ABSTRACT
Religion-related expressions are a natural field for strategic lawsuits against public participation (SLAPPs) to blossom in, because religious belief is a unique emotional experience which exists beyond the sphere of rationality. The less a given state is founded upon laicism (or at least religious neutrality), the more likely are SLAPPs aimed at protecting religious sensitivity, including state-sponsored anti-blasphemy lawsuits.
In the United States, although no federal anti-SLAPP law has been adopted to date, states have passed a variety of laws aimed at preventing SLAPPs. Since the US Supreme Court held anti-blasphemy laws incompatible with the free speech clause of the First Amendment in the 1952 “Miracle” decision, there seems to be no significant threat of religiously motivated SLAPPs threatening free speech in America. In Europe, the European Court of Human Rights (ECtHR) generally accepts the so-called margin of appreciation applicable to balancing freedom of expression and religious sentiments. Nevertheless, throughout the decades, the Strasbourg case law reveals a tendency to tolerate only those justifications for interference which invoke the need to sustain social stability.
This paper analyses the case law of both the US Supreme Court and the ECtHR pertaining to the balancing of religious sensitivities and freedom of expression. This issue, which some considered to have long been buried six feet underground, seems to have been reborn with new force – for example, in the face of public emotions caused by Hamas’ attack on Israel in October 2023 and the Israeli government’s reaction to these atrocities. “Cancel culture” is spreading, and religious excitement has erupted with great force.98
