An analysis from a free speech perspective
Referring to the Austrian penal code's § 283, sections 1 and 2, the Public Prosecutor in Vienna has presented Elisabeth Sabaditsch-Wolff (ESW) with a Strafantag (indictment) for having publicly "gegen eine in Österreich gesetzlich anerkannte Kirchen und Religionsgesellschaft, den Islam gehetzt" (i.e. for having "publicly incited hatred against a legally recognized church and religious community Islam").
The indictment consists of a number of quotes transcribed from two lectures given by ESW in October and November 2009. There are altogether eight hours of tape.
I have not reviewed the tapes and therefore cannot vouch for the accuracy of the quotes adduced by the Public Prosecutor. Nor do I know whether these quotes are a fair summation of what ESW was attempting to convey.
Interestingly, no particular statement quoted by the Public Prosecutor is singled out as especially punishable, and one must therefore assume that the Public Prosecutor considers every statement quoted (some 8000 words) to be criminal under Austrian law.
This is very strange as the quotes fall into several categories including:
1) Renderings of Islamic canonical teachings in the Koran and the Hadith 2) Sociological observations on Muslim behaviour inspired by or consistent with Islamic canonical teachings 3) Moral observations or value judgments on Islamic canonical teachings 4) Interpretations of Islamic canonical teachings and their social and political consequences 5) Observations on differences between Islamic and Christian teachings
It is important to stress that nothing in the quotes indicates that ESW advocates violence, repression or discrimination against Muslims.
Generally speaking, it must be noted that ESW's statements are well founded in the very texts that orthodox Muslims, including ulema, consider infallible and beyond discussion or interpretation. Her statements are overwhelmingly supported by empirical data and by a vast body of scholarly work by both Muslim and non-Muslim authorities.
It is, e.g., a fact that all contemporary Muslim terrorists and advocates of jihad defend their political programme and actions with reference to Islamic canonical teachings. One would therefore assume that it is well within ESW's right of free speech to point to the very connections between Islamic teachings and Muslim behaviour that are stressed by an overwhelming number of Muslim authorities and which they consider laudable and mandated by Allah.
To be sure, there are authors Muslim as well as non-Muslim that would take exception to ESW's description and interpretation of Islamic orthodoxy and her linking of Muslim behaviour to orthodox teachings.
But such differences of interpretation or opinion should be dealt with in open public discourse where every strand of opinion may have its say. In a free society, they should not be matters for the courts to decide.
One wonders whether the Austrian Public Prosecutor has considered the vast implications of bringing ESW's opinions before a court.
First of all, if the court should find ESW's statements on Islamic orthodoxy and Muslim behaviour as inspired by that orthodoxy to be factually wrong or offensive, it can only mean that the court believes itself in possession of a true understanding of Islamic theology.
If that is the case, the court owes it to the world and to Austrians who risk being convicted for their wrong opinions to clearly state what can lawfully be said of Islam and of the links between Muslim behaviour and canonical teachings.
That would no doubt present grave problems for many imams and ulema whose understanding of Islam does not essentially differ from ESW's, but who consider this understanding to be praiseworthy and mandated by Allah, whereas ESW considers it reprehensible.
Will the prosecutor haul these imams and ulema in front of a court for having denigrated Islam?
And what about the Koran itself? Should that be censured because it gives a wrong, offensive and hateful impression of a peaceful and tolerant religion? The same may be asked of the Hadith, the Sira and the Tafsir.
What is left of the Islamic canon if the court appoints itself the supreme authority on Islamic matters?
And why single out Islam for juridical treatment? Shouldn't Christians have the same right to have Muslims convicted because their theology is in itself an affront to Christianity? As is well known, the Islamic canon considers Jesus to be a Muslim prophet who did not die on the cross and the Bible to be a distorted and falsified version of the Koran.
But it does not stop here. One can easily imagine indictments of people who have denigrated or ridiculed true socialism, communism, liberalism, conservatism or any other body of thought.
In conclusion, if the court convicts ESW, it will have taken a fateful step towards the abolition of free speech, freedom of thought and freedom of opinion.
In a free society, statements unless they incite to violence or illegal repression should be met with statements and not with legal indictments.
Should the Viennese court decide to convict Elisabeth Sabaditsch-Wolff, it will have put an indelible blot on Austrian jurisprudence and on Austria's reputation as a free (freiheitlich) society.