Criminalizing Religiously Offensive Satire: Free Speech, Human Dignity, and Comparative Law

This chapter considers the question of whether satire that ridicules a religious figure or the core tenets of a religious belief should receive different constitutional protection than that afforded to political satire. It examines two possible models that seek to resolve the tension in principle: the U.S. model, under which freedom of speech enjoys pre-eminence; and the Israeli model, that protects human dignity as the principal value. In outlining the Israeli approach, the chapter analyzes an Israeli case that led to the first criminal conviction for the violation of an act prohibiting the publication of material calculated to outrage religious sentiments. It then addresses some normative and institutional features that separate the U.S. and the Israeli approaches. Moving beyond comparative legal analysis, the chapter puts forward the hypothesis that the source of the difference in jurisprudence arises at least in part out of a different cultural perception regarding the core meaning of 'speech' or 'expression's in these two jurisdictions. Drawing upon this cultural understanding, it is suggested that perhaps it is passion, not merely reason, that organizes the realm of public discourse. The chapter concludes with a brief comment on the possible limits of relying on foreign sources in some (passion-based) cases.