Free speech isn’t actually free speech in Europe.

The continent’s already flawed free speech laws took another hit on Thursday when the European Court of Human Rights (ECHR) ruled against an Austrian woman who was previously convicted for calling Muhammad, the “prophet” of Islam, a pedophile. (He allegedly married a six-year-old girl named Aisha and consummated the relationship when she was nine.)

The ECHR found that the earlier conviction didn’t violate the woman’s free speech rights. She just crossed a line in 2009 when she delivered two seminars on “Basic Information on Islam” and made the comments. The ECHR said in its decision that the “pedophilia” remarks weren’t objective, lacked historical background, and weren’t intended to spur public debate. Therefore she was just being incendiary and mean.

The Strasbourg-based ECHR ruled Thursday that Austrian courts had “carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected.” The woman in her late 40s, identified only as E.S., claimed during two public seminars in 2009 that the Prophet Muhammad’s marriage to a young girl was akin to “pedophilia.” A Vienna court convicted her in 2011 of disparaging religious doctrines, ordering her to pay a 480-euro ($547) fine, plus costs. The ruling was later upheld by an Austrian appeals court. The ECHR said the Austrian court’s decision “served the legitimate aim of preserving religious peace.”

While the specifics of their relationship, like so much of religious mythology, are constantly debated, the bottom line here is that a woman offered her analysis based on what she believed to be the facts, and she was punished because her statements offended people of faith. In a way, the Austrian courts said religious feelings always triumph over religious facts.

Needless to say, upsetting religious people should not be a criminal offense.

Some reporting says E.S. made other misleading claims about Muslims in general — and we’re by no means defending her statements as if she’s the ultimate authority on the truth. But since the Muhammad comments got the most attention, and the ECHR’s ruling focused on those claims, that’s worth further discussion.

This wasn’t “Islamophobic.” This wasn’t hate speech. Even if people argue that the culture was different in Muhammad’s time and such marriages were permitted, E.S.’s comments still aren’t out of place. (Critics of religion have made similar comments about how the Christian God impregnated Mary without her consent so what does that make God?) Even Islamic scholars agree that Aisha wasn’t what we’d now consider a legal adult when their marriage was consummated, even if they disagree about the actual age. That would mean E.S.’s comments were not inflammatory just for the hell of it. She was just trying to make a point.

And for that, she’s been punished.

Tech Dirt explains why this ruling sets a dangerous precedent:

It is exceptionally dangerous to free speech. I’m not advocating that anyone should be running around spewing ignorant arguments about religious figures that people adore, but saying that you can block free speech if it will “prevent disorder” or “protect religious feelings,” means that you’ve created a massive heckler’s veto. All you need to do is claim that hearing the speech will make you and your friends riot, or say it’s truly insulted your religious “feelings”, and suddenly it means the speech is not allowed. That’s crazy and will lead to lots of abuse and questionable situations where people censor themselves to avoid any liability at all.

I completely agree. This ruling is completely unjustifiable, and it could stifle religious criticism in Europe altogether.

There was no crime here. A human rights court should have recognized that.

***Clarification*** (Oct. 28): This ruling doesn’t override laws in all European countries. Individual nations may still decide to value free speech over “religious feelings,” but if they don’t, this European “human rights” court will side with them over real people who just wanted to speak their mind.

(Image via Shutterstock. Thanks to Brian for the link)

