A story of oppression: freedom of expression, minorities, sexual harassment law and offence
|Date:||15 July 2017|
Numerous events in the European public sphere, from the Danish cartoons affair to the attacks on Charlie Hebdo and their aftermath, have provoked a significant debate about the notion of offence in relation to religious sensibilities, as well as on the potential limitations of freedom of expression. Yet, it is not just in relation to religious minorities and religious sensibilities that the issue of offence is important. The nature of offence, and the right to be offended are also crucial components of responses to sexual harassment. In this blog post, Aukje Muller explores what, if anything, we might learn by considering approaches to offence within sexual harassment law that could help us navigate the tricky terrain of religious minority rights, freedom of expression and offence in contemporary European politics.
Je suis Charlie . Solidarity, unity and power. The slogan ‘Je suis Charlie’, which was first mentioned on the Charlie Hebdo website after the attacks on the Charlie Hebdo headquarters in Paris, soon became widely used, especially on social media, to express feelings of sympathy and support for the victims of the attack. Moreover, the slogan was used to support freedom of expression and freedom of the press. As the former president of France, François Hollande, stated after the attack: ‘An act of exceptional barbarism has just been committed here in Paris against a newspaper – a newspaper, i.e. the expression of freedom – and against journalists who had always wanted to show that in France they could always work to uphold their ideas and to enjoy the very freedom the Republic protects. […] We are under threat because we are a country of freedoms, and because we are a country of freedoms, we will neutralize threats and punish aggressors. No one should think that he can act in France in a way that is contrary to the principles of the Republic, and attack the very spirit of the Republic: a newspaper.’ The notion of offence in relation to religious sensibilities and freedom of religion or belief, as well as on potential limitations of freedom of expression, has become an increasingly potent topic in contemporary politics and public life.
Hollande’s statement above basically sums up the general European sentiment in the aftermath of the Charlie Hebdo attack in 2015. A few things stand out and deserve some reflection. First, who are we exactly? What assumptions are made when thinking about the identity of we ? In ‘Western’ or ‘European’ society, we is often thought of as white, secular, liberal, and mostly male dominated. Then the religious ‘other’ is often thought of as a threat to a well-functioning liberal democracy, of which freedom of expression is very often said to be the pillar. However, there continues to be significant disagreement over what freedom of expression entails and what limitations can reasonably be placed on freedom of expression in a context of apparently increased religiosity. In particular, the nature and cause of offence seems to be under-explored when applied to the discussion of freedom of expression. How is offence to be identified and dealt with? Should this be done from the perspective of religious communities or from the perspective of public reason, and what could be ‘reasonably expected to be offensive’ by a majority of citizens in a democratic polity?
Yet the tension between religious minorities and freedom of expression is not the first time that questions have arisen over what constitutes ‘offence’. This discussion has been had, almost ad infinitum, in relation to cases of sexual harassment against women. What is often at stake in such cases is whether it is reasonable for women to be offended by the comments or behaviour of men. This often also brings with it questions about the intentions of the men accused of sexual harassment. If the man did not intend to offend the woman, does that make it ok? Should she just learn to relax and take a joke? Opinion and practice on these questions has shifted dramatically over the years, in part as a result from a shift in seeing such cases on a micro level between individuals to seeing them in a broader social, group and community context. As such, there is much we can learn from how this shift in approach has occurred that is relevant for how we consider offence in relation to religious minorities and freedom of speech.
The legal framework of sexual harassment is constantly balanced against the right of freedom of expression as well. In particular, these frameworks are considered to compete with each other. In that sense, both the context of offence to religious sensibilities and offence in cases of sexually harassed women show strong theoretical and analytical similarities. It is also clear that the relative positions of inequality and the discursive power imbalances of both marginalized groups have been insufficiently appreciated. Through exploring the contours of debates about offence in relation to sexual harassment and freedom of expression, their points of convergence and divergence, we can potentially find inspiration from approaches to sexual harassment for how to deal with offence, religious minorities and freedom of expression.
