The Right To Offend by Michiel Bot

Cardozo School of Law
The Right to Offend? Contested Speech Acts and Critical Democratic Practice
Author(s): Michiel Bot
Reviewed work(s):
Source: Law and Literature, Vol. 24, No. 2 (Summer 2012), pp. 232-264
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The Right to Offend? Contested
Speech Acts and Critical
Democratic Practice
Michiel Bot*
Abstract: In the wake of the Danish cartoon crisis, Islam critic Ayaan Hirsi Ali defended the right to
offend against an allegedly hegemonic, multiculturalist obligation not to offend that she believed
made it impossible to criticize Islam. After critiquing several of Hirsi Alis interventionsa speech,
an op-ed, a spiritual autobiography, and a short filmand after critiquing the obligation not to
offend that I trace in the jurisprudence of the European Court of Human Rights, I argue in this arti-
cle that judgments on contested expressions such as the cartoons cannot be made from within a narrow
framework that simply balances negative liberties: the freedom from censorship versus the freedom
from offense. Instead, such judgments require analysis of the specificity of the speech acts that are
being performed, as well as a conception of critical democratic practice.
Keywords: offense / liberalism/ speech act theory / secularism/ Ayaan Hirsi Ali / Ronald Dworkin /
Joel Feinberg / European Court of Human Rights / Geert Wilders
Four months after the publication of the notorious cartoons of the Islamic
prophet Muhammad in the Danish Jyllands-Posten, Somali-born activist
Ayaan Hirsi Ali gave a speech in Berlin that began with the curious state-
ment: I am here to defend the right to offend.
1
Hirsi Ali was then a
member of Parliament for the Dutch neoliberal party; she would join the
neoconservative American Enterprise Institute in September 2006. A year
and a half earlier, polemicist and filmmaker Theo van Gogh had been mur-
dered on the streets of Amsterdam, with a six-page death threat addressed to
Hirsi Ali stabbed to his chest, because he had directed Hirsi Alis short film
Submission.
2
Submission shows almost naked, bruised, and injured women
232
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with Koran verses painted on their bodies; the film suggests that the Koran
legitimates incest, rape, and other forms of violence against women, and that
Islam is incompatible with freedom because of its command to submit
(submission is a common translation of the Arabic word Islam).
3
Apart from Submission, Hirsi Ali frequently made headlines in Dutch and
international newspapers with controversial statements about Islam, calling
the religion retarded (achterlijk) and characterizing Muhammad as a per-
vert and a tyrant.
4
She justified her confrontational methods in Submis-
sion as a critical strategy: to counter the unreflected submission of Muslims
to an oppressive doctrine, she argued, it was necessary to impel Muslims
with provocative texts and images to contemplate their own responsibility
for their backward position, and to force Muslims to see the shortcomings
of their faith; to take cognizance of secular morality; and to adjust their faith
to reality.
5
By defending the right to offend, Hirsi Ali took exception to
self-censoring newspapers and television networks that decided not to
show the Danish cartoons, to politicians who dismissed the cartoons as
disrespectful and insensitive, and to corporations that distanced them-
selves from Denmark in advertising campaigns in the Middle East.
6
Legal philosopher Ronald Dworkin also intervened in the cartoon crisis with
an argument against self-censorship, and the title of his article for The New York
Review of Books, The Right to Ridicule, is similar to the title of Hirsi Alis
speech, The Right to Offend. Unlike Hirsi Ali, Dworkin argued that the
decision by various editors not to publish the cartoons was wise in light of
the sometimes deadly violence that had been unleashed around the world,
but he nevertheless defended the right to ridicule as a matter of principle:
There is a real danger . . . that the decision of the British and American press
not to publish, though wise, will be wrongly taken as an endorsement of the
widely held opinion that freedom of speech has limits, that it must be balanced
against the virtues of multiculturalism, and that the Blair government was
right after all to propose that it be made a crime to publish anything abusive
or insulting to a religious group.
7
For Dworkin, the right to ridicule is a corollary of the right to free speech,
which he considers a condition of legitimate government:
Laws and policies are not legitimate unless they have been adopted through
a democratic process, and a process is not democratic if government has
Bot The Ri ght t o Of f end?
233
prevented anyone from expressing his convictions about what those laws and
policies should be. Ridicule is a distinct kind of expression; its substance can-
not be repackaged in a less offensive rhetorical form without expressing some-
thing very different from what was intended. That is why cartoons and other
forms of ridicule have for centuries, even when illegal, been among the most
important weapons of both noble and wicked political movements. So in a
democracy no one, however powerful or impotent, can have a right not to
be insulted or offended. That principle is of particular importance in a nation
that strives for racial and ethnic fairness. If weak or unpopular minorities wish
to be protected from economic or legal discrimination by lawif they wish
laws enacted that prohibit discrimination against them in employment, for
instancethen they must be willing to tolerate whatever insults or ridicule
people who oppose such legislation wish to offer to their fellow voters,
because only a community that permits such insult as part of public debate
may legitimately adopt such laws.
8
One reason why I begin this article by juxtaposing Hirsi Alis speech on
the right to offend with Dworkins article on the right to ridicule is that Hirsi
Ali and Dworkin both take exception to the obligation not to offend that they
believe has been imposed by multiculturalism. Another important reason,
however, is that Hirsi Ali and Dworkin both legitimate the rights they are
defending by referring to the democratic function of contested expressions
such as the cartoons. Both Hirsi Ali and Dworkin consider these expressions
primarily as speech acts, that is, as utterances that do not simply describe the
world but act in it. And both see such speech acts as the cartoons to be crucial
to democracy.
In this article, I follow Hirsi Ali and Dworkin in considering contested
expressions, such as the cartoons, as speech acts that need to be judged pri-
marily based on the role they play in a democracy. I argue that such judg-
ments cannot be made within a narrow framework that simply balances
negative liberties: the freedom from censorship versus the freedom from
offense. Instead, judgments on contested expressions require analysis of the
specificity of the speech acts that are being performed, as well as a conception
of critical democratic practice. In the first section, I complicate Dworkins
model of contested speech acts and democracy, and I argue that Hirsi Alis
speech acts targeting Muslims conflict with the critical democratic practice
that she claims to promote. In the second section, I argue that the jurispru-
dence of the European Court of Human Rights on contested expressions falls
Law & Li t er at ur e Vol ume 24, Number 2
234
short both on its analysis of the specificity of contested speech acts and on its
conception of democracy because the Court psychologizes performativity
and holds a reductive and anticritical conception of democratic discussion.
In the third section, I reflect briefly on a recent change in attitude towards
offensive speech and democracy in the Netherlands.
T HE R I GHT TO OF F E ND ( MUS L I MS)
I begin with Dworkins understanding of the democratic function of con-
tested speech acts. Philosopher J. L. Austin coined the concepts of the perfor-
mative and the speech act in How to Do Things with Words to analyze the
senses in which to say something is to do something.
9
In the passage cited
above, Dworkin acknowledges that ridicule is a distinct kind of expression
and that its substance cannot be separated from its rhetorical form with-
out changing its (intended) meaning. However, Dworkin defends the right
to ridicule as a corollary of the right to free speech, and he defends the right
to free speech as the right to express ones convictions about what laws and
policies should be adopted. But the cartoons have nothing to do with laws
and policies, and their distinct kind of expression is not primarily to
express convictions: to ridicule something or someone is not the same as
expressing the conviction that one finds something or someone ridiculous.
Yet Dworkin does not commit what Austin called the descriptive fal-
lacy: mistakenly considering all verbal utterances primarily as true or false
descriptions of some state of affairs.
10
For instance, Dworkin does not defend
the right to free expression by arguing that the truth is most likely to
emerge in a free intellectual combat from which no idea has been excluded,
a view he ascribes to John Stuart Mill.
11
Instead, Dworkin specifies in his
foreword to a recent collection of articles, Extreme Speech and Democracy,
that his political legitimacy argument for a universal and absolute right to
free speech is a basic principle of human dignity, because expressing atti-
tudes, opinions, fears, and the like, confirms the speakers standing as a
responsible agent in collective action:
[A] majority decision is not fair unless everyone has had a fair opportunity to
express his or her attitudes or opinions or fears or tastes or presuppositions or
prejudices or ideals, not just in the hope of influencing others (though that
235
hope is crucially important), but also just to confirm his or her standing as a
responsible agent in, rather than a passive victim of, collective action.
12
To rephrase Dworkins argument in Austins terms: the speech act of con-
firming your standing as a responsible agent in collective action in expressing
an attitude, fear, prejudice, and so on, always outweighs the speech act of
insulting or offending that you might also perform in (or by) expressing
an attitude, fear, or prejudice.
Legal philosopher Jeremy Waldron has criticized Dworkins defense of an
absolute and universal right to free speech in his 2009 Oliver Wendell Holmes
lectures, Dignity and Defamation: The Visibility of Hate, by arguing that
what is at stake in cases of hate speech is not the dignity of the speaker
but the dignity of his or her target.
13
Waldron argues that dignity implies
the freedom from defamation, and he claims that the freedom from censorship
of someone who uses hate speech does not outweigh the freedom from def-
amation of his or her target.
14
However, Dworkin does not define dignity in
terms of negative freedom: his freedom of speech is not primarily a freedom
from censorship but a political freedom to confirm ones standing as a respon-
sible agent in, rather than a passive victimof, collective action.
15
Nevertheless,
Waldrons critique still raises the question of why the rights of the speaker of a
contested speech act should always outweigh the rights of its target.
It is at this point that the comparison with Hirsi Alis speech becomes use-
ful. For Hirsi Alis professed concern is also peoples standing as responsible
agents in, rather than passive victims of, collective action. But whereas
Dworkin defends the right to ridicule because it confirms the standing as a
responsible agent of the speaker of contested speech acts, Hirsi Ali defends
the right to offend by referring to the standing as responsible agents of her
targets. According to Dworkins argument, the Danish cartoonist confirmed
his own standing as a responsible agent in publishing the cartoons targeting
Islam. By contrast, Hirsi Alis confrontational methods aim at liberating
the Muslim individual from a doctrine that she believes effaces indi-
viduals.
16
Consider the opening lines of Hirsi Alis speech:
I am here to defend the right to offend.
