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HUMAN RIGHTS QUARTERLY
Cartoon Violence and Freedom of

Expression
David Keane*
Controversy is the cartoonist's staff of life; he starves in times of "brotherly love."'

- Isabel Johnson (1936)
ABSTRACT
The publication of the "Danish cartoons" generated a continuing conflict

between freedom of expression and religious tolerance. The article ex-
amines the history of cartoon satire, invoking past examples of racial and
religious discrimination in cartoons while emphasizing the important role
cartoonists have played in criticizing and checking the exercise of power.
The legal implications of the "Danish cartoons" is analyzed through the
lens of international human rights law, in particular the concepts of hate
speech, racial discrimination and religious defamation. Finally the present
movement in the UN towards "cartooning for peace" is promoted.
I. INTRODUCTION
The 2006 controversy over the cartoons of the Prophet Mohammad in the
Danish newspaper lyllands-Posten was never resolved, and the issue has re-
emerged. An attack on the Danish embassy in Islamabad, Pakistan, in June
2008, strongly associated with the cartoon crisis, killed six people. 2 Staff
from Danish embassies in Afghanistan and Algeria were evacuated in April
David Keane is a lecturer in law at Brunel University, West London. He is presently visiting
lecturer at Kadir Has University, Istanbul. He holds a BCL (Law and French) from University
College Cork, Ireland, and an LL.M. and Ph.D. in International Human Rights Law from the
Irish Centre for Human Rights, National University of Ireland, Galway.
1. Isabel Johnson, Cartoons, PUB. OPINION Q 35 (July 1937).
2. Declan Walsh, Bomb at Danish Embassy Kills Six in Pakistan, GUARDIAN (London), 3 June
2008, available at http://www.guardian.co.uk/world/2008/jun/03/pakistan.terrorism.
Human Rights Quarterly 30 (2008) 845-875 © 2008 by The Johns Hopkins University Press
HUMAN RIGHTS QUARTERLY Vol. 30
2008 following a terror threat linked to the reprinting of the cartoons.3 The
reprinting was caused by the arrest by Danish police on 13 February 2008 of
three men allegedly plotting to kill one of the artists. The Guardian described
how the "damaging and emotive saga over the prophet Muhammad cartoons
4
was still simmering dangerously."
In October 2007, the far-right Danish People's Party unveiled an election
advertisement depicting a hand-drawn representation of the Islamic prophet
under the slogan "Freedom of speech is Danish, censorship is not."' The
advertisement was condemned by at least one Danish Muslim organization,
which termed it a "provocation." 6 On 17 September 2007, the Swedish
cartoonist Lars Vilks was taken to a secret location by the Swedish Secret
Service following an announcement by the purported head of AI-Qaida in
Iraq, Abu Omar al-Baghdadi, offering a reward of $100,000 to anyone who
kills him. 7 Vilks had drawn a cartoon showing the Prophet Muhammad's head
on a dog's body which was published by Nerikes Allehanda newspaper on
18 August.8 Sweden has received more than 18,000 Iraqi refugees in the past
year.9 As a result, the Swedish Prime Minister "has called for mutual respect
between Muslims, Christians and non-religious groups to try to avert a wider
conflict in the country." 10
The terms of the debate appear unchanged; freedom of expression
is once again in conflict with religious belief. The greatest champions of
freedom of expression in the context of the cartoons are, unsurprisingly,
the political party and newspapers involved. When asked by the news-
paper Nyhedsavisen why she used the image in December's election,
Danish People's Party leader Pia Kjaersgaard asked: "Why shouldn't we?
Is it forbidden? Self-censorship is bad." 1" In Sweden, "Nerikes Allehanda
published Vilks's drawings with an editorial criticising Swedish art galleries
for refusing to exhibit the cartoons." 12 Similarly, the editor of Jyllands-Posten
3. Roxanne Escobales, Denmark Evacuates Embassies After 'Concrete' Terror Threat, GUARD-
IAN (London), 23 Apr. 2008, available at http://www.guardian.co.uk/world/2008/apr/23/
muhammadcartoons.afghanistan.
4. Robert Tait, Three Arrested in Denmark over Plot to Kill Muhammad Cartoonist, GUARD-
IAN (London), 13 Feb. 2008, available at http://www.guardian.co.uk/world/2008/feb/1 3/
muhammedcartoonrow.
5. Gwladys Fouch6, Danish Election Ad Reignites Muhammad Cartoon Controversy, GUARD-
IAN (London), 25 Oct. 2007, available at http://www.guardian.co.uk/cartoonprotests/
story/O,,21 99006,00.html.
6. Id.
7. Swedish Cartoonist Gets Protection, BBC NEWS, 17 Sept. 2007, available at http://news.
bbc.co.uk/2/hi/middleeast/6999652.stm.
8. Id.
9. Louise Nordstrom, Artist Under AI-Qaida Death Threat in Hiding, GUARDIAN (London), 18
Sept. 2007, available at http://www.guardian.co.uk/alqaida/story/0,,2171380,00.html.
10. Id.
11. Fouch6, supra note 5.
12. Nordstrom, supra note 9.
2008 Cartoon Violence and Freedom of Expression
responsible for the cartoons stated: "Some Muslims reject modern secular
society. They demand a special position, insisting on special consideration
of their own religious feelings. It is incompatible with secular democracy
and freedom of expression, where one has to be ready to put up with
scorn, mockery and ridicule."13
Humorists in general, and cartoonists in particular, have more lati-
tude to attack established ideas, because the cartoonist "can say and do
things that the responsible statesman, and even the responsible journal-
ist, cannot say and do." 14 The cartoon is "an ideal medium for suggesting
what cannot be said by the printed word.""5 A cover story on political
cartoonists in Newsweek once noted that "[alcademics-and some politi-
cal professionals-are a little in awe of the freedom cartoonists enjoy to
commit outrages that would read like lunacy in print." 16 The author of the
piece, Jeff McNally, pointed out that he knew "many great cartoonists who
if they couldn't draw would be hired assassins." 7 Yet the cartoonist is also
a victim, vulnerable to retribution by state and private actors. Derso and
Kelen, in United Nations Sketchbook: A Cartoon History of the United
Nations, remark that "the role of the caricaturist in a democratic world
is something like that of a jester in a medieval court .... It is not known
that a court jester was ever hanged for a joke; or perhaps history does not
record such a minor event." 8
This article examines the history of cartoon satire in Section II, in or-
der to highlight the role cartoonists have played in challenging authority,
whether religious or political. Cartoons have also been vehicles for racial and
religious prejudice, and it is asked whether stereotypical or discriminatory
portrayals of racial and religious groups are to be tolerated in contemporary
discourse. Section III details the Danish cartoon controversy, outlining the
factual events and their legal implications. Section IV looks to the response
of the United Nations and whether the Danish cartoons are to be considered
a form of religious defamation or a form of racial discrimination, or indeed
whether they are to be protected under the aegis of the right to freedom of
expression. In conclusion, the dangers posed to both religious minorities
and cartoonists are considered.
13. Quoted in Kevin Boyle, The Danish Cartoons, 24 NETH. Q. HUM. RTS. 185, 187 (2006).
14. Roy Douglas, The Political Cartoon Society, 19th Century Ireland and the Cartoonists,
available at http://www.politicalcartoon.co.uk/htm/history7.html.
15. Thomas Milton Kemnitz, The Cartoon as a Historical Source, 4 J. INTERDISc.HIsT. 81, 84
(1973).
16. Quoted in RANDALL P. HARRISON, THE CARTOON: COMMUNICATION TO THE QUICK 124 (1981).
17. Id.
18. ALOYSIus DERSO & EMERY KELEN, UNITED NATIONS SKETCHBOOK: A CARTOON HISTORY OF THE UNITED
NATIONS 9-10 (1950).
II. HISTORY OF CARTOON SATIRE
A. The Growth of Caricature
Cartooning is an outgrowth of caricature. 9 "Caricature" derives from the Italian

caricare, meaning to load, and implies exaggeration, while the later "cartoon"
derives from the Italian cartone, meaning stout paper, and came to signify a
line drawing on paper2 The original use of the word "cartoon" was to describe
a "preliminary sketch for a large work of fine art"; 2' it had no independent
value in itself. Johnson, writing in 1937, describes the distinction:
Caricature is an ancient art. What is believed to be the oldest existing caricature
was discovered recently in Egypt and dates from about 1360 B.C. The day of the
cartoon began with the invention of printing, and naturally enough seventeenth
century Holland was its birthplace. The Holland of that day teemed with excel-
lent artists, and as a flourishing republic was one of the few countries where
men might speak their minds freely. The cartoon prospers in an atmosphere of
22
political freedom.
Randall Harrison goes further back in describing the first cartoons. He claims
that "[t]he earliest evidence of human communication exists today in the an-
cient cave drawings of southern Europe. These strange cartoon-like figures date
back more than 30,000 years."23 He asks whether these cartoon-like figures
are deliberate or a reflection of the ability of the artists: "Many writers have
assumed that the early cave artists could draw no better ...[ylet in at least
some of this ancient work, there appears to be a sense of exaggeration and
fun which would be perfectly at home in a twentieth century caricature."24
On the origin of the political cartoon, he also looks to Egypt: "the oldest
known political caricature dates from 1360 B.C.; it was an uncomplimentary
drawing of King Tutankhamen's father. That would make political cartooning
definitely the oldest of the cartoon arts, with a 3300-year history."2"
John Geipel looks for caricature in the art of ancient Greece and Rome,
describing how "[m]any of the terracotta vases of ancient Hellas, and
the wall paintings and mosaics of Pompeii, Herculaneum and Rome, are
19. Johnson, supra note 1, at 21.

