Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred
University of Maryland Francis King Carey School of Law
August 18, 2010
Duke Forum for Law & Social Change, Vol. 2, pp. 5-38, 2010
University of Maryland Legal Studies Research Paper No. 2010-34
The Danish cartoons controversy has generated a torrent of commentary seeking to define and defend competing conceptions of the normative implications of the affair. This Article addresses the question of how liberal democratic states ought to respond to visible manifestations of hatred, especially speech that constitutes incitement to religious hatred. Taking the publication of the Danish cartoons as its point of departure, the Article interrogates the complex historical and normative relationship between free speech and freedom of religion in the liberal democratic order and discusses the two critical questions of whether the cartoons give rise to a genuine conflict of rights and how we should understand the notion of harm. An argument is advanced which intervenes in the extant literature by suggesting two dialectical moves, each premised on the distinction between internal and external reasons in philosophical argument, which have the capacity to unsettle the static secular-religious binary and purportedly incommensurable divide between liberal and Islamic values. The Article concludes by asking what a more robust, reflexive account of toleration might look like premised on notions of mutual justification and peaceful coexistence between rival ways of life and on recognition of the need to pay close attention to how legal restrictions seem from the internal point of view of a religious tradition.
Keywords: Editorial Cartoons, Islam, Free Speech, Freedom of Religion
Date posted: August 19, 2010