This chapter explores the existence and persistence of religious offences in the case of artistic expressions that are considered to be blasphemous, offensive, defamatory, irreverent and otherwise transgressive. Drawing on the jurisprudence of human rights bodies, it examines the international legal framework applicable to blasphemous arts and the human rights principles pertinent to controversies over creative freedom involving incitement to religious hatred. Moreover, drawing on the jurisprudence of the UN Human Rights Committee, the UN Committee on Elimination of Racial Discrimination and the European Court of Human Rights, it discusses the application of general principles of human rights law (such as the element of intention to stir religious hatred, or the impact of particular expression on religious minorities) on artists and artworks. Last but not least, the chapter discusses the international politics of blasphemy drawing on controversies of global scale such as Danish cartoons and Charlie Hebdo, and incidents related to the rise of Islamic extremism. In this respect the author emphasizes the need to avoid undermining the value of free speech in the human rights edifice, while also emphasizing the need for a better, cross-cultural understanding of both religious and artistic traditions.

This chapter examines the question of prior restraints and other limitations to artistic freedom, pointing to the lack of a precise definition of ‘censorship’. Which grounds of prior restraint are legitimate or necessary under international law? is there an obligation for States to ban exhibitions such as Mirroring Evil: Nazi Imagery or the exhibition Ode to the Sea displaying artworks made by prisoners from Guantànamo Bay? When can States legitimately restrict artistic freedom? And how do international bodies draw the fine line between illegitimate censorship, legitimate restrictions and regulation? The chapter discusses the problem of artistic expressions inciting to hatred and other types of incitement (negationism, revisionism and Holocaust denial), in light of international standards. It further offers a more detailed approach to the methodology of human rights bodies in defining limitations to artistic freedom (and more broadly balancing conflicting interests), including the problem of artists’ ‘duties and responsibilities’. Finally, it examines the responsibility of non-State actors for human rights violations, if any, in the case of private exhibitions and events that incite to racism, hatred or misogyny, as well as similar issues arising in digital arts, on the web and social media platforms.

The Epilogue examines the state of free speech during the COVID-19 pandemic at a time when American politics is polarized and the state of public discourse is in shambles. Both sides claim victimhood and argue that the other side should be suppressed, illustrating the adage “free speech for me but not for thee.” Both sides even justify violence in support of their respective causes. But events of the past year reveal the danger of abandoning neutral principles when it comes to protecting speech. Lowering the legal barrier for what constitutes incitement may allow the prosecution of Donald Trump, but it would also put Black Lives Matter activists at risk. Safety can best be found in avoiding the mindset of the censor.

The chapter examines, in detail, five internal features that characterize the norm providing protection from incitement to discrimination, hostility, or violence, as codified in Article 20(2) of the ICCPR. These five features are the ‘emotive’ component, the ‘incitement’ component, the tensions between equality and liberty rights of speakers and members of targeted groups, the ‘group identity’ component, and, finally, the ‘religion’ component. The chapter elaborates on the dilemmas of interpretation and implementation generated by these internal features. It illustrates how the minimalist and maximalist approaches to the legal regulation of hate speech perceive these five features differently. Furthermore, they clarify how the libertarian and egalitarian approaches to freedom of expression, as well as the individualist and communitarian approaches to rights, address differently the conundrums created by the five features. This ultimately generates different delineations of the meaning and scope of the norm, and different views on whether or not legalistic constraints on hate speech (or, rather, quasi-legalistic restrictions) are warranted, as well as on the scope and nature of such restrictions.

Between 2009 and 2010, a Korean ethnic school in Kyoto in Japan was attacked by racist groups. As an attorney representing the school in the case, the author of this chapter was able to win a historic Supreme Court decision that affirmed the illegality of racial discrimination and ordered payment to the school of a large award for damages in 2014. This was the first ruling to acknowledge the illegality of hate speech in Japan. It triggered a national debate about establishing a new law against hate speech and hate crimes, and in June 2016 the Hate Speech Elimination Act, the first to address the issue, was enacted. To examine the impact of this law, the chapter first outlines the facts of and background to the case, clarifying issues about racism in Japan, then goes on to analyse the historical and social roots of that racism to assess whether or not the law is effective in combating it. The chapter concludes with a look at what has gone on in Japan since the Act came into force and what more might be needed to tackle the crisis.

Despite the election of a civilian government in Myanmar in 2015 – the first since 1962 – the transition from military rule to human rights-respecting democratic governance remains a major work in progress. This chapter examines the sociopolitical causes of current populist tensions in Myanmar, such as the historical roots of ultra-nationalism and militarization, which extend back to the country’s colonial past. Persistent military offensives against ethnic and religious minorities, most acutely against the Muslim Rohingya population, are supported by a populist culture of intolerance that not only threatens persecuted communities but places the future of democracy in Myanmar at risk. The stoking of violence in the Rohingya crisis is also linked to radical “Buddhist” organizations, including the 969 and MaBaTha (Race and Religion Protection Committee). The chapter closes by examining how the international community and human rights systems can still contribute to developing an inclusive, human-rights-based culture in Myanmar.