To begin with, it is helpful to consider what actually constitutes ‘offence’. Many scholars have expressed their view that freedom of expression includes the right to offend, but this right has to be carried out with respect for other people’s dignity and social standing.Jeremy Waldron has made an important distinction between indignity and offence. Waldron argues that hate speech laws are not supposed to protect people from being offended, rather they should aim to protect people’s dignity against assault. With regard to offences to religious sensibilities, Waldron stresses that the key to the matter is not to try to eradicate the appearance of offence, but to make a clear distinction between offence and harm. By harm, Waldron is mainly referring to the harms of denigration, defamation, and exclusion. According to Waldron, these offences can be and should be legally recognized and legislated against, ‘[…] without taking on the impossible burden of protecting everyone from offense’. So in the context of offences to religious minorities, a distinction is being made between offence and indignity, which can lead to discrimination of minorities. Interestingly, sexual harassment law shows quite the opposite by not making a clear distinction between offence and indignity. In that way, sexual harassment law underscores the wrongfulness in distinguishing between offence and indignity. The notion of offensiveness as an element of sexual harassment almost always constitutes a vital part in definitions of sexual harassment. So where offence constitutes ground for action with regard to sexual harassment, it doesn’t necessarily in terms of offending religious minorities, which is shown by the fact that a large group of people felt offended by the cartoons was not enough reason to take legal action in relation to the Danish cartoons affair. The idea that the cartoons and the message it contained was ‘a matter of public interest’ outlawed any limitations on freedom of expression and formed the main reason for the public prosecutor not to pursue any legal investigations. If we let offence and indignity be separate and distinct issues, discrimination is most likely to occur. The dignity of the offended group was wrongfully ignored and should have played a more significant role in the construction of both legal and social responses.
In both sexual harassment law and policies on offence in expressive acts, there is for the most part a general agreement that offence felt is what constitutes an offensive expressive act. For offence in relation to religious minorities, on the other hand, offensiveness is often decided on the basis of what could be ‘reasonably expected to be offensive’, which suggests a shared understanding of what is offensive and what is not. However, causing, taking, and penalizing offence is, both in sexual harassment and in offence to religious sensibilities, highly dependent on judgments, attitudes, beliefs, and interpretations. Interestingly, for offence in relation to hate speech, these judgments and beliefs are deeply rooted and highly entrenched in dominant secular, liberal and masculine discourses. Another big difference here is that sexual harassment on the whole deals with individuals and individual experiences, whereas hate speech and offence in relation to freedom of expression deals more often with groups and group identity. What if we let offence in relation to hate speech be more about the individual and individual experiences and beliefs, and less dependent on power relations in society? What if we let offensiveness be the offensiveness that is actually experienced, instead of letting it be constituted by what ‘reason’ dictates is offensive?
Meital Pinto suggests another interesting approach that would construct claims of offence not as feelings but as claims regarding the integrity of cultural identity, which can also be identified in sexual harassment law. Specifically, Pinto’s notion of a vulnerable cultural identity , combined with Waldron’s notion of dignity, moves the notion of offence beyond the feeling of offence, towards the crucial notion of equality and social standing of individuals. Pinto argues that because the published and reprinted cartoons occupied a central place in the public sphere, they had a great impact on the social status of Muslim cultural identity in Western countries. Therefore, according to Pinto, the powerful claim from integrity of cultural identity of the Muslim community should be recognized as a valid legal claim for offence. Integrity of one’s identity and human dignity are and have been easily overlooked and not taken into consideration in balancing offensiveness and freedom of expression. The social standing of groups and individuals, being part of a vulnerable cultural minority on the basis of ethnicity, race, religion, gender, or sexual orientation, needs to be always kept in mind when assessing the offensiveness of an expressive act, to overcome inequality.
In sexual harassment law however, a vulnerable cultural identity principle can be recognized as the cultural identity of women (or men) as vulnerable. Sexual harassment law focuses for a large part on (gender) equality, dignity and discrimination. In other words, the harms of discrimination and assaulting one’s dignity as defined and employed in sexual harassment, could form the theoretical basis for a new or adjusted legal framework with respect to free speech and religious sensibilities. Catharine MacKinnon’s view that sexual harassment practices are outrages integral to the status of women as women, and therefore should be considered a group harm, finds resonance in Pinto’s idea of a vulnerable cultural identity.
We can establish here that that the Muslim community in Europe is a vulnerable cultural identity . A 2010 survey shows that 7 or less percentof the total population is Muslim in many European countries. Islamophobia has become the predominant form of racism in Europe today. What would change if we applied this concept of the integrity of a vulnerable cultural identity to the Muslim community in the European (or ‘Western’) public sphere? For one, it would provide a better understanding of the possible impact of offensive expressions against vulnerable minorities. Reflecting on the offence felt after the publication of the Muhammad cartoons, the offence could be considered group harm as well. Considering it group harm could help to create more awareness on the discriminatory harm that was experienced. Further, it could give a better understanding of underlying broader tensions in the public debate, and even could create a necessary space for conversation and discussion.
