In Turkey, Orhan Pamuk has recently taken to defending a controversial female columnist – Perihan Magden – after the Turkish Armed Forces pursued a case against the author for objecting and denigrating military service. Since the defendant, Magden, is a female supporting Mehmet Tarhan, a homosexual citizen, it has become a case not simply considering the place of women and homosexuals in Turkish culture, but more importantly, a case highlighting the right that all individuals have to express themselves, given the intrusive status of religion in public life. The cases of these authors demonstrate the very reason(s) why it continues to be necessary to defend the freedom of expression on religious matters in Europe’s transitional democracies.

In Late December 2005, Pamuk found himself embroiled in a case of defending his right to free expression. His homeland of Turkey brought charges against him for “insulting Turkishness” after he had claimed in a Swiss newspaper, Tages Anzeiger, that 30,000 Kurds and one million Ottoman Armenians were killed in Turkey yet nobody would dare to talk about it. He attended a court in Istanbul for his trial. The case was dropped on 22 January 2006 after the Ministry of Justice held that it was not legally viable for the country to intervene. For a country desperate for EU entry, and confident on proving basic liberal credentials, it was a sensible move. More recently, Elif Shafak – author of The Bastard of Istanbul – also faces charges of “insulting Turkishness” under the notorious Article 301 of the Turkish Criminal Code.

However, Pamuk’s case clearly demonstrates the religious boundaries that have to be challenged in order to attain free expression in transitional democratic countries. The trial of Pamuk was (rightfully) thrown out in January this year. The trial of his Italian counterpart, Oriana Fallaci, was due to begin on 12th June this year but has been delayed. Italy has encountered similar problems. While Italy, like Turkey, is attempting to run a nation by its demos, it still remains – in law, electoral politics and political culture – a variant democracy in transition.

A modern Italian journalist whose writing on Islam has tended to cause insult is Oriana Fallaci. Perhaps unlike other writers, such as Salman Rushdie in Britain and Michel Houellebecq in France, Fallaci’s case is slightly tainted. It is tainted because the case does not appear to offer critique through fiction – rather the essays themselves are political essays directly opposing Islam in fairly biting and vehement criticisms.

The Oriana Fallaci controversy

It seems important to retrace the steps of how, in particular, Fallaci’s case developed; it is a valuable contemporary lesson on how Europe’s transitional democratic states ought not to have acted following a literary controversy. On 11th September 2001, just under three thousand people were horrifically killed, following the intended crashing of four aircraft into the central and densely populated urban areas within New York City, Virginia and Pennsylvania. It was alleged by the American government and accepted by Islamic leader, Osama bin Laden – and remains accepted within most ranks of society – that a collective of Islamic organizations which operate under the name al-Qaeda were the perpetrators of the atrocity.

Radically different analyses of the situation – most hot-headed and intolerant reports by either Western-centric reporters or Islamic commentators – have been offered across the world, based within a variety of political spectra. The immediate conflict has been posed as one of the West versus the Islamic faith, the Western value of toleration versus Islamic intolerance, or liberalism versus multiculturalism. One popular and vehement critic was the journalist, Oriana Fallaci. Her opinion essay, La Rabbia e l’Orgoglio (The Rage and the Pride) had been published in Italy, just eighteen days after the attacks of September 11 occurred. Two years later, in 2003, a brief follow-up book entitled The Force of Reason, formulated a similar critique of Islam operating in Europe.

What it seems important to question is this: what is Islam’s opposition to Fallaci’s essays and books on Muslims? More to the point, how did the author ever manage to offend Islam? These questions are important since they enable us to then address the impossible sanctions that Muslims appear to be imposing upon individuals who seek to express themselves on issues relating to Islam.

Fallaci’s book, The Rage and the Pride, heavily criticizes many aspects of Islam and is vulgar, to say the least, in the manner in which it achieves its degrading criticism. Unlike Houellebecq’s and Rushdie’s novels, the text is a critique of Muslims in America and Europe. Her intolerance at the presence of Muslims in Italy, following the terrorist attacks in America, is immediately apparent. She writes: “I’m telling you that we have no room for muezzins, for minarets, for false teetotalers, for their fucking Middle Ages, for their fucking chador.”

The grounds and basis of its critique can be found in its hot-headed reactionary journalism, populist armchair philosophy, obsessive patriotism, ill-considered “atheism” with a large residual respect for Christian values, and a religious separatist outlook towards individuals in Muslim and non-Muslim cultures. Fallaci confesses her extreme Italian and American patriotism – the two countries in which she has lived. Of course, she finds that eternally divided Italy has no such modern patriotic blessing and the country has surrendered itself to what she refers to as Islam and its “sons of Allah”. The mere “presence” of Muslims in the world is too much for Fallaci, and as for the presence of Muslims in Italy, it “was not an immigration, it was more of an invasion conducted under an emblem of secrecy.” The “war of religion”, we are warned, “is in progress.” Consequently, “if we don’t oppose them, if we don’t defend ourselves, if we don’t fight, the Jihad will win.” (Interestingly, many well-respected academics, particularly in the United States, had already begun to pit Islam against the West in their accounts of global political conflicts, such as Sam Huntington’s The Clash of Civilizations, 1993).

For Fallaci, those who did not see the subsequent war in Iraq approaching are those who allowed Muslims, “the sons of Allah get away with a little too much.” The essay quite clearly labels Muslims, “birdbrains”, “scoundrels”, “terrorists”, inherently lazy people, welfarists and “idiots”. As with the Theo van Gogh controversy in Holland, the criticisms were not of a wildly intellectual nature. The author often confesses her ignorance at the understanding of the Islamic faith, in addition to claiming the West to have the hold on rationalism, and Islam (and its associated states) to have the claim on arbitrary womanizing and countless murdering and wars.

