Thread by @ClaireBerlinski

Hi @Aayan, how are you? It's been a long time since I last saw you. I hope you're well. I spent all day thinking about this ruling yesterday. I disagree with you. The ruling is not at all what I want, but I concluded it's legally correct. Here's why:

https://twitter.com/Ayaan/status/1055984413643685889

When I began reading about it, I realized who ES must be; I'm sure you know too, but since her name has been withheld from the media, I won't use it. It's not relevant, either, except to say she's well-known for comments would have been a far more sound basis for a test case.

I'll come back to that. The point is, Austria has had on the books longstanding laws in contradiction with the principle of free speech. One is against Holocaust denial, which as you know, has been enforced. With prison sentences.

And it also has blaphemy laws--

--applicable to all of Austria's "recognized" religions; Islam has been recognized since 1912. Both sets of laws are outrages to the idea of free expression. But to be in any way intellectually consistent, you can't campaign against one without campaigning against the other.

Unfortunately, Austria has quite some number of Holocaust deniers left: Austria's history is different from Germany's in this respect. But for the sake of argument, assume that getting rid of Austria's blasphemy laws can only be done by getting rid of its ban on Holocaust denial.

I don't know if that's true, but can't think of any other principled way to repeal them.

The ECHR upheld the Austrian Supreme Court ruling because the verdict was unquestionably correct given Article 188 of Austria's criminal code: ris.bka.gv.at/Dokument.wxe?A…

The Austrian courts argue the law applies to Islam too, which makes sense, because it’s been a state-recognized religion since 1912.

"But who the hell in Europe has *blasphemy laws* in the year 2018," Americans will ask?

Well, they'd be surprised. Very.

Blasphemy laws are by and large the *norm* in Europe. Always have been. Germany has Article 166 in its criminal code.

The UK only abolished the common law offense of blasphemy in 2008.

France has long been firm in its rejection of blasphemy laws—for obvious reasons—

--but they only bothered to repeal the curious Alsace-Moselle exception after the attack on Charlie Hebdo.

Greek law is interesting: It only protects “the Greek Orthodox Church or any other religion tolerable in Greece” from blasphemy.

Lot of ways that could be interpreted.

Iceland only repealed its blasphemy laws in 2015.

Exit polls are suggesting that Ireland just voted to scrap its blasphemy laws--yesterday. Literally, yesterday.

In Italy, blasphemy (against an unspecified “deity”) is both an administrative offense, punishable by a modest fine, and a criminal one:

Article 404 of the penal code criminalizes “offenses to religion.”

The Netherlands only abolished its blasphemy laws in 2014.

Norway only abolished its blasphemy laws in 2015.

(Previously, they'd used them briefly to ban “The Life of Brian.")

Poland has strict blasphemy laws. They're enforced. "Whoever offends religious feelings of other people by publicly insulting an object of religious cult or a place for public holding of religious ceremonies, is subject to a fine, restriction of liberty or loss of liberty--

--for up to 2 years.”

The law was used recently to convict a pop singer who said in an interview that "the Bible was written by people 'drunk on wine and smoking some kind of herbs.’” (Much like Turkey's Fazil Say case.)

Romania: No blasphemy laws, and an attempt to introduce them in 2011 (by the left, of course, under the guise of “religious tolerance”) was shot down.

Spain: Article 525 of the penal code prohibits "vilification" of religious "feelings", "dogmas", "beliefs" or “rituals.”

It was used in 2012 to prosecute an artist, Javier Krahe, because a scene in a 34-year-old documentary about him depicted him doing something blasphemous to Christ. (I didn't quite understand what he did. My Spanish is lousy.)

He was acquitted.

Sweden has an all-purpose law forbidding the agitation against “specific groups of people” based on their "race, skin colour, national or ethnic origin, faith or sexual orientation.”

(I think it's mostly been used to protect Jews and homosexuals from harassment.)

Switzerland’s Article 261 criminalizes “public and malicious insult or mockery of religious convictions of others; malicious desecration objects of religious veneration; malicious prevention, disruption or public mockery of an act of worship ..."

"Religious insult” is forbidden in Andorra, Cyprus, Croatia, the Czech Republic, Finland, Lithuania, Poland, Portugal, and Slovakia.

And Turkey’s laws are, obviously, just like European laws.