20. Id. at 21 n.1.
John Geipel notes that "[tihe term 'caricature' was carried to France in
1665 by Giovanni Lorenzo Bernini, the Italian painter, sculptor and architect whose
influence as a proto-cartoonist is frequently glossed over." JOHN GEIPEL,THE CARTOON: A
SHORT HISTORY OF GRAPHIC COMEDY AND SATIRE 56 (1972).
21. HARRISON, supra note 16, at 79-80.
23. HARRISON, supra note 16, at 71.
24. Id. at 72. In support, he prints a depiction of a drawing found atTassili n'Ajjer in Africa
and dating from about 4000 B.C., where the nose of the figure is clearly disproportion-
ately large.
25. Id.
decorated with burlesque figures-pot-bellied, drop-nosed and ludicrously

cavorting-intended as profane parodies of the high gods of the Olympian
pantheon." 26 He highlights one of the earliest examples of graphic satire, a
"crude caricature" from the Roman period "ridiculing Alexamenos, a Chris-
tian, who is shown at the foot of a crucifix upon which is impaled the Son
of God with the head of an ass." 2 7 In general, however, the victims of the
graphic satirists of antiquity "were very different from those civil, military
and religious dignitaries beloved of the cartoonists of our own time." 28
Humor is "an especially sensitive indicator of social attitudes." 29 Spiel-
mann, the historian of Punch, emphasized the importance of the cartoon to
understanding history. He stated that the cartoon "is not to be considered
merely as a comic or satirical comment on the main occurrence or situa-
tion of the week, but as contemporary history for the use and information
of future generations cast into amusing form for the entertainment of the
present."30 Spielmann isdistinguishing between two types of cartoon. Thomas
Kemnitz notes that "'[c]artoon' is an imprecise term which is now applied to
a multitude of graphic forms" but can broadly be categorized into "cartoons
of opinion and joke cartoons."31 The distinction is carefully made by the
artists and the journals which publish them, so that a joke cartoon will ap-
pear separately while a cartoon of opinion will appear on the editorial page.
"The cartoon of opinion has a long and varied history since Martin Luther
employed it against his opponents .... It has been employed frequently and
effectively as an aid in building up resistance to the policies of politicians
and as a weapon of propaganda, generally in ridicule."32
The power cartoons of opinion wield relative to the printed word is a
legacy of their commercial history. The cartoon of opinion was not incorpo-
rated into early newspapers "but was published independently in broadsheet 33
form at highly irregular intervals under the impact of momentous events."
Kemnitz notes that "[w]hen cartoons were sold separately, they were not
subject to the censorship and libel laws hampering newspapers." 34 Even when
cartoons of opinion were subsumed into newspapers, they continued to enjoy
a separate status; "[e]ven today the cartoon is used for attacks on politicians
that would be difficult to sustain in any other medium."3 5 Incorporation did
26. GEIPEL,supranote 20, at 47.

27. Id.
28. Id. at 48.
29. Ruth Thibodeau, From Racism to Tokenism: The Changing Face of Blacks in New Yorker
Cartoons, 53 Pus. OPINION Q. 482, 484 (1989).
30. Kemnitz, supra note 15, at 81 (quoting M. H. SPIELMANN,CARTOONS FROM PUNCH (1906)).
31. Id at 82.
32. Id. at 84.
33. W. A. Coupe, Political and Religious Cartoons of the Thirty Years' War, 25 J. WARBURG
& COURTAULD INST. 65, 65 (1962).
34. Kemnitz, supra note 15, at 84.
35. Id. at 85
temper the impact of cartoons, because "no single cartoon could make the
package unacceptable to the buying public. Thus the cartoon lost its scur-
rilous and bawdy character as well as most of its viciousness and much of
its bite." 36 On the other hand, cartoons gained a much wider audience.
Harrison charts the rise of the political cartoon in Holland and England.
"The English artist William Hogarth (1697-1 764) is usually considered the 'first
cartoonist' in Western history," and was also "the first political cartoonist."3 7 Its
impact was quickly felt, and "the rage for caricature spread like an epidemic
through fashionable London."3 8 "Soon the cartoon, as a form of social protest
and political persuasion, spread throughout Europe, and eventually around
the world."3 9 Harrison describes some of the key early figures:
In Spain, Goya (1746-1828) established himself as a painter of great power. But he
also drew cartoons which put him at odds with the monarch, Fernando VII. After
repeated difficulties, Goya moved to France, where he died in exile .... In France,
Honor6 Daumier (1808-1 879) raised cartooning to a fine art-and it landed him
in prison. His caricatures of King Louis-Philippe as a bloated monster were not
appreciated by the monarch. After one prison sentence, Daumier ran into trouble
again for his cartoon attacks on the French legislature .... To a large extent, the
40
style and power of the political cartoon were set by Goya and Daumier.
Humor and cartoons have been used to portray racial prejudice in the past.
L. Perry Curtis describes how, in the notorious nineteenth century cartoons
which appeared in Punch magazine, "the facial angles of the Irish por-
trayed in English cartoons of the mid-Victorian period" were related "to the
scientific folklore of physiognomy."4 As Roy Douglas puts it, "Irish people
appear with almost simian features." 42 John Appel attributes the origin of
these "subhuman Celtic gorillas" to the illustrator George Cruikshank and
quotes his biographer who said that the etchings: "represent the native so
utterly brutalized and revoltingly savage in aspect and act that we wonder
some irate Celt has not, more Hibernico, settled the question with the artist
by knocking out his brains with a bludgeon, or furtively shooting him from
43
behind a hedge."
In the United States, political cartoonist Thomas Nast was the creator of
an "orang-outang Celt, all jaw and no brain." 44 He drew a "vicious cartoon
36. Id. at 88.

37. HARRISON, supra note 16, at 74. Harrison adds: "The Japanese have their own candidates
in the East, dating back to the 12th and 13th centuries."
38. GEIPEL, supra note 20, at 58.
39. HARRISON, supra note 16, at 74-75.
40. Id. at 75. He describes Daumier as "the patron saint" of political cartooning.
41. Kemnitz, supra note 15, at 89 (citing L. PERRYCURTIS, APES ANO ANGELS: THE IRISHMANIN
VICTORIAN CARICATURE(1971)).
42. Douglas, supra note 14.
43. John J.Appel, From Shanties to Lace Curtains: The Irish Image in Puck, 1876-1910, 13
COMP. STUD. IN Soc'Y & HIST. 365, 372-73 (1971).
44. Id. at 373.
of St. Patrick's Day, 1867, showing ape-faced Irish thugs brutally clubbing
New York's finest," in the satirical magazine Puck.4 Appel documents how
this image had changed dramatically by the early twentieth century. He
describes the shift in caricature: "in 1884, Puck pictured St. Patrick as a
Catholic Bishop with a large bottle of rye whiskey in one hand, snakes un-
derfoot, his miter askew on a bearded, ape-like face. Within twenty years,
for St. Patrick's Day of 1904, he became a whimsical leprechaun, a friendly,
pixie-like creature." 46 Appel makes some incisive comments on the transfor-
mation of caricature: "Puck's Irish stereotypes remind us that such meanings
are subject to change and relatively speedy reinterpretation." 47 He grounds
this observation in the social mores of the time and cautions:
[W]hile ethnic caricature during the nineteenth century was paternalistic, not
infrequently degrading, and sometimes clearly hostile, it had not yet become
a systematic attempt to deny any group so caricatured a common humanity.
Unfortunately, before long, such attempts were made by men of education
and influence. The invention of an invidious, "scientific" rationale for denying
the worth and equality of certain groups, particularly Negroes and "new" im-
migrants, has made us justifiably wary of comic ethnic stereotypes, whatever
their original intention.48
Tracing the imagery of African-Americans in New Yorker cartoons, Ruth Thi-
bodeau describes how "prior to the civil rights movement, a cartoonist could
probably portray blacks in an openly stereotypic or derogatory fashion with
relative impunity. In particular, the depiction of blacks in subservient roles,
under conditions of segregation, or as 'savages' in jungle settings would have
49
raised few eyebrows among white viewers in the 1940s and early 195 Os."
Thibodeau finds that while clearly such depictions no longer appear in the
New Yorker, there is a continuing absence of minority representation in car-
toons. She asks: "Why aren't blacks being portrayed prominently for nonracial
reasons?" 0 She proposes that this under-representation may be a result of "the
desire of cartoonists or their editors to avoid appearing racist"; "cartoonists
face the risk of inadvertently invoking a stereotype associated with blacks
and, thus, may find themselves open to the charge of racism."5"
Recently, the Commission for Racial Equality in the United Kingdom
called for all book shops to stop selling Tintin in the Congo, a 1930s graphic
novel by the Belgian writer Herg ,5 2 describing it as follows: "This book
contains imagery and words of hideous racial prejudice, where the 'savage

46. Appel, supra note 43, at 371.
47. Id. at 373.
48. Id. at 374.
49. Thibodeau, supra note 29, at 483.
50. Id. at 492.
51. Id.
52. According to Jol Kotek, Herg6, "Belgium's most important cartoonist ... was an anti-
Semite." See infra note 76.
natives' look like monkeys and talk like imbeciles." 3 Ast~rix, the other great
francophone cartoon hero, was recently declared "unfit to be official ambas-
sador for children's rights" by the French branch of the Defense for Children
International, 5 4 following the character's appointment by DominiqueVersini,
the state's Children's Defender, as the official promoter of the UN Conven-
tion on the Rights of the Child."5 Ast~rix was said to be "too French, too
violent, he perpetuates stereotypes and his outlook conflicts with the spirit
of the European Union."16 In Mexico, a series of postage stamps released in
2005 commemorating "the cartoon character Mimin Pinguin or 'little devil,'
a "dark-skinned black boy with 'exaggerated lips, large eyes, and somewhat
simian body language"' invented in the 1940s, was criticized as being "in-
sensitive toward black Americans.""7 Vicente Fox, then President of Mexico,
defended the stamps, stating that he found it "odd not to understand ...
this tribute the Mexican post office is making to Mexican cartoonists." 8 Op-
59
ponents pointed out that "Mexico is just in denial on race issues."
B. CARTOONS AND RELIGION
In cartoons in the contemporary media, "[plolitical subject-matter now pre-