The Italian courts are still embroiled in the Fallaci controversy and the case is far from resolved. The courts have recently decided to pursue the trial of Fallaci, by trying her case on the Italian defamation laws. It is claimed that Fallaci defamed Islam. If this case were to win, it would challenge a largely common response of Western liberal states: to not intervene in cases of free expression, especially when those cases relate to religion. A state can be brought to its knees through intervention in the sphere of free speech.

Why free expression?

A basic tenet of a modern European society is that each individual is free to enjoy certain basic and personal freedoms, including that of expressing oneself freely. In its history, that sense of expressing oneself freely is often felt to be most sincerely represented when it comes to defending free expression with respect to religion.

In the doctrine of John Stuart Mill’s On Liberty, published in 1859, the right to freedom of expression and its conditions are stated clearly. The most fundamental principle of a freely operating liberal society is the right to the “freedom of opinion”. This “independence is, of right, absolute.” The only exception in which Mill conceived such freedom to be limited was if it were to impose severe harm onto others – he declared this to be a rare thing. The intervention in a literary controversy is no longer an option for a modern European government.

In the Fallaci controversy, the right to freedom of expression currently prevails. Despite the fact that Fallaci had written a derogatory essay claiming that Italian Muslims are “birdbrains” and “idiots”, it still remains important to proceed to defend the freedom of expression – publishing it freely and imposing no ban. The statements expressed here, by themselves, are decontextualised from the remainder of the text. Therefore, pithy extracts offer us little insight into the argument – just as the pamphleteering of Rushdie’s extracts by Muslims on the streets of Pakistan meant very little, since they are not merely name-calling texts.

Within the confines of the law, Fallaci’s essay itself does not harm others. The harm or offence caused by the text could only, at the very most, be understood as a breach of racial and religious hatred or the blasphemy laws. In modern society, the breach of those principles should rarely qualify for harm or strong offence-related arguments in cases of free expression. It is certain that we live in a multicultural society and that the notion of multicultural society, and Muslims within that society, are constantly changing. However, it is just as certain that we live within a liberal society – in which its basic architecture requires that we do not remove or alter certain fundamental freedoms, including that of free expression.

The harm done to others, in cases where it is felt the text will incite mass religious hatred – with the preconditions of tyrannical governments and a homogenous citizenry – should only be executed on rare occasions, since it does little justice to the cultural diversity and critical discussion said to underpin free expression itself. That is to argue that a ban, based on harms incurred, assumes the individual to be unreflective, lacking in spontaneity and often, incapable of reason. If that is to be every Muslim’s subject of defence, then it might be asked if it is a subject worth defending. In fact, the texts themselves rarely represent harm, or offence, and the calls for bans based on offence are often premature reactions of the unnervingly dogmatic representatives of Islam, clearly set against the West in politics, economy and individual values.

It is certain that free expression on matters pertaining to Islam will prevail. It is through recourse to dated Catholic-centric Italian laws that Muslims have sought to legitimize their claims to offensiveness. This legally enables the right to intervene in the publications of Fallaci’s anti-Islamic writings. However, since the harm done to others did not signify a physical injury, or anything of that magnitude, to any individual or group, there were few grounds for rightful interference. The most coherent legal route to preventing the offence was through the prosecution of Fallaci, with reference to the defamation laws.

In Italy, a unique history, embroiled in changes under the Italian constitution during Mussolini’s regime, meant that Catholicism occupied a primary place in considerations of the state. It is certain that the Italian constitution, in its first three articles sets out to protect all citizens and accord them the freedom to speech until it sacrifices “public morality”. The third article of The Constitution of the Italian Republic of 1947 states that “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions.” Yet, only in the past twenty years, have significant changes in Italian society brought about toleration of free expression towards religion. The Constitution also states that “Religious confessions other than Catholic have the right to organize in accordance with their own statutes, in so far as they are not in conflict with Italian laws.” Therefore, there are cases in which the law does impinge upon the freedom to organise and express oneself on religious matters, when it contravenes Italian law; a law already heavily skewed by the solidarity of Catholicism.

As elsewhere in Europe, in Italy it is clearly illegal to incite discrimination on religious grounds. However, rather than argue for offence through incitement to religious hatred laws – which Fallaci’s Muslim prosecution still remain eager to pursue – the most successful and quickest way of suppressing free expression in Italy is through claims to defamation. This is the current claim that has been made in the Muslim prosecution against Fallaci. It is claimed that her writings “defame” Islam. Italy’s own government often use the defamation laws to bring critics of ministers, and antagonists of the state, to justice, and it has been claimed that it is rare (and possibly the first case in Italy) for free expression to be challenged by Muslims through recourse to the defamation laws. At the time of writing, the case for Fallaci has not finished. One would, however, hope for Italy that what has happened in the rest of Europe for many centuries, will continue to happen and that free expression on matters pertaining to Islam will prevail. That is to say, Fallaci should be acquitted.

The only imaginable case in which this would no longer hold would be as follows. Since Fallaci offers perhaps the strongest and prejudiced “hate” article against Muslims – against a national (Italian) and global community – there is a possibility that it could be proven to incite religious hatred. The case for incitement to religious hatred would have to prove that there was a threat to physical existence, or harm done to others, of such significance that this piece of literature should no longer be available in society, and the author sentenced accordingly. Her trial has yet to begin this month in Bergamo.

Europe could well do with laying down a red carpet for authors such as Fallaci rather than trying them – after all, it is freely speaking and writing individuals that make European society such a vibrant platform for the free exchange of ideas. If you remove the artistic and literary freedom to express, through the bizarre invention of corrupt laws, then there is very little left in the essence of modern society – constitutional or cultural – that is still worth defending.