November 07, 2018
By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University
In a recent judgment that has made headlines around the world, the ECtHR rules – not for the first time – that Austria can legitimately curb free speech to protect the religious feelings of believers. That the believers in E.S. v. Austria happened to be Muslims surely added to the international attention given to the judgment, especially the opportunistic outrage in certain outlets on the other side of the Atlantic.
When I first read E.S. v. Austria, I was dumbfounded; struck by how contrived and nonsensical some of the ECtHR’s reasoning is. Then, when I read some scholarly comments on the judgment, I was puzzled; struck by how surprised some commentators were about other aspects of the Court’s reasoning. In my reading of E.S. v. Austria, the Court does not say much (or anything at all) it has not said before. Still, it’s remarkable how fervently the Court clings to a line of reasoning many had hoped to see abandoned by now. At the end of this comment, I will venture a guess as to why the Court found no violation of freedom of expression in E.S. v. Austria. Until then, I will explain why I was dumbfounded by the Court’s reasoning and puzzled by some of the commentary thereon.
Facts and judgment
Relationship with Otto-Preminger-Institut (and S.A.S.)
It is impossible to comment on E.S. v. Austria without also discussing Otto-Preminger-Institut v. Austria, still one of the most controversial free speech cases at the ECtHR. In this 1994 case, the Court ruled for the first time that Austria could legitimately place concerns for the religious feelings of believers above freedom of expression. In Otto-Preminger-Institut, the Austrian courts had invoked article 188 of the Criminal Code to justify seizure of the film Das Liebeskonzil, which they found to insult the religious feelings of Roman Catholics. The film shows a performance of the play by the same name and reconstructs the 1895 blasphemy trial of Oskar Panizza, its author.
As a testament to its controversial nature, a couple of decades later Otto-Preminger-Institut continued to elicit equal criticism from both ardent supporters and hardened opponents of proportionality review. In 2012, George Letsas (then more clearly in the latter camp than a few years later) argued that there is no human right not to be offended in one’s religious beliefs. Without such a right, the balancing question did not even arise. Also in 2012, Matthias Klatt and Moritz Meister chose Otto-Preminger-Institut as the single case study in their book on proportionality. They discussed the judgment – nearly twenty years old by then – as a bad practice, a singular example of how not to do proportionality analysis. In his comment over on EJIL:Talk!, Marko Milanovic says the same about E.S. v. Austria, the new controversial judgment on free speech versus religious feelings:
There are many lessons we can draw from this case. First, it can tell us something about the dangers of proportionality as an analytical framework when it is applied without sufficient doctrinal rigor.
One of Milanovic’s main gripes is how the Court deals with the legitimate aim: protection of religious feelings and religious peace. Milanovic complains of how the Court in E.S. ‘simply’ takes the government’s claims on this point ‘at face value, without any kind of critical reflection’. This, however, is not all that surprising. The Court had already ruled much earlier, in Otto-Preminger-Institut, that the right not to be offended in one’s religious feelings is protected under article 9 ECHR. And this is also, let’s not forget, the Court that included ‘living together’ under the legitimate aim of ‘the rights of others’ in S.A.S. v. France.
What is more surprising, to me at least, is how E.S. v. Austria can be understood as the surreal progeny of S.A.S.. When the Court says in E.S. that states have a positive obligation to ensure peaceful religious co-existence and mutual tolerance, it cites S.A.S.! Lo and behold: a judgment famous for rejecting the actual rights of some Muslims in one European country has become an inspiration to protect the hypothetical rights of Muslims in another European country (more on the ‘hypothetical’ bit in the conclusion).
Why rely on the value judgment / factual statement distinction at all?
What dumbfounds me about E.S. v. Austria is not how the Court applies the proportionality test. Rather, it’s the Court’s insistence on the distinction between value judgments and factual statements. By going down this road, the Court reduces the case to a single factual question: is having sex with one child 1,400 years ago enough to be labelled a paedophile today? That is an exceedingly narrow view of the case and entirely unhelpful for its resolution.
I cannot fathom why the Court thought the case best resolved by finding that Ms. E.S. had made ‘incriminating statements’ in the form of ‘value judgments’ that ‘were partly based on untrue facts’. Where is insistence on ‘truth’ and ‘factual accuracy’ supposed to lead us, when we are discussing religious scripture on events that allegedly took place some 1,400 years ago? How ‘meta’ can a judgment get? Perhaps in a future case, the Court could hope to debate the ‘factual basis’ for statements doubting how the animals in Noah’s Ark were able to effectively procreate in the aftermath of the flood (consider, especially, the second generation).
Hyperbole aside, the Court’s focus on ‘the factual basis’ seems wholly unnecessary to justify its conclusion (assuming, for the sake of argument, that this conclusion is correct). Within the Court’s judgment, a different voice – the voice of tolerance, not that of facts – can be discerned. And that voice speaks much more sensibly about the case (regardless of whether one agrees with what it says). This is, pieced together, what the Court says about tolerance:
42. [Religious believers] must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut, § 47)
43. [But where] such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see, mutatis mutandis, Otto‑Preminger‑Institut, § 47)
52. Article 188 of the Criminal Code [aims] at the protection of religious peace and tolerance.
50. [T]he Court […] considers that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace [and mutual tolerance] in their country.
53. [P]resenting 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.
58. [T]he Court considers that the domestic courts did not overstep their – wide – margin of appreciation in the instant case when convicting the applicant ofdisparaging religious doctrines. Accordingly, there has been no violation of Article 10 of the Convention.
Conclusion – Why this outcome?
Even the reconstructed version of the Court’s judgment in E.S. v. Austria fails to convince me, for the same reason its judgment in Otto-Preminger-Institut failed to convince. Both cases ultimately rest on the domestic authorities’ assumptions about how religious believers (would) feel about the uttered speech. As Veronika Bílková points out in a comment below Milanovic’s post on EJIL:Talk!, it’s all rather patronizing and hypothetical.
Otto-Preminger-Institut and E.S. have much in common. But there is also one crucial difference. In the old case, the supposedly offended believers were Roman Catholics. In its judgment, the Court also made a point of noting that they constituted 87% of the population in Tyrol (where the film was screened). In the new case, by contrast, the supposedly offended believers are Muslims, a religious minority in an Austria that is now (but not at the time of the facts) led by a right-populist government that targets Islam.
Given the remarkable similarities between both cases otherwise, it would have been quite something for the Court to rule in favour of free speech when it targets a Muslim minority, knowing full well that it had ruled the exact opposite – for the same country! – about speech that targeted the Christian majority. My guess, then, as to why the Court ruled the way it did in E.S.? This was never the right case to overrule Otto-Preminger-Institut.
 The link is to one of the less polemical (it’s all relative) pieces of commentary in conservative outlets in the United States. I’ve chosen not to link to those that are replete with expletives, racism and Islamophobia.
 From the ECtHR’s description of the film: The film portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. He is also portrayed as swearing by the Devil. Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the Devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting. God, the Virgin Mary and Christ are shown in the film applauding the Devil.