dominates over purely religious questions." 6° Yet there is an "old tradition
of Biblical parody" stemming from medieval times, and in German-speak-
ing lands in the fifteenth and sixteenth centuries a single sheet of paper
bearing a woodcut or copperplate engraving with a commentary in verse
or text, a traditional form of communication, was adopted as a vehicle for
religious satire by Protestant reformers.61 Martin Luther utilized this form of
53. Lee Glendinning, Tintin's Congo Book Moved out of Children's Section in Race
Row, GUARDIAN (London), 12 July 2007, available at http://www.guardian.co.uk/race/
story/0,,2124395,00.html. The book was moved out of the children's section and into
the adult graphic novels section in UK Borders bookshops as a result. Current editions
of Tintin in the Congo include a foreword noting the colonialist attitudes prevalent at
the time.
54. Charles Bremner, Asterix is Harmful for Children, TIMES(London), 1 June 2007, available
at http://timescorrespondents.typepad.com/charles-bremner/2007/06/the-cartoon-exp.
html.
55. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N.
GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept.
1990), reprinted in 28 I.L.M. 1448 (1989).
56. Id. Versini called the fuss "a storm in a teacup." She added: "We thought that the ad-
ventures of Astdrix would enable us to speak to children about their rights with humour
and tenderness."
57. Taunya Lovell Banks, Mestizaje and the Mexican Mestizo Self- No Hay Sangre Negra,
So There Is No Blackness, 15 S. CAL. INTERDISC.L. J.199, 202 (2006).
58. Id.
59. Id. at n.28.
60. Coupe, supra note 33, at 66.
61. Id. at 65-66, 74.
satire and "as early as 1521 had set an example of pictorial polemicism
in his collaboration with Melanchthon and Cranach in the production of
Passional Christi und Antichristi." 62 Similarly, seventeenth century satirists,
"[Ihike [their] medi[e]val predecessors .. .had no mawkish hesitation in
parodying Biblical texts." 63 Coupe remarks:
The marked preponderance of political over purely religious satire in our period
reflects the changing mood of the age-theological questions no longer predomi-
nate in men's minds as they did in Luther's day, but have been largely translated
into political issues, and the priest now plays a r6le distinctly subordinate to
64
that of the statesman in the moulding of human affairs.
He distinguishes between the religious satire of Luther's time and the political
satire of today by underlining the differing aims of the satirists:
[P]olitical satire is usually wise after the event and seeks to set a coping stone
on the defeat of a foe by ridiculing him ...religious satire had no such happy
purpose, however.., it was the direct expression of great emotional tension-
tension which was usually brought about initially by political events-but its
psychological function was not to release tension by means of laughter-rather
the opposite. In the first place the issues involved were much too serious to
admit of genuinely humourous treatment . . .the Order of Jesus and all it
stood for could not be overcome by a stroke of the sword. The religious satirist
commented not so much on individual events as on more or less permanent
states and his work is not the expression of relief and some measure of human
sympathy, however slight: it is the product of intense detestation. 65
Geipel notes how illiteracy was the norm during the Reformation, and as a re-
sult Catholics and Protestants alike made copious use of crude woodcuts:
In these gauche and invariably artless forerunners of the propagandist cartoon,
we see Papist, Lutheran and Calvinist alike held up to ridicule and undergoing
a gamut of outrageous indignities. These abusive and often obscene clapper-
claws appealed enormously to a primitive European population hysterical with
66
religious mania.
Coupe sees the end of an epoch of religious pictorial satire in the period
around the Thirty Years' War, which "began with the Lutheran Reformation
and drew its inspiration from the iconographical traditions of the late Middle
Ages."67 "Caricature was a device which simply had not been discovered at
the time" and "it was only in the more democratic atmosphere of Holland
62. Id. at 66.

63. Id. at 74.
64. Id. at 80.
65. Id. at 80. "The fundamental aim of the religious satirist is to exalt his own faith at the
expense of that of his opponents." Id. at 82.
66. GEIPEL,supra note 20, at 54.
67. Coupe, supra note 33, at 86.
and England that caricature was to become a national institution." 68 Coupe

intimates that religious satire was a tradition of the Middle Ages carried into
the Reformation, but that "the graphic satire of the Thirty Years' War looks
69
to the past rather than to the future."
Therefore the explosion of cartoon satire that emanated from Holland
and England was not concerned with religion. William Hewison remarks
that "[cluriously, the Victorian middle classes ... would have suffered apo-
plexy over a joke against their Christian religion."70 There appears to be few
examples before the twentieth century of religious satire in cartoons. One
series that has been documented is by the late nineteenth-century American
cartoonist, Thomas Nast, who penned "savagely anti-Catholic cartoons, in-
cluding one picturing Cardinals looking strikingly like crocodiles crawling
up on the beaches to menace children."71
Tim Benson, in describing the history of contentious cartoons, points to
an early twentieth century example involving Muslims:
81 years ago, David Low caused a similar response from the Muslim world when
he drew a rather benign looking Muhammad looking up at the then English
cricket-hero, Sir Jack Hobbs. Appearing in the Indian version of the Morning
Post, it, according to a Calcutta correspondent "convulsed many Muslims in
speechless rage. Meetings were held and resolutions of protest were passed."
Cartoonists are thus only too aware that to approach religion as a subject can
72
be a minefield.
Anti-Semitic cartoons were prevalent throughout the twentieth century. George
Goodwin, examining the interaction between cartoons and Jews, points out
that "[f]or centuries, Jews . . . have been the victims of ridicule and hatred.
Throughout Europe they have been portrayed as demons-ugly, lecherous,
grasping and evil-unlike other humans." 73 Writing before the Danish car-
toons controversy, he notes that "[t]here have been few theoretical studies
of cartoons-why they are made and their salient characteristics." 74 He finds
that "[o]pinions are deeply divided over their importance. Many scholars
68. Id. at 85, 86.

69. Id. 86.
70. WILLIAM HEWiSON, THE CARTOON CONNEcTION: THE ART OF PicTORIAL HUMOUR 50 (1977). Hewison,
writing in the mid-1 970s, recounts how, while walking near his home, he saw
a drawing of Christ crucified and from his mouth was drawn a speech balloon containing the words:
"What a way to spend Easter." To an atheist ... this is very funny. To the practising Christian it is
not only in bad taste, it issacrilegious, too. I'm certain that no magazine or newspaper which is
aimed at the general reader could afford to print that cartoon.
Id. at 51.
72. Tim Benson, The Political Cartoon Society Contentious Cartoon, available at http://www.
politicalcartoon.co.uklhtml/history/contentious-cartoon.html.
73. George M. Goodwin, More than a Laughing Matter: Cartoons and Jews, 21 MOD. JuDAisM
146, 146 (2001).
74. Id. at 147.
dismiss them as gimmicky, tedious, and insipid. Others believe, at an op-

posite extreme, that all cartoons . . . decode profound mysteries of modern
(and postmodern) society." s
For a recent book on anti-Semitic cartoons, Joel Kotek of the Free Uni-
versity of Brussels "searched the Internet daily for anti-Semitic cartoons in
the Arab media for over two and a half years and found about 2,000."76 He
divides the analyzed cartoons into ten themes, including deicide, "masters of
the world," blood libel motif, and zoomorphism. 7 7 The category zoomorphism
is described as a "very common theme throughout the world" with two of
the predominant anti-Semitic zoomorphic motifs being "the blood-thirsty
78
vampire and the octopus." He shows the continuation of anti-Semitic im-
ages, whereby "[iun 1934 a Nazi cartoonist drew an octopus with a Star of
David whose tentacles covered the globe"; while "[a] cartoon in the weekly
La Revue du Liban shows an octopus with a Star of David on its body, its
tentacles strangling Fatah, Jihad and Hamas." 79 Similarly, "the Israeli press...
occasionally present Arafat as a pig or snake." 80 He states: "This approach
of zoomorphism exists in every culture and has cultural specifics. The snake
is used by almost everybody. It appeared very often in French caricatures
about the Germans before the Second World 81
War and vice versa. The Hutus
in Africa consider the Tutsis cockroaches."
Benson points to current difficulties between cartoonists and Jewish
groups:
[W] hen The Independents Dave Brown drew a cartoon of Ariel Sharon eating a
Palestinian baby, in an allusion to a well known Goya painting, to comment upon
Israel's treatment of the Palestinians, many Jewish people believed the imagery
in the cartoon had been lifted straight from the virulent anti-Semitic Nazi organ
Die Sturmer. They believed Brown was intentionally making reference to the
medieval blood libel where Jews had been falsely accused of slitting the throats
of Christian children in order to use their blood to butter their matzah. Primarily
due to its contentious subject matter, the cartoon was voted Political Cartoon
of the Yea[r] 2003 by members of the Political Cartoon Society. This82 resulted in
the society receiving the condemnation of Jews around the world.
Furthermore cartoons have prompted dissonance within Judaism. An October
2007 report in Haaretz describes a crisis between the Ashkenazi and Sephardi
ultra-Orthodox when the spiritual leader of the political party Shas, Rabbi
75. Id.
76. Jerusalem Center for Public Affairs, Major Anti-Semitic Motifs in Arab Cartoons: An Inter-
view with Jol Kotek, 1 June 2004, available at http://www.jcpa.org/phas/phas-21 .htm.
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. Benson, supra note 72.
Ovadia Yosef, saw a cartoon in Yeted Ne'eman, the flagship journal of the
"Lithuanian wing" of the Ashkenai Haredim. 83 The cartoon was denounced
as an "anti-Semitic cartoon that would not have shamed any anti-Semitic
paper in the world," and resulted in "Shas announcing its resignation from
the religious lobby in the Knesset."8 4 The symbols used in the cartoon were
"loaded with anti-Semitism and racism of the sort Ashkenazi ultra-Orthodox
feel about Sephardi Haredim." s
There is no contemporary official tolerance for racially offensive cartoons.
This leads to the question whether future generations will view cartoons that
are religiously offensive in a similar vein. Harrison notes that: "The editorial
cartoon has had a long and honorable history. But its social and psychologi-
cal impact remains obscure. The editorial cartoon appears to be increasingly
humorous, increasingly popular and perhaps increasingly angry."8 6 Is the
current defense of cartoons, such as those that appear in Jyllands Posten
and Nerikes Allehanda, which stereotype or attack members of a religious
group, akin to the tolerance of racist cartoons in the previous century?
From the point of view of the cartoonists, their profession has always
been under threat. Donna Arzt describes two recent instances of repression
as a result of cartoons:
In Saudi Arabia, two newspaper editors were sentenced to prison and to hundreds
of lashes for printing a comic strip from the syndicated series "B.C.," which
facetiously questioned the existence of God, while in Iran, a cartoonist and
his magazine editor were similarly sentenced for a drawing of a soccer player
87
adjudged to resemble the late Ayatollah Khomeini.
It is not just in Saudi Arabia and Iran that cartoonists are threatened. In
Spain, two cartoonists from the satirical magazine El Jueves were fined in
November 2007 for depicting Crown Prince Felipe and his wife Letizia having
sexual intercourse; slandering or defaming the royal family in Spain carries
a penalty of up to two years in prison. 88 On 21 July 2003, the US Secret
83. Ettinger, Yair, Cartoon Spat Prompts Shas to quit Knesset Religious Lobby, HAARETZ, 16
Oct. 2007, available at http://www.haaretz.com/hasen/spages/913196.html. The cartoon
is described as follows: "a man dressed in shorts and sandals wearing a skullcap and
trimmed black beard, representing a Shas follower, in cahoots with a secular person
representing Kadima. Wearing a big grin, the two were dumping a rock labelled '2008
cuts' on the head of a Haredi man." It was prompted by confrontation over the 2008
state budget and its allocations to religious institutions.
84. Id.
85. Id. (citing Shas spokespersons).
86. HARRISON, supra note 16, at 125.
87. Donna E. Arzt, The Role of Compulsion in Islamic Conversion: Jihad, Dhimma and
Ridda, 8 BUFFALOHUM. RTS. L. REv. 15, 42 (2002).
88. Spain Royal Sex Cartoonists Fined, BBC NEws, 13 Nov. 2007, available at http://news.
bbc.co.uk/7/hi/world/europe/7092866.stm. "'Do you realise,' says the crown prince in
the cartoon, 'if you get pregnant this will be the closest thing I have done to work in
my whole life.' lIt]referred to an announcement by the government that it would pay
Spanish couples for each new baby they had."
Service went to the offices of the Los Angeles Times attempting to speak
with its conservative political cartoonist, Michael Ramirez.8 9 The previous
day, the newspaper had published a cartoon by Ramirez:
[It] was a takeoff on the famous Pulitzer Prize winning photograph showing
South Vietnamese General Nguyen Ngoc Loan summarily executing a Viet Cong
prisoner in the streets of Saigon. The cartoon showed a man who resembled
General Nguyen with a gun aimed at the head of a caricature of George W.
Bush. This time, the executioner wore a uniform with the word "Politics" on
it, and the scene took place against the background of Iraq .... Ramirez later
commented that the cartoon was not intended to be an attack on President Bush,
but rather to condemn those persons who sought
90
to use the current situation in
Iraq to assassinate the President's character.
Noting that a cartoon image of "a foreign individual holding a gun to the Bush
caricature's head was enough to trigger a Secret Service investigation," Lauren
Gilbert concludes that "recent attempts by the federal government to chill
the speech of political cartoonists and satirists are particularly disturbing."91
Historically, cartoons have been crucial in portraying dissent against un-
just regimes, whether religious or political. William Marcy Tweed, one of the
"four men [who] controlled New York City" in the late nineteenth century,
was famously ruined by the cartoonist Thomas Nast.92 He declared: "I don't
care so much what the papers write about me-my constituents can't read;
but, damn it, they can see pictures!" 9 The power of the cartoon is undisputed.
Questions arise as to when that power should be curtailed-and by whom.
III. THE DANISH CARTOONS
A. Jyllands-Posten
On 30 September 2005, twelve cartoons of the Prophet Mohammad were

