For the past several years, the United Nations Human Rights Council and General Assembly have adopted resolutions recognizing and promoting the concept of "defamation of religions." Proponents seek to establish an international ban on any speech that would insult, criticize, offend, or disparage any per­son's religion. Specifically, the Organization of the Islamic Conference has suggested that national legisla­tures pass laws to ensure protection against "defama­tion of religions."

Such a ban, however, could not withstand legal scrutiny in the United States. The First Amendment to the U.S. Constitution protects free speech and expres­sion, even when speech is offensive or insulting. Moreover, a religious "speech code" would disrupt the assimilation of religious minorities that has occurred throughout U.S. history and could breed resentment rather than understanding among America's religious communities.

The U.S. government has spoken out strongly against the "defamation of religions" effort at the United Nations. The next U.S. Administration should oppose the further promulgation of "defamation of religions" at the U.N. and must resist any attempt to legitimize the concept within the United States. Given the penchant of some federal judges-including jus­tices on the U.S. Supreme Court-to rely on the deci­sions and opinions of international courts and organizations, the "defamation of religions" effort at the United Nations must be confronted.

The "Defamation of Religions" Effort at the U.N.

In 1999, the U.N. Commission on Human Rights adopted a resolution titled "Defamation of Religions" that expressed concern over the "negative stereotyping of religions" and "that Islam is fre­quently and wrongly associated with human rights violations and with terrorism."[1]  In its most recent resolution passed in March 2008, the Human Rights Council (which replaced the Commission on Human Rights in 2006) urged all U.N. member states "to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of any reli­gion" and stated that while "everyone has the right to freedom of expression…the exercise of this right carries with it special duties and responsibilities, and may therefore be subject to certain restric­tions…."[2]  In short, the resolution maintains that while everyone has a right to free speech, that right does not permit the "defaming" of Islam or any other religious denomination.

The U.N. General Assembly, of which all the nations of the world are members, has passed a "def­amation of religions" resolution in each of its last three sessions from 2005 to 2007. The text of these resolutions is similar to that of the resolutions passed by the Commission on Human Rights and the Human Rights Council from 1999 to the present. The votes on the General Assembly resolutions split along the same general lines as the votes on the res­olutions adopted by the Commission and the Coun­cil-with the Islamic nations and the developing world voting in favor, and Western democracies, including the United States, voting against.

The alleged need for international protection against "defamation of religions" was explained in a recent report submitted to the Human Rights Coun­cil by the Secretary General of the Organization of the Islamic Conference (OIC):

The Muslim Ummah has noticed with utmost concern the continued attacks by a section of marginal groups and individuals in the West on the most sacred symbols of Islam including the Holy Quran and Prophet Muhammad in an offensive and denigrating manner, the most recent being the reprints of the blasphemous cartoons by 17 Danish newspapers on February 13, 2008 and the release of the film Fitna by a Dutch Parlia­mentarian on March 27, 2008.…

The instances quoted or referred to in this report corroborate that marginal western groups and individuals, motivated by hatred and intolerance against Muslims and Islam remain unabated in acts of provocation and incitement of religious intolerance by misuse or abuse of the right to freedom of expression. The need to address this issue through adop­tion of an adequate international instrument has been underscored in the Report.[3] 

In addition to the supposed need for an "ade­quate international instrument" (presumably an international convention or treaty) to prohibit "def­amation of religions," the OIC report also calls for the enactment of legislation by national legislative assemblies to prohibit by law the "defamation of religions."[4]  In short, it is clear that one goal of the OIC is for national legislatures-including, pre­sumably, the U.S. Congress-to enact legislation prohibiting the criticism of any religion, especially Islam, its prophet, and its practitioners.

