Comedian Could Face 3 Years In German (Not Turkish!) Jail For Mocking Notoriously Thin-Skinned Turkish President

from the insulting-organs-or-representatives-of-foreign-states dept

Wed, Apr 13th 2016 8:28am — Glyn Moody

Techdirt has been following with interest the ways in which the delicate sensibility of Turkey's President, Recep Tayyip Erdoğan, is being wounded. First there was Gollum; then the filing of 1,845 cases of allegedly insulting the Turkish President; and finally, a mild satirical video that Erdoğan didn't want you to see. The last of these not only caused the Streisand Effect to kick in with a vengeance, but has provoked a German comedian to take things up a notch, as reported here by the Guardian:

In a short clip from a late-night programme screened on the German state broadcaster ZDF at the end of last month, comedian Jan Böhmermann sits in front of a Turkish flag beneath a small, framed portrait of Erdoğan, reading out a poem that accuses the Turkish president of, among other things, "repressing minorities, kicking Kurds and slapping Christians while watching child porn".

Exactly as Böhmermann doubtless intended, this has caused a huge political stink. The broadcaster ZDF took down the video, and the German Chancellor, Angela Merkel, told Turkey's prime minister that the poem was a "deliberately offensive text" that she personally disapproved of. Most significantly, the Turkish government has filed a formal request for Böhmermann's prosecution. So what? you might ask. Germany isn't Turkey, and so surely there's no way that somebody would be prosecuted just for a few rude lyrics about a foreign leader. Well, it turns out that's not the case: On 6 April it emerged that Germany's state prosecutor was investigating Böhmermann for violation of the little-used paragraph 103 of the criminal code, which concerns insulting organs or representatives of foreign states. At worst the comedian was facing a prison sentence of up to three years.
Although some people in Germany have condemned Böhmermann for being coarse, an attention-seeker and even racist, Merkel does not want to be seen as a world leader who harms freedom of speech: In a government press conference on Monday, [Merkel's spokesperson] Seibert said Merkel wanted to make it unequivocally clear that freedom of speech was "naturally the highest good", irrespective of whether she considered a satirical piece "tasteful or tasteless".
On the other hand, Merkel desperately needs Turkey's help in dealing with the huge numbers of refugees from the Middle East flooding into southern Europe. A deal between the EU and Turkey has been agreed to help address this problem, although doubts remain about whether it is a realistic solution. In any case, Erdoğan is in a very strong position -- and knows it. This really puts Merkel and the German government on the spot, and it will be intriguing to see how -- or even if -- they manage to reconcile the conflicting pressures.

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Filed Under: free speech, germany, insults, jokes, recep tayyip erdogan, satirejan bohmermann, turkey
Companies: zdf

39 Comments

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Vidiot (profile), 13 Apr 2016 @ 8:27am

Prosecution... the only solution for the one German with a sense of humor.
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Anonymous Coward, 13 Apr 2016 @ 8:52am

Great Example
This is a great example for why there should never be a world court system. Extradition treaties, and laws like the one mentioned here are already bad enough, however a citizen in one state should never be subject to the bullshit from another on speech grounds.

But as you can see here, Germany is hardly a free state anyways. Germany is working overtime to destroy itself! What a bunch of fucking toons!

You just cannot make this shit up!
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Anonymous Coward, 13 Apr 2016 @ 8:53am

Re: Great Example
And I forgot to follow up with, it is pretty Clear the Merkel is on someone's payroll or has some death wish against Germany!
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That One Guy (profile), 13 Apr 2016 @ 8:58am

Politics trumps the public interest
I imagine the government will strongly 'suggest' that the comedian plead guilty or otherwise not contest the charges in exchange for the government not doing everything it can to make the case as nasty as possible for him. Kissing up to Gollum's stunt double is going to take a higher priority than protecting the free speech of those in the country, laughable claims from Merkel to the contrary.
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Anonymous Coward, 13 Apr 2016 @ 9:00am

RIP EU
It's pretty disgusting how Erdoğan is exploiting the migrant crisis to get Turkey into the EU, we'll see if Germans will settle for such appeasement.
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l8gravely (profile), 13 Apr 2016 @ 9:08am

Will they take the high road or not?
I suspect that Germany will do all they can to keep Turkey happy, without actually *doing* anything to this guy. Some sort of suspended sentence, community service, etc.