solicited and published in the Danish newspaper Jyllands-Posten.The solici-
tation occurred as a result of a complaint by a Danish author of a children's
book about the life of Mohammad, Kre Bluitgen, "that he could not find
an author brave enough to illustrate his . . . book." 94 His stated intention in
writing the book was to "encourage tolerance in Danish children through
89. Lauren Gilbert, Mocking George: Political Satire as "True Threat" in the Age of Global
Terrorism, 58 U. MlAMi L. REv. 843, 849 (2004).
90. Id. at 849-50.
91. Id. at 885, 886-87.
93. Id. at 39, 42.
94. Robert Post, Religion and Freedom of Speech: Portraits of Muhammad, 14 CONSTELLATIONS
72, 76 (2007).
better understanding of the tenets of Islam."9 s Commenting on this ostensibly

innocent origin of the controversy, Joseph Carens asks: "why would someone
deliberately present information to children about another religion in a way
that the author knows will be offensive to many followers of the religion?
Suddenly the author's agenda does not appear so benign." 96 The book was
eventually published, with ten representations of the Prophet Mohammad;
it is now a best-seller in Denmark. It caused some reaction and the author
received threats, "[blut its publication was overshadowed by the next phase
97
of the affair."
The culture editor of lyllands-Posten invited members of the Danish
Cartoon Society to depict their interpretations of the Prophet Mohammad, in
order to test the "fear of violence from Islamic radicals." 98 Twelve responded,
and their cartoons have a broad range; "[o]ne drawing simply depicts Mo-
hammad in the desert; two combine Mohammad with Islamic symbols like
the crescent and the star; one is of a boy named Mohammad writing 'the
editors of Jyllands-Postenare a bunch of reactionary provocateurs' ... [o]thers
somehow associate the Prophet, Islam or Muslims with terrorism." 99 Of these
latter cartoons, the depiction of Mohammad with a bomb-shaped turban has
become, in the words of its author Kurt Westergaard, "the metonym for the
whole controversy." 00 Westergaard defended his work, an "incendiary but
dignified drawing," and argued: "The cartoon is not directed against Islam
as a whole, but against the part of it that obviously can inspire violence, ter-
rorism, death and destruction." 01 The cartoonist Art Spiegelman commented
on the cartoon that "[i]f the drawing had simply not appeared under the
rubric of 'Muhammad's Face,' it would have been more immediately seen
to specifically represent the murderous aspect of fundamentalism, the one
that . . . made this drawing a self-fulfilling prophecy."102
Initial reaction to the publications was somewhat muted. A peaceful
protest involving approximately 3,500 protestors in Copenhagen took place
on 14 October 2005, and the following day the cartoons were published in
the Egyptian paper AI-Fagr.1 0 3 In December 2005, a delegation of Danish
95. Boyle, supra note 13, at 185.

96. Joseph Carens, Free Speech and Democratic Norms in the Danish Cartoons Controversy,
44 INT'L MIGRATION 33, 36 (2006).
98. Post, supra note 94, at 76.
99. Sune Laegaard, The Cartoon Controversy: Offence, Identity, Oppression?, 55 POL. STUD.
481, 481 (2007).
101. Id. at 76-77 (quoting Art Speigelman, Drawing Blood: Outrageous Cartoons and the Art
of Courage, HARPERS,June 2006, at 48).
102. Id. at 86, n.25 (quoting Speigelman, supra note 101, at 48-49).
103. Rachel Saloom, You Dropped a Bomb on Me, Denmark A Legal Examination of the
Cartoon Controversy and Response as it Relates to the Prophet Muhammad and Islamic
Law, 8 RUTGERSJ. L. & RELIGION 3, 6 (2006).
Muslims "visited Cairo, Damascus, and Beirut, with a forty-three page dossier
regarding the cartoons." 0 4 The role played by the Danish Muslims in rais-
ing awareness of the cartoons has led to accusations that they in some way
cultivated offense among Muslims, and provoked the subsequent reaction.
Sune Laegaard, while not advocating this position, summarizes:
Another problem is that of strategic misuse, e.g. if people deliberately take of-
fence and cultivate ability to do so or circulate offensive utterances ... thereby
settling the issue by the sheer number of offended people (as was arguably
what happened when representatives of Danish Muslim associations travelled
to the Middle East to gain05
support for their domestic struggle by disseminating
the offensive cartoons).'
Kenneth Anderson is far more accusatory:
Instead, all compassion and concern is apparently to be expended upon those
who lit the powder trail, and who yell and scream for joy as the embassies of
democracies are put to the torch in the capital cities of miserable, fly-blown
dictatorships. . . .It was the arrogant Danish mullahs who patiently hawked
those cartoons around the world (yes, don't worry, they are allowed to exhibit
them as much as they like) until they finally provoked
1 6
a vicious response against
the economy and society of their host country. 0
On 19 October 2005, a group of Muslim ambassadors requested a meeting
with Danish foreign minister, Anders Fogh Rasmussen, to discuss the car-
toons. This request was refused.' °7 Kevin Boyle, in a reference to Rasmussen's
conduct and the subsequent decision not to prosecute the editor of Jyllands-
Posten, argues that "[this lack of official response led Danish Muslim groups
to internationalise their protest." 08 He also warns that "it should be noted
that there is considerable evidence that the escalation was encouraged by
some States." 0 9 Carens accepts that manipulation took place but questions
the overall relevance of this: "Of course, the Muslim leaders who lied and
manipulated deserve criticism for their actions, but that does not affect the
question of whether Jyllands-Postenacted badly and whether ordinary Mus-
lims are right to feel aggrieved." 10 He draws parallels with Cold War politics
whereby "[the former Soviet Union published a lot of propaganda about the
treatment of African Americans in the United States, some of it true, some
104. Id.
105. Laegaard, supra note 99, at 488.
106. Kenneth Anderson, Remarks by an Idealist on the Realism of The Limits of International
Law, 34 GEORGIA J. INT'L & ComP. L. 253, 267 n.28 (2006) (quoting Christopher Hitchens,
Stand Up for Denmark! Why Are We Not Defending Our Ally?, SLATE,21 Feb. 2006,
available at http://www.slate.com/id/2136714/.
107. Saloom, supra note 103, 6.
109. Id.
110. Carens, supra note 96, at 37-38.
of it false ... .The distortions and political uses of Soviet propaganda did
not mean that African Americans had no legitimate grievances." "'
A meeting of the Organisation of the Islamic Conference (OIC) in Mecca
in December 2005, which was intended to examine sectarian violence,
was dominated by the cartoons. The conference issued a statement: "[We
express our] concern at the rising hatred against Islam and Muslims and
condemned the recent incident of desecration of the image of the Holy
Prophet Mohamed." 12 Western media has attributed the subsequent reaction
to the dissemination of the cartoons at this meeting in particular:
The meeting in Islam's holiest city appears to have been a catalyst for turning
local anger at the images into a matter of public, and often violent, protest in
Muslim nations. It also persuaded countries such as Syria and Iran to113
give media
exposure to the cartoon controversy in their state-controlled press.
The OIC called on the United Nations to intervene, and in particular, to draft
"a binding resolution banning contempt of religious beliefs and providing
for sanctions to be imposed on contravening countries or institutions."' 1 4 The
immediate UN reaction to the call was positive, with the UN High Commis-
sioner for Human Rights, Louise Arbor, initiating an investigation.
The media in Europe reacted otherwise. In January 2006 the Norwegian
newspaper Magazinet re-published the cartoons. There followed a wave of
re-publication in February 2006, with five European newspapers following
the Norwegian example: Italy's La Stampa, Germany's Die Welt, Spain's El
Periodico, the Netherlands' Volkskrant, and France's France Soir.15 France
Soir ran a front page cartoon of Buddhist, Jewish, Muslim, and Christian gods
floating on a cloud, with the Christian deity commenting: "Don't complain,
Muhammad, we've all been caricatured here." 16 Copies of the newspaper
were confiscated in Morocco and Tunisia, and its editor, Jacques LeFranc,
was sacked. Newspapers in the United Kingdom and the United States did
not publish the cartoons.1 7 Governments in predominantly Muslim countries,
including Jordan and Yemen, brought criminal proceedings against editors who
111. Id. at 38.