The U.S. has been highly critical in its opposi­tion to "defamation of religions" resolutions at both the Human Rights Council and the General Assembly.[5]  Protestations by Congress and the executive branch of the U.S. government, how­ever, may not be sufficient to stop the recognition of "defamation of religions" in the U.S. In recent years, certain justices of the U.S. Supreme Court have relied on the judgment of foreign organiza­tions in reaching their decisions. Justice John Paul Stevens, writing for a majority of the Court in Atkins v. Virginia, a death penalty case decided in 2002, was apparently swayed by the beliefs of "the world community" regarding the death penalty and aligned himself with that "community" rather than respecting the opinion of a Virginia jury.[6]  In writing the majority opinion in Lawrence v. Texas, a 2003 case involving homosexual sodomy, Jus­tice Anthony Kennedy cited an opinion of the European Court of Human Rights as well as a law passed by the British Parliament to overturn a rul­ing made by the Supreme Court fewer than 20 years before.[7]  It, therefore, stands to reason that Americans should be wary of the steady adoption of "defamation of religions" resolutions at the U.N. as well as the enforcement of such laws throughout the Islamic world, given the opinions of some Supreme Court justices.

Fortunately, the First Amendment to the U.S. Constitution would prohibit the enactment or enforcement of any legislation prohibiting "defama­tion of religions" in the U.S. and should militate against recognition of the concept by the Supreme Court, regardless of the proclivities of some of its members noted above.

Incompatible with the U.S. Constitution

The First Amendment provides that "Congress shall make no law…abridging the freedom of speech." The "hallmark" of the First Amendment "is to allow 'free trade in ideas'-even ideas that the overwhelming majority of people might find dis­tasteful or discomforting."[8]  Moreover, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."[9]  With some narrow exceptions, such as obscene materi­als[10]  and libel,[11]  offensive speech and expression is protected by the Constitution.[12] 

Inoffensive speech and unobjectionable expres­sive conduct usually require no protection to begin with, since the government has little reason to cen­sor such speech. Criticism of powerful people (such as religious figures or public officials) and institu­tions (such as organized religion), however, is the very type of speech that requires protection, espe­cially if that criticism is controversial or offensive.

Blasphemy, sacrilegious statements, and any other speech or expression that insults or denigrates organized religion is, for better or worse, protected by the First Amendment.

Joseph Burstyn, Inc. v. Wilson. In 1950, the State of New York censored an Italian film by denying its distributor a license for commercial exhibition. The film in question, titled The Miracle, told the fictional story of a deranged young woman who, while tend­ing a herd of goats, misunderstood a passing stranger to be Saint Joseph. "Saint Joseph" then plied the girl with wine and impregnated her.[13] 

The Motion Picture Division of New York State's department of education initially granted a license that allowed the viewing of the film, but after a pub­lic outcry the New York City Commissioner of Licenses declared the film "officially and personally blasphemous" and ordered that the license be with­drawn. The New York State Board of Regents ulti­mately decided that the license should be withdrawn since in its opinion the film was "sacrile­gious" pursuant to a New York statute that allowed exhibition licenses to be withheld if a movie is deemed to be "obscene, indecent, immoral, inhu­man, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime…"[14]  The Board of Regents ordered the Com­missioner of Education to rescind the exhibition license for The Miracle, which he did.

The case was appealed all the way to the U.S. Supreme Court, which ruled against the Board of Regents and the Commissioner, holding that "under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor's conclusion that it is 'sacrilegious'" and that "such a previous restraint is a form of infringement upon freedom of expression to be especially condemned."[15] 

In so holding, the Court highlighted the dangers inherent to censoring expressive speech based on allegations that it ridicules a religious denomination:

In seeking to apply the broad and all-inclu­sive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of con­flicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. …

[F]rom the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protect­ing any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.[16]  (Emphasis added.)

The "defamation of religions" concept, if insti­tuted as U.S. law, would clearly run afoul of the Court's holding in the Joseph Burstyn, Inc. case. Any attempt by the federal government (or any state government) to censor speech or expressive con­duct under such circumstances would place the government in the untenable position of suppress­ing "real or imagined attacks" on Islam, Christianity, Judaism, or any other religious faith currently prac­ticed in the U.S.

Criticism of Religion Is Not Incitement to Violence. The proponents of a "defamation of reli­gions" law maintain that such a measure is neces­sary in order to avoid incitement to violence and discrimination.[17]  The 2008 "Combating defama­tion of religions" resolution passed by the U.N. Human Rights Council states that the Council "deplores the use of printed, audio-visual and elec­tronic media, including the Internet, and of any other means to incite acts of violence, xenophobia or related intolerance and discrimination towards Islam or any religion."[18]  In other words, criticizing, insulting, or spoofing Islam or any other religion in a newspaper, on television, in a movie, or on the Internet should be outlawed.

