(Remarks prepared for an international seminar hosted by the Kantor Center, Tel Aviv University, 11 May, 2015)

In my view, incitement to hatred should be prohibited and blasphemy should not.  I do not intend here today to argue either position in isolation, but rather the two together. If you want to know why I think hate speech should be banned, I invite you to read Bloody Words: Hate and Free Speech,[1] a whole book I have written on the subject.

I reject the notion that, if I am against the prohibition of blasphemy, I must also be against the prohibition of hate speech, or that, if I accept the prohibition of hate speech, I must also accept the prohibition of blasphemy.  My purpose here today is to try to convince you that advocating prohibition of incitement to hatred and opposing the prohibition of blasphemy are consistent positions.

The two positions are different first because they deal with different forms of speech.  There are some free speech absolutists who will say that anything goes - whether it is fraud or plagiarism or threats of murder or defamation or child pornography.  For those who accept that some restrictions on speech are justifiable, the issue becomes which ones. 

Prohibiting some speech does not mean prohibiting all speech. There is no inherent contradiction in principle between saying that the right to free speech should prevail over the right of to be free from blasphemy and that the right to be free from incitement to hatred should prevail of the right to free speech.

A prohibition against blasphemy is meant to protect the believer from insult and to protect us from a breach of the peace that the outrage from the insult may provoke in the believer.  A prohibition against incitement to hatred is meant to protect us from those incited.

A prohibition against incitement to hatred protects people.  A prohibition against blasphemy protects texts, doctrines.

A prohibition against blasphemy is as wide as all outdoors, because religion is any spiritual belief.   A prohibition against incitement to hatred is more limited, because what is prohibited is the incitement to hatred against identifiable groups, groups which are currently or have traditionally been disadvantaged.

Blasphemy encompasses a far broader range of expression than hate speech.  Publications which expose a religion to ridicule, which belittle the religion or otherwise affront the dignity of the religion would be blasphemy.  In contrast, publications which expose a person to ridicule, which belittle the person or otherwise affront the dignity of the person on the basis of his or her religion is not hate speech.

This issue was actually litigated in Canada in the Whatcott.[2]  William Whatcott was held by a Saskatchewan Human Rights Tribunal to have violated the Saskatchewan Human Rights Code for circulating anti-gay literature.  He was held to have violated the prohibition against publications which expose to hatred, ridicule, belittle or otherwise affront dignity of persons on basis of a prohibited ground. 

The Supreme Court of Canada held that a prohibition which "ridicules, belittles or otherwise affronts the dignity of" any person on the basis of a prohibited ground is not a reasonable limit on freedom of expression. The words were held to be constitutionally invalid and severed from the statutory provision.  The remaining prohibition of any representation "that exposes or tends to expose to hatred" any person on the basis of a prohibited ground remained as constitutionally valid.

One reason we protect freedom of expression is to arrive at the truth.  The prohibition of blasphemy impedes the search for truth.  To take one example, Galileo was prosecuted in the seventeenth century for blasphemy for his findings that the earth revolved around the sun. If we had global effective blasphemy laws from the seventeenth century till today, we might still today be prevented from saying that the earth revolves around the sun.

Incitement to hatred serves no similar truth seeking purpose.  It is an absurd position to say that maybe racial slurs are true, that Jews control the world, that blacks are less intelligent than whites and so on.  The mere suggestion that these utterances might be true gives credence to them, something we would not want to do.

Sometimes we get a better sense of what is true by hearing what is false.  Blasphemy can serve this purpose.  A mischaracterization of any religion becomes an opportunity to explain what that religion truly is.

Hate speech serves no similar purpose.  For example, we do not need to hear Holocaust denial to better understand the existence of the Holocaust, to hear that a minority controls the world to become more keenly aware of the disadvantaged situation of minorities.  We do not heed to hear hate speech to keep our belief in equality alive.

More generally, we protect freedom of expression to explain our ideas, or to communicate information.   Blasphemy can serve this purpose, developing religious thought.  What is blasphemy for one religion is doctrine for another. Prohibiting blasphemy means stultifying the development of spiritual discussion. 

Prohibiting hate speech imposes no similar obstacle.  Prohibiting hate speech does not block discussion about hate speech.  A discussion about hate speech is not hate speech; a discussion is not propaganda.