It is my conviction that the vulnerable enterprise called democracy cannot
exist without free expression, particularly in the media. Journalists must not
236
forgo the obligation of free speech, which people in other hemispheres are
denied.
I will develop a detailed analysis of the performativity of Hirsi Alis deictic
opening statement below, but at this point I want to draw attention to the
swift transition from the right to offend in the first sentence, via free
expression in the second, to the paradoxical obligation of free speech in
the third sentence. Like Dworkins right to free speech, which is a right to
the speech act of confirming ones standing as a responsible agent in collec-
tive action, Hirsi Alis free expression and obligation of free speech are
miles away from a negative understanding of the right to free speech as a
freedom from censorship that only implies an obligation not to censor.
The obligation of free speech that Hirsi Ali posits can be read as an obliga-
tion toward the Danish cartoonist, whose right to free speech would, accord-
ing to this reading, entail a right to be published. But the obligation of free
speech can also be read as an obligation toward Muslims, a democratic obli-
gation to liberate fellow citizens as responsible agents in collective action
from an antidemocratic discursive authority that subjects them as passive
victims, in the way that Koran verses subject Muslim women as passive
victims in Hirsi Alis film Submission. According to this interpretation, the
speech act that Hirsi Ali defends is neither to confirm the cartoonists or
her own standing as a responsible agent in collective action, nor to give
offenseshe claimed, I do not seek to offend religious sentimentbut
to criticize, confront, and provoke, to impel [aanzetten] Muslims with provoc-
ative [ prikkelende] texts and images to contemplate their own responsibility for
their backward position, and to force [dwingen] Muslims to see the shortcom-
ings of their faith; to take cognizance of secular morality; and to adjust their
faith to reality.
17
However, there is a contradiction between the critical democratic practice
that Hirsi Ali claims to promote and her speech acts targeting Muslims. For
the main speech act that Hirsi Ali usually performs is not the Socratic elenchus
or refutation, challenging or negating the authority of established dogma in
the name of critical dialectics: Hirsi Ali hardly engages Muslims in discus-
sion. Instead, as I will argue in the remainder of this section, she mobilizes
and appropriates powerful discursive conventions, particularly those of the
Christian conversion narrative and of what Edward Said has called oriental-
ism, claiming the discursive authority inherent in those conventions to
237
affirm a supposedly universal model of liberated secular subjectivity that is
incompatible with Islam.
18
Her defense of the right to offend does not instan-
tiate what political theorist Dana Villa has called Socratic citizenship,
which insists on an ethics of negative critique.
19
Rather, her right to offend
is a right to proselytize in the name of her version of secular morality,
which is a positive freedom in the narrow sense that Isaiah Berlin has
given to that concept: the freedom . . . to lead one prescribed form of life.
20
In 2003, Hirsi Ali published an op-ed titled The Time Has Come for a
Liberal Jihad. Her coauthor was Geert Wilders, who was then also a mem-
ber of Parliament for the neoliberal party, who made international headlines
with his apocalyptic anti-Islam video Fitna (2008), and who is now the leader
of the populist Freedom Party that votes with the current right-wing
minority government in the Netherlands (I will discuss this arrangement in
the third section of this article).
21
Hirsi Ali and Wilders argued, In order
to preserve the Netherlands as a tolerant and liberal country, elementary
rights and laws must be set aside when dealing with people who abuse them
and who subsequently want to remove them as the foundation of our soci-
ety. Because Dutch Muslims are particularly susceptible and continually
exposed to the one-sided hate speech of the jihad propagandists, Hirsi
Ali and Wilders claimed, the Dutch government should demonstrate
strength instead of talking, tarrying, showing weakness, and acting
quasi-politically correct. While it is important in the long run to offer a
competing liberal alternative to all the formational channels (schooling,
information supply, associations, etc.) on which the messenger of the jihad
currently has a monopoly, they submitted, the government should act
immediately to counter the monopoly of the extremist imams on the minds
of the young, by closing Muslim schools and mosques that preach intoler-
ance and by outlawing organizations and associations that are financed
with corrupt foreign money. For in order to protect the freedom of reli-
gion in the long run, this freedom needs to be temporarily set aside for cer-
tain groups in certain cases.
In this op-ed, Hirsi Ali and Wilders do not simply remind readers that the
right to freedom of expression, the right to freedom of thought, conscience,
and religion, and other rights are limited under Dutch and European law; for
instance, a universal and absolute right to free speech such as the one defended
by Dworkin does not exist in European law.
22
They also do not demand that
the courts examine more scrupulously whether certain expressions transgress
238
existing legal limits, or that Parliament make these limits stricter. Instead, Hirsi
Ali and Wilders urge the executive branch to set aside elementary rights and
laws.
23
Their call for a liberal jihad is an appeal to the Dutch government to
declare what in constitutional law is called the state of siege, state of emer-
gency, or state of exception, in which the sovereign suspends the constitu-
tional order and decides, unbound by laws, how to ward off an attack.
24
Hirsi
Ali and Wilders urge the Dutch government to recognize that the Netherlands
is under attack by an Islamic jihad, and that the only response is a liberal
jihad, a counteroffensive that necessitates suspending political correctness,
setting aside elementary rights and laws, and showing strength, in order to
preserve the Netherlands as a tolerant and liberal country.
25
Thus, the op-ed
is an appeal to the government to perform what constitutional theorist Carl
Schmitt considered the speech act par excellence: the sovereign decision on
the state of exception and on what he called the friend-enemy distinction.
26
Hirsi Ali and Wilders consider radicalizing to be what Austin called an
illocutionary rather than a perlocutionary speech act.
27
Illocutionary
speech acts do something in saying something, whereas perlocutionary
speech acts do something by saying something. The difference hinges on
the distinction between an act and its consequences. A test for distinguishing
illocutionary from perlocutionary speech acts is that you can say, I argue
that or I warn you that (illocutionary) but not I convince you that
or I alarm you that (perlocutionary), because conviction and alarm can
only be produced as consequences of, for instance, the illocutionary speech
acts of arguing or warning.
28
According to Austin, illocutionary speech acts
do something with words by force of convention. In her book Excitable
Speech, philosopher Judith Butler has criticized illocutionary models of hate
speech for attributing a sovereign performative power to the speaker of
injurious speech acts while depriving the targets of such speech acts of
agency, leaving state censorship as the only possible remedy.
29
Butlers cri-
tique applies to the op-ed by Hirsi Ali and Wilders as well. The authors con-
sider the speech acts of the messenger of the jihad and the extremist
imams as sovereign performatives, and the minds of the young as passive
objects or victims of these performatives, and therefore they call for state
censorship. But according to Butlers argument, the liberal counterpropa-
ganda that Hirsi Ali opposes to Islamist propaganda is a contradiction in
terms. For instead of seeking to liberate the minds of the young as respon-
sible agents in noncoercive democratic discussion, Hirsi Ali seeks to counter
239
the monopoly of the extremist imams on the minds of the young with
competing speech acts that also consider Muslims as passive targets.
Consider the performativity of Hirsi Alis defense of the right to offend in
Berlin. After the opening lines cited above and after reprising the history of
the cartoon affair, Hirsi Ali continued her speech by shaming papers and
TV channels who lacked the courage to show their readers the caricatures,
as well as politicians and multinational corporations who criticized the car-
toons as unnecessary, insensitive, disrespectful and wrong, accusing
them of cowardice.
30
Hirsi Ali then professed her beliefs about Muhammads
faults (I think the prophet was wrong to have placed himself and his ideas
above critical thought; I think the prophet was wrong to have subordinated
women to men, and so on), framing these beliefs in a conversion narrative:
In 1989 when Khomeini called for Salman Rushdie to be killed for insulting
Muhammad, I thought he was right. Now I dont. She continued by compar-
ing herself to German Democratic Republic (GDR) dissidents: I am a dissi-
dent, like those from the Eastern side of this city who defected to the West.
I too defected to the West. I was born in Somalia, and grew up in Saudi
Arabia and Kenya. The point of this comparison was to inscribe her biogra-
phy in the teleological narrative that concluded her speech, which suggested
that Islamism is similar to communism in that both are opposed to liberty:
Berlin is a city of optimism. Communism failed. The wall was broken down.
Things may seem difficult and confusing today. But I am optimistic that the
virtual wall, between lovers of liberty and those who succumb to the seduction
and safety of totalitarian ideas will also, one day, come down.
The speech hinges on a series of polemical oppositions: the West versus
other hemispheres; we versus our opponents; and lovers of liberty
versus those who succumb to the seduction and safety of totalitarian ideas.
Hirsi Alis main speech act is to urge her audience to follow her in choosing
sides in the conflict of ideas by aligning themselves with the imagined
community of we, lovers of liberty in the West. Hirsi Ali constantly
emphasizes her personal investment in the democratic freedoms and obliga-
tions she is defending, both by relating them to her autobiography and
through the repetition of such phrases as It is my conviction that . . .;
I am of the opinion that . . .; or I think that. . . . Much of the speech
uses a republicanist vocabulary of civic virtues and vicescourage/cowardice;
excellence/mediocrity; honor/shameand the primary offense for which
240
Hirsi Ali shames journalists, intellectuals, politicians, and businesses is betrayal
of freedoms and obligations from which they benefit personally, for instance:
These intellectuals live off free speech but they accept censorship.
31
Although the concept of offense implies a distinction between an offend-
ing subject and an offended object, Hirsi Ali occupies both positions at
once. Her opening statementI am here to defend the right to offend
initiates an apologia that operates through the testimony of an embodied I
who, paradoxically, mainly takes offense, not only to self-censoring jour-
nalists, politicians, and corporations, but also to the prophet Muhammad:
I wish to defend the position that he was also disrespectful and insensitive
to those who disagreed with him. Rather than defending an absolute and
universal right, then, like Dworkinfor Dworkin, everyone has the right
to ridicule and no one has the right not to be insulted or offended
32
Hirsi Ali claims an exceptional right to give and take offense to Muslims,
in the name of a messianic universality that is yet to be fully realized. This
is already apparent in her opening statement: the verbs in the phrase I am
here to defend the right to offend could also be reversed (I am here to
offend the right to defend)Hirsi Ali defends liberty/the West by
denying Muslims the multiculturalist right not to be offendedbut the
deictic markers I and here cannot be eliminated (The right to offend
must be defended) without changing the meaning of the speech act. Oppos-
ing multiculturalisms universal right not to be offended without defending
Dworkins universal and absolute right to free speech, Hirsi Ali claims excep-
tional discursive authority.
