Thursday, May 26, 2005
An investigative judge in Bergamo, Italy is ordering prosecutors to proceed with charges against writer Oriana Fallaci for defamation of Islam in her book The Force of Reason under articles 403 and 406 of the Italian Criminal Code, according to news reports in the Italian press. The first step is the drawing up of charges, based on the complaints by Adel Smith, who heads the Italian Muslim Union. If the case proceeds further, the prosecutors will serve Fallaci under the appropriate international agreement.
Professor Alberto Zuppi of the Louisiana State University Law Center, an expert in extradition law, notes that if, once properly served, Fallaci should refuse to appear voluntarily at the trial, the Italian government might have a great deal of difficulty extraditing her. The problem lies in the doctrine of dual criminality. While Italian law criminalizes the defamation of a state-recognized religion, the First Amendment is designed to protect expressions of opinion regarding religion and groups. The only group libel case ever decided by the Supreme Court, Beauharnais v. Illinois (1952) was subsequently seriously questioned by a 7th Circuit panel in Collin v. Smith (578 F. 2d 1197 (1978)). Even if we recognize group libel and group defamation in the U.S., is it a federal criminal offense? Of course, the Italian prosecution will argue that what Fallaci wrote is not opinion, but statement of fact, and that further, it is falsehood.
In addition, Professor Zuppi believes that Italy's four-pronged scheme for handling in absentia trials may have some procedural drawbacks that would also cause problems, further delaying and perhaps completely scuttling any chances that the U. S. would agree to extradite Fallaci to Italy, should she decline to appear.
For news reports see Crispian Balmer's May 25th article and a Washington Times piece. For more on dual criminality see Jonathan O. Hafen, Comment: International Extradition: Issues Arising Under the Dual Criminality Requirement, 1992 B.Y.U. L. Rev. 191.