Prohibition of hate speech is embedded in the concept of human equality.  Hate speech is a denial of this equality.  Equality of humanity is a human rights principle.  Equality of religions is not.  To say that one religion is better than another is different from saying one group of persons is better than another.  The first could be permissible even where the second is not.

The very nature of religious belief sits uneasily with equality of belief.  A believer would, at least for him or her, believe that his or her religion is better than others or he or she would not be a believer.  In principle, unlike the belief of inequality of groups of people, there is or should be nothing wrong with that.  The problem is not the belief in inequality itself, but rather the foisting of that belief in inequality on others. 

Some believers, in an effort to inflate their own importance, inflate the importance of their beliefs beyond reason.  Blasphemy is an antidote, a deflater, a pin prick in the balloon of the over blown egos of some believers.

In contrast, hate is an emotion not a thought.  Jean Paul Sartre has written: "The antisemite has chosen hate because hate is a faith; at the outset he has chosen to devaluate words and reasons".[3]

Freedom of expression is necessary for democracy.  However, tolerance is also essential for democracy. Hate speech tears at the fabric of democracy by fomenting hatred of the majority against the minority.

A law against blasphemy is a law against preventing offence.  A system which prohibits differences which offend is a repressive system, not a democratic system.

Prohibiting incitement to hatred attempts to protect society from the lunatic fringe, those who are susceptible to incitement and prone to act out whether through discrimination or violence.  Prohibiting blasphemy is directed to protecting society from a far larger group, those who hold spiritual beliefs.

Democratic society has to protect itself from the lunatic fringe.  In contrast, if large segments of our society, those with spiritual beliefs, are unhinged, we are beyond hope.  Prohibiting blasphemy is predicated on intolerance, that those whose beliefs are blasphemed will not and can not tolerate the blasphemy.  A prohibition of blasphemy is an abandonment of the hope of tolerance. 

The blasphemy of one religion is the doctrine of another.  A blasphemy law rigorously applied without discrimination amongst religions would end up limiting a wide range of religious discourse.

In the sixth century B.C., the Greek philosopher Anaxagoras was convicted of impiety, an offence equivalent to blasphemy, because he argued that the pagan goods were not real, but just mythic abstractions. Anaxagoras was defended by Pericles, who saved him from the death penalty but not conviction, a fine and banishment.[4]  A blasphemy law applied without discrimination would convict a modern Anaxagoras today.   Yet, saying the opposite, that pagan gods are real, would be considered blasphemy by many other religions.

Religion is any sincerely held spiritual belief.  For the purpose of freedom of religion, there are no set categories of religion of or belief. 

Blasphemy which does not discriminate amongst religions would then be a doctrinal deviation from any spiritual belief.  The range of discourse which would be prohibited, if we were to prohibit any expression of doctrinal deviation from any spiritual belief whatsoever, would be vast.  The range of discourse impacted by a prohibition against  hate speech is, both in absolute terms and by comparison, tiny.

In many countries where blasphemy laws exist, they are either expressly limited to one religion or applied to one religion only.  This limitation, while cutting down on the breadth of restriction on freedom of expression, also generates discrimination on the basis of religion.  For hate speech, we do not see that form of restriction in the law, banning victimization of one group, but not another.  Selective enforcement is a potential problem for any law, but it has, in practice, been far less serious for hate speech laws than for blasphemy laws.

Enacting or enforcing blasphemy laws for only one religion or spiritual belief generates repression of other religions or spiritual beliefs.  Practitioners of small deviations from the religion the blasphemy laws protect end up being prosecuted for blasphemy.[5]  Enacting or enforcing blasphemy laws becomes a form of religious intolerance.

Hate speech laws and blasphemy laws have opposite effects on community harmony.  Effective hate speech laws work to prevent the division of a society into victim and perpetrator factions, the targeting and the targeted.  Blasphemy laws applied in favour of one religion have the opposite effect, pitting adherents of the favoured religion against the minority considered blasphemous.

In theory, religious intolerance could also be an effect of hate speech laws. Some hate speech propagandists claim that their speech forms part of their religious beliefs.  The Canadian criminal  prohibition against hate speech has religious belief as a defense.[6]  The defense is not required by human rights standards.  Canadian provinical human rights codes which prohibit hate speech do not have that defense in the statutes.  Hate promoters subject to proceedings under provincial human rights codes who have claimed freedom of religion have had the claims dismissed on the basis that freedom of religion is subject to limitations to protect the fundamental rights and freedom of others and the prohibition against hate speech is one of those limitations.[7]

It is impossible to use this logic to defend blasphemy laws since a prohibition against blasphemy is not the protection of a fundamental right or freedom. Failure to conform to a protected religious doctrine is not, in itself, a human rights violation. Nor are blasphemy laws necessary to protect freedom of religion.  A person's whose religion is insulted is still free to practice that religion.