Hirsi Ali claims exceptional discursive authority by testifying to her con-
version from Islam to the liberating, messianic truth of the West. As she
puts it in her best-selling spiritual autobiography, Infidel:
I moved from the world of faith to the world of reasonfrom the world of
excision [female genital mutilation] and forced marriage to the world of
sexual emancipation. Having made that journey, I know that one of those
worlds is simply better than the other. Not because of its flashy gadgets,
but fundamentally, because of its values. The message of this book, if it must
have a message, is that we in the West would be wrong to prolong the pain
of [the] transition [to modernity] unnecessarily, by elevating cultures full of
bigotry and hatred toward women to the stature of respectable alternative
ways of life.
33
241
The lyrical review of Infidel, Liberated Woman, by David Pryce-Jones in
the neoconservative journal Commentary provides an instructive perspective
on Hirsi Alis claim to exceptional discursive authority.
34
Pryce-Jones begins
his review by asserting: Autobiography is one of the glories of Western
literature. By contrast, he submits, Autobiography is not compatible with
the core values of shame and honor still pertaining throughout the Muslim
world. Fortunately, however, contrary to Edward Said and all who in
his wake claim that the West intentionally victimizes Muslims, [Infidel ] is
outstanding evidence that the model of Western liberation is available to
everyone. What makes this review so instructive is that Pryce-Jones sug-
gests that the truth to which Hirsi Ali testifies in Infidel lies not so much
in any historical or sociological accountthe way in which she attributes
all the familial, societal, and political problems she experienced to the root
cause of Islam could not pass as serious scholarship or journalismbut in
her affirmation of the model of Western liberation itself, as it is contained
within the generic conventions of the spiritual autobiography which,
although one of the glories of Western literature, is also universal (avail-
able to everyone).
35
The genre of the spiritual autobiography in which a conversion is
described as a liberation goes back to Saint Pauls letters and Saint Augustines
Confessions, and ultimately to Jesuss promise that the truth will make you
free, where truth is, of course, not general knowledge but the exceptional
truth of the word of God become flesh.
36
Like the testimonies of Paul and
Augustine, Hirsi Alis conversion narrative reaffirms a model for the true
and free life that can be shared by a communityin Infidel, the community
of the West rather than the community in Christ. However, in Infidel s sim-
ilarly structured sequel, Nomad: From Islam to America: A Personal Journey
Through the Clash of Civilizations, she also calls on the community of
Christian churches to rise to the challenge of Islamthat incarnates the
historic universal in a messianic vision of history.
37
Beginning Infidel with
the genealogy she had to memorize and recite over and over as a young
girlI am Ayaan, the daughter of Hirsi, the son of Magan, and so on
Hirsi Ali distances herself from this particular filiation in the second half of
her narrative, by testifying to her affiliation with the universal community
of freedom, similar to the way that Jesus and Paul distance themselves from
the particular filiation emphasized through the genealogical lists of the
Hebrew Scriptures by testifying to the universal spiritual community
242
in God.
38
This use of the generic conventions of the spiritual autobiography
allows Hirsi Ali to mobilize what Judith Butler and others have called the
performative force
39
contained within those conventions, and thus to claim
the moral authority to present herself as the rock of offense mentioned by
Isaiah, as a stumbling stone for Muslims.
40
And of course, Infidel and
Nomad bolster popular support in the United States and Europe for the
wars in Iraq and Afghanistan, of which Hirsi Ali continues to be a staunch
defender.
Pryce-Joness claim that [c]ontrary to Edward Said and all who in his
wake claim that the West intentionally victimizes Muslims, [Infidel ] is out-
standing evidence that the model of Western liberation is available to every-
one, is also instructive for interpreting Submission.
41
Profaning the Koran
by inscribing verses on the sometimes bruised or torn skin of eroticized,
partly veiled, almost-naked women who are supposedly held captive by
the discursive authority of these verses in what looks like a traditional dcor
for Mozarts Abduction from the Seraglio, Hirsi Ali mobilizes orientalist con-
ventions that depict the orient as passive, erotic, silent, and inscrutable.
42
The women themselves do not speak, but are all given voice by the same
voice-over, which lets their prayers meander into bitter accusations of Allah,
and attributes their abuse to his rules (the few Arabic phrases that open and
close the filmIn the name of God the compassionate the merciful, for
exampleare recited by Hirsi Ali, but the rest is narrated in the accented
English of a white Dutch actress). Submissions message is: liberation is
indeed available for everyone, but requires heeding the orientalist prompter
and stepping out of the aesthetic but backward dcor by abjuring Islam.
Hirsi Ali and Dworkin both take exception to the obligation not to offend
that they believe has been imposed by multiculturalism, by defending a right
to perform speech acts that they consider crucial in a democracy. However,
I have questioned why Dworkins right to confirm ones standing as a respon-
sible agent in collective action in expressing an attitude, opinion, fear, and so
forth, should always outweigh the rights of the targets of contested speech
acts, and I have argued that, although Hirsi Ali pretends to liberate the targets
of her confrontational speech acts from oppressive discursive authority, she
does not treat those targets as responsible agents but as passive objects of
her speech acts of secular proselytism, claiming an alternative discursive
authority by mobilizing powerful performative conventions. In the next sec-
tion, I will criticize an elaborate and influential version of the obligation not
243
to offend that Dworkin and Hirsi Ali argue against: the jurisprudence of the
European Court of Human Rights on contested speech acts and democracy.
P SYCHOLOGI Z I NG PE R F OR MAT I VI T Y: THE OBL I GAT I ON
NOT TO OF F E ND I N T HE J UR I S P R UDE NCE OF THE
E UROP EAN COURT OF HUMAN R I GHT S
The jurisprudence of the European Court of Human Rights (hereinafter the
Court) on contested speech acts and democracy can be divided into two
categories: judgments where the Court sought to protect a majority, and
judgments where it attempted to shield a minority against the presumed
performative effects of certain expressions. Since the former category of
judgments specifically aims at protecting the feelings of the overwhelming
majority, commentators have strained to understand the Courts reasoning
for allowing the censorship of speech acts that target a minority as well.
43
However, I will demonstrate that these two categories have one important
thing in common: the Courts psychologization of the performativity of con-
tested speech acts. In both categories, the Court implicitly considers the con-
tested expressions to be performing two speech acts simultaneously: to
impart information or ideas to the public, and to act upon some peoples feel-
ings. The Courts general argument is that the latter speech act may some-
times be censored to protect the rights of others, even though such
censorship also implies the limitation of the speech act of imparting informa-
tion or ideas to the public. I will argue that this argument reflects a highly
reductive understanding of the role of contested speech acts in a democracy.
I will first discuss a landmark judgment in which the Court sought to pro-
tect a majority. The Court first recognized a right not to be gratuitously
offended in Otto-Preminger-Institut v. Austria (1994).
44
The case had been ini-
tiated by the Otto Preminger Institute, a nonprofit organization that had
intended to screen Werner Schroeters 1981 film adaptation of Oskar Panizzas
1894 grotesque play, Das Liebeskonzil (The Council of Love) in an art-house
movie theater in Innsbruck, Austria. Das Liebeskonzil led to Panizzas trial and
conviction for blasphemy in 1895, and Schroeters film Liebeskonzil places a
1981 Italian production of the play in the context of a fictional reenactment
of this trial. The play is set in 1495 and alternates between the court of the
infamous pope Alexander VI and heaven, where an invalid and senile God
244
asks the Devil to invent syphilis to punish humanity for its sinful sexual behav-
ior.
45
The Court ruled that the seizure and forfeiture of Liebeskonzil by the
Austrian authorities, because it was deemed gratuitously offensive to
Roman Catholics in Tyrol, did not violate the freedom of expression of the
Otto Preminger Institute.
In its judgment, the Court relied strongly on its 1993 judgment, Kokkinakis
v. Greece.
46
Kokkinakis was a Jehovahs Witness who had been convicted
under a Greek criminal law prohibiting proselytism, because he had
scandalouslyattempted to proselytize the wife of a cantor of the Greek Ortho-
dox Church. Although this judgment did not primarily concern Kokkinakiss
freedom of speech (Art. 10 of the European Convention on Human Rights)
but his freedom of thought, conscience, and religion (Art. 9:1), and especially
his freedom to manifest his religion or beliefs (Art. 9:2), Otto-Preminger-Institut
nevertheless drew heavily from Kokkinakis, arguing, The Convention is to be
read as a whole.
47
Otto-Preminger-Institut summarizes Kokkinakis as ruling that a State may
legitimately consider it necessary to take measures aimed at repressing cer-
tain forms of conduct, including the imparting of information and ideas,
judged incompatible with the respect for the freedom of thought, conscience
and religion of others.
48
The Court uses this summary as a ground for argu-
ing that, in the case of the film Liebeskonzil, The respect for the religious
feelings of believers as guaranteed in Article 9 . . . can legitimately be thought
to have been violated by provocative portrayals of objects of religious vener-
ation.
49
However, Art. 9 merely states, Everyone has the right to freedom
of thought, conscience and religion, and mentions neither respect nor
feelings. And the main issue of Kokkinakis is the prohibition of improper
proselytism, which may take the form of activities offering material or
social advantages with a view to gaining new members for a Church or exert-
ing improper pressure on people in distress or in need; it may even entail the
use of violence or brainwashing; more generally, it is not compatible with
respect for the freedom of thought, conscience and religion of others.
50
In
this sentence, the phrase is not compatible with respect for simply means
violates, and the judgment never mentions the word feelings. Kokkinakis
is not about respect for religious feelings, then, but about the illegitimate use
of force, coercion, or manipulation against someone elses thoughts or con-
science, which has been the concern of a tradition that continues from
Sbastien Castellions 1562 Conseil la France dsole to John Lockes
245
1689 Letter Concerning Toleration to John Rawlss 1971 A Theory of Justice.
51
Thus, in Otto-Preminger-Institut the Court fundamentally redefines the right
to freedom of thought, conscience, and religion as a right to respect for
feelings.
52
The Courts reason for this redefinition seems to have been the following.