Ideally the guy will then spend his community service highlighting how horrible Turkey is in alot of ways. So they want to be European, but still have a religious based goverment? Not going to fly.
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Anonymous Coward, 13 Apr 2016 @ 9:08am

Re: RIP EU
Disgusting? This is politics baby, its pretty smart on his part to use these problems to get what he wants. If they hate *Egogland then they should be hating Merkel every bit the same for playing along with this farce!

But hey, we petty plebs need to shut up and be ruled over!
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Anonymous Coward, 13 Apr 2016 @ 9:13am

Re: Re: RIP EU
"its pretty smart on his part"

Oh absolutely, as a bit of realpolitik it's brilliant. It's just contrary to the values claimed by the entity he wishes to join.
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Anonymous Coward, 13 Apr 2016 @ 9:28am

Re: Re: Re: RIP EU
Yea, sadly those nations do not seem to care.

Something very nasty is going on with all of this and I am sure it will not turn out well.
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Anonymous Coward, 13 Apr 2016 @ 9:45am

if, after this debacle, the EU cant see what sort of 'person' Erdogan will be, if he and Turkey are allowed to join the EU, good luck to it! it will deserve all it gets!
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Jordan Chandler, 13 Apr 2016 @ 9:49am

Sucks
But better to protect free speech than curb it to make a foreign ally happy.
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Anonymous Coward, 13 Apr 2016 @ 10:01am

Pawns to the slaughter
You never want to be the pawn that comes between to states and their leaders. They will send you to the slaughter in a heartbeat to save face.
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parliboy (profile), 13 Apr 2016 @ 10:05am

This seems quite easy to resolve
The comedian should be marched out on national television and made to recall all of the things he accuse Edrogan of doing, things like “repressing minorities, kicking Kurds and slapping Christians while watching child porn”.

He should then be required to apologize for accusing Edrogan of watching child porn.
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Anonymous Coward, 13 Apr 2016 @ 10:32am

Re: Will they take the high road or not?
Er, except Turkey doesn't have a religious-based government. They (at least officially) have a democratically elected government. Of course, given that a large portion of the population is Muslim, there are a number of parties that have religious agendas -- kind of like in the US.
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Ninja (profile), 13 Apr 2016 @ 10:34am

Re:
I wonder how many letters would that have in German. I suppose that by the time Germans finish reading the joke it simply isn't funny anymore. Ahem.
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Anonymous Coward, 13 Apr 2016 @ 12:14pm

Re: Re: Will they take the high road or not?
There are some religious laws getting put in place. They are nowhere near as bad as in other places, but it is religious and islam-based.

Mostly Erdogan has secured that his early cooperation with EU has been overshadowed by a nationalistic Mccarthyistic hunt of Gulen and anyone who is being too negative about him personally.
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gant, 13 Apr 2016 @ 12:31pm

actually, it's even 5 years
It's germany's Lese Majesty law - and it's punishable by up to 5 years in prison (with a minimum sentence of 3 months) (§103 StGB) [1].

An indictment based on this law is only possible if the government consents (§104a StGB) [2].

According to law experts[3] a convictions seems highly unlikely, because there is something called freedom of art. Unlike with freedom of speech/freedom of the press, the german law does not pose any similar restrictions to freedom of art.

Jan Böhmermann meanwhile canceld upcoming events and has been giving police protection! :(

[1]
http://dejure.org/gesetze/StGB/103.html
https://translate.google.com/translate?hl=en&sl=de&tl =en&u=http%3A%2F%2Fdejure.org%2Fgesetze%2FStGB%2F103.html

[2]
http://dejure.org/gesetze/StGB/104a. html
https://translate.google.com/translate?hl=en&sl=de&tl=en&u=http%3A%2F%2Fdejure.org%2 Fgesetze%2FStGB%2F104a.html

[3]
https://www.lawblog.de/index.php/archives/2016/04/04/kunstfreiheit-das -ding-ohne-schranken/
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_t&a mp;hl=en&ie=UTF-8&u=https%3A%2F%2Fwww.lawblog.de%2Findex.php%2Farchives%2F2016%2F04%2F04%2Fk unstfreiheit-das-ding-ohne-schranken%2F&edit-text=
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gant, 13 Apr 2016 @ 12:35pm

..well, eh.. he has been given protection.
;-)
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Anonymous Coward, 13 Apr 2016 @ 2:48pm

Comedian faces 3 years in jail.

Well not if he gives the Precious back to Erdogans, the sly thiefs who stoles it. Gollum, Gollum.
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Anonymous Coward, 13 Apr 2016 @ 3:44pm

Re: actually, it's even 5 years
And the comedian read the poem as an example of what would be illegal. So that will probably get him of the hook.
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John Fenderson (profile), 13 Apr 2016 @ 6:00pm

Re: Re: Will they take the high road or not?
"kind of like in the US."

