A Margin of Appreciation for Muslims? Viewing the Defamation of Religions Debate Through Otto-Preminger-Institut v. Austria

Abstract

Critics of the global standard outlawing defamation of religions often view the proposal as an effort by radical Muslims to deprive the liberal West of long-held liberties. What if however, the supporters of the proposal are surprisingly moderate in what they ask for? What if the liberal West itself has a history of banning blasphemy? To explore these questions, this essay looks at the defamation of religions debate from the vantage point of Otto-Preminger-Institut v. Austria (1994), in which the European Court for Human Rights upheld an Austrian prosecution of a film potentially offensive to Catholics. The Otto-Preminger case unsettles the critics’ arguments in two ways. First, the majority suggests one could ban some blasphemy without stifling religions debate. Second, the dissent, while opposing the prosecution, would have allowed Austria to ban violent and abusive attacks on religious groups. This suggests a compromise where defamation of religions proposal is read as calling for a ban on the incitement of religious hatred. Finally, the Otto-Preminger case shows how to conduct a civil discussion about if and when to ban religiously offensive speech. There is a lesson for defamation of religion critics here as well.

Keywords: comparative law, blasphemy, Islam, freedom of speech, and human rights