Balancing free speech and protecting religious beliefs: The complexities of hate speech laws

Thomas Cranmer, Contributing Writer

17 February 2023

Thomas Cranmer - Free Speech

The Pussy Riot protest in Moscow’s Cathedral of Christ the Savior in 2012 was an example of the tension between free speech and religious beliefs. Photo: Pussy Riot

The government’s most recent failed attempt to enact hate speech laws shows just how difficult it is to strike the right balance between free speech and the protection of religious beliefs.

The tension between free speech and the protection of religious beliefs has long been a subject of debate around the world, and the complexities of hate speech laws have become a challenging issue. In New Zealand, this debate has been especially prominent in recent decades, with several high-profile cases and tragic events bringing the issue to the forefront of public discourse. In this article, we will explore some of these cases both in New Zealand and abroad, and examine the challenges faced by governments in balancing free speech and religious beliefs.

While the intentions behind these laws may be noble, their practical application is often called into question. Critics argue that such laws can be used to silence legitimate criticism, artistic expression and intellectual inquiry, while doing little to prevent violent behaviour.

In New Zealand, one of the most notable cases of the 1980s involved the release of Martin Scorsese’s film, ‘The Last Temptation of Christ’. The film, which was based on a novel by Nikos Kazantzakis, depicts the life of Jesus Christ and imagines what his life might have been like had he given in to temptation and abandoned his mission. It sparked widespread protests from Christian groups around the world, including in New Zealand.

When the movie was first released in New Zealand, it was banned by the then Chief Censor, who argued that it was likely to cause “serious and widespread offence” to Christians. However, the decision to ban the film was challenged, and a public debate ensued about the limits of artistic expression and the need to protect religious beliefs.

Eventually, after a court case and public pressure, the ban was overturned, and the movie was released in New Zealand in 1990 with an R18 rating.

In 1988, the same year that Scorsese’s film was released, Salman Rushdie published his highly controversial novel ‘The Satanic Verses’. It unleashed an unprecedented firestorm of global protest, including a fatwa (Islamic religious edict) from the Supreme Leader of Iran calling for the death of Rushdie. Critics of the book, which included the Archbishop of Canterbury, argued that it contained offensive depictions of the Prophet Muhammad, which they claimed constituted hate speech. They argued that the book was a deliberate provocation, intended to offend Muslims, and that it was not protected under free speech principles. Some also argued that the book was anti-Islamic propaganda, intended to promote hatred and discrimination against Muslims.

Those who defended the book and Rushdie’s right to publish it argued that it was a work of fiction, and that all ideas and beliefs, including religious ones, should be open to scrutiny and criticism. They claimed that the book was not intended to be anti-Islamic or hateful, but rather to explore complex issues of identity, faith, and cultural conflict.

In 1989, after the book was banned in several countries and the fatwa had been issued, the New Zealand government classified the book as objectionable and banned its importation, distribution, and possession. The ban was lifted in 1991 after a court ruling found it to be a violation of freedom of expression under the New Zealand Bill of Rights Act. Sadly, the effects of this controversy continue to this day, with Rushdie surviving a serious stabbing attack last August when he was about to give a public lecture in New York.

In 1998, just two weeks after its opening, the Te Papa Museum in Wellington displayed a controversial art installation titled ‘Virgin in a Condom’. An event which has since been described as Te Papa’s “baptism of fire”. The artwork, created by artist Tania Kovat, featured a statue of the Virgin Mary enclosed in a condom. The display caused outrage among many Christians, who saw it as an offensive desecration of a religious symbol. The Archbishop of Wellington, Cardinal Tom Williams was an early and prominent complainant to Te Papa, and although the museum held firm against its critics, it is noteworthy that no significant exhibition of international contemporary art has been held at Te Papa since this early exhibition.

While the government did not take any direct action against the artwork, it did demonstrate the complexities of balancing free speech and religious beliefs. On the one hand, the artist had the right to free expression and to create artwork that challenged societal norms. On the other hand, the display was seen as deeply offensive to many people and sparked a debate about whether such displays should be allowed in public spaces.

