THE BLOG

Even Controversial Views Should Be Protected by Freedom of Speech

07/06/2010 05:12 am ET | Updated May 25, 2011
  • Asma Uddin Editor, Altmuslimah.com; Attorney, Becket Fund; Legal Fellow, ISPU

As a human rights advocate, I recognize that defending speech I do not agree with comes at a personal cost. I struggled with this issue when I wrote about Geert Wilders' trial in Holland, where he has been charged for violating Articles 137(c) and (d) of the Dutch criminal code for group insult of Muslims, inciting hatred of and discrimination against Muslims due to their religion, and fomenting hatred of non-Western immigrants. Wilders is by any measure completely biased against immigrants and Muslims, and saying anything remotely in his defense was painful. However, just as Voltaire is supposed to have said, "I disapprove of what you say, but I will defend to the death your right to say it," I recognized that defending Wilders' right to speak without legal limitations is necessary to protect everyone else's right to speak freely as well.

Anyone committed to freedom of speech should use a similar lens when viewing incidents like this past Sunday's arrest of 42-year-old Baptist preacher Dale McAlpine, who was charged in Workington, Cumbria, UK with violating the Public Order Act. The Act, introduced in 1986 to regulate violent rioters and football hooligans, outlaws "the unreasonable use of abusive language likely to cause distress." McAlpine's crime? While giving a public sermon on Biblical sins from atop a stepladder, he mentioned to a passerby his religious belief that homosexuality is sinful.

He was handing out leaflets about the Ten Commandments when a woman approached him and engaged him in a theological debate. During their conversation, McAlpine claims that he quietly mentioned that homosexual behavior is listed in the Bible among several other acts that are sinful. According to the arresting police officer, himself a homosexual man as well as the Cumbria police's Lesbian, Gay, Bisexual and Transgender liaison officer, McAlpine expressed his views loudly enough for others to hear. For this, McAlpine was arrested and charged with using "abusive language" unreasonably to cause "harassment, alarm, or distress."

This is not the first time the Public Order Act has been used against individuals expressing religious views on sexuality. One man was convicted under Section 5 of the Act for holding a sign reading, "Stop Immorality. Stop Homosexuality. Stop Lesbianism. Jesus is Lord" while he was preaching publicly. Another man was arrested for handing out religious literature during a Gay Pride festival.

Similar cases are seen in other countries, too. In Sweden, for instance, the government jailed Pastor Ake Green for preaching to his congregation that homosexuality is sinful. The Becket Fund for Religious Liberty filed an amicus brief on behalf of the Pastor, arguing that while his views on homosexuality are controversial and at odds with the beliefs, including religious beliefs, of many of Sweden's citizens, that fact alone does not remove his speech from the protection of international religious freedom and free speech law.

The right to religious liberty protects the expression of religious beliefs, as long as the speech is peacefully expressed. Valid limitations on such expression include threats to public order, safety, health, morals, or the fundamental rights and freedoms of other people. In the United States, the Supreme Court has held that the government can punish speech if it constitutes incitement to imminent violence, including, for example, terrorism or the speech of extremists who conspire to attack abortion doctors or destroy abortion clinics. The line in each case is drawn between violent and non-violent speech.

The Public Order Act enforced in McAlpine's case was presumably intended to regulate precisely these sorts of violations, but it is being used to limit non-violent, religious speech interpreted as "abusive" because it contravenes the prevailing opinion on homosexuality. This is a blatant misuse of the Act. Because human rights are universal and inalienable, they are not limited by relevance to a specific culture, time, or place.

What is "controversial" varies according to circumstances, and just because it is controversial does not make it "bad" -- sometimes a controversial statement is precisely what's needed to push conversations in productive directions. Consider, for example, statements by activists like Arianna Huffington or Desmond Tutu that the U.S. wars in Afghanistan and Iraq are immoral. If the right to free expression was limited by time and culture-bound circumstances, such statements could never be made, and in time the right itself would be completely obliterated.

Moreover, just because legal sanctions on non-violent speech are a bad idea doesn't mean the issue can't be addressed. Social solutions could and should be utilized to address intolerant, divisive speech. Social solutions are in fact more effective in combating such speech because they require society to moderate itself and reform its biases instead of the letting the state impose top-down restrictions on hate speech.

In McAlpine's case and the cases of others like him who have been punished for their peaceful, public expression of their religious viewpoints, there is the added element of religious liberty. These speakers are expressing what they sincerely believe their religion teaches. In the case of Ake Green, he was doing what his profession required of him, interpreting Christian Biblical texts for his congregants, who expected him to help them learn and apply Christian doctrine to their lives. Restricting his right to do so would contravene both his and his congregants' religious freedom. Individuals have the right to disagree on matters of sexuality and should be able to freely express varying moral opinions on issues such as pornography, adultery, extramarital sex, and homosexuality.

While such religious views may not always be acceptable to the majority, they must nevertheless be vigorously defended, not just because of the moral imperative to protect free speech -- a fundamental human right -- but also because to do otherwise would open the doors for further restrictions, not just on "bad" speech but on "good" speech as well.