Religion

Religion and Human Rights 10 (2015) 244254

Human
Rights

brill.com/rhrs

Charlie the Freethinker: Religion, Blasphemy,

and Decent Controversy
Susan Benesch

Faculty Associate, Berkman Center for Internet & Society, Harvard University,
Cambridge, MA, USA

Abstract
This comment examines the tension between freedom of expression and freedom of
religion by embedding the Charlie Hebdo cartoons in a wider, century-old European
tradition of publications mocking religion, including Christianity. It describes, and
draws lessons from, the 19th century blasphemy case against the British Freethinker
newspaper, whose technique of offense was similar to that of Charlie Hebdo. Finally,
the comment tackles the problem of violent response to text or images that mock religion, pointing out that malicious intermediaries often carry such messages between
social groups or across national bordersgreatly escalating the risk of violence.

Keywords
Charlie Hebdo The Freethinker Blasphemy (history of English law of) Coleridge
freedom of expression lawful attacks on religion human rights law freedom of
expression freedom of religion

Charlie the Freethinker: Religion, Blasphemy, and Decent

Controversy

In 1881, a newspaper was started in Britain for one impassioned purpose: to

rage a relentless war on religion, especially Christianity, in blunt, unvarnished
terms. The Freethinker quickly discovered a new way to do this.1 Instead of
1 The Freethinkers first cartoons were reprinted from a French publication, Leo Taxils La
Bible Amusante. The paper soon went on to produce its own cartoons, including a series of

koninklijke brill nv, leiden, 5|doi 10.1163/18710328-12341291

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relying only on text, the paper began depicting Jesus, Moses, and even the
backside of God, in derisive cartoons that were often printed on its cover.
Although they appeared more than a century earlier, The Freethinkers cartoons were not unlike Charlie Hebdos own cartoons, including depictions of
the Prophet Mohammed. Amusing to some and infuriating to others, they
were published with the notion that offense and outrage are acceptable costs
ofor even useful methods fordisseminating ideas. With its cartoons The
Freethinker also provoked debates on how to mediate between one persons
right to freedom of expression, on the one hand; the right or desire of others
not to be outraged or offended, on the other; and the states interest in preventing collisions between the two.
Although they indeed enraged members of the public, The Freethinkers
directors were not physically attacked. Instead they were prosecuted for blasphemy, yielding jurisprudence which shifted the British boundary between
freedom of expression and freedom of religion. In the course of the Freethinker
trials, blasphemy was redefined as an offense against religious people, not
only an offense against religion itself. The editor, publisher, and printer of The
Freethinker were convicted for the raucous, intemperate tone of the papers
cartoons and text, not the fact that they had called religion into question.2
2

The Freethinker and Charlie Hebdo: Ridicule as a Form of Logic

Like Charlie Hebdo, The Freethinker sought to jolt readers into thinking thoughts
that they might otherwise avoid. For that noble purpose, as The Freethinkers
editor and publisher saw it, they would make use of the most effective tools
available, without hesitation or concern for the feelings of those who might
object. [The newspaper] will not scruple to employ for the same purpose any
weapons of ridicule or sarcasm that may be borrowed from the armoury of
Common Sense, they declared in the first issue, published in May 1881.3

16 depicting the life of Christ, which were published in The Freethinkers Christmas 1882
edition. See Derek Jones (ed.), Censorship: A World Encyclopedia (London: Routledge, 2015),
p. 885.
2 University of Leeds, Martyrdom of a Freethinker: Blasphemy, Secularism, and the Trials of
G.W. Foote, available at <wiki.leeds.ac.uk/index.php/Martyrdom_of_a_Freethinker%3A_
Blasphemy,_Secularism_and_the_Trials_of_G._W._Foote>, accessed 11 October 2015. See also
David S. Nash, Blasphemy in Modern Britain: 1789 to the Present (Aldershot: Ashgate, 1999).
3 Ibid.

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Cartoonssuch as one in which Jesus delivers a sermon from a tavern called