Although the US has lots of laws that are based entirely on religion.
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Pixelation, 13 Apr 2016 @ 6:48pm

Re:
"Comedian faces 3 years in jail."

What a joke!
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Pizuz, 14 Apr 2016 @ 1:09am

Context or the lack thereof
It is very importand to account for the context. During its recitation the poem was repeatedly announced as ”stuff you shouldn't say on live television, because it counts as libel“.

Linguists call this form of satire ”uneigentliches Sprechen“ which I couldn't find a proper english representation of. Probably something like figurative speech. Anyway, German courts repeatedly found this to be a completely legal form of satire.

Anyway, this entire farce is escalating pretty quickly as intended. Some people even suspect that this entire affair (and especially the German government's hasty reactions — bowing down to the Turkish government and apologizing for this even before a statement by the Turkish gov't was issued) might even trigger a nasty chain reaction for the German gov't themselves. Some people are even speculating that chancellor Merkel might trip over this affair.
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Richard (profile), 14 Apr 2016 @ 2:47am

Re: RIP EU
If Turkey gets in Britian will get out - regardless of what happens in the June referendum.

However it is unlikely that it will get that far.

I can't see any British government failing to veto Turkey.

I can't see any Cypriot goverment letting Turkey in until it stops occupying Northern Cyprus.

I can't see any Greek government letting Turkey in without significant concessions to the Orthodox church in Constantinople - eg return of the Hagia Sophia to the church.

Bulgaria, Slovakia, Croatia, Hungary and Romania will also likely have objections - as will several of the other countries that are currently in the process of joining.
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Anonymous Coward, 14 Apr 2016 @ 2:50am

Re: Re: Re: Will they take the high road or not?
Although the US has lots of laws that are based entirely on religion.

Except in the US they are based on the religion that says "love your enemies" as opposed to the one that says "slay the infidels wherever you can find them".

It does make a difference.
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Richard (profile), 14 Apr 2016 @ 2:56am

Re: Re: Re: Will they take the high road or not?
Also Erdogan is on record - in his early, more openly Islamist days, saying that "democracy is like a bus - you use it to get where you want and then when you arrive you get off".

His agenda - as often happens in countries with an Islamic culture - is to use democracy to establish his own power and then gradually dismantle it. The increasing number of religious laws and his recently tightened grip on the media are evidence of this.

Turkey is transitioning from the secular autocracy established by Ataturk to a religious based one. The secular democracy that Ataturk attempted to bequeath has not survived.
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John Fenderson (profile), 14 Apr 2016 @ 6:20am

Re: Re: Re: Re: Will they take the high road or not?
I don't think your comparative analysis is accurate, but even if it is, the difference it makes is pretty small.
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Barbar, 14 Apr 2016 @ 6:53am

Law Review, Translations & Link to Original Video
Actually, as one can glean from parsing the German law in question, Böhmermann faces not jail-time but a juridically baseless and thus entirely malicious 'investigation' launched solely for whatever political intimidation value can be spun from it via the collaborative mass media as part of a bureaucratic conspiracy to make a public feint at assuaging the feelings of the ignorant dictator ErdoWie_ErdoWo_ErdoWahn, who may possibly be fooled for about half a minute that this shameless manoeuvre by Merkel's minions has any legal legs at all.

Translating from the admittedly dense Teutonic legalese:

----

§ 103
Beleidigung von Organen und Vertretern ausländischer Staaten

(1) Wer ein ausländisches Staatsoberhaupt oder wer mit Beziehung auf ihre Stellung ein Mitglied einer ausländischen Regierung, das sich in amtlicher Eigenschaft im Inland aufhält, oder einen im Bundesgebiet beglaubigten Leiter einer ausländischen diplomatischen Vertretung beleidigt, wird mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe, im Falle der verleumderischen Beleidigung mit Freiheitsstrafe von drei Monaten bis zu fünf Jahren bestraft.

§ 103
Insulting organs and representatives of foreign states:

(1) Whosoever insults a foreign head of state, or, in relation to their position, a member of a foreign government, who is present in an official capacity in the interior, or the head of a foreign diplomatic legation credentialled in the federal territory, will be punished with prison up to three years or a fine, or, in the case of a slanderous insult, with prison from three months to five years.

