“We desperately need our own version of the First Amendment”

Fenster writes:

You may have read about the European Court of Human Rights (ECHR) decision a few days ago which “upheld a conviction against an Austrian woman who called the Islamic prophet Muhammed a ‘pedophile.'”

Or maybe not.   I can find no mainstream media coverage of the decision when searching Google News for the name of the defendant, Elisabeth Sabaditsch-Wolff.   So you may be forgiven if you have not heard the news.

But, like a lot of stories that do not appear in the mainstream media, it is an important one.

What happened?  Let’s let the court provide the background.  From its decision:

From January 2008 (defendant) held several seminars entitled “Basic Information on Islam” . . .at the right-wing Freedom Party Education Institute . . . The seminars were open not only to the members of the Freedom Party or invited guests, but were also publicly advertised on its website. . . .

Two of the seminars were held on 15 October and 12 November 2009, with around thirty participants at each. One of the participants was an undercover journalist working for a weekly journal, N.

At the journal’s request, a preliminary investigation was instituted against the applicant, and on 11 February 2010 she was questioned by the police concerning certain statements she had made during the seminars, which had been directed against the doctrines of Islam.

It was the comments made at the seminar that got Sabaditsch in Dutch, or, more precisely, Strasbourg.  By the time the case reached its end point in that city this was the court’s conclusion:

The Court, in conclusion, finds that in the instant case the domestic courts comprehensively assessed the wider context of the applicant’s statements, and carefully balanced her right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society. They discussed the permissible limits of criticism of religious doctrines versus their disparagement, and found that the applicant’s statements had been likely to arouse justified indignation in Muslims. In addition, the Court considers that the impugned statements were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages . . . but amounted to a generalisation without factual basis. Thus, by considering them as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace, the domestic courts came to the conclusion that the facts at issue contained elements of incitement to religious intolerance. The Court accepts that they thereby put forward relevant and sufficient reasons and finds that the interference with the applicant’s rights under Article 10 indeed corresponded to a pressing social need and was proportionate to the legitimate aim pursued.

At its core the legal argument turned on the kind of balancing test common in American jurisprudence.  The balance here was between free expression and accompanying–

duties and responsibilities, such as refraining from making statements which hurt others without reason and therefore did not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 on the one hand and those under Article 10 on the other needed to be carried out.

So what did Sabaditsch-Wolff say that offended?  Again, let’s turn to the decision itself, which includes the words from her talk “which the court found incriminating.”  Sabaditsch-Wolff was discussing Muhammad’s marriage to one of his wives when she was six years old.  They consummated the relationship when she was nine and he was fifty-six, and she remained his wife until his death nine years later, when she was eighteen. 

Here is the problematic part of her statement, complete and word for word in English translation by the court:

“I./ 1. One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system …

2. The most important of all Hadith collections recognised by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written…

II./ I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: “For God’s sake. Did you tell [S.W.] that?” To which I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.” And her: “You can’t say it like that!” And me: “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?” Her: “Well, one has to paraphrase it, say it in a more diplomatic way.” My sister is symptomatic. We have heard that so many times. “Those were different times” – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality, because the truth is so cruel …”

In seeking a way to perform a balancing test, the court examined what Sabaditsch-Wolff meant in her comments about pedophilia.  Was it even fair, or correct, to describe him in that fashion?  If not, the balancing test is an easier one to resolve: a clearly false statement is more likely to be defamatory and to cause the kind of “hurt” that would tilt the balance scales in the direction of shutting down speech.

A few snippets provide some of the flavor:

According to the court, the common definition of paedophilia was a primary sexual interest in children who had not yet reached puberty. Because paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation.

Note here the interesting angle: pedophilia offends sensibilities and for this reason allegations about it are more likely to cause hurt.  But it certainly did not offend Muhammad’s sensibilities to marry a six-year old or to bed her at nine.  And sex with underage individuals does not seem universally to be scorned by Muslims today–witness the many cases of grooming gangs and forcible rape that are on current offer.

Indeed, a close reading of Sabaditsch-Woolf’s statement suggests strongly (to this American reader) that she was not piling on about Muhammad’s behavior in order to insult but to suggest that if he is to serve as a role model for future generations, as is the intent under the faith, problems may ensue.

Let’s go back to the opening words of her problematic statement, which appear to me to be clear as day:

One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children.

The problem is put directly in the context of the influence of Muhammad’s behavior on his followers in the modern world, and how the injunction to be like him may contribute to behaviors by some that we–though possibly not they–would consider offensive.  Moreover, she does not even jump in first on pedophilia, pointing out before such comments that his warlord status meant he could have many women–this, too, a problem from the perspective of European, and Western, values and attitudes about women.

