In this country, Section 16(2) of the Constitution curtails the constitutionally entrenched right to free speech in the case of advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
The ”and” in the clause means a cartoon that satirises a religious figure or belief does not fall outside the scope of constitutional protection unless designed to incite people to cause harm. Could it be said that a publisher of a cartoon of the Prophet Muhammad was advocating hatred of a kind that would incite harm?
It is arguable, but doubtful, whether the publisher sought to incite Muslims to cause harm when it published the cartoon. Hence, under our law, a cartoon of this kind may well pass constitutional muster although it could be hit under the Promotion of Equality and Prevention of Unfair Discrimination Act.
But the real debate is not about technical legal arguments, but concerns the nature and range of protection of free speech. It is about the balance between the right of the press to publish material that may offend a significant section of the public and the right of that section of the public to have their dignity protected.
In practice, freedom of speech is not absolute. There are powerful arguments for limiting child pornography, of for restricting racial or sexist speech. Holocaust denial is another form of speech that is often refused legal protection.
So, even if there is recourse to freedom of speech by the newspapers that published the cartoons, was there not an even more powerful obligation to act with courtesy toward the Muslim community and refrain from publication?
Once it is accepted that freedom of speech is not absolute, then the question arises about the site of the boundaries for protection. Tolerance, courtesy and respect for the dignity of the other are useful guidelines but even these concepts appear to be culturally laden; after all, how may times have Muslim radio stations in this country alone given extensive air to Holocaust denial? And that leads to the other side of the debate, being an anxiety that what is at stake here is the exploitation of a crass decision to publish in order to push an objective of undermining the very fabric of Western democracy and its claim to a superior form of government. Phillip Hensher in The Guardian last week wrote that the aim of much of the protest ”is through pressure, to limit free speech on religious matters in the West and entirely suppress it at home”.
Recourse to the principle of courtesy to Muslims would dictate that this kind of cartoon should not have been published. But unless courtesy is shown to the core of all forms of belief and religion, then this sorry business will produce a temporary truce at best. How likely is it that we can create a society of such tolerance that free speech will live harmoniously with courtesy? That is the long-term challenge but sadly, in the shorter term, it is likely that political and religious correctness will trump speech. The question is only by how much.