Incitement to hatred is a step along the way to incitement to violence and genocide.  Blasphemy is not.  The violence from blasphemy, and there is some, comes not from those who endorse the contested speech, as is the case with hate speech, but rather from those who reject it.  We do not need blasphemy laws to protect the blasphemed. 

One justification for blasphemy laws is that they protect potential blasphemers from the extra-legal violent anger of the blasphemed.  Yet, potential blasphemers, obviously do not ask for these laws; it would contradict their willingness to blaspheme to do so. Blasphemers are willing to take the risk; it is paternalistic for the state to say they should not be allowed to do so.

Prohibiting hate speech protects the powerless.  Prohibiting blasphemy gives power to the powerful. Who is to decide whether any particular form of expression is blasphemous?  I would not pretend to say what blasphemes Islam or Buddhism or Hinduism or any of the other world religions.  Even for Judaism, I do not feel confident enough in my knowledge of the religion to say what falls within and outside the boundaries of permissible religious doctrine.  I would leave determinations of blasphemy to religious leaders of the religion allegedly blasphemed.

That sort of deference is perfectly all right as long as all religious leaders are doing is stating what is and what is not an acceptable doctrine in the religion they profess.  However, if religious leaders are given the power to determine legally what can and cannot be said, we become a theocracy. Rabbis, imams and priests would rule.

In terms of international human rights standards, incitement to hatred is prohibited; blasphemy is not.  The Universal Declaration of Human Rights provides: "All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination".[8]   The International Covenant on Civil and Political Rights provides: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".[9]  The United Nations Convention on the Elimination of All Forms of Discrimination provides that states: "Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination."[10]

The Organization of Islamic Cooperation (OIC) at United Nations Human Rights Commission and its successor institution Human Rights Council in the years 1999 to 2010 and at the General Assembly introduced resolutions proposing the prohibition of defamation of religion.  Because of the unusual structure of the Council and bloc voting the OIC controls the Council. So the resolutions, unsurprisingly, passed. They also passed the General Assembly, year by year.  Over the years, the resolutions passed with diminishing support.  In 2011, the effort stopped. The OIC instead shifted to supporting a consensus resolution against religious intolerance.

Any law can be abused, but blasphemy laws are particularly prone to abuse, more so than hate speech laws, in part, because of the difference in the international environments.  The international standards requiring banning of hate speech have generated a consensus about the meaning of hate speech.  The absence of international standards requiring laws prohibiting blasphemy has stood in the way of the development of a similar international consensus for the meaning of blasphemy.  Nebulous standards provide greater license to abuse.

These considerations have been theoretical.  However, we do not have to look at the matter as one of speculation or analysis or first impression.  We have a lot of experience of both hate speech and blasphemy laws.  That experience shows us how differently these two sorts of law work in practice.

We can look at both the presence and absence of blasphemy laws.  We can see further the harm prevented and the abuse inflicted when these laws exist and are enforced.

Generally one can say that the absence of effective hate speech laws has been disastrous.  The Weimar Republic did have hate speech laws but, and this may be stating the obvious, they were ineffectual in the extreme.  Effective functioning hate speech laws during the Weimar Republic could have prevented the Holocaust.[11]  One can say the same of a wide variety of twentieth century genocides.  Nothing similar can be said of the absence of blasphemy laws. 

It may be possible to point to individual killings and argue that they might have been prevented by effective blasphemy laws.  For my part, I cannot think of any mass killing about which it could be said that it could have been prevented by effective blasphemy laws.

Where hate speech laws and blasphemy laws exist, we see abuse of both.   I myself have been the victim of abuse of hate speech laws; so I do not take that abuse lightly.

In 2008, in a park in Krasnodar, Russia, practitioners of the spiritually based set of exercises Falun Gong distributed a research report David Kilgour and I co-authored.  The report had concluded that Falun Gong in China were being killed in the tens of thousands in China for their organs which were being sold to transplant tourists.  The Prosecutor of the Krasnodar Territory filed a charge of distribution of extremist materials.  On October 27, 2011, the Pervomaisky district court in Krasnodar ruled that our report was extremist material on the basis that the report could "create for the readers a negative image of China". 

