Responses to Offensive Speech

Author(s):  
Nicholas Hatzis

This chapter discusses whether there is a non-religious justification for limiting religiously offensive speech. The most commonly used argument is that the right to freedom of religion includes a more specific right to be protected from offence to one’s religious sensibilities. If this is correct, it provides a non-religious reason for censorship: even those who are hostile to religion can accept that religious freedom is an important right and that the government is justified in giving effect to rights. The European Court of Human Rights has repeatedly upheld restrictions on expression which insults religious feelings, reasoning that religious freedom, as guaranteed by the European Convention on Human Rights, protects the religious sensibilities of believers from offence. I suggest that this interpretation is mistaken. After exploring how rights give rise to claims, I argue that there is no right-based claim to be protected from the unpleasant feelings caused by religious insults. Therefore, it is unpersuasive to describe cases of religious offence as involving the conflict of two fundamental rights—speech and religion—which require a balancing exercise to decide which one will prevail each time.

2016 ◽  
Vol 19 (01) ◽  
pp. 3-13 ◽  

The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.


2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.


2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.


2021 ◽  
Vol 9 (2-3) ◽  
pp. 244-269
Author(s):  
Christine Carpenter

Abstract Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.


Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom of religion and freedom of expression, which are classified as qualified rights, and examines Article 9 of the European Convention on Human Rights (ECHR), which explains the right to hold or not hold a belief as well as the right to manifest a belief. It also considers how the European Court of Human Rights (ECtHR) decides if there has been manifestation of belief, interpretation of Article 10 with respect to views that shock and disturb and some forms of hate speech, and state restriction of expression. The chapter concludes with a discussion of freedom of religion and expression in the UK.


2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.


Author(s):  
Nicholas Hatzis

Is the government ever justified in restricting offensive speech? This question has become particularly important in relation to communications which offend the religious sensibilities of listeners. It is often argued that insulting a person’s beliefs is tantamount to disrespecting the believer; that insults are a form of hatred or intolerance; that the right to religious freedom includes a more specific right not to be insulted in one’s beliefs; that religious minorities have a particularly strong claim to be protected from offence; and that censorship of offensive speech is necessary for the prevention of social disorder and violence. None of those arguments is convincing. Offence is an unpleasant mental state caused when our expectations of being treated in a particular way are frustrated. Drawing on law and philosophy, the book argues that there is no moral right to be protected from offence and that, while freedom of religion is an important right which grounds negative and positive obligations for the state, it is unpersuasive to interpret constitutional and human rights provisions as including a right not to be caused offence. Rather, we have good reasons to think of public discourse as a space for the expression of all viewpoints about the ethical life, including those which some listeners will find offensive, as this is necessary to sustain a society’s capacity for self-reflection and change.


2011 ◽  
Vol 13 (3) ◽  
pp. 341-343
Author(s):  
John Witte

The European Court of Human Rights has upheld Italy's policy of displaying crucifixes in its public school classrooms. In Lautsi v Italy, an atheist mother of two state school children challenged this policy, in place since 1924. After losing in the Italian courts, she appealed to the European Court of Human Rights, arguing that the presence of these crucifixes in schools violated her and her children's rights to religious freedom and to a secular education guaranteed by the European Convention on Human Rights. On 3 November 2009, a unanimous seven-judge chamber of the European Court held for Ms Lautsi. On 18 March 2011, the Grand Chamber reversed this decision and held 15 to 2 in favour of the Government of Italy.


2021 ◽  
pp. 402-419
Author(s):  
Peter Cumper ◽  
Tom Lewis

This chapter examines the interpretation of the right to freedom of religion or belief under Article 9 of the European Convention on Human Rights (1950) by the European Court of Human Rights. The topic is examined with reference to legal bans on items of Islamic dress such as headscarves and face-veils. It is argued that both the structure of Article 9, and the way in which it has been interpreted, has resulted in weak levels of protection for applicants bringing such claims, and that the reasons for this lie deep in European history and politics. The Court’s approach may, arguably, be justifiable in that the protection it offers is subsidiary to that offered by states. Nevertheless, the scant hope that such applicants have raises questions as to the effectiveness of the Convention and threatens to undermine much of the laudable work that has been undertaken elsewhere by the Court.


2020 ◽  
pp. 87-112
Author(s):  
Екатерина Вячеславовна Киселева ◽  
Ольга Сергеевна Кажаева

В практике Европейского Суда по правам человека есть ряд решений, затрагивающих проблему абортов, последние из которых на октябрь 2020 г. были вынесены в марте 2020 г. (дела Гриммарк против Швеции и Стин против Швеции). Хотя права на аборт в Европейской конвенции по правам человека 1950 г. нет, такие дела рассматриваются, в частности, в контексте права на жизнь (как правило, беременной женщины, но не нерожденного ребенка), права на неприкосновенность частной жизни (как правило, беремен ной женщины, но не, например, отца нерождённого ребенка), свободы вероисповедания (как правило, медицинского работника, отказывающегося от проведения аборта по соображениям совести и обычно не защищаемого Судом) и др. Примечательно, что при вы несении решений по делам об абортах Суд de facto опирается на концепцию так называемых соматических прав человека и чем дальше, тем менее утруждает себя поиском действительного баланса между различными правами человека, оказывающимися в со прикосновении в связи с абортом. Теория о соматических правах человека как правах человека четвертого поколения исходит из мировоззренческого признания права человека на распоряжение собственным телом, чему способствует быстрое развитие биомедицины, биоинженерии и промышленного производства, но противоречит Православному вероучению. В настоящей статье раскрываются основные положения, относящиеся к так называемым соматическим правам человека, особенно репродуктивным, отмечается их расхождение с христианским отношением к жизни и телу человека, приводятся три при мера дел Европейского Суда по правам человека, связанных с абортами, которые свидетельствуют о тенденции признания «права на аборт» в целом и, в частности, в качестве более приоритетного, чем защита свободы вероисповедания, если речь идет об отказе от проведения аборта по соображениям совести медицинского работника. The caselaw of the European Court of Human Rights contains a range of decisions touching upon the problem of abortions. The latest of such decisions, as of October 2020, were issued in March 2020 (Grimmark v. Sweden and Steen v. Sweden). Although there is no right to abortion in the European Convention on Human Rights, the abortion cases are being taken by the Court, inter alia, in context of the right to life (usually that of the pregnant woman, but not of the unborn child), right to respect for private life (usually that of the pregnant woman, but not, e. g. of the father of the unborn child), freedom of religion (usually that of a health care worker refusing to carry out an abortion and generally being left without the protection of the Court), etc. It is notable that, when deciding the abortion cases, the Court de facto employs the concept of the so called somatic human rights and tends recently not to trouble itself with seeking the real balance between the different human rights that become intertwined in connection with abortion. The theory of somatic rights as of fourth generation human rights emanates from the world outlook accepting rights of a person to disposal of one’s body supported by the rapid development of bio medicine, bioengineering and industrial production, but being in contradiction with the Orthodox faith. The present article reveals the basic provisions related to the so called somatic rights, especially reproductive rights, notes their incongruity with the Christian attitude towards a human life and body, brings three examples of the European Court’s of Human Rights cases connected with abortions, that witness a tendency to accept ‘a right to abortion’ generally and, in particular, as a more prioritized one than the protection of the freedom of religion, if the matter concerns the conscientious abjection to carry out an abortion on the part of the health care worker.


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