On Friday the High Court granted an interdict to stop Mohammed Vawda, a local Muslim businessman, from burning the Bible. Unfortunately, the media reports I’ve read don’t explain the constitutional interpretation that the judge relied on when making the decision. They also don’t explain whether the case was judged narrowly, or whether it sets a broader precedent that effectively makes it illegal to burn religious books in South Africa. However, Zehir Omar, the attorney who brought the case, seems to think it’s the latter:

After a 40-minute hearing in the South Gauteng High Court, Judge Sita Kolbe agreed and banned the event. The ruling also amounts to a ban in South Africa on the burning of any Bibles and other religious books.

Lawyer Yasmin Omar, who represented an Islamic intellectual organization called Scholars of the Truth, spearheaded the legal bid with her husband, Zehir. They called Mr. Vawda’s plans “appalling.”

After the verdict Mr. Omar said, “I’m very pleased the judge came to this decision. Not only did he ban this protest but he also banned other people from burning the Bible.

“Judge Kolbe ruled that freedom of expression is not unlimited if one exercises freedom of expression that is harmful to others…. We now hope American judges will see this decision and act accordingly by banning the burning of the Quran in America,” he said.

For the record, I think that Terry Jones, the Florida pastor who wanted to turn the anniversary of September 11 into “burn the Koran day”, is an asinine jerk. I’m glad that he didn’t burn the Koran, and I’m glad the entire American political establishment, from Barack Obama to Sarah Palin (and including Gen. David Petraeus) condemned the scheme. That said, I also think the High Court has made a terrible decision here. As much as I think that burning the Koran or the Bible would be tacky and counter-productive, I also want to live in a country where people are free to do that if they want to. Here’s why:

First, burning the Bible or the Koran is a legitimate form of free speech. The message it conveys is not exactly subtle, in the same way that burning the American flag is not subtle. Nevertheless, it gets the point across: Islam/Christianity/America is bad. Regardless of whether this is true or false, these are beliefs that are sincerely held. The people who hold these beliefs have a right to articulate their views in public, and burning the symbols of institutions to which they are opposed is valid (if distasteful) way of doing that.

Second, church-state separation implies that the state is supposed to adopt a neutral stance towards religion. It should not favour one religion over another, and it should not favour religion in general over secularism. But if the state makes it illegal to burn religious books, this necessarily forces it into the position of having to adjudicate theological disputes over what qualifies as “religious” book in the first place. Will it be illegal to burn the Book of Mormon? What about L Ron. Hubbard’s Dianetics? What about printouts of the Heaven’s Gate online book? Even if these cases can be hand-waved aside, there’s still the broader problem that the state is favouring religion over secularism. What will the response be to atheists who want to prevent people from burning The God Delusion, or communists who want to stop the burning of Das Kapital? To reiterate, the state’s position towards religion should be one of secularism and neutrality. From a secular viewpoint, a book is just a book: the Bible and Das Kapital are both just a collection of words printed on paper; neither one has any intrinsic mystical quality that makes it uniquely worthy of protection.

Finally, there is an argument that burning the Bible or the Koran is an example of hate speech. However, hate speech is an incitement to commit violence, and it’s not self-evident that the burning a religious tract does this. Certainly, burning the Bible is not clear-cut case of incitement in the same way as, for example, RTLM radio telling people in Rwanda to go out and kill Tutsis, or the authors of The Protocols of the Elders of Zion writing that Jews use the blood of innocent children to make their cookies. Sure, I can certainly imagine scenarios where burning the Bible or the Koran is hate speech. If someone stands up in front of an angry mob and gives a speech about how Muslims are evil and then, as a final flourish, sets fire to a Koran, I have no problem with treating this as hate speech and banning it. But I can also imagine scenarios in which burning a holy book is not hate speech, and is instead a legitimate critique of either the Christian or the Islamic faith, both of which are human institutions and neither of which are immune to criticism. (Incidentally, Mohammed Vawda’s plan to burn the Bible was clearly an example of the latter. He intended it to be a critique of Terry Jones, not incitement to commit violence against Christians.) The appropriate response from the state is therefore to discriminate on a case-by-case basis, stepping in to prevent hate speech when it occurs but permitting the free criticism of religion by way of default.