Kokkinakis had claimed that the Greek law under which he had been con-
victed, which prohibits proselytism, was as such incompatible with the free-
dom of thought, conscience, and religion. The Court ultimately did not
agree, and ruled that there had only been a breach of this freedom because
the Greek courts did not sufficiently specify in what way the accused had
attempted to convince his neighbour by improper means.
53
However, the
votes show that the judges were divided on the fundamental question posed
by Kokkinakis, and their strong disagreement about the legitimacy of the
Greek proselytism prohibition as such is reflected in the separate opinions
attached to the judgment. These opinions range all the way from Judge
Pettitis Partly Concurring Opinion that the Court should have ruled that
the Greek proselytism prohibition is as such incompatible with Art. 9,
because unlike coercion, proselytism can never violate the freedom of
thought, conscience, and religion of others, to Judge Valticoss impassioned
Dissenting Opinion that as a form of intellectual corruption, as the
rape of the beliefs of others, and as an intrusion on peoples beliefs, even
where it is not a forceful one, proselytism is always a violation of someone
elses freedom of thought, conscience, and religion.
54
This strong disagree-
ment in Kokkinakis about what it means to violate someones freedom of con-
science seems to have led the Court, in Otto-Preminger-Institut, to abandon
the concepts of thought and conscience altogether, and to substitute a right
to respect for feelings. However, by reducing the concepts of thought
and conscience to the empirical concept of feelings, the Court does not
escape the need to decide whose feelings of offense deserve to be protected
by a right not to be offended.
In Kokkinakis, the genealogy of the Greek proselytism prohibition shows
that a fundamental political decision lies at its origin. Proselytism was first
made a criminal offense during the dictatorship of general Mataxis by a
1938 emergency law; the particular target of this criminalization was the
Greek Communist Party.
55
Kokkinakis objected particularly to the title of
this emergency law, which indicated that the law was designed to preserve
the articles in the 1911 Constitution that prohibited proselytism against
246
the dominant religion, that is, the Greek Orthodox Church. The Greek
courts rejected this objection by pointing to the fact that the current Consti-
tution, adopted in 1975, extends the proselytism prohibition to all religions.
56
The European Court follows the Greek governments argument that the
proselytism prohibition is now intended exclusively to protect the dignity
and personality of individuals against other individuals attempts to con-
vince them by improper means, suggesting that the supposedly objective
question of what constitutes improper means is now the only issue under
consideration.
57
However, the European Court recognizes the prohibitions political aspect
as well. Under the heading Relevant Domestic Law and Practice, the
Court recalls, The Christian Eastern Orthodox Church, which during
nearly four centuries of foreign occupation symbolised the maintenance of
Greek culture and the Greek language, took an active part in the Greek peo-
ples struggle for emancipation, to such an extent that Hellenism is to some
extent identified with the Orthodox faith. It also notes that the over-
whelming majority of the population are members of it, and that it repre-
sents de jure and de facto the religion of the State itself.
58
Although the
Court does not contest Kokkinakiss claim that it would surpass even the
wildest academic hypothesis to imagine, for example, the possibility of a
complaint being made by a Catholic priest or by a Protestant clergyman
against an Orthodox Christian who had attempted to entice one of his flock
away from him,
59
it does not acknowledge that a selective application of
the proselytism ban could pose a fundamental problem of fairness. If any-
thing, the otherwise superfluous recollection of the historic link between
the Orthodox Church and Greek nationalism suggests that the prohibitions
selective protection of the overwhelming majority of members of the offi-
cial church may have some legitimacy.
60
Although this suggestion remains implicit in Kokkinakis, the legitimation of
special protection for the overwhelming majority becomes explicit in Otto-
Preminger-Institut: The Court cannot disregard the fact that the Roman
Catholic religion is the religion of the overwhelming majority of Tyroleans.
In seizing the film, the Austrian authorities acted to ensure religious peace
in that region and to prevent that some people should feel the object of attacks
on their religious beliefs in an unwarranted and offensive manner.
61
The
Court repeats the general rule that it has applied since 1976: [F]reedom of
expression is applicable not only to information or ideas that are favourably
247
received or regarded as inoffensive or as a matter of indifference, but also to
those that shock, offend or disturb the State or any sector of the population.
62
However, in Otto-Preminger-Institut, the Court adds a very strong qualification
to this rule, namely that freedom of expression also entails an obligation to
avoid as far as possible expressions that are gratuitously offensive to others
and thus an infringement of their rights, and which therefore do not contribute
to any form of public debate capable of furthering progress in human affairs.
63
This qualification not only seems to contradict the general rule,
64
it also seems
circular in itself, if gratuitously offensive is interpreted to mean offensive
without contributing to public debate, which seems the most obvious interpre-
tation.
65
However, the causal chain in this qualification (thus, therefore)
needs to be taken at face value: it is because the film Liebeskonzil is gratuitously
offensive that it does not contribute to public debate, and what counts as
gratuitously offensive has nothing to do with public debate.
What, then, counts as a gratuitously offensive expression? The Court
seems to want to avoid the censorship of whatever the overwhelming
majority happens to feel offended by, by referring to the conception of
the Tyrolean public.
66
However, such a supposed conception of the
public is in fact no less anticritical. I will demonstrate this through a brief
excursus to American philosopher Joel Feinbergs very similar defense of a
right not to be offended in Offense to Others (1985), the second volume of
his tetralogy The Moral Limits of the Criminal Law and the most systematic
work on offense and the law to date.
67
In this book, the European Courts cri-
terion for what counts as gratuitously offensive, namely the conception of
the public, takes the form of the cultural standards of the vast majority.
68
Feinberg presents his tetralogy as an elaboration of John Stuart Mills
famous concern in On Liberty with the nature and limits of the power which
can be legitimately exercised by society over the individual, and announ-
ces, This work will be an effort to vindicate the traditional liberalism
derived from Mills On Liberty, not by slavishly adhering to its every conten-
tion and argument, but by salvaging a central part of it, qualified and refor-
mulated in the light of the many accumulated difficulties and criticisms.
69
However, the central argument of Offense to Others is not a qualification or
reformulation of On Liberty: it completely contradicts it. Whereas Mill
famously argued that the only purpose for which power can be rightfully
exercised over any member of a civilised community, against his will, is to
prevent harm to others,
70
Feinbergs main argument is that [i]t is always
248
a good reason in support of a proposed criminal prohibition that it would prob-
ably be an effective way of preventing serious offense (as opposed to injury or
harm) to persons other than the actor, and that it is probably a necessary means
to that end.
71
Feinberg mistakenly claims that Mill only discusses offense as a
kind of afterthought,
72
ignoring that On Libertys longest chapter is a passion-
ate defense of the liberty of thought and discussion against what Mill,
referencing Tocqueville, calls a tyranny of the majority.
73
If anything, Mill
writes, there would be much more need to discourage offensive attacks on
infidelity, than on religion, because unmeasured vituperation employed on
the side of the prevailing opinion, really does deter people from professing
contrary opinions. . . . It is, however, obvious that law and authority have
no business with restraining either.
74
Feinberg defines offense as unpleasant mental states that are wrong-
fully caused by others, and Offense to Others is an attempt to formulate criteria
for distinguishing serious and unreasonable offense, which may be cen-
sored, from offense that needs to be tolerated.
75
His method is the following:
There is a limit to the power of abstract reasoning to settle questions of moral
legitimacy. The question raised . . . is whether there are any human experiences
that are harmless in themselves yet so unpleasant that we can rightly demand
legal protection from them even at the cost of other persons liberties. The best
way to deal with that question at the start is to engage our imaginations in the
inquiry, consider hypothetically the most offensive experiences we can imagine,
and then sort them into groups in an effort to isolate the kernel of the offense in
each category. Accordingly, this section will consist of a number of vividly
sketched imaginary tales, and the reader is asked to project himself into each story
and determine as best he can what his reaction would be. In each story the reader
should think of himself as a passenger on a normally crowded public bus. . . . In
each story, another passenger, or group of passengers, gets on the bus, and pro-
ceeds to cause, by their characteristics or their conduct, great offense to you.
76
Feinberg thus determines the moral legitimacy of censoring offensive
expressions by appealing to the moral imagination (our imagination)
of an imagined homogeneous audience (the reader, we, or you)
through fiction. He explains in the General Introduction to the tetralogy:
My assumption . . . is that almost all my readers share with me a large num-
ber of values and ideals, and that they all would be willing to modify or
relinquish some of their beliefs if they could be shown that by so doing, they
249
would strengthen the support for others that are more fundamental, and
increase internal coherence generally.
77
He adds: This coherence method
obviously presupposes a great deal of common ground between arguer and
addressee (reader) to begin with.
Feinberg seems to base his method loosely on John Rawlss A Theory of
Justice, which also bases normative arguments on a fictional scenario, namely
an imagined deliberation on the terms of the social contract.
78
In his later
work, Rawls argued that although the deliberation on the social contract
in what he calls the original position is a fiction, the agreement on the
validity of this fiction is embodied in the basic intuitive ideas that reside
in the historical institutions of actually existing more or less democratic
societies, so that his theory is political not metaphysical.
79
However,
these basic intuitive ideas are not feelings, and the moral imagination
of the reader to which Feinberg appeals to decide what counts as unrea-
sonable offense should, according to the argument of A Theory of Justice, be
hidden behind what Rawls calls the veil of ignorance to ensure justice as
fairness: the participants in the imagined deliberation on the terms of the
social contract must be ignorant of their place in society, class position, social
status, conception of the good, and many other things.
80
Therefore, a right
not to be offended cannot be part of Rawlss theory of justice, and indeed
it is not: as I already noted, Rawlss theory of justice is premised on equal
liberty of conscience, not equal respect for each others feelings.
Feinberg calls the common ground that can supposedly be accessed
through his fictional scenarios cultural standards, which he admits vary
greatly from place to place, and within our own nation constantly and rap-
idly change.
81
The bearer of these cultural standards is the vast majority
of people.
82
The example that Feinberg gives is the not-so-gradual evolu-
tion of the ankle-length bathing suit into the bikini, and the development now
occurring before our very eyes of the bikini into the topless suit. Indeed, one
of the main arguments of Offense to Others is that all cases of offense are nui-
sances in a perfectly ordinary sense and should be judged on the model of
nuisance law, because the law of nuisance, in its full complexity, provides a
model for the legislative application of an offense principle to the tangled
problems of urban civilization.