113. Daniel Howden, David Hardaker, & Stephen Castle, Howa Meeting of Leaders in Mecca
Set off the Cartoon Wars Around the World, INDEPENDENT (London), 10 Feb. 2006, at 36,
available at http://www.independent.co.uk/news/world/middle-east/how-a-meeting-of-
leaders-in-mecca-set-off-the-cartoon-wars-around-the-world-466109.html.
115. Id. 9.
116. Id.
117. Id. 10. However The Spectator magazine in the United Kingdom very briefly displayed
the cartoons on its website, but they were removed the same day. See Chris Tryhorn,
Spectator Makes Cartoon U-turn, GUARDIAN (London), 2 Feb. 2006, available at http://
www.guardian.co.uk/media/2006/feb/02/newmedia.race.
published the cartoons. " 8 Malaysia enacted a law declaring it "an offence for
anyone to publish, produce, import, circulate or possess the caricatures."' 1 9
There were many motivations behind the decisions to reprint the cartoons.
Human Rights Watch describe some of them: "giving their readers a first-hand
opportunity to judge the cartoons themselves, showing solidarity with the
Danish newspaper, provoking further controversy, or even reflecting hatred
towards Muslims." 20 UN Special Rapporteur on Racism, Doudou DiL-ne,
notes how re-publication came almost directly after Jyllands-Postenhad issued
an apology for the cartoons on 30 January. 21 He states: "In re-publishing
the Danish cartoons at the very moment when Jyllands-Posten apologized
for the offence they might have given, these newspapers signalled that they
preferred confrontation to dialogue with the domestic and foreign Muslim
constituencies that took exception to the cartoons." 122 Tariq Modood also
concludes that "republication of the cartoons across23continental Europe...
was deliberately done to teach Muslims a lesson."
Irrespective of the reasons, "by February 2006[,] an extraordinary outcry
had spread to the Muslim world at large."' 24 In Damascus, Syria, protestors
"torched the Norwegian Embassy and the Danish embassy." 2 ' In Lebanon,
"[tihousands of protestors packed the streets of Beirut. . . setting the Danish
26
consulate on fire." It "escalated into fights between Muslims and Christians."
Lebanon's Interior Minister, Hassan al-Sabaa, resigned, and the ten-story
Danish embassy was completely destroyed. In Tehran, the Danish embassy
was also attacked by violent protestors, and riots in Pakistan and Afghanistan
led to deaths. Indeed, "[a]ccording to one estimate, 139 people have died"
27
as a result of the cartoon controversy'
118. Background Briefing, Human Rights Watch, Questions and Answers on the Danish
Cartoons and Freedom of Expression (15 Feb. 2006), available at http://hrw.org/english/
docs/2006/02/15/denmarl 2676.htm.
119. Id.
120. Id.
121. Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination: Situation
of Muslims and Arab Peoples in Various Parts of the World, Report by Mr. Doudou
Dibne, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess.,
Provisional Agenda Item 6, T 27, U.N. Doc. E/CN.4/2006/1 7 (2006) [hereinafter Situ-
ation of Muslims and Arab Peoples].
122. Id.
123. Tariq Modood, The Liberation Dilemma: Integration or Vilification?, 44 INT'L MIGRATION
4, 5 (2006).
124. Background Briefing, Human Rights Watch, supra note 118.
125. Protestors Burn Consulate over Cartoons, CNN, 5 Feb. 2006, available at http://www.
cnn.com/2006/WORLD/asiapcf/02/05/cartoon.protests/index.html.
126. Id.
127. Post, supra note 94, at 72 (citing Cartoon Bodycount, available at http://web.archive.
org/web/20060326071135/http://www.cartoonbodycount.com). Randall Hansen also
gives the same figure: "When the protests finally ended, some 139 people were dead."
Randall Hansen, The Danish Cartoon Controversy: A Defence of Liberal Freedom, 44
INT'L MIGRATION 7, 10 (2006).
Tariq Ramadan describes how "[miost people around the world, ob-
serving these excesses, are perplexed: what sort of madness is this, they
ask?"128 He depicts the "fracture [that resulted as] not between the west and
Islam but between those who, in both worlds, are able to assert who they
are and what they stand for with calm-in the name of faith, or reason,
or both-and those driven by exclusive certainties." 1 9 The violent protests
were accompanied by peaceful demonstrations in many states, including
Denmark, Belgium, and Tanzania. Saloom writes, however, that "the violent
protests have greatly overshadowed the peaceful demonstrations."' 30
B. Blasphemy, Racism, and Danish Law
Denmark has regulated against hate speech since 1939 "in response to the
growing racism and anti-Semitism emanating from Hitler's Germany."1 31 In
1971, it amended its Penal Code to fulfill the requirements of Article 4 of the
International Convention on the Elimination of All Forms of Racial Discrimi-
nation (ICERD), 32 which it ratified the same year. Following this amendment,
section 266(b) of the Danish Penal Code, the "racism clause," considers it
an offense whereby "a group of people are threatened, insulted or degraded
on account of their race, colour, national or ethnic origin, religion or sexual
orientation." 133 The "blasphemy clause" of the Code makes it a criminal of-
fense to publicly mock or degrade the religious beliefs or worship of any
religious community. 34 According to Laegaard: "The racism clause protects
persons, or groups of persons, against defamation, whereas the blasphemy
clause protects those religious sensibilities of believers that are connected
to dogmas or rituals deemed central to their religion, but not religious sen-
35
sibilities in general."
Lene Johannessen notes that in the wake of the Penal Code amendments,
there were initially relatively few prosecutions, 3 6 and states that "[i]n 1985,
the existence of violent racism in Denmark was unknown to the public at
128. Tariq Ramadan, Cartoon Conflicts, GUARDIAN (London), 6 Feb. 2006, available at http://
www.guardian.co.uk/cartoonprotests/story/0,,1 703496,00.html.
129. Id.
130. Saloom, supra note 103, at 12.
131. Lene Johannessen, Denmark: Racist Snakes in the Danish Paradise, in STRIKINGA BALANCE:
HATE SPEECH,FREEDOMOF EXPRESSIONAND NON-DISCRIMINATION 140 (Sandra Coliver, Kevin Boyle,
& Frances d'Souza eds., 1992).
132. International Convention on the Elimination of All Forms of Racial Discrimination, ad-
opted2l Dec. 1965, art. 4, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted
in 5 I.L.M. 352 (1966) [hereinafter ICERDI.
133. Quoted in Boyle, supra note 13, at 189. See Danish Penal Code §266(b).
134. See Danish Penal Code §140.
135. Lagaard, supra note 99, at 486.
136. Johannessen, supra note 131, at 141.
large." "37' She points to an article by the cultural anthropologist Jacques Blum,
published in the newspaper Aklueton 28 January 1985 with the "arresting title"
Racist Snakes in the Danish Paradise, as beginning the process of "awakening
complacent Danish public opinion to the new and growing phenomena in
their country of racism, xenophobia and violence directed against foreign-
ers. " 1 8 This awakening resulted in the prosecution of a journalist, Jens Jersild,
in 1985 for aiding and abetting the dissemination of racist speech. Jersild's
prosecution reflected "[t]he media's concern to force a country justly proud
of its liberal plural ethos to accept that things had changed." 39
Jersild successfully challenged his prosecution in the European Court of
Human Rights. 4 °The material in question was an interview with an extremist
group called the Greenjackets, in which they expressed racially discriminatory
viewpoints. The prosecution was widely considered to be harsh and unfair,
given that Jersild did not share the Greenjackets' opinions and the serious
context in which the interviews were conducted. Denmark subsequently
amended the law concerning media liability in 1992,141 pre-empting the
ruling of the European Court. The Jersildcase may have left a residual wari-
ness of hate speech prosecutions in Danish media and society.
No prosecutions resulted from the publication of the Danish cartoons.
According to Kevin Boyle, "[a] formal complaint to the police alleging vio-
lations of the Criminal Code was investigated by public prosecutors who
decided that there were no grounds for prosecution." 42 This would be largely
due to the fact that "[w]hile there is a strong consensus in Europe on the
legitimacy of the restriction of racist speech, there is less over the question
43
of speech that involves targeting the religious beliefs of others."
The Danish Public Prosecutor examined the two strands of the claim
and found that the cartoons did not infringe either of these clauses. On the
question of blasphemy, he found that:
Even though . .. the fact that some of the cartoons were satirical caricatures of
the Prophet Mohammad, and that as such, given the central role of Mohammad
for Islam, they might imply ridicule of or express disdain for Muslims' religious
beliefs or worship in the sense protected by the blasphemy clause, . . . a con-
crete interpretation and evaluation of the cartoons led the Public Prosecutor
to the judgment that the cartoons did not, after all, constitute an infringement
44
of the clause.1
137. Id.
138. Id. at 140.
139. Id.
140. Jersild v. Denmark, 298 Eur. Ct. H.R. (ser. A) (1994), reprinted in 15 HuM. RTS.L.J. 361
(1994).
141. Johannessen, supra note 131, at 143.
143. Id. at 189.
144. Cited in Laegaard, supra note 99, at 486.
On the question of racism, he found: "The cartoons depicted an individual,