This emphasis on dignity and discrimination, and on individual experience in sexual harassment law, thus forms the main suggestion for the debate on the relation between religious offence and freedom of speech. The highly valued freedom of speech is not without limitations, and if the notion of offence in legal free speech policies would be reconstructed to claims from integrity of cultural identity, the grounds for a potential limitation on this freedom could become more identifiable. Possibly, then, the public liberal perception on the right to offend would find a better connection with terms such as respect, dignity and equality, and would ultimately create a better practical understanding of how to deal with offence in the public sphere. Connecting the notion of offence in relation to both sexual harassment and religious sensibilities to the notion of dignity and social standing, allows us to move beyond the conflict between freedom of expression and offence, and focus primarily on the overarching notions of (in)equality, oppression and discrimination. Both equality of gender and equality of race, religion and other bases for marginalization need to be considered in the light of existing societal power relations and dominant and often morally opposite discourses. Freedom of expression is often used and abused in cases of sexual harassment to create a sense of power and hence a sphere of oppression. If we could rethink our freedom of expression with regard to religious and racial minorities in this light as well, to understand that unlimited freedom of expression can establish and reinforce existing structures of domination, oppression, marginalization and exclusion, we could possibly and hopefully create a deeper understanding of the effects of offending and being offended. In short, ‘freedom of expression must include a legal right to offend. But not, in all circumstances, the complete license to do so’.
References in this post:
Casanova. 1994. Public Religions in the Modern World . Chicago: Chicago University Press; J. Habermas. 2006. “Religion and the Public Sphere” Journal of European Philosophy . 15(1): 1-25.
Casanova. 2006. ‘Religion, European secular identities and European Integration’ in Timothy A. Bymes and Peter J. Katzenstein (eds). Religion in an expanding Europe. Cambridge University Press pp. 65-92.
Stuart Hall. 1992. ‘The West and the Rest: Discourse and power’ in Stuart Hall and Bram Gieben (eds). Formations of Modernity . The Open University.
Hannabuss and M. Allard. 1994. ‘Issues of Religious Censorship’, Library Review 43 (8): 14-30.
Klug, Francesca, ‘Freedom of expression must include the license to offend’, Religion and Human Rights 1 (2006) 225-227.
MacKinnon, Catharine A., Sexual harassment of working women (New Haven 1979).
MacKinnon, Catharine A., Women’s lives, men’s laws (London 2005).
A.M. Marshall. 2003. ‘Injustice frames, legality, and the everyday construction of sexual harassment’, Law and Social Inquiry 28: 659-689.
Pinto, Meital, ‘What are offences to feelings really about? A new regulative principle for the multicultural era’, Oxford Journal of Legal Studies 30 (2010) 695-723.
Waldron, Jeremy, The harm in hate speech (Harvard University Press 2012).
 See for example Stuart Hall. 1992. ‘The West and the Rest: Discourse and power’ in Stuart Hall and Bram Gieben (eds). Formations of Modernity . The Open University p. 186.
 J. Casanova. 1994. Public Religions in the Modern World . Chicago: Chicago University Press; J. Habermas. 2006. “Religion and the Public Sphere” Journal of European Philosophy . 15(1): 1-25
 See for example S. Hannabuss and M. Allard. 1994. ‘Issues of Religious Censorship’, Library Review 43 (8): 14-30.
 A.M. Marshall. 2003. ‘Injustice frames, legality, and the everyday construction of sexual harassment’, Law and Social Inquiry 28: 665.
 See for example F. Klug. 2006. ‘Freedom of expression must include license to offend’, Religion and Human Rights 1: 225-227.
 Waldron, The harm in hate speech , 129-130.
 Ibid., 130.
 J. Casanova. 2006. ‘Religion, European secular identities and European Integration’ in Timothy A. Bymes and Peter J. Katzenstein (eds). Religion in an expanding Europe. Cambridge University Press pp. 65-92.
 M. Pinto. 2010. ‘What are offences to feelings really about? A new regulative principle for the multicultural era’ Oxford Journal of Legal Studies 30: 708.
 C. A. MacKinnon. 1979. Sexual harassment of working women . New Haven, 88.
 Klug, Francesca, ‘Freedom of expression must include the license to offend’, Religion and Human Rights 1 (2006) 227.
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