Others whose work was encompassed in the same order appealed the decision against our report first in December 2011 to the Judicial board on civil cases of the Krasnodar Regional Court, then in March 2012 to the Presidency of the Krasnodar regional court, and then in July 2012 to the Russian Supreme Court, all unsuccessfully.  David Kilgour and I filed an application against the Russian decision to the European Court of Human Rights in December 2012; the application remains pending. 

Yet, the abuse of hate speech laws pales in comparison with the abuse of blasphemy laws.  Hate speech laws can be made to work in a non-discriminatory way.  A blasphemy law which is non-discriminatory would prohibit such a wide range of discourse it would not be functional. 

In practice, the blasphemy laws we see are all abusive, all discriminatory, prohibiting blasphemy of one religion or spiritual belief but not another.  Even if we put to one side the right to freedom of expression, a blasphemy law which respects the right to equality and the right to freedom of religion is a practical impossibility.[12]

It is impossible, in my humble opinion, to point to any hate speech which benefited humanity.  We can not say that humanity would have been worse off if a particular form of hate speech had been repressed.  Finding harm that did result or would have resulted from the suppression of speech viewed as blasphemous is as easy as can be.

Take again the example of Galileo.  Like many initially theoretical scientific discoveries, his observation that the earth rotates on its axis and revolves around the sun has a wide variety of practical applications, not the least of which is satellite electronic communication.  Blasphemy laws effective in preventing expression of this insight would have foreclosed the development of modern communication.

Or take one of many examples from medicine, the discovery of human anatomy.  Until the sixteenth century, the theory of human anatomy developed by the Greek Galen in the second century a.d./c.e. had been based on the dissection of monkeys.  The Flemish Vesalius in the sixteenth century produced a much more accurate anatomy, as one might expect, by autopsy of humans.  For his pains, he was threatened with prosecution in Italy where he taught anatomy for blasphemy because examining the human body was considered an act of degradation.  To escape the inquisition, he stopped teaching.  If blasphemy laws of the sixteenth century had prevailed, modern medicine would have been impossible.

Practically we can see that hate speech laws are not a spur to vigilantism but that blasphemy laws are.  One justification for blasphemy laws is that they protect and promote social order.  In practice, they have the opposite effect.  Once the state asserts through legislation that blasphemy is unacceptable, we see fanatics taking the law into their own hands.  Extremists exploit the laws to go after alleged blasphemers with impunity.

To take one example, in Indonesia, there are laws prohibiting blasphemy against Islam; Ahmadiyas adhere to a form of Islam other Moslems consider blasphemous. In June 2007, a mob attacked Ahmadiya followers in Tasikmalaya.   Police were present at the attacks but arrested none of the attackers.[13] There are many such incidents, not only in Indonesia, but throughout the Islamic world where there are blasphemy laws. 

I, in my working life, am a Winnipeg refugee lawyer, and have been for virtually all my professional career.  Daily in Winnipeg I see victims of human rights violations from around the world seeking protection in Canada. 

During the almost four decades I have been doing this, I have seen many victims of violence incited by hate speech, but not one victim of hate speech laws.  For blasphemy, it is the reverse.  I have seen, in particular, a steady flow of Ahmadis from Pakistan, victims of angry mobs who benefit from the impunity which blasphemy laws generate, but not one person whose victimization can be traced to the absence of blasphemy laws.  If we put the theory to one side and just look at the world around us, what we see is that hate speech laws dampen incitement; blasphemy laws fuel it. 

Blasphemy and hate speech laws rather than working in tandem, work at cross purposes.  If endorsing hate speech laws really meant also endorsing blasphemy laws, that would be a black mark against hate speech laws.  For example, if Holocaust denial, which is a form of hate speech, were equated with blasphemy, that equation would undermine the effort to combat Holocaust denial, by making the Holocaust seem to be a belief rather than a fact.  To maintain the credibility of hate speech laws, they must be kept distinct from blasphemy laws.

The freedom to engage in blasphemous discourse is not an uninhibited free speech zone.  Blasphemy and incitement to hatred are not watertight compartments.  Incitement to hatred on basis of an identifiable group characteristic includes incitement to hatred of a religious group.  Something can be both blasphemy and incitement to hatred against believers of the religion blasphemed.