Mohammad, and as such could not be taken to be referring to Muslims in
general and that the depictions of Muslims in the cartoons were not insult-
ing or degrading."14 s
In the absence of criminal proceedings, individual Muslims issued civil
charges against Jyllands-Posten,claiming "the cartoons were published with
the intention to defame Muslims," citing section 267 of the Penal Code which
concerns defamation of individuals. 146 These claims were rejected by the city
1 47
court on the same reasoning as that given by the Public Prosecutor.
Laegaard notes that the question of whether a given form of expression
constitutes a violation of the blasphemy or racism clause of the Danish Penal
Code is a matter of interpretation for the Public Prosecutor or the judge.1 48
The decision not to prosecute was based on an "evaluation of the cartoons.
The question was not whether they were offensive in general, but whether
they constituted offence to the 'central religious dogmas' of Islam .... [T]he
Public Prosecutor's more general point was that the cartoons were not that
offensive if at all." 49 He continues: "This might be puzzling, given the fact
that so many Muslims were in fact offended."1 5 0 What is required in effect is
an objective standard of offense, "standards for when offence is reasonably
taken.""' With regard to the Danish cartoons, there were other "contextual
factors" that contributed to the reaction:
[I]tis plausible to claim that the offence actually taken was not just a reac-
tion to the cartoons and the accompanying article, but to what many Muslims
perceived to be the underlying intentions, or the broader pattern of which they
saw the publication as being a part. Jyllands-Posten is a right-wing newspaper
supportive of the tough line of the present Danish government against immigra-
tion and generally quite critical of Islam. In Danish society there is furthermore
an ongoing "culture struggle"152in which Muslims and Islam are often portrayed
as threats to Danish culture.
Robert Post describes the change in emphasis in British legislation governing
blasphemy in the nineteenth century. This evolution entailed a "changing
from a law designed to protect the sacred into a law designed to protect
religious groups."" 3 The European Court of Human Rights endorsed this ap-
proach in Otto Preminger Institut v. Austria,1 4 involving the seizure of a film,
145. Id.
146. Id. at n.7.
147. Id.
148. Id. at 489.
149. Id.
150. Id.
151. Id.
152. Id.
154. Otto Preminger Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994).
Liebeskonzil, which offensively satirized Christian beliefs. The Court argued

in its decision that persons have a right "not to be insulted in their religious
feelings." 55 This entails the concept of speech which is "gratuitously offensive
to others" and does "not contribute to any form of public debate capable of
furthering progress in human affairs." 5 6 Thus, according to Post:
[Tihe state must at a minimum distinguish between "gratuitous" and "non-
gratuitously" offensive speech on the basis of general secular principles that
protect all members of society and reflect universally applicable standards of
civility. Speech cannot be suppressed merely because it is inconsistent with the
religious principles of particular sects."l 7
This points to an approach which condemns the style of speech, rather than
its substance. Post writes that "speech that is expressed in an offensive man-
ner, like Liebeskonzil (or perhaps the Danish cartoons), is not deemed to
contribute to public debate. This is essentially the position of contemporary
British blasphemy law, which permits anything to be said, so long as 'the
15 8
decencies of controversy' are observed."
The danger of such an approach in the context of cartoons is evident. The
place of cartoons as an art form is far from assured. Post highlights the debates
in the British Parliament seventy-six years ago which summarized blasphemy
law as follows: "[W]hat it really comes to is that, where opinions are strongly
held by an educated man, those opinions will be expressed in a way which
the law cannot touch, while those expressed by an uneducated man, simply
because he is uneducated, will come under the penalties of the law."5 9
It has been assumed that all the cartoons are considered blasphemous
by Muslims, that Islamic law forbids any depiction of the Prophet. This is not
necessarily the case. Brendan O'Leary notes that there is a presumption that
"the prohibition of representation of Muhammad is universal among Muslims
when in fact Sufis in Iran historically drew such cartoons." 60 Saloom similarly
points to the difference between the Shiite and Sunni perspective, whereby
"Shiites have demonstrated more openness toward images of Muhammad
in the past." 16' Nevertheless she clarifies that "[t]here is an understanding
both under Shari'a, and Islam generally, that depictions of the Prophet are
prohibited. However, there is no explicit Sura in the Qur'an that prohibits
the imagery of the Prophet .... [although] [t]here is a long tradition under
Shari'a of prohibiting these drawings." 62 Boyle also observes that "[t]he taboo
155. Id. 48.

156. Id. 49.
158. Id. at 80.
159. Id. at 81.
160. Brendan O'Leary, Liberalism, Multiculturalism, Danish Cartoons, Islamist Fraud and the
Rights of the Ungodly, 44 INT'L MIGRATION 22, 32 (2006).
162. Id. 23.
on representation of the Prophet is not contained in the Koran and there have
been images of Muhammad published in the past in Islamic manuscripts
albeit with his features obscured." 16 3 He attributes the reluctance on the
part of the illustrators who were approached by Kre Bluitgen to an aware-
ness of "the deeply rooted stricture in Islam that the Prophet should not be
drawn, a stricture that underscores the reverence in which Muhammad as
God's messenger is held by believers." 164 This reluctance, however, was not
based "solely out of respect for the Muslim faithful, but more from fear of a
165
violent reaction."
Saloom believes that this stricture or tradition prohibiting images of
Mohammad stems from the early history of Islam, which she states is "vital
to an understanding of the current cartoon controversy."1 6 6 In inner Arabia,
before Mohammad's revelation, idol worship was commonplace among
the pagan Arabs. Mohammad's message was that "idols could have no
place in the religion of Islam," and therefore "Islam presented a shift from
idol worship to the focus on the tawhid or oneness of Allah."16 7 Thus "the
Qur'an clearly prohibits idolatry and idol worship. The connection between
the cartoons and idolatry cannot be easily understood outside the histori-
cal context where Muhammad brought the message of Islam to the pagan
Arabs." 16 8 She concludes that "the depiction of the Prophet Muhammad is
prohibited under Islamic law." 169 Hence there has been "condemnation of
the cartoons from both Sunnis and Shiites."1 7° Tariq Ramadan also stresses
that "representations of all prophets are strictly forbidden," and directly links
this to the avoidance of "idolatrous temptations." 1 71 As a result, "to represent
172
a prophet is a grave transgression."
There are difficulties in the interpretation of Europe's residual laws on
blasphemy. "An immediate comment," writes Boyle, "might be that in the
aftermath of this affair there should be serious scrutiny of surviving offences
of blasphemy in Europe."1 73 He finds it "anomalous" that a legal official is
able to determine whether the cartoons ridiculed "the doctrines or worship"
of any religion. Laws on blasphemy were designed to "prevent challenge to
State endorsed Christian truth" and their continued existence "offends both

164. Id.
165. Id. at 185-86. This would have been reinforced by the furor over the publication of
Salman Rushdie's Satanic Verses in 1988 and the murder of Dutch filmmaker Theo van
Gogh.
167. Id.
168. Id. 24.
169. Id. 37.
170. Id. 28.
171. Ramadan, supra note 128.
172. Id.
freedom of religion and freedom of expression" in a multi-religious Europe.174

The Danish Penal Code's "racism clause," 175 is an acceptable means of regulat-
ing speech. This clause is "directed at the protection of religious groups from
prejudice and discrimination by virtue of the beliefs they hold and practice....
To ignore religious sensitivities of new and vulnerable immigrant minorities
176
is to give succour to those whose motivation is xenophobic and racist."
There is a clear distinction at work in European regulations on speech.
Criticism of religion does not enter into that category of conduct roughly
designated by the term "hate speech," unless such criticism advocates the use
of violence. Without the added element of incitement, religious defamation
should not be a criminal offense. This approach reflects a perceived common
European concern that it is somehow necessary to be able to attack religious
beliefs without fear of prosecution. Denmark's Penal Code contains both a
"racism clause" 177 and a "blasphemy clause." 1 78 The latter is anachronistic.
The concern in regulating speech in Denmark should be whether such speech
comes under the broad rubric of racial discrimination. Such considerations
need to include the vulnerability of the group being attacked. The United
Nations response to the Danish cartoons has ultimately reflected this ap-
proach; it is under the prevention of racism rather than freedom of religion
that the cartoons controversy has been analyzed in detail.
IV. THE UNITED NATIONS RESPONSE
A. Charter-Based and Treaty-Based Bodies
The United Nations is divided on the issue. The strongest condemnation of the
cartoons has come from the UN Special Rapporteur on Contemporary Forms of
Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou
Dine, who did not hesitate in labeling the cartoons racist. By contrast, the
Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, has taken
a far more muted approach to the issue of defamation of religion.
Diane found that "the cartoons illustrated the increasing emergence
of the racist and xenophobic currents in everyday life." 7 9 He also stressed
that the political atmosphere in Denmark contributed to a "context of the
174. Id.
175. Danish Penal Code § 266(b).
177. Danish Penal Code § 266(b).
178. Id. § 140.
179. UN News Centre, Racism and Racial Discrimination on Rise Around the World,
UN Expert Warns, 7 Mar. 2006, available at http://www.un.orglapps/news/story.
asp?NewslD=1 7718&Cr=racis&Crl.
emergence of strong racist, extremist political parties and a corresponding