83
Thus, Feinberg argues that cases where
people take offense to a political expression should be judged in the same
way as cases where people take offense to women wearing bikinis or topless
suits: by putting two negative freedomsthe freedom from offense and
250
the freedom from censorshipon the scales and reading the balance (the
balance being the cultural standards of the vast majority of people).
84
Feinberg draws the consequences himself: Thus, I could be in the uncom-
fortable position of making a case for the punishment of antiwar demonstra-
tors in 1965 for parading a Viet Cong flag (shocking!) while denouncing the
punishment of other protestors in 1970 for doing the same thing (yawn).
85
His tautological reassurance that the vast majority . . . have little to fear from
laws derived from the restricted offense principle blatantly contradicts Mills
objective in On Liberty: to oppose the tyranny of the majority.
86
The way in which Feinberg frames a case about antiwar protesters as a
case in which it needs to be decided, on the model of nuisance law and
according to the cultural standards of the vast majority, whether certain
unpleasant mental states are wrongfully caused by others, is more or less
the same as the way in which the European Court framed Otto-Preminger-
Institut, namely, as a case in which it needed to be decided, according to
the supposed conception of the general public, whether the feelings
of Catholics would be gratuitously offended by a movie ridiculing Cathol-
icism.
87
I have already noted the Courts argument that because the film
Liebeskonzil is gratuitously offensive, it does not contribute to public
debate in a democratic society, which shows a highly reductive view of pub-
lic debate and democracy. The Court interprets the right to freedom of
expression exclusively as the right to the speech act of imparting informa-
tion or ideas to the public, and it considers any other speech act as irrelevant
at best and as inhibiting public debate and threatening public order at
worst.
88
However, Liebeskonzil does not primarily seek to impart information
or ideas to the public: it is a work of art that ridicules the beliefs of Catholics
and the institutional manifestation of these beliefs in the world. Indeed, the
original charge was not hurt feelings, but disparaging religious doctrines
(which is not the same as blasphemy either): unlike the European Court, the
Austrian prosecutor did not psychologize the performativity of the film.
89
The Court uses different arguments for allowing the censorship of expres-
sions targeting a majority than it does for expressions targeting a minority.
In deciding on expressions targeting a minority, the Court completely
departs from Feinberg, who argues that profound offense to a minority,
such as the 1977 Nazi demonstration in Skokie, Illinois, can also be censored
according to the cultural standards of the vast majority (in the Skokie
case, Feinberg submits, these cultural standards would consider the Nazi
251
demonstration a gratuitous affront on the many Holocaust survivors living
in that town).
90
The problem with basing a right not to be offended for
minorities on the cultural standards of the vast majority is, of course,
that these standards can undergo a rapid change from considering certain
attacks on minorities gratuitously offensive to finding them permissible, or
vice versa, and that minorities are most in need of protection when these
cultural standards turn against them. The European Court recognizes this,
and does not refer to the conception of the public when it allows the cen-
sorship of expressions targeting a minority: on the contrary, the Court pri-
marily seeks to protect minorities against the public.
In Fret v. Belgique (2009), the Court ruled that the criminal conviction of
the leader of the Belgian political party Front National, for insulting,
ridiculing, or defaming the immigrant community through political pam-
phlets and posters, did not violate his freedom of expression.
91
The Court
argued:
With regard to the content [la teneur] of the contested expressions, it appears
from the leaflets that the message they carry, in addition to resting on the cul-
tural difference between Belgian nationals [les ressortissants Belges] and the tar-
geted communities, presented the latter as criminogenic and as interested in
exploiting the benefits resulting from their settlement in Belgium, and also
attempted to mock them [les tourner en drision]. Such a discourse is inevitably
of the kind that arouses [susciter] among the public, and particularly among the
least informed public, feelings [sentiments] of contempt, rejection, indeed, for
some, of hatred with regard to foreigners.
92
After recalling the general rule that the freedom of expression also applies to
expressions that offend, shock or disturb, the Court specified:
[Political parties] can thus propagate [prner] solutions to problems connected
with immigration. However, they should avoid doing so while advocating
racial discrimination and using expressions or attitudes that are vexatious
[vexatoires] or humiliating, because such conduct risks arousing reactions
among the public that are incompatible with a calm [serein] social climate
and could undermine confidence in democratic institutions.
93
With its emphasis on feelings and arousing reactions, the Court still
psychologizes the performative effects of the contested expressions, as it
252
did in Otto-Preminger-Institut. However, unlike Otto-Preminger-Institut, Fret
does not primarily seek to shield the feelings of the members of the group
ridiculed by the expressions, but those of the public: feelings of contempt,
rejection, hatred, intolerance, and mistrust.
The Court correctly suggests that Fret did not primarily propagate
solutions to problems connected with immigration; that is, he did not
primarily impart information or ideas to the public. Indeed, the main speech
act that Fret seems to perform in distributing these pamphlets and posters is
claiming privileges for our people or Belgians and Europeans against the
rights of immigrants, refugees, non-European families, or Muslims,
for instance, by proposing an apartheid of social services and the priority
of employment for Belgians and Europeans, and by advocating the repatri-
ation (i.e., the expulsion) of immigrants or the non-European unem-
ployed.
94
The main problem with the Courts psychologization of Frets
offensive speech is that the Court uses Frets distinctions between his
intended audience and his targets, without calling these distinctions them-
selves into question. For the judgment assumes that a meaningful distinction
can be made between Belgian nationals [les ressortissants Belges] and the
targeted communities. However, there is no reason to assume that Frets tar-
gets form communities or a community (the community of immigrants),
nor that they do not hold Belgian citizenship, nor even that they have actually
immigrated into Belgium (European xenophobic politicians generally target
the children and grandchildren of immigrants as well). Thus, there is also no
reason to assume the existence of a category of Belgian nationals that does
not include the community of immigrants. The Courts reduction of the per-
formativity of Frets claims to the arousal of certain feelings, and its psycho-
logization of the public, particularly . . . the least informed public and of the
community of immigrants, obscure the central questions at stake: who
belongs to the Belgian people, and who has which rights.
The Court did not need to psychologize the performativity of Frets
pamphlets and posters in order to allow the Belgian government to censor
them. In fact, Fret departs from an earlier jurisprudence where the Court
allowed the censorship of comparable exclusionary rhetoric by appealing to
the article in the European Convention on Human Rights that prohibits
the abuse of rights: Nothing in this Convention may be interpreted as
implying for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights and freedoms
253
set forth herein or at their limitation to a greater extent than is provided for
in the Convention (Art. 17). An early judgment that is cited in various later
judgments is Glimmerveen and Hagenbeek v. the Netherlands (1979), where the
European Commission (the precursor to the Court) allowed the conviction
of the president and vice-president of a small xenophobic political party.
Glimmerveen and Hagenbeek had intended to distribute leaflets addressed
to white Dutch people (blanke Nederlanders), which declared:
The truth is that the major part of our population since a long time has had
enough of the presence in our country of hundreds of thousands of Surinamers,
Turks and other so-called guest workers. . . . As soon as the Nederlandse
Volks Unie will have gained political power in our country, it will put order
into business and, to begin with will remove all Surinamers, Turks and other
so-called guest workers from the Netherlands. . . .
95
Using Art. 17 of the Convention, the Commission argued that Glimmerveen
and Hagenbeek could not appeal to the right to freedom of expression
because the policy advocated in the pamphlet violated the Conventions non-
discrimination principle (Art. 14). In Fret, the Belgian government also
appealed to Art. 17 to justify its censorship of Frets pamphlets and posters,
but the Court rejected this appeal and instead allowed the censorship because
of the supposed effect on the feelings of the public.
96
Fret and Otto-Preminger-Institut reflect a similar reductive understanding
of public debate in a democratic society, an understanding that values only
the speech act of imparting information and ideas to the public, and psycho-
logizes other speech acts.
97
In Otto-Preminger-Institut, the presumed concep-
tion of the Tyrolean public still functions as the criterion for deciding what
counts as gratuitously offensive, but what this conception is has nothing
to do with public debate and needs to be determined by the national author-
ities within the margins of appreciation set by the European Court.
Otto-Preminger-Institut thus forecloses the discursive contestation of the con-
ception that the courts attribute to the Tyrolean public. Such discursive
contestation, however, is at the heart of a critical democratic practice. In Fret,
the public even becomes a potential hazard that needs to be shielded from
offensive expressions to prevent the arousal of feelings of animosity. The
Courts psychologization of Frets speech acts implicitly naturalizes Frets
separation between our people to which he addresses his propaganda and
the imaginary community of immigrants that he seeks to exclude.
254
CONCL US I ON: T HE OB L I GAT I ON NOT TO OF F E N D AND
T HE POL I T I CS OF OF F E NS E
In the first section, I demonstrated how Hirsi Ali and Dworkin both take
exception to the obligation not to offend by defending a right to perform
speech acts that they consider crucial in a democracy. In the second section,
I criticized the obligation not to offend in the jurisprudence of the European
Court of Human Rights, which, I argued, psychologizes the performativity
of contested speech acts and reflects a highly reductive view of public discus-
sion and democracy. To conclude, I want to reflect briefly on the recent turn
against the multiculturalist obligation not to offend that took place in the
Netherlands after the murder of Theo van Gogh in 2004.
In 2005, Geert Wilders founded the Freedom Party, which practices what
might be called a populist politics of offense. Wilderss consistently offensive
rhetoric targets both Muslims and the politically correct elite of traitors
and cowards who spout multiculti nonsense and seek to suppress his
courageous resistance to the tsunami of Islamization by Muslim coloniz-
ers, that is, the unskilled labor immigrants, political refugees, and their
descendents who adhere to the sick, fascist, and totalitarian ideology
promoted in the Koran, the Islamic Mein Kampf.
98
In June 2011, Wilders
was acquitted of hate speech and group defamation charges by the Amsterdam
district court.