So Austria's laws are neither unusual in Europe, nor are these laws untraditional, nor have they been declared unconstitutional by the ECHR, ever.

This is not for want of trying, but those who most want them abolished have learned recently that the rest of Europe--

--deeply resents them, to the point of populist revolt.

In 2007, the Parliamentary committee of the Council of Europe recommended that blasphemy be decriminalized throughout Europe. Their recommendation was crystal clear and we'd both, I'm sure, agree with it enthusiastically:

“... blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, matters which belong to the public domain, and those which belong to the private--

--sphere. Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world.”

Alas, who listens to the Council of Europe?

Some countries accepted the recommendation, or decided independently, presumably for the same reasons, to rid themselves of their blasphemy laws. But others did not. Austria did not. In many cases, the objection to removing these laws came from the Church, which argued--

--that getting rid of these laws was a straight shot to complete degeneracy and Godlessness.

So I concluded the ECHR decision is, alas, correct. They upheld the Austrian court ruling because it was a *correct application of Austrian law,* to which they deferred. (Part 1, Cont.)

So, to continue: They deferred to the Austrian court on this basis:

"The Court observed also that the subject matter of the instant case was of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree--

--depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, it considered that the domestic authorities had a wide margin of appreciation in the instant case--

-- as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country." This is actually a typical ECHR judgment; they've maddened me by doing this before, but since law is based on precedent, it isn't exceptional.

Americans *will* understand what they were trying to do: They were trying to uphold what we'd call the principle of subsidiarity, and they respected Austrian sovereignty. That's both legally reasonable and politically reasonable--

given that populists are making bank in Europe by complaining that EU institutions ride roughshod over their sovereignty.

The Court noted that it was undisputed that ES had committed an act “proscribed by law” – she’d been prosecuted based on Article 188 of the Criminal Code.

And it endorsed the Austrian Government’s contention that 'the impugned interference had had the legitimate aim of preventing disorder by safeguarding religious peace and protecting religious feelings.'”

No, I happen to think that's nuts: The case wasn't brought by Muslims whose feelings were offended; it was reported to the prosecutor by journalists who see the FPÖ as a deadly threat. And this feeling seems to be shared by Austria's judiciary.

This is exactly where the ECHR should step in, except they *don't have the legitimacy to do that,* and thus rarely do. I saw this again and again in Turkey, where they basically said, in their verdicts, "Well, Turkish officials know their country better than we do."

Even though, had they studied the matter more closely, they would have seen very clearly that they were doing human rights no favors. But it is typical, it is consistent with precedent, and unless the nations of the EU agree much more enthusiastically than they have to defer--

--to this court, they'd be crazy to overturn longstanding and popular laws throughout Europe in an essentially undemocratic way, through judicial fiat.

The Court agreed with Austrian courts that the applicant must have been aware that she was stirring up religious conflict.

And as I'm sure you know--she was. She should never have been prosecuted for *that comment,* but since we both know who she is, I'll just say cryptically that I'm glad they realize her agenda goes far beyond that.

Unlike Germany, Austrians have never honestly accepted their role in Hitler’s rise and the Holocaust. The FPÖ is not something weird but essentially within democratic parameters. I have no doubt that the case made it all the way up the Austrian court chain for political reasons--

--but if I were planning a series of political persecutions in Austria, I'd start with the FPÖ, and I'm not sure I'd even feel bad about it. We know what they are.

I would of course prefer this be resolved the right way. With the FPÖ disappearing for lack of public support.

And I don't think laws against blasphemy should exist. But as it happens, Austria has them. They were upholding a clearly-written Austrian law, whose formulation is very broad: “Whoever, in circumstances where his behaviour is likely to arouse justified indignation--

disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community--

--shall be liable to a prison sentence of up to six months or a fine of up to 360 daily rates.” That’s the law, and she broke it. Clearly.

If you don’t like a law, as I keep trying to explain to my fellow Americans, there is a right remedy and a wrong remedy.

The wrong remedy is trying to find a judge who doesn’t like the law either and thus won’t enforce it. The right remedy is to elect lawmakers who will change the law. If you want to have “rule of law,” that’s how it’s got to work. Austrians do not wish to change this law.

The law therefore expresses a democratic decision, made by the Austrian people in free and fair elections. And the court—unless it has sense of its role that’s highly inappropriate for a judicial branch—had no choice but to uphold it, however stupid it thinks the law.