absence of reaction against such racism by the country's political leaders." 10
Prior to the outbreak of the cartoons controversy, Diane produced a report
in 2005 on Defamation of Religions and Global Efforts to Combat Racism:
Anti-Semitism, Christianophobia and Islamophobia for the Commission on
Human Rights.181 That report stated that Islamophobia had two characteristics:
"the intellectual legitimization of hostility towards Islam and its followers,
and the political tolerance of such hostility in many countries."182 He also 183
signaled "persistent Islamophobia in the media" as a cause for concern.
These were prescient statements, which he would re-emphasize following
the Danish cartoons controversy.
The concept of defamation of religions has been a long-time concern of
the OIC, and "[riesolutions on 'Combating Defamation of Religions' have
been tabled and passed annually by the UN Human Rights Commission
since 1999. "184 Their focus has been "largely over the negative experience
of Muslims in Europe." 181 Other states, while endorsing the resolutions in
principle, have not been enthusiastic and consequently there has been a
reluctance to issue "a call for action that effectively focuses on Islamophobia
and Western countries alone."1 86
In the wake of the Danish cartoons, Di~ne's 2006 annual report con-
centrated on the Situation of Muslims and Arab Peoples in Various Parts of
the World, with a section entitled "The Cartoons of the Prophet Muhammad
Published in a Danish Newspaper."187 This section is unquestionably the
strongest attack on the publishers of the Danish cartoons in an international
legal document and represents the only unequivocal criticism of the Danish
newspapers and government with no concomitant emphasis on the need to
protect freedom of expression. He writes: "These newspapers' intransigent
defence of unlimited freedom of expression is out of step with international
norms that seek an appropriate balance between freedom of expression and
religious freedom, specifically the prohibition of incitement to religious and
188
racial hatred."
180. Id.
181. Report Submitted by Mr. Doudou Diane, Special Rapporteur on Contemporary Forms of
Racism, Racial Discrimination, Xenophobia and Related Intolerance: Addendum, Defama-
tion of Religions and Global Efforts to Combat Racism: Anti-Semitism, Christianophobia
and Islamophobia, U.N. ESCOR, Comm'n on Hum. Rts., 61 st Sess., Provisional Agenda
Item 6, U.N. Doc. ECN.4/2005/18/Add.4 (2004).
182. Id. 20.
183. Id. 30.
184. Boyle, supra note 13, at 191 (citing Report to the Economic and Social Council on the
Sixty-First Session of the Commission, Draft Report of the Commission, Rapporteur: Ms.
Deidre Kent (Canada), U.N. ESCOR, Comm'n on Hum. Rts., 61st Sess., Agenda Item
21(b), U.N. Doc. E/CN.4/2005/L.10/Add.6 (2005)).
186. Id.
187. Situation of Muslims and Arab Peoples, supra note 121, 23-32.
188. Id. 28.
He uses the cartoons to signal "an alarming resurgence of defamation of

religions," and argues that the Danish government "failed to show the commit-
ment and vigilance that it normally displays in combating religious intolerance
and incitement to religious hatred." 189 The use of the adverb 'normally' implies
that the Danish government's failure to censure the newspapers editors was
not in line with previous practice. The same could be said of the newspaper
involved. Boyle makes an interesting observation when he points out that
"Jyllands-Posten'scredibility was rather undermined when it emerged that a
set of cartoons lampooning the resurrection of Christ had been rejected sev-
eral years earlier, precisely because they might cause offence to its majority
Christian readership."19 ° Carens also highlights this incident:
Jyllands-Postenchose not to publish some anti-Christian cartoons a few years
previously, and at least partly justified its reactions on the grounds that it did
not want to offend its readers. It is legally permissible in many places to publish
racist and anti-Semitic cartoons, but no major newspaper-or perhaps I should
say no reputable newspaper-in Europe or North America would do so. 191
Diane emphasizes his criticism of the government's actions by referring to the
"national and political backdrop to the publication of cartoons," in which the
government had signed an accord with the far-right Danish People's Party.1 92
He quotes a spokesman of the Danish People's Party, Soren Krarup, who
said that "Muslim immigration is a way for Muslims to conquer us, just as
they have done 1,400 years past." 93 He notes "the increasing prominence
of far-right racist and xenophobic platforms in the political programmes of
traditionally democratic parties." 94 The accusation is that the Danish People's
Party had influenced government policy in its dismissal of Muslim anger
over the Danish cartoons.
In a passage on the terms of the debate as presented by the media and
governments, Diane equates the over-simplification of the classification of
the values in dispute with the art of caricature:
[T]he debate sparked by the publication of the cartoons has revealed the emer-
gence in some intellectual, media and political circles of a rhetoric of clash of
189. Id. 25.

190. Boyle, supra note 13, at 187. See also Gwladys Fouch6, Danish Paper Rejected Jesus
Cartoons, GUARDIAN (London), 6 Feb. 2006, available at http://www.guardian.co.uk/me-
dia/2006/feb/06/pressandpublishing.politics. The editor of Jyllands-Posten distinguished
the "Jesus cartoons," by Danish illustrator Christoffer Zieler, as they were unsolicited:
"In the Muhammad drawings case, we asked the illustrators to do it. I did not ask for
these cartoons. That's the difference." Zieler had received an email from the editor in
2003 when he offered the drawings, which stated: "1 don't think Jyllands-Posten readers
will enjoy the drawings. As a matter of fact, I think that they will provoke an outcry.
Therefore I will not use them."
191. Carens, supra note 96, at 35.
192. Situation of Muslims and Arab Peoples, supra note 121, 26.
193. Id.
194. Id.
cultures and civilizations that divides the world into secular, democratic and
civilized countries that protect freedom of expression, and obscurantist, retro-
grade and backward States that enshrine religious freedom and the position of
religion in society. . . .This line of argument . . . draws on the same spirit of
caricature as the drawings in the Danish newspaper. 95
The report links in to the earlier document which examined not only Islamo-
phobia, but anti-Semitism and Christianophobia. It notes that It] he criticism
of the cartoons by Jewish and Christian community leaders indicates, first
of all, a deeply-held belief that the cartoons exemplify the increasing trend
to defame all religions and the prevailing ideological climate of intolerance
towards religion itself and religious practices."' 96 In conclusion, he identifies
underlying causes for increasing Islamophobia,
[A]s symbolized by the cartoons of the Prophet Muhammad in a Danish news-
paper:
- The precedence of political and ideological considerations over religious
factors;
- The general increase in defamation of religions . ..
- The worldwide crisis of identity ... [and];
- The inadequacy of international law, particularly international instruments
on human 97
rights and combating racism and discrimination, in matters of
religion.'
At its twenty-fourth meeting in June 2006, the newly-formed Human Rights
Council decided to request the Special Rapporteur on Racism and the
Special Rapporteur on Religion to report to its next session on incitement
to racial and religious hatred and their recent manifestations.19 8 The joint
report, Incitement to Racial and Religious Hatred and the Promotion of
Tolerance, was submitted to the second session of the Council in Septem-
ber 2006 and was the first time the special rapporteurs had collaborated
on a specific issue. 99 The positions taken by the special rapporteurs were
decidedly different. For the Special Rapporteur on Racism, in line with his
previous writings, "the increasing trend in defamation of religions cannot
195. Id. 28.

196. Id.
197. Id. 33.
198. Report of the Human Rights Council, U.N. GAOR, 61st Sess., Supp. No. 53, 39, U.N.
Doc. A/61/53 (2006).
199. Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir,
and the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance, Doudou Diane, Further to Human Rights Council
Decision 1/107 on Incitement to Racial and Religious Hatred and the Promotion of Toler-
ance, U.N. GAOR, Hum. Rts. Council, 2d Sess., Agenda Item 2, U.N. Doc. A/HRC/2/3
(2006) thereinafter Jahangir & Dibne Report].
be dissociated from . . . the ominous trends of racism, racial discrimina-

tion, xenophobia and related intolerance which in turn fuel and promote
racial and religious hatred.200
In particular, the combat against terrorism was cited as a major contribu-
tor to the increased levels of racial discrimination, religious intolerance, and
20 1
the marginalization of the Durban Declaration and Programme of Action.
One result is that "[g]overnments, political leaders, intellectual personalities
and the media have flagged and radically set against each other freedom of
expression and freedom of religion." 20 2 Citing racism and xenophobia, rather
than terrorism, as "the most serious threats to democracy,"0 3 Diane notes "the
centrality of the amalgamation of the factors of race, culture and religion in
the post-9/1 1 ideological atmosphere of intolerance and polarization." 20 4 This
atmosphere "favours the incitement to racial and religious hatred . . . [and]
is indicated by the latest controversies about the caricatures of the Prophet
20
Muhammad published by the lyllands-Posten newspaper in Denmark." 1
By contrast, the Special Rapporteur on Religious Intolerance, Jahangir,
is more circumspect on the question of defamation of religion in the report.
She writes that "criminalizing defamation of religion can be counterproduc-
tive" and criticizes the fact that in a number of states, defamation of religion
constitutes a criminal offense. 20 6 Expressions should only be prohibited, she
urges, "if they constitute incitement to imminent acts of violence or dis-
crimination against a specific individual or group." 207 On the link between
religion and race, she states:
The Special Rapporteur cautions against confusion between a racist statement and
an act of defamation of religion. The elements that constitute a racist statement
are not the same as those that constitute a statement defaming a religion. To
this extent, the legal measures, and in particular the criminal measures, adopted
by national legal systems208
to fight racism may not necessarily be applicable to
defamation of religion.
The report commissioned by the Human Rights Council was required to
examine the issue under Article 20(2) of the International Covenant on Civil
and Political Rights (ICCPR), which provides that "[any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility
200. Id. 4.
201. Id. 6.
202. Id. 8.
203. Id. 14.
204. Id. 21.
205. Id. 8.
206. Id. 42.
207. Id. 47.
208. Id. 49.
or violence shall be prohibited by law."2" 9 Jahangir writes that the threshold