How to get out of this conundrum?

The court concluded that the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha had already turned eighteen and had therefore passed the age of puberty.

Clever, no?  He wasn’t really a pedophile because he married the girl!  And she was his wife still at eighteen, after passing the age of puberty.  Moreover:

The (lower) court stated that child marriages were not the same as paedophilia, and were not only a phenomenon of Islam, but also used to be widespread among the European ruling dynasties.


Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. The court concluded that the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria.

You need to read the whole decision to get a flavor of the legal reasoning here.  I read it, and while I am neither a lawyer nor an expert on European jurisprudence I got the flavor of it all right, and it is highly unpalatable to my American tastes.

De gustibus non est disputandum you may say and in a sense I am compelled to agree.  I’d like Americans mostly be left to fashion their own destiny, and it is not asking too much in return that we let Europeans be Europeans.  But commentary isn’t a matter of violence, despite what the ECHR is suggesting, so we may in fairness provide some commentary from this side of the pond, filtered through American legal tradition and sensibilities.

Without saying the American way ought to apply in Europe or even that it is “better”–heavens, we know better than to be risk an appearance of cultural superiority!–I can fairly say I agree with Sabaditsch-Woolf’s core assertion: that as regards Europe “we desperately need our own version of the First Amendment.”

That statement–I trust it is not too provocative for the court–comes from a remarkable address Sabaditsch-Woolf made about her legal troubles back in 2010.  The speech, which is worth reading in its entirety, is available here.

In the address she criticizes the EU’s “Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law”, available in full here for those who wish to get further into the muck.  From her address:

If you read the full text of the Framework Decision . . . you will learn that “Each Member State shall take the measures necessary… to ensure that the following intentional conduct is punishable.” Such “intentional conduct” includes “conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.”

Based on what has recently happened to Geert Wilders and me — and earlier to Gregorius Nekschot, Jussi Halla-aho, and numerous others — we can all guess who will be punished under this provision of the Framework Decision: those who criticize Islam.

Even worse, a complaint made by a member state does not have to be “dependent on a report or an accusation made by a victim of the conduct”, nor does the alleged offender have to be “physically present in its territory”.

In other words, if the dhimmi Austrian government objects to a cartoon published by Kurt Westergaard here in Denmark, Mr. Westergaard may be extradited by the Austrian Ministry of Justice to answer to hate speech charges in Austria. The European Arrest Warrant guarantees that the Danish government cannot legally interfere with such an extradition, and the 800-strong “European Gendarmerie Force” would be available to fetch Mr. Westergaard out of his bed and bring him to Vienna — with impunity.

As of tomorrow, the above scenario becomes a real possibility. It is not a paranoid fantasy.

I don’t know whether the resulting situation smacks more of irony or tragedy but there you have it: the decision in this particular case seems not to be a matter of justice gone off the rails but precisely the opposite–a perfectly legal process.

Regarding the methods used by the instruments of the EU apparatus Sabaditsch-Wolff comments:

They are more successful than those of the Nazis and the Fascists and the Communists because they are accomplished quietly and peacefully, with no need for concentration camps or gulags or mass graves or the shot in the back of the neck in the middle of the night.

They are surgical strikes executed via our legal systems, and they are quite effective.

This is not just the problem of one overambitious court either.  It is at the heart of what the EU has become.  As Todd Huizinga ably describes in a recent book, the EU presents a “new totalitarian temptation”, no less total for being soft and legal.

Back in high school we were asked to read 1984 and Brave New World and we would sometimes speculate on which dystopian future was more likely.  The answer, as it seems to be turning out, is both . . . and neither.

The EU’s approach to free speech is nowhere as brutal as the Orwell version.  But it has more elements of force and intimidation than the Huxley version.  So one might argue it sits between the visions presented in the two books . . . or maybe this is some new beast altogether.

Perhaps one way to consider this question is to use what social scientists call the comparative method.  What do we know of the EU’s behavior and how does it compare with the habits of its friends across the water, here in the US?

The question is not an obvious one.  I would love to say the First Amendment makes all the difference but, as much as I agree that some version of the Amendment does make sense for Europe, I am far from certain it is the firewall I wish it to be in this country.

First, there is the issue of legal interpretation, and how it can bend to the demands of an era, or at least the louder people in a given era.  I commented here about how our current legal doctrines on free speech have shifted over time, linking to a post by Ken White that discusses how Justice Holmes’s views, the basis for our current doctrine, themselves morphed and changed over time.

The European view puts a whole lot more weight on avoiding hurt (e.g., keeping the peace) than the American one.  Who is to say that the European view will not become the dominant one in the United States over time, especially if we follow the Europeans in having to deal with the clash of fundamentally different value sets as they seek traction in the public square?

