Many recent hate speech cases involve religion either as the source of views that are alleged to be hateful or as the target of such views. The “religious” hate speech cases are contentious for the same reason all hate speech cases are contentious. There is significant disagreement in the community about whether or to what extent the restriction of hate speech can be reconciled with the public commitment to freedom of expression. However, there is an additional difficulty in religious hate speech cases that stems from our complex understanding of religious adherence or membership—as both a personal commitment to a set of claims about truth and right, and as a cultural identity, involving a shared and rooted commitment to a set of beliefs and practices.

In hate speech regulation a distinction is generally made between an attack on a (religious) group, which if sufficiently hateful or extreme may amount to hate speech, and an attack on the group’s beliefs, which must be permitted, even when it is harsh and intemperate. A ban on hate speech should apply only to assertions that the members of the group are less worthy or less human than others or that they necessarily share certain undesirable traits, and should be treated accordingly. Attacks on belief are a different matter. Religious beliefs, including beliefs about human dignity and virtue, address issues of truth or right and so must be open to criticism, even that which is harsh or uncivil.

Yet this distinction between belief and believer is not always easy to draw, given our complex understanding of religious adherence. The first difficulty has to do with the attribution of belief to a religious group that encompasses a wide range of views and whose members identify with the group in various ways. The second difficulty with the distinction between attacks on belief and attacks on the believer is that, because religious beliefs are deeply held, an attack on the individual’s beliefs or practices (to which he or she adheres) may be experienced by the adherent profoundly and personally.

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In its most familiar form, hate speech makes the claim that the members of a racial or other identifiable group are less human or less worthy than others or that they share a dangerous or undesirable trait. Hate speech directed against a religious group often takes this standard form, falsely attributing traits such as dishonesty or cruelty to the group’s members. As an example, anti-Semitism, at least in the modern era, has generally taken this form, involving claims about the undesirable characteristics of Jews.

However, the attribution of undesirable traits to the members of a religious group is often less direct than this. The speaker may associate the members of a group not with an undesirable biological trait, but instead with a dangerous belief. Hate speech, when directed at a group, such as Muslims, attributes an undesirable or dangerous belief to the group as a whole and treats the belief as an aspect of each believer’s worldview. The speech ignores the diversity of belief within the group and elides the space between the individual and the religious group or tradition with which they identify. A belief (e.g., that violence is justified to advance the faith), which may be held by a fringe element of the tradition, is falsely attributed to all the group’s members—to anyone who identifies as a member of the group.

While the attack focuses on a particular belief, the clear implication is that the members of a religious tradition that includes such a belief are dangerous and deserving of contempt or hatred. The objectionable belief is presented as an essential and rooted part of group membership. In this way, the belief serves the same role as a falsely attributed racial characteristic: to be a member of the group is to think and act in a particular way.

The application of hate speech law to this “new racism,” and to Islamophobic speech in particular, raises a variety of issues.

In hate speech cases that involve the attribution of belief to a religious group, there will often be dispute about the scope of the attribution—about whether the speaker is attributing a dangerous belief to all, most, or some in the community. Islamophobic writers, such as Mark Steyn and Bruce Bawer, make sweeping claims about Muslim violence, but when challenged insist they are only talking about a subgroup of Muslims who support violence, while suggesting this group includes many or most Muslims.

Hate speech complaints against individuals expressing extreme views about Muslims have sometimes been dismissed because there was no clear link between the expression and the spread of hatred or the occurrence of violence against individuals who identify as Muslim. Speech that attributes undesirable traits to a group that has in the past been the target of a campaign of violence is more likely to be seen as hate speech—as causing, or creating a risk of, harm. We are more likely to discern a link between a particular instance of hateful speech and the spread of hatred or the occurrence of violence when there is a pattern or history of hatred and violence against the group. Because phrases such as “the final solution” or symbols such as the swastika evoke such a history, it is easy to attribute a violent purpose and consequence to an individual who uses them. In the case of harsh, vitriolic statements made about other identifiable groups that do not have the same recent history of organized violent persecution, it may be harder to discern a violent purpose or effect. We are less likely to see speech as a call or prelude to violent action when violence seems remote or infrequent. The question now is whether recent acts of violence against Muslims, including the murder of young people in Norway and worshipers at a Quebec mosque, make it more likely that anti-Muslim claims will be viewed as hate speech—as encouraging the violent oppression of Muslims.

