11 Years in Prison for Posting on an Atheist Website?

Continued from previous page

The same inequality can be found in the criminalization of “hatred” and “enmity” toward a religion. The problem is not confined to Indonesia but can be found in most of the hate speech statutes throughout secular democratic Europe. Article 226b of the Danish Penal Code, for instance, singles out for protection—among other categories—groups of people who “on account of their faith” are threatened, insulted, or degraded. It does not single out people, regardless of their affiliation, on account of their convictions of conscience.

Know Thy Enmity

The most principled motivation for hate speech laws can be found in the principle of equal respect for citizens. And yet, in the final analysis the principle of equality undermines their legitimacy. What is morally objectionable about hate speech is its attack on the standing of a group of citizens, a denial or denigration of their entitlement to equal concern and respect. Laws against group insult or group defamation, as Jeremy Waldron maintains, are intended to protect vulnerable minorities by exhibiting the state’s commitment to their equal dignity and equal standing in the face of bigots. Surely we all have a duty to work towards a society in which all citizens enjoy equal standing. The difficult question is what the state legitimately may do to promote this end.

If the state is to intervene on behalf of the reputation and standing of “Muslims,” or any other faith community, it must first decide on whose behalf it is intervening. It must lend its official approval to some idea of what counts as a “real” or “authentic” member of such groups. Were Aan’s expressions hateful or abusive toward Muslims? That depends on whether we assume that a Muslim is by definition one who believes in the moral perfection of the Prophet. Without this assumption, talk of Muhammad’s sexual indiscretions cannot be construed as inherently insulting to “Muslims.”

As the American constitutional scholar Robert Post has argued, the identities of such communities are not scientific facts but social categories that are open to moral contestation and re-negotiation. It would not do to take a poll of all of the self-identified members of the group to determine what they believe. For some will believe it, and others will not.

The question now becomes, which of the various understandings of the identity is most genuine, authentic, or warranted. And that question is not subject to a statistical proof. It is a normative question. Typically it is the most vulnerable or marginalized within the community who have the most urgent stake in contesting and re-negotiating the meaning of the identity. In a just society, such questions are not to be decided by the state but are to be left to individuals to work out in the public and cultural space.

Clashes over blasphemy and so-called religious hatred are not about free speech versus belief, or atheism versus faith. They are about equal treatment for all persons of conscience. As with attempts to stop blasphemy, a state that attempts to use the force of law to stop defamation or insult of religious groups must select certain identities for protection to the exclusion of other identities. The very same value that underlies the protection of the traditionally religious believer—equal respect for freedom of conscience—also underlies the protection of the secularist and atheist alongside the heterodox, dissident believer. As goes Alexander Aan, so go we all.