99
The Amsterdam court used the same juridical framework for
judging contested expressions as did the European Court of Human Rights,
a framework that considers contested expressions to be performing two speech
acts: imparting information or ideas to the public, and acting on some peoples
feelings. But whereas the European Court used this framework to allow the
censorship of Daniel Frets anti-immigrant pamphlets, arguing that the
presumed negative effects on the publics feelings outweighed Frets right
to preach solutions to problems related to immigration, the Amsterdam court
used this framework to acquit Wilders, arguing that Wilderss expressions do
not target Muslims, but criticize Islam. However, consider Wilderss proposal
in a televized parliamentary debate for a head rag tax (kopvoddentaks), which
would require women wearing Islamic head scarves to obtain an annual
thousand-euro permit:
A better environment begins with you. A great many Dutch people are
annoyed [ergeren zich] at the pollution of public space by Islam. In other
255
words, in certain places our street scene more and more resembles the street
scene in Mecca or Tehran: headscarves, hate beards, burqas, and men in weird
long white dresses. Let us do something about that for once. Let us reconquer
our streets. Let us ensure that the Netherlands is finally going to resemble the
Netherlands again. Those headscarves really are a symbol of female oppres-
sion, a sign of subjection, a sign of conquest. They form a symbol of an ide-
ology that intends to colonize us. Therefore the time has come for a great
cleaning of our streets.
100
The speech act that Wilders performed here is primarily a call for, or exhor-
tation to, ethnic cleansing, introduced by a humorous citation of a govern-
ment slogan promoting environmental awareness from the 1990s. To reduce
this rhetoric to a critique of Islam validates it as democratic speech and
obscures the central question: what should the democratic response be to
speech acts that aim at the destruction of the rights of others?
A similar reclassification of Wilderss speech acts lies at the origin of the
Tolerance Pact (Gedoogakkoord) that Wilders concluded with the neolib-
erals and the Christian Democrats after his Freedom Party had won one-
sixth of the seats in Parliament in the 2010 national elections. The terms of
the Tolerance Pact are that Wilderss party tolerates (i.e., votes with) the
minority government coalition of neoliberals and Christian Democrats,
and that the government respects Wilders in his differing opinions about
Islam, particularly that it is an ideology and not a religion, and consults
with Wilders about its proposed policies.
101
The agreement to disagree that
lies at the heart of the Tolerance Pact falls prey to Austins descriptive fallacy
that I mentioned in the first section, for Wilderss speech acts are not primar-
ily true or false statements (Islam is an ideology, not a religion; The
Netherlands should be a Judeo-Christian society), but speech acts of giving
offense and taking offense (performing indignation) that attempt to mobilize
an exclusionary community in the name of resistance to the oppressive
obligation not to offend.
A more complex model of contested speech acts and democracy is called
for, then, in a time when the obligation not to offend provokes backlashes of
reactionary politics of offense with exclusionary rhetoric that claims to be lib-
erating. Dworkins defense of the speech act of confirming ones standing as
a responsible agent in collective action can be a useful starting point, but as I
have argued, this defense does not support Dworkins absolute and universal
256
right to free speech, because such a right only considers the standing as a
responsible agent of the speaker. A more comprehensive model would also
consider the standing as a responsible agent of the audience and of the targets
of contested speech acts. Such a model cannot be politically neutral, psychol-
ogizing performativity and turning peoples supposed feelings into a source
of normativity, or balancing the freedom from censorship of the speaker with
the freedom from offense or defamation of the target of offensive speech
according to some presumed conception of the public. Instead, such a
model has to put the possibility of critique of feelings or the conception of
the public at the center, and judge contested speech acts according to some
conception of critical democratic practice.
* I would like to thank Emily Apter, Joy Connolly, Drucilla Cornell, Daniel Hoffman-Schwartz,
Beata Potocki, and especially Mark Sanders for their helpful comments on earlier versions of this
article.
.. Hirsi Ali gave this speech in English on February :, :ooe. It was published in English in the Dutch
daily newspaper NRC Handelsblad, February .o, :ooe, as The Right to Offend.
:. Unlike Hirsi Ali, Van Gogh lived by the Nietzschean maxim that what can be offended must be
offended. For discussions of the murder of Theo van Gogh, see Ron Eyerman, The Assassination
of Theo van Gogh: From Social Drama to Cultural Trauma (Durham, NC: Duke University Press,
:oo), and Ian Buruma, Murder in Amsterdam: The Death of Theo van Gogh and the Limits of Toler-
ance (New York: Penguin, :ooe), ..-. For a reading of the deadly speech act of the letter, see Judith
Butlers Coda on Dutch Politics in The Sensibility of Critique: Response to Asad and
Mahmood, in Is Critique Secular? Blasphemy, Injury, and Free Speech, eds. Talal Asad et al. (Berkeley,
CA: The Townsend Center for the Humanities, :oo,), .:e,e. For another reading of the letter, see
Slavoj iek, The Perverse Subject of Politics: Lacan as a Reader of Mohammad Bouyeri in How to
Read Lacan, ed. Slavoj iek (New York: Norton, :oo-), ch. -.
,. Submission, Part , dir. Theo van Gogh (:oo) available on YouTube. A slightly different version of
the script was published in Hirsi Ali, Submission: De tekst, de reacties en de achtergronden (Amsterdam:
Augustus, :oo), -:,, and reprinted in Hirsi Ali, Ayaan verzameld (Amsterdam: Augustus, :ooe),
.,.,, (my translation).
. Rondom , September .:, :oo:, discussion program on Dutch public television. Arjen Visser,
Ayaan Hirsi Ali (interview), Trouw, August .,, :oo,. For a nuanced and well-researched biogra-
phy of Hirsi Ali, see Deborah Scroggins, Wanted Women: Faith, Lies, and the War on Terror: The
Lives of Ayaan Hirsi Ali and Aafia Siddiqui (New York: Harper, :o.:).
,. Ayaan Hirsi Ali, De noodzaak tot zelfreflectie: Het antwoord van Ayaan Hirsi Ali aan haar critici,
in Submission: De tekst, de reacties en de achtergronden, supra note ,, at ,. and o: (my translation).
e. Hirsi Ali, The Right to Offend, supra note ..
-. Ronald Dworkin, The Right to Ridicule, The New York Review of Books, March :,, :ooe.
. Id.
,. J. L. Austin, How to Do Things with Words, :nd ed. (New York: Oxford University Press, .,-,), .:..
.o. Id. at , and .oo.
257
... Ronald Dworkin, Foreword, in Extreme Speech and Democracy, ed. Ivan Hare (Oxford: Oxford
University Press, :oo,), vix, vii. It should be noted that it is primarily Mills interpreters who com-
mit a descriptive fallacy, not Mill himself. For what Mill calls utility, the ultimate appeal on all
ethical questions . . . grounded on the permanent interests of man as a progressive being, is not a
net balance of the satisfaction of interests, as John Rawls has claimed, and neither is it the case that
only a competent social psychologist can tell what will make a given society happiest, as Isaiah
Berlin has written in his influential essay on Mill. If this were true, it would be conceivable that there
is no need for free discussion, and Berlin would be correct to conclude that rigour in argument is
not among [Mills] accomplishments. However, as Jon Hellesnes has correctly argued, according
to Mill, knowledge originates only in the discursive transformation of experience. Thus he considers
experience only as a necessary, not a sufficient condition of knowledge. The intersubjective identi-
fication of something as somethingthat is, the interpreting observation and its substantiation [die
interpretierende Wahrnemung und ihre Begrndung]is also a necessary condition. Thus, there is a
central performative aspect to Mills primary justification of free speech. Mill recognizes other per-
formative benefits of the liberty of thought and discussion as well: he argues that freedom of think-
ing is indispensable, to enable average human beings to attain the mental stature which they are
capable of, and, following Miltons Areopagitica, that however true [an opinion] may be, if it is
not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.
John Stuart Mill, On Liberty, in Collected Works of John Stuart Mill, vol. XVIII (Toronto: University
of Toronto Press, .,--), ::. John Rawls, A Theory of Justice (Cambridge, MA: Belknap, .,-.), :...
Isaiah Berlin, John Stuart Mill and the Ends of Life, in Liberty, ed. Henry Hardy (Oxford: Oxford
University Press, :oo:), :,- and :,. Jon Hellesnes, Toleranz und Dissens: Diskurstheoretische
Bemerkungen ber Mill und Rorty, o/, Deutsches Zeitschrift fr Philosophie :,,,, :- (.,,:)
(my translation).
.:. Dworkin, Foreword, supra note .., at vii.
.,. Jeremy Waldron, Dignity and Defamation: The Visibility of Hate, :oo, Oliver Wendell Holmes
Lectures, .:, Harvard Law Review, .,,e.e,- (:o.o).
.. Id. at .e,,. Waldrons normative source is not a discursive notion of democratic practice, as it is for
Dworkin, but the idea of a well-ordered society, a notion he borrows from Rawls. In Waldrons
well-ordered society, the government guarantees the right to freedom from defamation, which
always trumps the right to freedom from censorship in cases of conflict. Id. at .e.-. See also John
Rawls, Political Liberalism (New York: Columbia University Press, :oo,), ,,,,.
.,. Dworkin, Foreword, supra note .., at vii.
.e. Ayaan Hirsi Ali, Infidel (New York: Free Press, :oo-), ,; Hirsi Ali, De noodzaak tot zelfreflectie,
supra note ,, at ,,,e.
.-. Hirsi Ali, The Right to Offend, supra note .. Hirsi Ali, De noodzaak tot zelfreflectie, supra note
,, at o.
.. Edward Said, Orientalism (New York: Routledge, .,-).
.,. Dana Villa, Socratic Citizenship (Princeton, NJ: Princeton University Press, :oo.), ..
:o. Isaiah Berlin, Two Concepts of Liberty (.,,), in Liberty: Incorporating Four Essays on Liberty, ed.
Henry Hardy (Oxford: Oxford University Press, :oo:), .-.
:.. Ayaan Hirsi Ali & Geert Wilders, Het is tijd voor een liberale jihad, NRC Handelsblad, April .:,
:oo, (my translation).
::. See particularly Article .o of the European Convention of Human Rights, which I will discuss in the
next section.
:,. Hirsi Ali & Wilders, supra note :..
:. For a recent historical and philosophical discussion of the state of exception, see Giorgio Agamben,
State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, :oo,).
:,. Hirsi Ali & Wilders, supra note :..
258
:e. Carl Schmitt, Political Theology, trans. George Schwab (Chicago: University of Chicago Press,
:oo,); and Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University
of Chicago Press, .,,e). Jacques Derrida uses the concept of the performative in his critiques of
Schmitt, for instance in Politics of Friendship, trans. George Collins (New York: Verso, .,,-),
..:,-.
