Thread by @pragmatometer

Thread: the canary is dead.

The European Court of Human Rights has issued a judgement in the case of E.S. v. Austria, and it's a ruling that should outrage our friends in Europe, and, as a potential harbinger of things to come here in the states, should concern us as well. 1/

The contentious nature of the case, and that of the ruling itself, sparked a flurry of summary coverage, but it wasn't until I read through the official judgement itself that I realized the extent to which freedom of expression is under attack in Europe. 2/

For those who would like to read through the court judgement on their own, you can find that here: hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-187188%22]}.

I'll include relevant excerpts as we continue along, though. 3/

For those not familiar with the case, here's a quick recap:

• The applicant, identified as E.S., gave a series of seminars on Islam from 2008 to 2009.
• One of these seminars had an undercover journalist in attendance, who subsequently requested an investigation into E.S. 4/

• The investigation lead to an indictment, and ultimately a conviction in regional court for "publicly disparaging an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation". 5/

• The statements in particular that were found to be incriminating are included below (translated from German to English). In essence they make the point that, by today's standards, Muhammed would be considered a pedophile. 6/

• Upon conviction, E.S. was ordered to pay 480€ (subject to a 60 day imprisonment upon default).
• E.S. appealed the ruling, arguing that her statements were factual, not judgmental. The appeal was rejected.
• And now, E.S. v. Austria has upheld the lower court's ruling. 7/

So, without even digging into the details yet, this already feels like an immense violation of freedom of expression (which is protected in Europe by both country laws AND Article 10 of the European Convention on Human Rights).

But, hoo boy, the details are something else. 8/

First, let's recall that this all started with a *journalist* requesting the investigation in the first place. So, that's just great, you stupid bastions of free speech.

Next, we have to look at the details of the initial ruling by the regional court. 9/

Some things to note from the summary below:

• The court did NOT even try to argue that Muhammed－then in his 50's－didn't actually have had sex with his prepubescent wife.
• But the court DID fault E.S. for disregarding that he remained married to her until his death(?!!). 10/

The argument continued to assert that, per the court's definition, pedophilia implies a PRIMARY sexual interest in children, whereas Muhammad's marriage to a 6 year old did not necessarily prove PRIMACY.

Yes, really. This was the prevailing argument in a damned court of law. 11/

The argument did concede that, even if not technically pedophilia, child marriages DO warrant criticism

－HOWEVER－

the bigger issue was that, because society frowns upon child marriages, pointing this out was "capable of causing indignation". And, well, we can't have that. 12/

In her appeal, E.S. invoked Article 10, and further argued that:

• Common usage of "pedophilia" doesn't imply primary interest.
• Pedophilia can be assumed from **having sex with a child**.
• Pedophilia doesn't become something else just bc the marriage outlasted puberty. 13/

The appeals court, however, rejected these arguments.

They ruled that the lower court has rightly applied a stricter definition of pedophilia－one not satisfied by marrying a 6 year old or having sex with a 9 year old－and agreed that her comments were intended to provoke. 14/

A request to the Supreme Court for a renewal of the proceedings was also rejected, on the basis that, despite E.S.'s Article 10 rights admittedly having been interfered with, it was legally justifiable, having been in pursuit of religious peace. 15/

So that brings us to E.S. v. Austria.

In the particular, this ruling deals with whether or not E.S. was subjected to an Article 10 violation, but in a broader sense, it signals whether or not criticisms of the Prophet Muhammed are protected speech in Europe. 16/

It astounds that this ruling－which, again, was in significant part argued on the basis that the strictest, legal definition of "pedophilia" can't be applied to to the act of having sex with a 9 year old－has been upheld at the highest domestic and, now, international courts. 17/

In siding with the domestic courts here, the European Court of Human Rights has delivered a massive blow to the scope of Article 10 protections, and one that may embolden those who would seek to curtail similar forms of expression throughout Europe. 18/

I don't know how to put a ribbon on a debacle like this, but I believe it behooves us be attentive to developments like this.

Especially for those of us in the states, this may seem a remote and abstract threat, but it certainly wouldn't be the first thing to jump the pond. 19/

The erosion of free speech is not to be taken lightly, and once lost, it's difficult to recover. In closing, I can't think of more fitting words than those of George Orwell:

"If liberty means anything at all, it means the right to tell people what they do not want to hear." /fin

@RubinReport, what's the take on this over in Europe so far?