In March 2019, New Zealand experienced a tragedy that was driven by hate. A white supremacist gunman opened fire on two mosques in Christchurch, killing 51 people and injuring many others. The attack was motivated by the shooter’s hatred of Muslims and immigrants, and it shook New Zealand to its core. In the aftermath of the shooting, there were calls to strengthen hate speech laws in order to prevent similar attacks in the future.

In response, the New Zealand government passed the Christchurch Call, which aims to prevent online extremism and to promote the use of technology to combat hate speech. While the move was widely supported, the recommendations of the Royal Commission of Inquiry have not yet been fully implemented.

Elsewhere, in Russia the Pussy Riot protest in Moscow’s Cathedral of Christ the Savior in 2012 was another example of the tension between free speech and religious beliefs. The feminist punk rock group performed a “punk prayer” criticising the closeness of the Russian Orthodox Church to Russian President Vladimir Putin and calling for the Virgin Mary to “drive him away”. The protest was seen as highly disrespectful and offensive to many believers and a violation of the sanctity of the Church. In response, three members of the group were arrested and charged with hooliganism and blasphemy.

However, the harsh punishment imposed on the group, including imprisonment, sparked debate about the limits of free speech and the protection of religious spaces. In her excellent and moving memoir ‘Pussy Riot: Riot Days’, group member Maria Alyokhina reflects on the group’s motivations and the broader political context of the protest. The book provides a powerful personal account of the protest and its aftermath and raises important questions about the relationship between political dissent and religious expression, and the role of art and performance in social activism particularly when speaking out against powerful institutions.

In France, the 2015 Charlie Hebdo shooting, which left 12 people dead, was a tragic reminder of the dangers of extremist violence in response to perceived insults to religious beliefs. The attack was motivated by the magazine’s publication of cartoons depicting the Prophet Muhammad, which many Muslims found deeply offensive. The incident raised questions about the right to freedom of expression and the need to respect religious sensitivities.

While the attack was widely condemned, there were also debates over whether the cartoons were an exercise of free speech or an act of hate speech. In France, there are hate speech laws that protect religious belief, and some argued that the cartoons breached those laws although the cartoon in question did not directly incite hatred or discrimination against Muslims as a group. However, others argued that the cartoons were a legitimate form of criticism and that freedom of expression should be protected. In fact, France has a long tradition of secularism and free expression, and the right to criticise religion is seen as an important part of that tradition.

Whilst these examples are extreme, they serve to illustrate that hate speech laws seldom prevent actual instances of violence nor result in successful prosecutions even when the conduct is considered by some to be deeply offensive. Criminal charges are often considered by the authorities in these situations but there is rarely enough certainty that a judge or jury would view the conduct in the same way as the offended group to justify moving forward with the prosecution. In high profile cases, there is the additional consideration that any such prosecution could simply inflame and intensify the heated public debate.

At the lower end of the spectrum there are examples of everyday behaviour inadvertently falling foul of these laws. For instance, in the UK a teenager faced prosecution for holding a placard near the London headquarters of the Church of Scientology which called the church a cult. It led to Liberty director, Shami Chakrabarti (now Labour peer, Baroness Chakrabarti), saying “This barmy prosecution makes a mockery of Britain’s free speech tradition.”

In 2011, British Police apologised to the owner of a Christian café after they threatened to arrest him for displaying passages from the Bible on a television screen on the basis that he was violating a ban on the use of insulting or abusive language.

These overzealous reactions by the authorities serve to highlight that the unintended consequences of hate speech laws extend far beyond academic discourse, artistic expression, and political speech. They can also have a chilling effect on everyday social interactions and conduct. As George Orwell chillingly warned in his dystopian masterpiece ‘1984’, “Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end, we shall make thoughtcrime literally impossible, because there will be no words in which to express it”.

This warning is especially pertinent to religious hate speech laws, as their broad and ambiguous definitions can be exploited to stifle free expression and curtail open dialogue, even in settings where diverse viewpoints are crucial. The potential for censorship and self-censorship is a real and constant danger when governments are given the power to regulate speech. Therefore, whether you are a provocative artist, a daring comedian, or a regular member of the public, it is crucial to oppose hate speech laws that threaten our fundamental right to free expression.

Thomas Cranmer is a lawyer with over 25 years experience in some of the world’s biggest law firms. He divides his time between the UK and NZ. He writes on Substack exploring issues facing NZ under his nom du plume, Cranmer.


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