:-. Austin, supra note ,, at .o.
:. Id. at .o.
:,. Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, .,,-), .,:o.
,o. Hirsi Ali, The Right to Offend, supra note ..
,.. Id.
,:. Dworkin, The Right to Ridicule, supra note -.
,,. Hirsi Ali, Infidel, supra note .e, at ,.
,. David Pryce-Jones, Liberated Woman Commentary, April :oo-, e--..
,,. Conversion narratives typically represent a movement from confusion to certainty, from temptation
and sin to salvation, and from historical time to a messianic fulfillment of time, which requires the
representation of everything that happened before the conversion as confused or sinful, in need of
salvation, and unfulfilled. The worst sin that Hirsi Ali confesses is that, at the age of sixteen,
persuaded by the young and beautiful Islamic education teacher Sister Aziza, she voluntarily
joined a militant, fundamentalist new kind of Islam that swept Nairobi in the mid-.,os,
a huge evangelical sect backed massively by Saudi Arabian oil wealth and Iranian martyr propa-
ganda, and began to wear a hidjab, which made me feel powerful. . . . It sent out a message of
superiority: I was the one true Muslim. All those other girls with their little white headscarves were
children, hypocrites. Five pages later, however, she describes how she was already beginning to
rebel internally against womens traditional subjugation. In those days I was still wearing a hidjab. . . .
But my mind seemed bent on being distracted from the Straight Path. Hirsi Ali, Infidel, supra note
.e, at .,,,. Hirsi Alis confession of her passionate but bad faith infatuation with Islamic funda-
mentalism closely recalls Saint Augustines confession of his temporary seduction by Manichaeism
in Books and , of the Confessions. Compare Hirsi Alis disappointment with IslamI found
myself having mental debates with [the imam]. Youre not supposed to argue with an imam. You
are definitely not supposed to argue with the word of Allah (Infidel, id. at .,:)with Augustines
disappointment with Manichaeism: But I was disappointed that in the public assembly of [the
Manichean Faustuss] audience I was not allowed to put a question, and to share with him the perplex-
ing questions disturbing me, by informal conference and by the give and take of argument. Saint
Augustine, Confessions, trans. Henry Chadwick (Oxford: Oxford University Press, .,,), -. There
is a precedent for Hirsi Alis creative presentation of herself: as she admits in Infidel, she used a differ-
ent name and lied about her age in her .,,: asylum application and .,,- naturalization application in
the Netherlands, because she was a UNHCR-registered refugee in Kenya and knew that Dutch reg-
ulations at that time would have required her to go back to there. Spectacularly, this lie ultimately
caused the June :,, :ooe, fall of the Dutch government, after Minister of Alien Affairs and Integration
Rita Verdonk tried to retract Hirsi Alis citizenship in a way that infuriated Parliament.
,e. Then Jesus said to the Jews who had believed in him, If you continue in my word, you are truly
my disciples; and you will know the truth, and the truth will make you free. John :,.,: (The
New Oxford Annotated Bible, ,rd ed. (Oxford: Oxford University Press, :oo.); all subsequent Bible
citations are to this edition).
,-. Ayaan Hirsi Ali, Nomad: From Islam to America: A Personal Journey Through the Clash of Civilizations
(New York: Free Press, :o.o), xx.
,. Hirsi Ali, Infidel, supra note .e, at , (the chapter title is Bloodlines). Cf. Jesus phrase: For who-
ever does the will of my Father in heaven is my brother and sister and mother. Matthew .::,o. And
Saint Pauls famous declaration: There is no longer Jew or Greek, there is no longer slave or free,
259
there is no longer male and female; for all of you are one in Christ Jesus. Galatians ,::, cf. the
frequently recurring genealogical lists in the Pentateuch.
,,. Butler, supra note :,, at ,..
o. Isaiah :..
.. Pryce-Jones, supra note ,, at e-.
:. See Edward Said, supra note .. Talal Asad has analyzed the orientalist belief in the discursive
authority of the Koran and other Islamic texts as follows: A magical quality is attributed to Islamic
religious texts, for they are said to be both essentially univocal (their meaning cannot be subject to
dispute, just as fundamentalists insists) and infectious (except in relation to the orientalist, who is,
fortunately for him, immune to their dangerous power). Talal Asad, Formations of the Secular:
Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, :oo,), ... Annelies Moors
develops a useful analysis of the Submissions orientalism in her review article, Submission, .,
ISIM Review , (Spring :oo,). For another interpretation of Submission, see Peter Goodrich,
Screening Law, :./. Law and Literature .:, (:oo,).
,. See, for instance, Guy Haarscher, Free Speech, Religion, and the Right to Caricature, in Andrs
Saj, ed., Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World (Utrecht: Eleven,
:oo-), ,o,:. Haarscher agrees with the Courts judgments that allow the censorship of racist
speech, but criticizes the Courts judgment allowing the censorship of an anti-Catholic film, which
I will discuss below. However, Haarschers criterion for distinguishing these cases, that racist speech
targets individuals whereas the blasphemous film only targets ideas, is unconvincing. He writes:
Blasphemy is an essential part of a vigorous debate: it attacks religious symbols and figures, that
is, ideas, not individuals. . . . The blasphemer situates himself in the marketplace of ideas: like
Nietzsches Zarathustra, his theses are for everyone and for nobody. They are for everyone, because
he is not a racist . . .; and according to Nietzsche, they are for nobody, in the case the audience is not
able to understand the ideas. The racist speaks against a group of people whom he categorically and a
priori rejects, even without knowing what they think, their character, etc. . . . On the other hand, blas-
phemy is normaland maybe has a cathartic valuein open societies. Id. at ,:,. Haarschers ref-
erence to Nietzsche is to the point, but a strict separation between ideas and the individuals invested in
those ideas is precisely what Nietzsche consistently argued against. The idea that blasphemy is nor-
mal or even essential in public debate is very peculiar. And catharsis need not be a good thing: for a
classic argument about anti-Semitism as catharsis, see Max Horkheimer & Theodor Adornos
Elements of Anti-Semitism, in Dialectic of Enlightenment, trans. Edmund Jephcott (Stanford, CA:
Stanford University Press, :oo:), .,--:.
. Otto-Preminger-Institut v. Austria, App. No. .,-o/- Eur. Ct. H.R. (.,,). In an earlier decision on
the admissibility of an application, the European Commission on Human Rights (at that time the
antechamber to the Court) had already argued that a British law prohibiting blasphemous libel
in order to protect the right of citizens not to be offended in their religious feelings by publications
was covered by a legitimate purpose recognized in the Convention, namely the protection of the
rights of others. X. Ltd. and Y. v. United Kingdom, App. No. -.o/-, (.,:), para. ... The case
concerned a poem and illustration representing Jesus engaging in gay sex in the magazine Gay
News. All jurisprudence of the Court can be accessed through the HUDOC database, which can
be accessed on echr.coe.int by selecting Case-Law, then Decisions and Judgments, and then
HUDOC database. The Courts judgments are binding in the forty-seven member states of the
Council of Europe.
,. Panizza began his actual defense in his blasphemy trial by citing a sentence from Nietzsches The
Antichrist, which had been published the year before: Der Gottesbegriff geflscht; der Moralbegriff
geflscht! (The concept of God: a lie; the concept of morality: a lie!). Oskar Panizza, Meine Vertei-
digung in Sachen Das Liebeskonzil vor dem kniglichen Landgerichte Mnchen (My defense in the
case The Council of Love). In Panizza, Das Liebeskonzil: Faksimile-Ausgabe (Munich: Belleville,
260
:oo,). Like Nietzsche, Panizza went insane and spent the final years of his life in a mental institution.
Writers fascinated by Panizza include Karl Kraus, Walter Benjamin, Andr Breton, and Heiner Mller,
and Das Liebeskonzil has been performed about twice a year since its world premiere in Vienna in .,e-.
See Peter D. G. Brown, Oskar Panizza: His Life and Works (Berne: Peter Lang, .,,). Breton wrote an
introduction for the .,eo French translation of Das Liebeskonzil; this introduction was republished in the
.,-, English translation: Panizza, The Council of Love, trans. Oreste F. Pucciani (New York: Viking,
.,-,). Heiner Mller wrote: Panizza ist ein Terrorist; wer kein Deutscher werden will, sollte ihn lesen
[Panizza is a terrorist; if you dont want to become a German, you should read him]. Cited in Dietrich
Kuhlbrodt, Panizzas Gegenwart, in Liebeskonzil Filmbuch, .,.,,, .,,. See also: Peter D. G. Brown,
Das Liebeskonzil auf der Bhne, .,e::oo (The Council of Love on Stage, .,e::oo), in Panizza,
Das Liebeskonzil: Faksimile-Ausgabe. Werner Schroeters .,. film surpasses the scandalous nature of
Panizzas play, for instance by adding a scene where God gives the Devil what the European Court
describes as a deep kiss.
e. Kokkinakis v. Greece, App. No. .,o-/ Eur. Ct. H.R. (.,,,). According to the partly concurring
opinion of Judge Pettiti, Kokkinakis was the first real case concerning freedom of religion to have
come before the European Court since it was set up.
-. Otto-Preminger-Institut, supra note , at para. -.
. Id.
,. Id.
,o. Kokkinakis, supra note e, at para. .
,.. Sbastien Castellion, Conseil la France dsole: Auquel est monstr la cause de la guerre prsente, et le
remde qui y pourroit estre mis; et principalement est avis si on doit forcer les consciences, ed. Marius F.
Valkhoff (Geneva: Librairie Droz, .,e-). At one point, Castellion puts forcing conscience on one
line with rape, referring to the apocryphal story of Suzanna and using the same word, forcer (,).
Judge Valticos uses this trope in his dissenting opinion in Kokkinakis, arguing that the rape of
the beliefs of others should be prohibited. John Locke, A Letter Concerning Toleration, eds. John
Horton & Susan Mendus (New York: Routledge, .,,.). John Rawls, A Theory of Justice, supra note
.., particularly section ,,, Equal Liberty of Conscience.
,:. This redefinition is noted by three judges in their joint dissenting opinion to Otto-Preminger-Institut:
The [European] Convention [of Human Rights] does not, in terms, guarantee a right to protection
of religious feelings. More particularly, such a right cannot be derived from the right to freedom of
religion, which in effect includes a right to express views critical of the religious opinions of others
(Otto-Preminger-Institut, supra note , at para. e, Joint Dissenting Opinion of Judges Palm,
Pekkanen, and Makarcyzk).