of acts committed under Article 20(2) "is relatively high," and points out
the link that has been made between Article 20(2) and ICERD Article 4210
on the prohibition of racist propaganda. 211 The 1981 UN Declaration on
the Elimination of All Forms of Intolerance and of Discrimination based on
Religion or Belief,212 however, contains no provision similar to that in ICERD
Article 4.213 Therefore Jahangir concludes that defamation of religion should
not be considered a racist statement, and should 214 not invoke ICCPR Article
20(2) without concurrent incitement to violence.
Jahangir's comments are representative of the legal instruments that
govern racial discrimination and religious intolerance. While racist speech is
prohibited under Article 4 of the ICERD, no comparable international instru-
ment exists in the area of religion. Her analysis was conducted solely under
ICCPR Article 20(2), and the Danish cartoons do not reach the required level
to constitute incitement under this provision. Diane seems to associate the
cartoons with racist propaganda, as prohibited by ICERD Article 4. Jahangir
appears not to agree with this assessment.
The report's conclusion is a synthesis of the contrasting views of the
special rapporteurs. Its final paragraph states: "Member States should avoid
stubbornly clinging to free speech in defiance of the sensitivities existing in a
society with absolute disregard for religious feelings, nor suffocating criticism
of a religion by making it punishable by law." 215 The final line supports the
conclusion of Jahangir, however, and cautions that "[t]he situation will 21 not
6
be remedied by preventing ideas about religion from being expressed."
It is difficult to reach a conclusion on the joint report. What emerges is
two contrasting viewpoints on the part of the special rapporteurs. Jahangir's
most recent annual report has only one mention of the Danish cartoons
controversy, a communication sent by the Special Rapporteur to Denmark
with Denmark's initial reply,217 which is listed in the summary of cases and
209. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 20, U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171 (entered into force 23 Mar. 1976). On the meaning and reach of
Article 20, see MICHAEL G. KEARNEY, THE PROHIBITION OF PROPAGANDA
FOR WAR IN INTERNATIONAL
LAw (2007).
210 ICERD, supra note 132, art. 4.
211. Jahangir & Dine Report, supra note 199, 48.
212. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief, adopted 25 Nov. 1981, G.A. Res 36/55, U.N. GAOR, 36th Sess.,
Supp. No. 51, U.N. Doc. A/36/51 (1981), reprinted in RICHARD B. LILLICH, INTERNATIONAL
490.1
HUMAN RIGHTS INSTRUMENTS (1990).
213. Jahangir & Diane Report, supra note 199, 49.
214. Id. 47.
215. Id. 66.
216. Id.
217. See Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled
"Human Rights Council," Report of the Special Rapporteur on Freedom of Religion or
Belief, Asma Jahangir, Addendum: Summary of Cases Transmitted to Governments and
does not appear in the main body of her report. Although the cartoons are
ostensibly religious in character, the Special Rapporteur on Racism has
investigated the controversy in far greater detail. Similarly, the Special Rap-
porteur on Racism has taken a more clear and adversarial stance.
Denmark has come before the UN treaty-bodies only once since the
publication of the cartoons. The Committee on the Elimination of Racial
Discrimination examined Denmark's seventeenth periodic report and issued
its concluding observations in October 2006. The Committee confirmed
that the cartoon controversy comes under its purview and referred to "the
refusal by the Public Prosecutor to initiate court proceedings in some cases,
including the case of the publication of some cartoons associating Islam
with terrorism." 18 The Committee recommended:
The State Party should increase its efforts to prevent racially motivated of-
fences and hate speech, and to ensure that relevant criminal law provisions
are effectively implemented. The Committee recalls that the right to freedom of
expression carries special duties and responsibilities, in particular the obliga-
tion not to disseminate racist ideas, and recommends that the State party take
resolute action to counter any tendency to target, stigmatize, stereotype or profile
people on the basis of race, colour, descent, and national or ethnic origin....
Bearing in mind its general recommendation 31 (2005) on the prevention of
racial discrimination in the administration and functioning of the criminal
justice system, the Committee also requests the State party to remind public
prosecutors and members of the prosecution service of the general importance
of prosecuting racist acts.219
The recommendation is worded in the usual style of the Committee, which
is always conciliatory and rarely highly critical. The Committee linked the
Danish cartoons with prosecution and the need to pursue prosecutions in
cases of racist acts. While it is not stating that the cartoons were racist, or
that Denmark ought to have prosecuted the editors, it is nevertheless ex-
pressing its competence to assess the issue and highlighting the Prosecutor's
refusal to initiate proceedings. The Danish Penal Code's, "racism clause,"
rather than the "blasphemy clause," must therefore be considered the ap-
propriate provision for assessing whether the cartoons entailed criminal
liability. Some implicit support for two aspects of Di~ne's position can, as
a result, be read into the Committee's observations: first, that the cartoons
are not a purely religious matter and can be examined under the aegis of
Replies Received, U.N. GAOR, 4th Sess., Provisional Agenda Item 2, 123-28, U.N.
Doc. A/HRC/4/21/Add.1 (2007).
218. Consideration of Reports Submitted by States Parties Under Article 9 of the Convention,
Concluding Observations of the Committee on the Elimination of Racial Discrimination,
U.N. GAOR, Comm. for Elim. of Racial Discrim, 69th Sess., 31July-1 8 Aug. 2006, U.N.
Doc. CERD/C/DEN/CO/1 7 (2006).
219. Id.
racial discrimination, and second, that the decision not to prosecute is one
which engages ICERD Article 4 and could potentially be a violation of the
requirements of that provision.
B. Cartooning for Peace
In October 2006, the UN organized a seminar entitled Cartooning for Peace:

The Responsibility of Political Cartoonists. 220
The seminar had been mooted
before the Danish cartoons controversy by Le Monde cartoonist Plantu,
but the Muslim reaction to the cartoons, followed by the Iranian exhibit of
cartoons denying the Holocaust, gave impetus to the concept and caused
former UN Secretary General, Kofi Annan, to warn against "getting into a
kind of a cartoon war" in his address at the seminar.221 There have been
five seminars since, with a special edition under the title Cartooning for
Human Rights held in Rome from 10 to 12 December 2007 to coincide
222
with Human Rights Day.
At the first seminar, Annan noted that cartoons "have a special role in
forming public opinion-because an image generally has a stronger, more
direct impact on the brain than a sentence does" and in a reference to the
Danish cartoons, emphasized: "few things can hurt you more directly than
a caricature of yourself, of a group you belong to, or-perhaps worst-of
a person you deeply respect." 223 Annan also argued against censoring car-
toonists and urged them to take responsibility for their own creations. Thus,
"cartoons can offend, and that is part of their point"; cartoonists, however,
should "use their influence, not to reinforce stereotypes or inflame passions,
but to promote peace and understanding."224
In the ensuing discussion involving cartoonists from around the world,
a representative of the Danish cartoonists pessimistically concluded: "We
can't understand them. They can't understand us." 22s American cartoonist
Mike Luckovich found, on the other hand, that: "I don't think you should
incite people just to incite them, and I think that's what the Danish cartoon-
ists, or editors, did." 226 The Palestinian cartoonist Baha Boukhari said that he
could "measure freedom in every Arab country by how many cartoonists
they have." 227 He added that he found it "'fascinating' that 'cartooning,'
220. See Cartooning for Peace, available at http://www.cartooningforpeace.org.

221. Quoted in Peter Sanderson, Cartoon Debate Reaches the UN, PUBLISHERS
WEEKLYCOMICS
WEEK, 31 Oct. 2006, available at http://www.publishersweekly.com/article/CA6386699.
html.
222. Cartooning for Peace, supra note 220.
223. Id.
224. Id.
225. Id.
226. Id.
227. Id.
which he described as a 'language without words,' was now 'added to the

' 228
languages of the United Nations."'
V. CONCLUSION
Boyle describes how "[f]reedom of opinion and expression is the child of

freedom of religion in the sense that it was the struggle against religious
absolutism by religious dissidents in Europe that opened the space for free-
dom of speech on political and social matters." 229 Cartoonists have played
an important historical role in this process. That is why there would be
something very sad if the "cartoon war" were to be resurrected.
Complete support for religious defamation in Europe may be difficult to
sustain. Increasingly, the lines between race and religion are blurring, with
the result that religion is the primary source of identity for many peoples.
When you factor in the minority status of Muslims in Europe, 230 the result
is a very easy target. Political parties have been quick to defend a principle
of freedom of expression that does not exist in a pure form in any state in
the world. There is a need for a more concentrated debate on what our
laws on freedom of expression are designed to achieve. Are restrictions for
hate speech justified only in the context of race? Should all such laws be
abandoned in order to safeguard criticism of religion?
Post notes that "[h]ate speech is commonly regulated in Europe. The
suppression of speech that is deeply offensive to religious groups is socio-
logically and theoretically analogous to the suppression of speech that is
deeply offensive to racial groups." 23 The distaste felt by contemporary view-
ers of cartoons pillorying and stereotyping minority racial groups in the past
century should be recalled. It is possible that future generations will view
treating religious groups in a similar vein with equal distaste.
Finally, cartoonists must be able to work free of threat, irrespective of
their viewpoints, as long as they stay within the parameters of the law. It
is the law that must be changed if we are to decide that religious defama-
tion cannot be tolerated. Ultimately, and unless that happens, restraint and
consideration are required on the part of cartoonists. However, these are
not traits that go easily with the profession.
228. Id.
230. See the comments of Carens in this regard: "In democracies, minorities need more
protection from majorities than majorities need from minorities. Some commenting on
Muslims in Europe ... seem to forget this elementary feature of the logic of democracy.
It matters that Muslims are a minority." Carens, supra note 96, at 40.

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Cartoon Violence and Freedom of

Controversy is the cartoonist's staff of life; he starves in times of "brotherly love."'

The publication of the "Danish cartoons" generated a continuing conflict

II. HISTORY OF CARTOON SATIRE

A. The Growth of Caricature

Cartooning is an outgrowth of caricature. 9 "Caricature" derives from the Italian

19. Johnson, supra note 1, at 21.

decorated with burlesque figures-pot-bellied, drop-nosed and ludicrously

26. GEIPEL,supranote 20, at 47.

36. Id. at 88.

45. Kemnitz, supra note 15, at 91.

B. CARTOONS AND RELIGION

In cartoons in the contemporary media, "[plolitical subject-matter now pre-

62. Id. at 66.

and England that caricature was to become a national institution." 68 Coupe

68. Id. at 85, 86.

dismiss them as gimmicky, tedious, and insipid. Others believe, at an op-

III. THE DANISH CARTOONS

On 30 September 2005, twelve cartoons of the Prophet Mohammad were

better understanding of the tenets of Islam."9 s Commenting on this ostensibly

95. Boyle, supra note 13, at 185.

111. Id. at 38.

B. Blasphemy, Racism, and Danish Law

On the question of racism, he found: "The cartoons depicted an individual,

Liebeskonzil, which offensively satirized Christian beliefs. The Court argued

155. Id. 48.

163. Boyle, supra note 13, at 185.

freedom of religion and freedom of expression" in a multi-religious Europe.174

IV. THE UNITED NATIONS RESPONSE

A. Charter-Based and Treaty-Based Bodies

emergence of strong racist, extremist political parties and a corresponding

He uses the cartoons to signal "an alarming resurgence of defamation of

189. Id. 25.

195. Id. 28.

be dissociated from . . . the ominous trends of racism, racial discrimina-

or violence shall be prohibited by law."2" 9 Jahangir writes that the threshold

B. Cartooning for Peace

In October 2006, the UN organized a seminar entitled Cartooning for Peace:

220. See Cartooning for Peace, available at http://www.cartooningforpeace.org.

which he described as a 'language without words,' was now 'added to the

Boyle describes how "[f]reedom of opinion and expression is the child of

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