At the same time, it may be that hate speech law is only effective in dealing with speech that occurs at the margins of public discourse—that lies outside the scope of mainstream opinion and general debate—on neo-Nazi websites or chatrooms, for example. The purpose of a ban on hate speech cannot be to eradicate bigotry and discrimination in the community, but must instead be more narrowly defined—to prevent the encouragement of “isolated” acts of violence against the members of a targeted group. As well, when Islamophobic speech is widely expressed, not only will it often be seen as directed toward political action rather than the incitement of extralegal violence, it will be less recognizable as extreme, as calling for radical or violent action.

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Recognition of the deep connection between believer and belief, or adherent and practice, has led some to accept that religious beliefs, sacred symbols, or venerated persons should be insulated from “disparagement” or “gratuitous insult.”

A ban on the ridicule or disparagement of religion may be seen as a middle position that recognizes religious adherence as both a personal commitment to certain truths that must be open to debate and criticism, and also a cultural identity that should be treated with respect.

This middle ground, however, is unworkable for several related reasons. First, it is difficult to define enforceable standards of civility in public discourse, and nearly impossible to do so when religion is the subject of debate. Second, if a restriction on intemperate criticism of religious belief rests on the idea that religion is deeply rooted then it seems unlikely that temperate or reasoned criticism of religion will have much of an impact on religious adherents. We might instead see a greater role for ridicule and harsh criticism in disrupting entrenched religious views. Third, religious beliefs often have public implications and so must be open to criticism that is deeply felt and sometimes very harsh.

Civility standards are conventional and therefore not easy to establish in a multicultural, multi-faith society. Different individuals or groups within the larger community will have very different views about what is civil or respectful. Moreover, freedom of expression must to some extent protect challenges not only to conventional opinion but also to the conventions of communicative engagement and social respect.

Hate speech laws are sometimes presented as a form of civility regulation (a modern version of the blasphemy prohibition), which proscribes speech that is offensive or hurtful to others. It is a mistake, though, to see the harm of hate speech as personal offense, resulting from the emotional force or uncivil tone of the expression. The purpose of the hate speech ban is to prevent the spread of falsehoods that may undermine the standing or security of some community members and encourage radical or violent action against them. Hate speech, either explicitly or implicitly, claims that the members of an identifiable group should not be regarded as full members of the community and/or that they share dangerous or undesirable traits—that they are by nature violent or corrupt.

The regulation of harsh or mocking criticism of a religion is very different from the regulation of hate speech. The state, it is generally said, should take no position on the truth of a particular religious belief system. It should remain “neutral” on the question of whether a particular faith is true or false. The restriction of religious criticism then must be based entirely on the impact it has on the feelings of the adherent, either because it is wrong to insult or offend an individual or because those who have been offended might disrupt public order.

Yet it is unclear how the state is to determine when the experience of offense is sufficiently great that the speech ought to be restricted. Different religious traditions (and groups within each tradition) have different understandings of the obligations of those inside and outside the religious community to respect the sacred. And, of course, because individual believers relate to their religious traditions/belief systems in various ways, they will not experience religious criticism in exactly the same way. The standard for the restriction of criticism cannot be based simply on the reactions or feelings of adherents or their report of their feelings. It must rest instead on a view about what is the reasonable or ordinary subjective reaction to religious criticism. But there can be no agreement on this. There is simply no vantage point outside the faith tradition from which a “secular” public actor can decide what is an intolerable offense.

The other difficulty with a restriction on intemperate criticism is that religions often say something about the way we should treat others and about the kind of society we should work to create.

Some members of the general community may have a strong reaction to religious beliefs that address their interests or status. For example, gays and lesbians may feel anger about the anti-gay teachings of some churches, and the impact of these teachings on their ability to live lives that are full or even safe. Critics seeking to show the absurd or regressive character of religion may think that ridicule is the most effective way to do this. From their perspective there is nothing gratuitous about the harsh criticism or ridicule of religion. Some of the harshest, and most intemperate, criticism of a particular religious community, or belief system, comes from individuals who have a personal connection with the particular tradition, whose identity has been shaped by it, and who may be struggling to separate themselves from it—the ex-Mormon or the ex-Catholic, for example.

To take religion seriously, as something that matters, is to see its claims about truth and right as important and worthy of consideration. But it also means these claims, whether they relate to spiritual or civic questions, must be open to criticism. Because religion is important, because it is a serious matter, its discussion may be intense and uncomfortable.