,,. Kokkinakis, supra note e, at para. ,.
,. Id. at Partly Concurring Opinion of Judge Pettiti and Dissenting Opinion of Judge Valticos.
,,. The emergency law defined proselytism (in a .,,, amendment) as in particular, any direct or indi-
rect attempt to intrude on the religious beliefs of a person of a different religious persuasion (etero-
doxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of
an inducement or moral support or material assistance, or by fraudulent means or by taking advan-
tage of his inexperience, trust, need, low intellect or navety. Kokkinakis, id. at para. .e.
,e. Id. at para. :.; cf. the Greek Court of Cassations argument cited in para. .:.
,-. Id. at para. ,.
,. Id. at para. ..
,,. Id. at para. :,.
eo. Peter Danchin has analyzed this subjective aspect of Kokkinakis as a conflict between the concep-
tion of the collective good of the majority and the conception of a minority: Here the collective
good of the minority Jehovahs Witnessesfor whom proselytism is a central tenet of their faith
and way of lifeis being restricted in favor of the collective good of the majority Greek nation
261
for whom Eastern Orthodoxy is central to the identity of the Greek nation-state. The court in
Kokkinakis therefore faced not only the question of how to resolve a series of conflicts between
various individual rights, but also between different conceptions of the collective good. Peter
Danchin, Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in Interna-
tional Law, , Harvard International Law Journal :-e (Summer :oo).
e.. Otto-Preminger-Institut, supra note at para. ,e.
e:. Handyside v. United Kingdom, : Eur. Comm. H.R. (ser. A) (.,-e), para. ,.
e,. Otto-Preminger-Institut, supra note , at para. ,.
e. Guy Haarscher has argued that by introducing the category of gratuitous offense in Otto-
Preminger-Institut, the Court effectively abandons its earlier extension of the protection of free
expression to expressions that offend, shock, or disturb. Guy Haarscher, Rhetoric and Its Abuses:
How to Oppose Liberal Democracy While Speaking Its Language, ,/, Chicago-Kent Law Review
.::,,- (:oo).
e,. Indeed, the dissenting judges in Fret v. Belgique interpreted gratuitously offensive to mean
offensive without contributing to public debate, but their opinion was outweighed by the major-
ity. They argued: La jurisprudence de la Cour reconnat un rle central la contribution des pro-
pos au dbat public. Cest en labsence de cette contribution que des expressions deviennent
gratuitement offensantes et, partant, constituent une atteinte aux droits dautrui (voir Gndz, pr-
cit, ,-) (the latter judgment refers to Otto-Preminger-Institut). Dissenting opinion to Fret v.
Belgique, App. No. .,e.,/o- Eur. Ct. H.R. (:oo,). I will discuss this judgment below.
ee. The Austrian courts, ordering the seizure and subsequently the forfeiture of the film, held it to be
an abusive attack on the Roman Catholic religion according to the conception of the Tyrolean pub-
lic. . . . The content of the film (see paragraph :: above) cannot be said to be incapable of grounding
the conclusions arrived at by the Austrian courts. Otto-Preminger-Institut, supra note , at para. ,e.
e-. Joel Feinberg, Offense to Others (New York: Oxford University Press, .,,).
e. Id. at -.
e,. Joel Feinberg, Harm to Others (New York: Oxford University Press, .,), , and .,.
-o. Mill, supra note .., at ::,.
-.. Feinberg, Offense to Others, supra note e-, at ..
-:. Feinberg, Harm to Others, supra note e,, at .. Feinberg points to two sentences in the last chapter
(Applications) of On Liberty, where Mill says that offences against decency may rightfully be
prohibited. Mill, supra note .., at :,,,e. These two sentences are indeed an afterthought, and Mill
does not explain how such a prohibition could be compatible with the harm principle. However,
offense is a central concept in chapter two of On Liberty. Feinberg seems to focus instead on Mills
afterthought about indecency because he wants to argue that a right not to be offended by political
speech is similar to a right not to be offended by a topless [bathing] suit: both need to be decided
on the model of nuisance law, according to the cultural standards of the vast majority of
people. Feinberg, Offense to Others, supra note e-, at -.
-,. Mill, supra note .., at :.,.
-. Id. at :,,.
-,. Feinberg, Offense to Others, supra note e-, at . and ch. .
-e. Id. at .o.
--. Feinberg, Harm to Others, supra note e,, at ..
-. Feinberg only refers to Rawls in two footnotes, because he claims that [i]t would be folly to spec-
ulate whether the moral theory implicit in this work is utilitarian, Kantian, Rawlsian, or whatever.
I appeal at various places, quite unselfconsciously, to all the kinds of reasons normally produced in
practical discourse, from efficiency and utility to fairness, coherence, and human rights. . . . Whether
reason has further resources to refute the consistent fascist, or convince the hypothetical skeptic, are
questions for moral epistemology whose genuineness and importance I do not deny. But they are
262
not the questions addressed in this book. Feinberg, Harm to Others, supra note e,, at . and :-,
nn. .: and .. Considering that Feinbergs whole argument is about moral legitimacy, and that
he defends the censorship of the National Socialist Party of America (which is likely to include more
than a few consistent fascists), speculating about the moral theory implicit in this work seems
rather crucial.
-,. John Rawls, Justice as Fairness: Political not Metaphysical, in Collected Papers, ed. Samuel Freeman
(Cambridge, MA: Harvard University Press, .,,,), ,..
o. Rawls, A Theory of Justice, supra note .., at .,e:.
.. Feinberg, Offense to Others, supra note e-, at -.
:. Id. at -.
,. Id. at , and e.
. Like Feinberg, the European Court considers cases of offense a matter of weighing up the conflict-
ing interests of the exercise of two fundamental freedoms. Otto-Preminger-Institut, supra note , at
para. ,,.
,. Feinberg, Offense to Others, supra note e-, at -. The passage continues: Rapid cultural change
will always claim some victims in this way, and perhaps I should sadly conclude that some unfair
martyrdom in the transitional stages is simply inevitable, a tragic fact of life. My discomfort in this
position is at least mitigated by the thought that martyrs to the cause of cultural change, in my view,
should never be subject to more than very minor penalties or coercive pressure. So the tragedy of
their punishment is not all that lamentable. Moreover, those who are penalized for anticipating rapid
changes already in progress will soon enough be vindicated by the very changes they helped to pro-
duce, which should be ample reward and compensation for most of them.
e. Mill, supra note .., at :.,.
-. The Court has confirmed this way of judging on offense in subsequent judgments. For instance, in
I.A. v. Turkey (:oo,), the European Court allowed the criminal conviction in Turkey of a publisher
for publishing a novel that contained an offensive attack on the prophet of Islam, because
believers may legitimately feel themselves to be the object of unwarranted and offensive attacks.
I.A. v. Turkey, App. No. :,-./,, Eur. Ct. H.R. (:oo,). The Court cites the following passages (in
translation) from the novel Yasak Tmceler (The forbidden phrases) by Abdullah Rza Ergven:
Some of these words were, moreover, inspired in a surge of exultation, in Aishas arms . . . Gods
messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did
not forbid sexual intercourse with a dead person or a live animal (Cag alog lu, Istanbul: Berfin
Yaynlar, .,,,, para. ,,). The Courts protection from gratuitous offense does not only apply to
religious feelings: in Gndz v. Turkey, the Court argued that it cannot overlook the fact that the
Turkish people, being deeply attached to a secular way of life of which civil marriage is a part,
may legitimately feel that they have been attacked in an unwarranted and offensive manner.
Gndz, App. No. ,,o-./,-, Eur. Ct. H.R. (:oo,), at para. ,. Gndz, the leader of a fundamen-
talist Islamic sect, had said on Turkish television that a child born from a civil rather than a sharia
marriage is a pi, a derogatory term referring to children born outside marriage. Although the
Court ultimately ruled in favor of Gndzs freedom of expression, its affirmation of a right not
to be offended in this case is cited again in subsequent judgments, for instance in Fret, supra note e,.
. Otto-Preminger-Institut, supra note , at para. -.
,. Herabwrdigung religiser Lehren. Otto-Preminger-Institut, supra note , at para. ...
,o. Feinberg, Offense to Others, supra note e-, at ,,.
,.. The penalty in this case was severe: apart from community service and reparations, Fret, who was
already sixty, could not be elected for ten years. Fret, supra note e,, at para. -, (my translation).
This judgment was given in French and has not yet been translated.
,:. Fret, id. at para. e,.
,,. Id. at para. --.
263
,. Id. at para. .-.
,,. Glimmerveen and Hagenbeek v. the Netherlands, App. No. ,/-, Eur. Comm. for H.R. (.,-,),
para. .
,e. Fret, supra note e,, at para. :.
,-. For critiques of psychologizing injury as a mode of depoliticization, see Wendy Brown, States of
Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, .,,,),
and Frank Furedi, Therapy Culture: Cultivating Vulnerability in an Uncertain Age (New York:
Routledge, :oo).
,. For a useful overview of Wilders rhetoric in Dutch, see Jan Kuitenbrouwer, De woorden van Wilders
& hoe ze werken (Amsterdam: De Bezige Bij, :o.o).
,,. Uitspraak van de rechtbank Amsterdam in de zaak Wilders, June :,, :o... A link to the courts English
translation of the verdict can be found at the bottom of the following web page: http://www.rechtspraak.
nl/Organisatie/Rechtbanken/Amsterdam/Nieuws/Pages/Uitspraak-van-de-rechtbank-Amsterdamindezaak
Wilders,:,juni:o...aspx.
.oo. Handelingen Tweede Kamer (Acts of the House of Representatives), Sept. .e, :oo,, :-e:-e, (my
translation).
.o.. These were the words used by Prime Minister Mark Rutte during the press conference where the
Tolerance Pact was presented (my translation). Persconferentie presentatie regeerakkoord en
gedoogakkoord, September ,o, :o.o, at http://www.kabinetsformatie:o.o.nl/persconferentie_
presentatie_regeerakkoord_en_gedoogakkoord.html (accessed April :o.:).
264

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The Right To Offend by Michiel Bot

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Cardozo School of Law

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