Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammad in E.S. v Austria

Abstract

In E.S. v Austria, the European Court of Human Rights ruled, not for the first time, that Austria can legitimately curb free speech to protect the religious feelings of believers. In this case note on E.S., I first discuss the original Strasbourg Court judgment on insult to religious feelings: Otto-Preminger-Institut v Austria. This prelude is important for at least two reasons. First, because much – though not all – of what the Court says in E.S. draws directly on Otto-Preminger. Second, since much of the scholarly lamentations on E.S. echo earlier criticism of Otto-Preminger. Having introduced the legal context in which E.S. was decided, I go on to analyze the Strasbourg Court ruling in E.S. itself. I critique the Court's reasoning for conflating two lines of case law, as this generates a couple of serious problems, which have provoked justified scholarly criticism of E.S.. Before concluding, I explore the possibility of a less contentious reading of the Strasbourg Court's judgment, cast in the language of tolerance.