 227–28 Timor Evangelical Church, 240 Tindal, Matthew: The Rights of the Christian Church Asserted, 52n67 tolerance, 316, 322, 330 Tory Anglicanism, 32 Traces du Sacré, 90, 100–103, 105, 110 A Treatise of Human Nature (Hume), 38 Tropic of Cancer (Miller), 58 The True-Born Englishman: A Satyr (Defoe), 32–33 Trumpet and Universalist Magazine, 125, 128 Turkish blasphemy laws, 17–18n18 Twain, Mark, 28

Tagi, Rafiq, 171 - d Muh. ammad, 171, 179 T. a-ha-, Mah. mu Taliban, 205, 209 Tappaya, Sumardi, 223, 227 Tarrow, Sidney, 198 Tartuffe (Molière), 28 Taseer, Salman, 171 Taymı¯ya, Ahmad ibn ʻAbd al-Halı¯m Ibn, 180

The Vagina Monologues (Ensler), 150 van Gogh, Theo, 95–98, 99, 321 Vassilari, Maria, 291 The Venture of Islam (Hodgson), xii Vickers, Brian, 149 violent protest, 192–93, 211 Visions of Ecstasy, 15n3 vulgarity vs. simplicity, 68, 79n72

Uddin, Asma T., 12, 170, 310n18, 327–28 UDHR (Universal Declaration of Human Rights), 234, 239 Ulysses (Joyce), 58 unbelief, ix–x UN Declaration of Human Rights, 22n43 UN Human Rights Committee, 235, 285–87 United Council of Action, 203 United States v. Alvarez, 152 Universal Declaration of Human Rights (UDHR), 234, 239 Updike, John, 76n6 U.S. Supreme Court, 235–36

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Index

Wahhabi, 210 Waldron, Jeremy, 46–47; The Harm in Hate Speech, 23n44 Walker, David: Appeal, 122–23 Wallin, Elizabeth Ohlson: Ecce Homo, 107 Wallis, Ralph, 35, 316; Magna Charta, 32; Rome for Good News, 30–31; Room for the Cobler of Gloucester and His Wife, 28 Warhol, Andy, 146 Washington, George, 47 Web of Deceit (Ross), 292 Webster, Richard, 82, 211 West, Errol, 258–60, 262–63, 278n35 Western Enlightenment, 325 Western influence on Russia, 90 Western superiority, 261 Wetmore, James: Eleutherius Enervatus, 40 When She Was Good (P. Roth), 60 White, Kevin, 10–11 Whitehouse v. Lemon, 15n3 Wilders, Geert, 1, 292 Williams, Roger, 29

wit, 36 Witherspoon, John, 11, 40–43; Ecclesiastical Characteristics, 41; Practical Treatise on Regeneration, 41; A Serious Apology for “Ecclesiastical Characteristics,” 41–43, 54n108 women, cruelty toward, 98–99 Woodsy Owl, 153 Woolston, Thomas, 36–37; Six Discourses on the Miracles of Our Saviour, 37 World Conference on Religion and Peace, 8 World War II, 286 Yates, W. B., 28 Yates v. United States, 246–47n88 Yelle, Robert A., 4, 12, 324 Yeni Hayat (Pamuk), 111 Yolngu culture, 254–55 Yudhoyono, Susilo Bambang, 225 Zenger, John Peter, 138n16 Zuckerman, Nathan, 69–70, 71–74, 80n80