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  • Laughing Matters:Defamation and the Secular Subject in the Global European Union
  • Dina Al-Kassim

On February 26, 2008, the Council of the European Union (CEU) arrived at a Framework Decision designed to combat particularly serious forms of racism and xenophobia by criminal law (CEU 2008).1 By proposing a comprehensive framework, this decision marks an important moment in the evolution of EU human rights guidelines which, since the adoption of the Universal Declaration of Human Rights in 1948, have developed piecemeal a patchwork of principles affirming human rights and condemning expressions of hate speech and incitements to racial hatred.

Of particular interest for scholars working on the Middle East and its European diaspora is the criminalization of human rights violations that contribute to incitement and which include religion, not only as a freedom of practice but as a category that excites discrimination, intimidation, and coercion. While the CEU decision, in its affirmation of religion as a relevant category, attempts to steer a course between the diverse forms of state protection of press freedoms and hate speech, there is nothing particularly new about the inclusion of religion as some might think. Indeed, since the late 1990s various EU documents have affirmed the principle that religious freedom cannot be enjoyed in a climate of defamation and that incitements to racial hatred target religious identity. 2 The CEU decision marks a tension between its framing of criminal penalty and the EU's position against including freedom from defamation [End Page 117] as a human right, a position the EU vociferously defended at the UN throughout 2008 (EU et al. 2008, 47–8). These staggered motions constitute a response by the various EU bodies to a UN Commission on Human Rights Special Report that paid close attention to the 2006 Danish cartoon scandal and focused on the alarming rise of Islamophobia and xenophobia in the EU (UNCHR 2006). In response to the publication of racist caricatures, the EU and the UNCHR disagree, but their disagreement over abstract rights veils two very different understandings of the citizen subject.

The disparity hinges on the EU claim that freedom from religious defamation does not constitute a human right in the secular state, despite the fact that many states in Europe prohibit religious insult. In contrast, the UNCHR report concluded that the Danish government was derelict in its duty to protect immigrants and citizens from defamation of religion and neglected its responsibility to promote order both nationally and internationally, and further, that this failure occurred in the context of a government accord with the extreme right Danish People's Party, which held 13% of parliamentary seats, concerning restrictions on immigration (UNCHR 2006, par. 25–6). Against the grain of the popular understanding of freedom of expression as absolute, the UNCHR report upheld the need for balance between such inherent freedom and freedom of religion which, it argues, cannot be enjoyed in a climate of defamation.

The EU definition of defamation is linked to the recent restatement of laïcité in France where regulation of Muslim women's dress is viewed as safeguarding the abstract value of the secular state (Stasi 2004). At the core of the EU's refusal to recognize the human rights claim of a collectivity, which is fundamental to the notion of religious defamation, lies the tension between private individual and public collectivity in the secular state. The headscarf affair, resolved by the French ban on hijab in public schools, continues to organize EU decisions regarding the civil liberties of its Muslim minority, and thus the inclusion of religious identity as a protected category is imagined only as a personal attribute. In the regulation of public signs of female Muslim piety, the refusal to regulate defamation when it targets Muslims, and the denial that defamation equates to incitement, the secular state aims to discipline its Muslim minority through training in secular subjectivity. Key [End Page 118] to this production is a particular semiotics of the sign, image, body, and affect.

The feminist models through which we understand the politics of the headscarf debate in France should also be brought to bear on the EU's resistance to the UN's perception of the racist...

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