Second, there is the question of whether the mainstream press is discharging its responsibilities with prudence.  I don’t favor shutting them down if they fail in that task. I am, after all, in favor of free speech. Shutting down the mainstream press because it is held to be delinquent in its duties helps no one.

But just as republics need elites, and need them to be virtuous and prudent precisely because they are elites, so too they need a free press which is similarly virtuous and prudent.  Well, not maybe as virtuous and prudent as ideal elites.  But at the least they should not have the kind of power they currently have–tantamount to a fourth branch of government without any of the checks and balances–while totally in the tank for one side.  I think they are failing at that count, and you don’t have to call for their shutdown to notice what is right at the end of one’s nose.

Third, there is the question of technology.   The Apple 1984 ad made it out that technology was inevitably an engine of personal freedom.  Sell the State; buy Libertarianism.

It . . . ummmmm . . . hasn’t exactly turned out that way.

The logic of technology, at least for now, is centralizing, not the opposite.  We can bitch and moan all we like about censorship on Twitter and whether social media sites are forums for public discourse despite their private ownership.  The fact is: there they are, and they do what they do.

Marsupials evolved in similar ways as mammals when stranded in Australia for 100 million years.  The niches suggested the forms.  As Forrest Gump might say social media is as social media does.  It has certain capabilities and characteristics that cannot be wished away by citing anarchistic principles.

So while our mainstream media is free as a bird not to cover important stories–like, for instance, the erosion of free speech in Europe!–social media participants are free as a bird to comment into a vacuum, or to have their opinions molded by search algorithms.

Does Europe need a version of the First Amendment?  You betcha.  Does the First Amendment mean the United States is out of the woods?  No way.  We may need a “version” of the First Amendment of our own, or at least some spine.


Bonus link: the ECHR story got essentially zero coverage in the American mainstream press.  The one link I could find to Sabaditsch-Woolf in a respectable outlet was an article on the site of the Southern Poverty Law Center, if you consider that outfit respectable

The SPLC’s headline did not disappoint:

Elisabeth Sabaditsch-Wolff, Convicted of Hate Speech Against Muslims, Meets with Trump Advisor Kris Kobach

Additional bonus link!

Over on Twitter Ayaan Hirsi Ali criticized the decision as flawed.  She got a thoughtful response from Claire Berlinski, someone worth listening to.  Here is the thread.

Berlinski takes a similar view as the one I come to above: that the decision was legal.  But she does not take it to task as flawed on other dimensions.

She points out that blasphemy laws have deep roots in national legal systems–they are not the invention of the dreaded EU.  And that Austria has a stronger set of such laws than other country, owing to its need to be vigilant about lurking anti-Semitism.  She argues there is no principled way to keep such laws in place for criticizing Jews while taking a pass on Muslims.  Further, given the nature of the ECHR’s review, which must take national laws into account, the principle of “subsidiarity” means that it will likely defer to the Austrian viewpoint as regards the demands of the balancing test–i.e., the Austrians will know best how deep the language in question cuts.

All good points but it seems to me a bit academic.  For one, I would take more note of the historical roots of blasphemy prohibitions in national laws if there were a long history of their application as regards, just for example, Christianity, the founding faith of the West.  Does it not seem obvious that blasphemy laws on the books notwithstanding the main issue here is the demand by Muslims for a level of protection that other faiths have simply not demanded?  That national legal systems have pre-existing laws regarding such things is not completely irrelevant but once that is put in the context of the real issues at play it does not seem overly important.

Then there is the question of subsidiarity.  True, the ECHR opinion does make some mention of the fact that Austrians might see the situation better, and that in turn might lead to some notion of deference and subsidiarity.  But take the ECHR opinion at face value.  It goes beyond deference.  The final passage is above so don’t just take my word for it.  Read what the court wrote.

As I read it the court comes to its own definite and distinct conclusion.  The words of the final decision clearly reflect the opinion of the ECHR, not just deference to the lower court.

And in that regard my view, discussed above, is that Sabaditsch-Woolf’s own words gave the ECHR a lot of traction to have done the balancing test in its own way.  If it so chose the court could well have observed that her main point was pedagogical: if current day Muslims are asked to be like Muhammad we will have problems.  That’s what her words say.

The ECHR chose not to do that.  In turn, in not recognizing Sabaditsch-Woolf’s pedagogic aims and the role they could have played in the decision Berlinski end up looking somewhat pedantic herself.  As usual I find myself on the side of Hirsi Ali.


About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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1 Response to “We desperately need our own version of the First Amendment”

  1. Pingback: Note to B—-, on the book group – Fenster und Gottfried überlegen sich die Frage

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