The Mount, or another called Moses Getting a Back View, where Moses gazes
upon Gods behind which seems to be emerging from the cloudswere useful, from the point of view of The Freethinkers secularist leadership. Drawings
captured the attention of readers, including those with limited education,
especially if they were funny. Georges Wolinsky, one of the Charlie Hebdo cartoonists murdered on 7 January 2015, put it succinctly: Humor is the shortest path between one man and another.4 And The Freethinkers editor, George
William Foote, explained the appeal of drawings in his introduction to a book
in which many of the papers cartoons were later published, in 1885: Pictorial
ridicule has the immense advantage of visualising absurdities.5
By the time of that publication, the irrepressible Foote had served twelve
months in prison, with hard labour, after his February 1883 conviction for blasphemy, which was largely based on the cartoons.6 In his long instructions to
the jury in that case, Lord Coleridge re-interpreted British blasphemy law to
balance the right of freedom of expression with what he called the mischievous abuse of that freedom by those who, for example, ridiculed religion in
provocative terms.7 Coleridge did not refer to the forms of abuse with which
the exercise of freedom of expression is sometimes met, such as violent attacks
on those who speak, write, or draw cartoons, except where he used such attacks
strikingly, to justify blasphemy law as a less painful form of punishment than
what might be dispensed by a mob. This may be seen as an intolerable abdication of the states responsibility to protect freedom of expression and those
who make use of it. It is also a way of indirectly incorporating the views and
speech norms of the mob into law, or, depending on ones own opinion of that
mob, a way of tailoring the application of the law to fit evolving social norms.
Under British blasphemy law until the mid-19th century, to question the
truth of Christianity in any way constituted blasphemous libel. Tone and
language were explicitly disregarded by the law. Indeed, in 1841 the English
4 Philip Gourevitch, The Pen vs. the Gun, The New Yorker, 8 January 2015, available at <www
.newyorker.com/culture/cultural-comment/pen-vs-gun-charlie-hebdo>, accessed 11 October
2015.
5 G.W. Foote (ed.), Comic Bible Sketches Reprinted from The Freethinker (London: Progressive
Publishing Company, 1885), available at <www.gutenberg.org/files/30210/30210-h/30210-h
.htm>, 11 October 2015.
6 Foote was prosecuted for blasphemy alongside George Ramsay (The Freethinkers publisher)
and Henry Kempe (its printer), in two trialsthe first ended with a hung jury. For a description and analysis of the trials, see University of Leeds, supra note 2.
7 Regina v. Ramsay and Foote, 7 July 1883, British High Court of Justice, Queens Bench Division,
15 Cox C.C. 231.

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Commissioners on Criminal Law noted that the common law of England

punishes as an offence any general denial of the truth of Christianity, without
reference to the language or temper in which such denial is conveyed.8
Not all questions or denials led to prosecution, however, even when they
were published and well-known, as Foote noted in his own defense at trial.
Foote cited the writings of John Stuart Mill among other examples. Coleridge
sought to distinguish between such writings and The Freethinkers cartoons
and textbetween the legitimate exercise of freedom of expression and the
crime of blasphemy. The difference, he suggested to the jury, was twofold.
First, manner and tone not only did matter, but made a world of difference,
in his view. [I]f the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel,9 he said. The same point could be made in different language, in
other words, and might constitute either the legitimate exercise of freedom of
expressionor a crime punishable by prison and hard labour.
There are many great and grave writers who have attacked the foundations
of Christianity, Coleridge noted, perhaps referring to Mill, as Foote had. In
their writings, he said:
there is a grave, an earnest, a reverent, I am almost tempted to say, a religious tone in the very attacks on Christianity itself, which shows that
what is aimed at is not insult to the opinions of a majority of Christians,
but a real, quiet, honest pursuit of truth.10
That sort of attack, in Coleridges view, was not blasphemy. He even suggested
that such writings constitute a collective social good, since they might benefit
others who read themor perhaps he referred to the writers honest intent to
benefit readers:
There are no questions of more intense or awful interest than those
which concern the relations between the Creator and the beings of his
creation...[and] it cannot be doubted that any man has a right, not
merely to judge for himself on such subjects, but also, legally speaking, to
publish his opinions for the benefit of others.11
8 Sixth Report of Her Majestys Commissioners on Criminal Law (London: W. Clowes and
Sons, 1841), p. 83.
9 Regina v. Ramsay and Foote, supra note 7, p. 739.
10 Ibid.
11 Ibid., p. 736.