The First Amendment to the Constitution, how­ever, protects controversial and offensive speech and expression regarding religion even when there is some likelihood that it could incite violence.

In the 1940 case Cantwell v. State of Connecticut, the Supreme Court addressed a situation in which religiously provocative speech allegedly incited a breach of the peace.[19]  Newton Cantwell, a Jehovah's Witness, had been going door to door in a heavily Catholic neighborhood in New Haven, Connecti­cut, selling books, handing out pamphlets, and playing records with religious content on a portable record player. He approached two Catholic men on the street and asked them to listen to one of his records, which attacked the Catholic Church and its doctrine. The two men "were incensed by the con­tents of the record and were tempted to strike Cantwell unless he went away."[20] 

Cantwell was arrested, charged, and convicted of inciting a breach of the peace. The case eventu­ally reached the Supreme Court, which over­turned the convictions. The Court stated that under other circumstances Cantwell may have been guilty of a crime if his actions presented a "clear and present danger of riot, disorder…or other immediate threat to public safety, peace, or order." Cantwell's actions, however provocative, did not rise to that level regardless of the fact that the record he played "singles out the Roman Cath­olic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the hon­estly held religious faith of their fellows."[21] 

The Court recognized that debate over compet­ing religious doctrines is inevitable in American society, and criminal charges are not warranted each time a particular denomination is maligned:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To per­suade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of his­tory, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opin­ion and right conduct on the part of the citi­zens of a democracy.[22] 

In other words, free speech and expression, even if patently false and even when taken to the limits of what polite society allows, must be given precedence over any hurt feelings or insult that may result.

That is not to say that any and all incendiary speech is protected by the Constitution at all times. The First Amendment protects provocative and insulting speech, but not when the speaker threat­ens someone else with immediate violence, or attempts to induce others to imminently commit an illegal act.[23] A strict line, however, can and must be drawn between constitutionally protected free speech criticizing or insulting a particular religious denomination, and unprotected speech where the speaker plainly intends to incite immediate violence or discrimination. It is precisely that very clear line that the proponents of "defamation of religions" blur intentionally.

Those proponents seek to ban all criticism of reli­gion regardless of context or setting. According to the OIC, insulting Mohammad or Islam is in and of itself an incitement to violence and discrimination and therefore must be banned as "Islamophobic." Any speech, book, film, or other form of expression that depicts Islam, Mohammed, or Muslims in an unflattering light constitutes "defamation."

This point was made clear in a June 2008 letter from the OIC to the U.N. High Commissioner for Human Rights wherein the OIC listed several inci­dents that it deemed to be defamatory to Islam, among them:

1. The publication in Denmark of "defamatory" and "blasphemous" cartoons depicting Islam's prophet Mohammed,
2. The release of the short film Fitna, which "den­igrat[ed] the Holy Qur'an" and was "a major Islamophobic incident that shocked and dis­mayed all Muslims and the international com­munity," and
3. "[T]he unfortunate and unwarranted remarks of Pope Benedict XVI at a University in Germany on September 20, 2006."[24] 

Yet none of those incidents-had they taken place in America-would be actionable under U.S. law because there was no threat that the respective audiences would be immediately incited to commit acts of violence or discrimination. The cartoons of Mohammed published in the Danish Jyllands-Posten newspaper in September 2005 were distributed through normal channels (by home delivery and on the newsstand), and therefore not in a manner that would incite imminent violence or discrimination against Muslims or Islam. Dutch parliamentarian Geert Wilder's short film Fitna-which intersperses passages from the Quran with images of terrorist attacks-was posted on a Web site and, therefore, could be viewed by anyone in the world with Inter­net access. Pope Benedict's 2006 speech-wherein he criticized the Muslim practice of forced conver­sion to Islam-was delivered to 1,500 students and faculty at Regensburg University in Germany.[25] 

The act of distributing a newspaper to the pub­lic-however incendiary the content of the newspa­per's articles-does not constitute an incitement to violence, much less a "clear and present danger" of causing a riot or disorder. Nor does posting a short film on a Web site constitute an "immediate threat to public safety, peace, or order." A speech delivered to an assembled audience-if it is clearly evident that the speaker intends to incite the audience to committing an immediate act of violence-may be actionable under U.S. law, but no reasonable person could conclude that the Pope's speech fell within those parameters.