----

The crucial clause here is highlighted in bold: whereas ErdoWahn is in fact a foreign head of state, insulting him in Germany is punishable only if done while he is in the country on official state business. If the insult is published while he's outside the country or, for example, enjoying a vacation in it, there is neither crime nor punishment. The same applies to a member of his government, insofar as the insult relates to their job performance, or to an Ambassador to Germany.

Indeed, this whole paragraph is sometimes abbreviated under the rubric 'Insulting a foreign dignitary during an official visit'.

So there is literally nothing for the German authorities to 'investigate' further than checking whether Erdogan was present in Germany on the date of the poem's publication, which he was, in fact, not. End of contrived legal conundrum!

To celebrate, here's a literal translation of the [in Germany] perfectly legal poem in question:

“Abusive Criticism"

Dumb as balls, cowardly and a prude
is Erdoğan, the President.
His junk stinks severely of döner-kebab,
even a pig’s fart smells nicer.
He is the man who beats little girls
while wearing rubber masks.
His favourite pursuit is fucking goats
and repressing minorities,
kicking Kurds, striking Christians
as he watches kiddie-porn flicks.
And even in the evenings, instead of sleep,
he calls for fellatio with one hundred sheep.
Yes, Erdoğan is fully and completely
a President with a small dick.
One hears every Turk whistling,
this dumb pig has shrivelled 'nads.
From Ankara to Istanbul
everyone knows, this man is gay,
perverse, lousy and a zoophile —
Recep Fritzl Priklopil.*
His head as empty as his nuts,
he’s the star of every gang-bang party,
until the cock burns when pissing,
that is Recep Erdoğan, the Turkish President.

* a play on names, associating Erdoğan with the infamous Austrian paedophiles Josef Fritzl and Wolfgang Priklopil.

... and here is the original video, as broadcast by German state TV channel ZDF on 31 March 2016, with Turkish captioning of the poem:

http://sendvid.com/ap13zv47
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Pizuz, 14 Apr 2016 @ 7:39am

Re: Law Review, Translations & Link to Original Video
That first sentence of that law certainly is constructed in a weird way.

I'm sure that some lawyers would try to interpret that sentence in a way that the has-to-be-present part doesn't apply. At least we now know why this paragraph is called the Shah's paragraph.
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Anonymous Coward, 14 Apr 2016 @ 8:29am

Re: Law Review, Translations & Link to Original Video
You parsed the composition of that sentence wrong. That fact that "wer" is repeated after "oder" means that the clause about the location applies only to the part after "oder".

You read it as if it was a list which is later in full referenced by the clause about location. But it isn't a list. The repetition of the personal pronoun shows that it's two partial sentences being connected by "oder", which means that the clause about location only applies locally in the second partial sentence.

On the first reading of the article a few days ago I also though he was safe but then realized that for heads of state or indeed leaders of embassies the position does not matter, only for other members of foreign governements.

I will now for the benefit of non-German speaking readers correct the sentence structure of your translation:

(1) Whosoever insults a foreign head of state, or whosoever in relation to their position, insults a member of a foreign government, who is present in an official capacity in the interior, or insults the head of a foreign diplomatic legation credentialled in the federal territory, will be punished with prison up to three years or a fine, or, in the case of a slanderous insult, with prison from three months to five years.

It would be even better if there was a way to leave out the repetition of insults but I think it sounds a bit like Lincoln or some other historic character if I do since pushing the verb to the back in English is kind of old timey like for example "Whoever a fair lady insults, shall meet my sword" while still meaning that the lady is the one being insulted not the one insulting.

It would give something like this:

(1) Whosoever a foreign head of state, or whosoever in relation to their position, a member of a foreign government, who is present in an official capacity in the interior, or the head of a foreign diplomatic legation credentialled in the federal territory, insults, will be punished with prison up to three years or a fine, or, in the case of a slanderous insult, with prison from three months to five years.

I just hope I got the rules in English right otherwise I might confuse this matter even more.
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nasch (profile), 14 Apr 2016 @ 9:07am

Re: Great Example
Extradition treaties, and laws like the one mentioned here are already bad enough, however a citizen in one state should never be subject to the bullshit from another on speech grounds.

That is not what's going on here, it's Germany applying German laws in Germany.
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nasch (profile), 14 Apr 2016 @ 9:14am

Re: Context or the lack thereof
Linguists call this form of satire ”uneigentliches Sprechen“ which I couldn't find a proper english representation of.

Eigentlich: https://yourdailygerman.com/2015/03/27/eigentlich-meaning-german-actually/

Probably something like figurative speech.