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Intent was the second distinction that Coleridge drew between lawful attacks
on religion, and blasphemy. Blasphemy was committed with what he called
mischief or malice in mind, or [a] willfull intention to pervert, insult, or mislead others, by means of licentious and contumelious abuse applied to sacred
subjects.12
The essence of the crime, as Coleridge described it, was not mocking God or
religion itself, but rather its harmful effect on other people: its capacity to pervert, insult, or mislead them. It was a sensible shift for a society that was becoming more tolerant, not only of religions other than the Anglican Christianity of
the majority, such as Judaism, but also of atheism. Even if the state no longer
sought to protect the majoritys religious symbols and religion itself from all
ridicule, it retained an interest in maintaining social peace.
Coleridge also justified the legal prohibition against uncivil or inflammatory
blasphemy, as an alternative to vigilantism or mob violence. In his remarks to
the jury at the Freethinker trial, he referred to British violence against blasphemers, such as the Birmingham riots of 1791, in which the house of the scientist and dissenting theologian Joseph Priestley was burned, even suggesting
that blasphemy law might be an advantage to those who dissent from the
popular religion of a country, and who desire to oppose and to deny it, since
it might help to protect them from still greater evils.13 Prosecution or even
conviction for blasphemy was a better outcome, in other words, than being
attacked by a mob. The notion that a state might prosecute or imprison those
who exercise freedom of expression in order to protect them from mob violence
is manifestly wrong, in light of the states obligations to protect the exercise
of freedom of expression as a human rightand even outrageous, especially
when considered in light of the Charlie Hebdo killings, since it would give indirect prosecutorial power to those who are most willing to resort to violence.
In the event, Coleridges painstaking re-interpretation of British blasphemy
law did not keep George Foote and his co-defendants out of prison, since causing offense was an inevitable or even intentional by-product of their provocative form of journalism. Charlie Hebdo likewise causes offense as part of its
widely misunderstood method.
3

Charlie Hebdo and the Technique of Offense

Charlie Hebdo became internationally famous and was twice attacked by terrorists for printing cartoons depicting the Prophet Mohammed, but it has long
12 Ibid.
13 Ibid., p. 737.

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published other cartoons that are highly provocative and offensive to a variety
of readers, and it continues to do so. Just as The Freethinker began by reprinting
cartoons from abroad, Charlie Hebdo depicted Mohammed in early 2006, after
the Danish newspaper Jyllands-Posten invited cartoonists to draw Mohammed
and then printed a series of the results. Charlie Hebdo reprinted those cartoons,
and a notorious one of its own, with text that Muslims found directly insulting
to them, as well as to the prophet: Cest dur dtre aim par des cons, or its hard
being loved by idiots.14
Stphane Charbonnier, the Charlie Hebdo cartoonist and long-time editor
of the paper, explained before he was killed in January 2015 that the cartoons
were intended to ridicule Muslim extremists, not all Muslims. Extremists
dont need any excuses, he said in an interview. We are only criticizing one
particular form of extremist Islam, albeit in a peculiar and satirically exaggerated form. We are not responsible for the excesses that happen elsewhere, just
because we practice our right to freedom of expression within the legal limits.15
My job, Charbonnier added, is to provoke laughter or thinking with drawingsfor the readers of our magazine. Among its other provocative cartoons,
Charlie Hebdo has depicted Michael Jackson as a skeleton with the text, finally
white.16 In an even more shocking image, the French Minister of Justice,
Christiane Taubira, was drawn as a monkeynot to humiliate her, but to draw
attention to the fact that a candidate of the right-wing party Front National
had already made the comparison.17
More recently, Charlie Hebdo depicted an image that, while not related to
religion, had become iconic and, to many, not to be appropriated the body
of the Syrian child Aylan Kurdi, where it had washed up on a Turkish beach.
Charlie Hebdo published two drawings: one showing a man walking on the
water as a child drowns, with the text this is how we know Europe is Christian,

14 Christopher Massie, The Missing Charlie Hebdo Cartoons, Columbia Journalism Review,
8 January 2015, available at <www.cjr.org/watchdog/charlie_hebdo_cartoons.php>,
12 October 2015.
15 Stefan Simons, Charlie Hebdo Editor in Chief: A Drawing Has Never Killed Anyone, Der
Spiegel, 20 September 2012, available at <www.spiegel.de/international/europe/charliehebdo-editor-in-chief-on-muhammad-cartoons-a-856891.html>, 12 October 2015.
16 Jason Abbruzzese, What is Charlie Hebdo? Behind the covers of the French satirical magazine targeted in deadly attack, Mashable, 7 January 2015, available at <www.mashable
.com/2015/01/07/charlie-hebdo-magazine/#YOuptZLQtGqx>, 12 October 2015.
17 Rassemblement Bleu Raciste, Understanding Charlie Hebdo, available at <www.under
standingcharliehebdo.com/#bleue-racist>, accessed 12 October 2015.