Religious Balkanization

In addition to being unconstitutional, a neutral application of a "defamation of religions" law in the U.S. would be extremely difficult, if not impossible, due to America's religious pluralism. Although the overwhelming majority of Americans identify them­selves as Christians, the U.S. is home to millions of Jews, Muslims, Hindus, and members of many other denominations. The difficulty of enforcing a religious speech code on a heterogeneous citizenry was hinted by Justice Reed in his concurring opin­ion in the Joseph Burstyn, Inc. case:

In the Rome of the late emperors, the England of James I, or the Geneva of Calvin, and today in Roman Catholic Spain, Mohammedan Saudi Arabia, or any other country with a monolithic religion, the category of things sacred might have clearly definable limits. But in America the multiplicity of the ideas of "sacredness" held with equal but conflict­ing fervor by the great number of religious groups makes the term "sacrilegious" too indefinite to satisfy constitutional demands based on reason and fairness.[26] 

That is not to say that the enactment of a "defa­mation of religions" law would be acceptable if the U.S. had a mostly homogeneous population.

Moreover, due to America's religious diversity, the enactment of such a law would inevitably devolve into a legal morass of competing religious grievances. It would be virtually impossible to develop a uniform, national standard for what does and does not constitute "defamation" of a certain religious denomination.

Similar to Supreme Court jurisprudence regard­ing obscenity, the determination of criminal prose­cutions for "defamation of religions" would likely hinge on what the accepted "community standards" are in any particular locale.[27]  Practically, this means that judges and juries in local and state jurisdictions across America would be empowered to determine whether a certain affront to Islam, Christianity, or any other religion is criminally actionable "defama­tion" or constitutionally protected free speech. A movie critical of Islam shown in Dearborn, Michi­gan, which has a large Muslim population, may be deemed by a local jury to "defame religion" while the same film may pass community muster in Boise, Idaho. A novel highly critical of the Church of Jesus Christ of Latter-Day Saints may be banned in Salt Lake City while becoming a bestseller in Boston.

These geographical discrepancies in religious demographics would result in a patchwork of juris­dictions across the U.S. legal landscape that are "Christian-friendly," "Muslim-friendly," "Mormon-friendly," or completely religion-free. This type of religious Balkanization is the polar opposite of the healthy assimilation of various religious minorities that has occurred in America for hundreds of years. It will not lead to better relations between people of different faiths, and may well serve to breed resent­ment among them.

"Defamatory" Art and Entertainment

Allowing a civil cause of action for "defamation of religions" would undoubtedly have a deleterious effect on American social and cultural life. Contro­versial works of "art" such as the highly objection­able photograph of a crucifix immersed in a glass of urine would most certainly be challenged in court.[28]  The Mohammed cartoons published in Denmark-none of which was reprinted in a major U.S. newspaper in a shameful episode of self-cen­sorship-would have resulted in lawsuits against the small U.S. papers that did print them.

A likely target for those prone to filing lawsuits for "defamation of religions" would be the entertain­ment and publishing industries. Many movies and books with religious subject matter generate great public controversy in the U.S., and if there were a legal mechanism available to halt their exhibition, publication, or distribution, it is likely that some "aggrieved" party will make use of it. The distribu­tion and exhibition of books and films deemed religiously controversial may be challenged in courtrooms across the nation:

1. Christian litigants may seek to ban films like Martin Scorsese's The Last Temptation of Christ (1988) and The DaVinci Code (2006), both of which depict accounts of the life of Jesus that are not found in the Gospels.[29]  The books on which those two films were based could also be banned as "defamatory" to Christianity.
2. Muslim litigants may attempt to ban books such as Salman Rushdie's The Satanic Verses (1988), which is considered blasphemous by some Mus­lims and led Iran's Ayatollah Khomeini to issue a death fatwa against Rushdie. Films that could easily be banned include Dutch filmmaker Theo van Gogh's Submission (2004)-for which Van Gogh was brutally murdered by a Dutch-Moroc­can Muslim in Amsterdam that same year- which ties Quranic verses to the mistreatment of Muslim women, as well as the aforementioned Fitna (2004).
3. John Krakauer's 2003 book Under the Banner of Heaven-which tells the true story of a brutal murder and depicts fundamentalist as well as mainstream Mormons in a poor light-could compel American adherents to the Church of Jesus Christ of Latter-Day Saints to sue to ban the book.[30] 
4. Some Jews might attempt to censor Mel Gibson's allegedly anti-Semitic film The Passion of the Christ (2004) for its portrayal of Jews regarding the arrest, trial, and crucifixion of Jesus.[31] 

For every major and minor religious denomina­tion living in the U.S., there are books and films that portray their particular beliefs in an unflattering light. Imagine if a legal cause of action for "defama­tion of religions" existed in multi-religious cities, such as Detroit, Miami, and New York City- aggrieved members of each and every religious denomination that live in those cities could sue to ban films and books that they happen to find objec­tionable. As a result, only those movies and books free of any content even remotely critical of any reli­gion would be safe from censorship in those large, diverse metropolises.

What the United States Should Do

Recognizing a new legal cause of action that bans insults or criticism of religion will provide no bene­fit to the people of the United States. While state and local law enforcement should not hesitate to condemn religious discrimination and prosecute acts of incitement to violence, the federal govern­ment should tread extremely lightly where disputes over religious doctrine are concerned. The U.S. does not need a national speech code that would restrict the First Amendment rights of Americans, no matter how offensive that speech may be to any particular religious denomination.

On an international level, the U.S. must remain wary of continuing efforts by U.N. member states to gain wider acceptance of the "defamation of reli­gions" concept. Its proponents will continue to push the "defamation of religions" agenda at the U.N. Human Rights Council, the U.N. General Assembly, and at other international forums such as the April 2009 Durban Review Conference. Issues relating to religious intolerance-which is what the "defamation of religions" concept seeks to address-should be considered under the relevant mechanisms that already exist at the U.N.

The U.S. should therefore:

1. Oppose any effort to codify "defamation of religions" into U.S. law. Any attempt to estab­lish a criminal or civil "defamation of religions" law in the United States at the federal, state, or local level must be strongly opposed. Attempts to introduce such legislation may be incremental- notably, in May 2005, when a group of U.S. Con­gressmen sponsored a resolution in the House of Representatives calling for the Quran to be treated with dignity and respect.[32]  Such piece­meal legislation must be closely guarded against.
2. Resist the spread of "defamation of religions" within the U.N. system. The Bush Administra­tion has been consistent in its opposition to "defamation of religions" resolutions at both the Human Rights Council and the General Assem­bly. The proponents of the "defamation of reli­gions" concept, specifically the nations of the Organization of the Islamic Conference, will persist in introducing such resolutions at both U.N. forums in the following years. The next Administration must continue to oppose these resolutions and attempt to persuade U.S. allies who have voted in favor of past resolutions (or have abstained from voting) to change their votes to "no."

Conclusion

The idea that religious tolerance should be pro­moted and protected is inexorably intertwined with the founding of the United States and is deeply rooted in American custom. For that rea­son, American society has successfully assimilated a multitude of religious and cultural traditions over the past several centuries, while nurturing a constitutional framework that allows American citizens to express their thoughts and ideas with­out unreasonable constraints.

The U.S. Constitution and Supreme Court juris­prudence protect religious liberty while promoting tolerance and free speech. The introduction of "def­amation of religions" laws would upset the deli­cate-and successful-balance that has been achieved between the free exercise of religion and free speech, both of which are protected under the First Amendment. Government intrusion into these areas is unwarranted in the absence of a com­pelling purpose. Protecting the hurt feelings of aggrieved members of particular religious denomi­nations is not one such purpose.

Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.