Sounds right. http://www.dict.cc/german-english/uneigentlich.html
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Pizuz, 14 Apr 2016 @ 9:54am

Re: Re: Context or the lack thereof
Eigentlich: https://yourdailygerman.com/2015/03/27/eigentlich-meaning-german-actually/

Probably something like figurative speech.

Sounds right. http://www.dict.cc/german-english/uneigentlich.html

I'm still not quite sure if figuratively means the same thing. Uneigentliches Sprechen means that you're basically quoting something that doesn't necessarily reflect your own opinion. Satire does that all the time, for example when confronting the audience with stereotypes to provoke a thought process which usually kicks in after they laugh.
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Anonymous Coward, 14 Apr 2016 @ 2:32pm

Re: Re: Re: Re: Re: Will they take the high road or not?
I don't think your comparative analysis is accurate,

An opinion unsustainable by anyone who has actually taken the trouble to find out about either religion.

http://www.thereligionofpeace.com/pages/articles/jesus-muhammad.aspx

From the preface:
"It is not the purpose of this site to promote any particular religion,
including Christianity. However, we do enjoy refuting nonsense,
such as the claim that Muhammad and Jesus preached a
morally equivalent message or that all religion is the same."

and it does make a big difference.

Just spend some time in any majority Muslim country that has islamic laws and you will find that one out.

In particular be an atheist in any of the countries listed in this link.

http://www.thewire.com/global/2013/12/13-countries-where-atheism-punishable-death/355961/
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Barbar, 15 Apr 2016 @ 4:26am

Re: Re: Law Review, Translations & Link to Original Video
Yes, on mature reflection, you're right, AC, thanks for the correction. Wishful thinking got the better of me there, I'm afraid. In any case, the highlighted location clause applies only to the 'member of a foreign government'.

For clarity I would slightly revise your punctuation:

(1) Whosoever insults a foreign head of state, or whosoever, in relation to their position, insults a member of a foreign government who is present in an official capacity in the interior, or insults the head of a foreign diplomatic legation credentialled in the federal territory, will be punished with prison up to three years or a fine, or, in the case of a slanderous insult, with prison from three months to five years.

The extreme extraterritoriality of this law could become interesting: in theory Germany could at ErdoWahn's request indict, seek to extradite and prosecute anyone in the world who insults him. Combined with the European Arrest Warrant procedure, which requires no evidence of guilt, it would thus be a legal cinch to impose this ridiculous law on the whole of the EU, for a start. If they prosecute Böhmermann there is no good legal reason why they should not also pursue other cases arising for instance from English comedians.

And, in der Tat, it has just been announced that Merkel has approved the prosecution of Böhmermann!
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Barbar, 15 Apr 2016 @ 4:40am

Re: Re: Re: Law Review, Translations & Link to Original Video
PS: Merkel also added that §103 itself "can be dispensed with" and will be deleted/altered by the Bundestag in the proximate future.

This can be taken as a nod to the courts/prosecutors that a mild outcome is desired in this case.
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Anonymous Coward, 15 Apr 2016 @ 7:11am

Re: Re: Re: Law Review, Translations & Link to Original Video

And, in der Tat, it has just been announced that Merkel has approved the prosecution of Böhmermann!

Good. Not because I approve of the law in question, but because criminal matters are the business of courts. A government having the right to decide nilly-willy whether a dumb law applies or not is even worse than just having a dumb law.
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nasch (profile), 15 Apr 2016 @ 8:15am

Re: Re: Re: Re: Law Review, Translations & Link to Original Video
But if Merkel had to approve the prosecution, that means the government has the right to decide whether a law applies. So the fact that she approved it doesn't make anything better.
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John Fenderson (profile), 16 Apr 2016 @ 4:29pm

Re: Re: Re: Re: Re: Re: Will they take the high road or not?
"An opinion unsustainable by anyone who has actually taken the trouble to find out about either religion."

Nice job assuming that I haven't done this. Here's a surprise: I actually have. And a lot of people who have studied these things all their lives agree with me -- so your claim that anyone who knows what they're talking about automatically agrees with you is wrong on its face.

As to the rest of your comment, it doesn't really address the issue (or you haven't explained how it does), so there's little point in addressing it. Just to clarify, the issues you've raised are caused by the merging of church and state. Every time that has happened in history (regardless of the religion involved), we have seen this sort of behavior. Yes, it's a terrible thing. No, it's not something that is any more endemic to Islam than it is to any other religion.

I will address one little thing. You apparently assume that I think all religion is the same. This is something I never asserted, nor believe.
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