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and another image of the body with McDonalds arches in the background,
with the shocking and sardonic text, si pres du but or so close to the goal.18
Those cartoons were widely misunderstood as making fun of the child, his
suffering, and that of his family and other refugees. In fact, they were meant to
force Charlie Hebdos readers to think critically about themselves, their society,
and its own goals. As the writer Salil Tripathi explained, defending the decision
to print the Aylan cartoons:
Charlie Hebdos illustrations intend to offend, to make us think. They are
tastelesstaste is our defensive wall that acts as a barrier preventing
us from confronting reality, from saying what we feel, from feeling what
is really in our heart. We dont like where the logic leads, so we call it
tasteless.19
Of course all states and societies haveand often reviselaws and informal
norms to define what Coleridge called the decencies of controversy, or to draw
the line between lawful and unlawful speech, and between socially permissible and impermissible commentary. The more socially diverse a country
becomes, the more difficult it is to drawand to protecta single line since,
as in France, distinct social groups operate under different norms. In international human rights law, the boundary between lawful and unlawful lampooning of religion has been sketched, albeit tentatively so far, between the rights to
freedom of expression and the right to freedom of religion.
4

Freedom of Religion and Freedom of Expression

As a legal matter, there is no distinct right not to have ones religion criticized, attacked, or mocked, or indeed to be free of offense or insult in general.
Thus the question is whether freedom of religion includes the right not to be
exposed to mockery or insult of that religionand whether this creates an

18 Jimmy Nsubuga, Charlie Hebdo criticised for controversial Alan Kurdi cartoon but
did most people miss thepoint?, Metro, 15 September 2015, available at <metro.
co.uk/2015/09/15/charlie-hebdo-criticised-for-controversial-aylan-kurdi-cartoon-butdid-most-people-miss-the-point-5391624/>, 12 October 2015.
19 Salil Tripathi, A bonfire of our pomposity, Live Mint, 23 September 2015, available at
<www.livemint.com/Opinion/xB5gIUfUV98bJcqBtPqlQL/A-bonfire-of-our-pomposity
.html>, 12 October 2015.

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obligation on the part of states to prevent others from insulting a religion or

the people who espouse it.
Freedom of religion, in its essence, is the freedom to believe, to worship,
and to espouse or teach the tenets of a religion, without interference. The
most famous codification of freedom of religion appears in the Universal
Declaration of Human Rights, at Article 18:
Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom,
either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.20
Even such an irreligious and irreverent proponent of freedom of expression
as Christopher Hitchens conceded that some expressive acts would impinge
on someone elses right to worship in peace. I am not asking for the right to
slaughter a pig in a synagogue or mosque or to relieve myself on a holy book,
Hitchens wrote in a column pointedly titled, The Case for Mocking Religion,
soon after controversy and violence erupted regarding the cartoons published
by Jyllands-Posten in 2005.21 If a nonbeliever flagrantly violates a basic tenet of
a religion inside one of its houses of worship that could indeed interfere with
freedom to worship. When the violation or mocking takes place, instead, in the
public sphere, or in the pages of a magazine which the devout need not read, it
is much less clear that their freedom of religion is compromised, and not their
legally unprotected feelings or sense of dignity.
Nonetheless the European Court of Human Rights found, in a 1994 decision
upholding Austrias decision to ban a film that depicted the figures of Christ,
God, and Mary as fools and as a prostitute, that in extreme cases the effect
of particular methods of opposing or denying religious beliefs can be such as
to inhibit those who hold such beliefs from exercising their freedom to hold
and express them.22 The Court explained that this restriction on freedom
of expression was permissible under Article 10 of the European Convention
on Human Rights, which allows restrictions that are prescribed by law and
are necessary in a democratic society, in the interests of national security,
20 UN General Assembly,Universal Declaration of Human Rights (A/810/1948/71).
21 Christopher Hitchens, Cartoon Debate: The case for mocking religion, Slate, 4 February
2006, available at <www.slate.com/articles/news_and_politics/fighting_words/2006/02/
cartoon_debate.html>, 12 October 2015.
22 Otto Preminger Institut v. Austria, 20 September 1994, European Court of Human Rights,
No. 13470/87, para. 47.

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territorial integrity or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection of the reputation or
rights of others....23
The Court even went so far as to suggest that those who exercise the right
of freedom of expression bear, in the context of religious opinions and
beliefs...an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which
therefore do not contribute to any form of public debate capable of furthering progress in human affairs.24 This dictum turns, of course, on the meaning
of the term gratuitous.25 It seems safe to say that George Foote and the cartoonists and editors of Charlie Hebdothose who survived as much as those
who were killedwould argue that none of their cartoons were gratuitous,
precisely because they were intended to provoke public debate. Without any
doubt, both publications succeeded at that.
5