Modern antisemitism is mostly racism, incitement to hatred against Jews as a supposed race.  However, even antisemitism is sometimes also blasphemy.  Take the antisemitic myth that Jews use the blood of Christian children for the baking of Passover matza.  That is both incitement to hatred and blasphemy of the Jewish religion.

To take a more modern example, the Canadian Jewish News on May 5th reported that an Arabic language paper, published in Mississauga, Ontario, wrote that Judaism is a terrorist religion and that killing is ingrained in the Jewish faith.[14]  The article was reprinted from an antisemitic blog the name of which, Elder of Zion, says it all.  Again here we have both incitement to hatred and blasphemy.

When there is overlap between the incitement to hatred and blasphemy, the speech should be prohibited, not because of the fact that it is blasphemous, but rather because it incites to hatred.  For this sort of overlap, the difference between blasphemy and hate speech is the reason for the prohibition.

Though blasphemy and incitement to hatred overlap, they do not coincide. Take again the findings of Galileo once considered blasphemous that the earth revolved around the sun.  It is impossible to characterize that finding as incitement to hatred against a disadvantaged minority.

If we keep equality principles in mind, we have to feel uncomfortable when the faith of a disadvantaged minority is ridiculed.  However, the solution is not to fashion a remedy for blasphemy which looks like the remedy for hate speech, one which would protect disadvantaged minorities.  For one, such a restriction on blasphemy would produce the odd result that blasphemy of Islam could be prosecuted only in non-Moslem countries. 

For another, a remedy with such a restriction would potentially be directed against marginal members of marginal groups.  It would transfer power within the group from the bottom to the top, from the heretics, eccentrics and oddballs in a group to the religious leaders of the group, who would pronounce on what blasphemy is. Blasphemy laws do not prevent punching down; they just relocate the power to punch down from outsiders to insiders.

Ridiculing the disadvantaged is disgusting, but not necessarily a matter for state involvement.  The remedy, insofar as there is one, is to make every effort to ensure that blasphemy does not become an exception to the prohibition of hate speech.  Even though a linkage between blasphemy and hate speech undermines advocacy of prohibition of hate speech, we should nonetheless prohibit hate speech which is also blasphemy. 

Advocating prohibition of hate speech which is also blasphemy may find the advocates of prohibition of hate speech with unwelcome bedfellows.  Yet, those who believe in prohibition of hate speech must maintain their principles, not only no matter who disagrees with them, but also no matter who agrees with them.

The need to distinguish between hate speech and blasphemy was made concrete in France this year.  On January 28, 2015, shortly after the assassination of the Charlie Hebdo cartoonists, on January 7th, the comedian Dieudonné M'bala M'bala was prosecuted for inciting racial hatred against Jews; he was convicted on March 19.  He had already been convicted half a dozen times for that offence. 

Charlie Hebdo had been convicted of defamation of individuals.  But, though taken to court many times, it was never been convicted of the offense of inciting racial or religious hatred of a group. Charlie Hebdo targets all religions and not just Islam. Indeed, on occasions it has printed cartoons poking fun at figures representing religious Jews and Moslems, or religious Jews, Moslems and Christians, all in the same cartoon.

The pattern of convictions of Dieudonné who targets Jews and acquittals of Charlie Hebdo, with its history of making fun of Islam, has led to charges of inconsistency, hypocrisy, and discrimination in the application of the law.  The answer to these charges is the distinction between hate speech and blasphemy.

When it comes to individual cases, there is always room for dispute about the application of the facts to the law.  Yet, at least if we take the cases of Dieudonné and Charlie Hebdo as correctly decided, then Charlie Hebdo has been guilty, if anything, of blasphemy, which should not be prosecuted.  Dieudonné has been guilty of inciting hatred, which should be and in France has been prosecuted.

If Dieudonné said about Moslems what he says about Jews he would be equally guilty.  When Charlie Hebdo cartoons Jews the way it cartoons Moslems, which sometimes it does, it is equally innocent.

The distinction between blasphemy and hate speech then is not just a policy prescription.  It helps us understand what we see.  Without having this distinction firmly in mind the differing treatment of Dieudonné and Charlie Hebdo would be inexplicable.

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David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada and Honorary Senior Counsel to B'nai Brith Canada.