The Dangerous Role of Speechof Those Who Would Stifle It

Neither The Freethinker nor Charlie Hebdo could have provoked so much
debate without the speech of others, however, including their worst enemies.
In fact, it may well be that the Freethinker blasphemy trial would not have happened, and that the Charlie Hebdo journalists and cartoonists would not have
been murdered, without vigorous, malicious efforts by others to publicize their
speech. This is an essential and often overlooked feature of each of the wellknown recent cases of insult to Islamic religious figures and symbols, which
have been followed by violence as well as outrage. In each case, ill-intentioned
figures relentlessly publicized the mocking content, in ways that they knew
were likely to catalyse violence, and among audiences they knew were likely to
react with violence.
In considering how to balance freedom of expression and freedom of religion, one must not ignore the role and the responsibility of such figures, of
whom there are two types. First, some producers of irreverent or provocative
content do their best to publicize it themselves, in malicious and inflammatory
23 Convention for the Protection of Human Rights and Fundamental Freedoms (ETS 5, 213
UNTS 221), article 10.
24 Otto Preminger Institut v. Austria, supra note 22, para. 49.
25 For a discussion of this case and others of cartoons depicting Muhammad, see Robert
Post, Religion and Freedom of Speech: Portraits of Muhammad, 14:1 Constellations (2014),
pp. 7290.

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ways. Charlie Hebdos writers and cartoonists did not do this. In cases like
theirs, malicious intermediaries carry a message of outrage from one normative community to another (and in many cases, from one country to another),
portraying the offense to religion as an aggressive act that must be avenged.26
We have seen this phenomenon in each of a series of cases of offenses to
Islam that were met by violence, over the past decade. The first was JyllandsPostens publication of cartoons on 30 September 2005, in Denmark, to which
hundreds of killings and other violence have been traced. However the international controversy surrounding those cartoons, and especially the violence,
did not begin until early 2006. At first, Danish Muslims expressed their outrage by writing letters to the newspaper and holding peaceful demonstrations.
Others pressed for more bellicose reaction, until they succeeded.27
Similarly, after the American pastor Terry Jones burned the Quran in 2010,
violence erupted as far away as Afghanistan. Another American pastor had
done the same thing two years earlier in 2008, however, and even took the
trouble to film the event. There was no violent reaction since there was not
enough malicious publicity.28
In yet another case, the offensive and inflammatory film clip The Innocence
of Muslims, was on YouTube for months without incident, not only in English
but also in an Arabic-language version. It was not until the film was described
by intermediaries such as a television commentator in Egypt that violence
began. Most of the people who carried it out had likely never seen the film.29
Charlie Hebdo is somewhat unusual on this dispiriting list, since it was not,
principally, a transnational speech crisis. The cartoonists and their murderers
were all raised in France. (In the Danish cartoons case, also, the cartoonists
were targeted by their own countrymen, but most of the related violence took
26 Bridge figures are those who carry content from one silo or distinct, insular community
to another, and interpret the content for the new audience in a constructive, benevolent way, as Ethan Zuckerman has described. I use the term malicious intermediaries for
those who carry content across social boundaries, and interpret it, in harmful ways. See
Ethan Zuckerman, Rewire: Digital Cosmopolitans in the Age of Connection (New York: W.W.
Norton, 2013), p. 170.
27 Pernille Ammitzbll and Lorenzo Vidino, After the Danish Cartoon Controversy, Middle
East Quarterly (Winter 2007), pp. 311, available at <www.meforum.org/1437/after-thedanish-cartoon-controversy>, 12 October 2015.
28 Brian Stelter, A Fringe Pastor, a Fiery Stunt and the Media Spotlights Glare, The New York
Times, 10 September 2010, available at <nyti.ms/1LgIb4K>, 12 October 2015.
29 Susan Benesch and Rebecca MacKinnon, The Innocence of YouTube, Foreign Policy,
5 October 2012, available at <foreignpolicy.com/2012/10/05/the-innocence-of-youtube/>,
12 October 2015.

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place outside Denmark.) Although they inhabited the same national territory,
they lived in very separate normative climates.30
In any contemporary effort to balance freedom of expression and freedom
of religion, whether national or transnational, the role of intermediaries must
be taken into account, since they not only increase the risk of violence, but
often crucially increase the sense of insult and offense that one group feels
at the hands of another. It is true, after all, as Lord Coleridge argued that tone
and manner make a difference in how a cartoon or a text is experienced. In
practice, especially as texts cross the boundaries between normative groups
of all kindsincluding religious groupstone and manner are often wilfully
and dangerously distorted.

30 Angelique Chrisafis, Charlie Hebdo attackers: Born, raised, and radicalised in Paris, The
Guardian, 12 January 2015, available at <www.theguardian.com/world/2015/jan/12/-spcharlie-hebdo-attackers-kids-france-radicalised-paris>, 11 October 2015.

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