Blasphemy: Pluralisation and Content

In The Godfather, Part III, Michael Corleone (played by Al Pacino) laments

Just when I thought I was out… they pull me back in.

I know how he feels (though without the mafia connections, obviously). I had intended yesterday’s post to be my last on blasphemy for some time, but then Eoin Daly, a PhD student in UCC, went and spoiled it all by writing an excellent guest post on CCJHR blog about the new offence; update and Michael Walsh, a law student at NUI Galway, has written a compelling post critiquing some of my earlier analysis on the issue. To being, some extracts from Eoin’s post:

The Pluralisation of Blasphemy law: Possible Constitutional Implications

Image of UCC Quad, via the UCC Law Faculty website… the most interesting aspect of the new offence [is] the fact that is has been “pluralised”, encompassing material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” … blasphemy law has shifted from a religious to a secular legitimation, from the protection of a particular religious truth, to the protection of the sentiments of religious persons, of all recognised affiliations.

However, it is this very fact of a secular legitimation, of “outrage among a substantial number of [any religion’s] adherents”, which renders the contours of the offence unfeasibly vague. … The offence transgresses an important boundary between the protection of the rights of the believer, and protection of religious belief or truth itself.

… What I wish to stress here is that the pluralisation of blasphemy law is illusory, and that its enforcement will necessarily hinge upon deference to clerical authority rather than on the protection of individual conscience per se. Religions, rather than believers are protected; therefore, pluralised blasphemy law differs from its historical precedent only in the plurality of religions protected, rather than in the object of protection. It is left to the courts to determine what is offensive to a “significant number” of adherents rather than to a given, individual believer. This inevitably requires protecting certain beliefs over others, and consecrating the contingent power relations prevailing between and within different belief systems, with more prevalent forms of belief attracting protection.

It is a powerful post, and the extracts above can only give a flavour of just one of the many persuasive points which Eoin makes. I think he is quite right to point out that the offence is plural, in that it now protects all religions and not merely Christianity (or even Catholicism). I also think that he is quite right to argue that this is a crucial weakness: by seeking to protect religions (rather than preventing some obvious harm, such as public disorder) it sets up clashes between different religions, where the expression of the beliefs of one religion – without more – can cause outrage to a substantial number of adherents of another religion. Update: It is at this point that Michael Walsh enters the fray, arguing that I am mistaken in my view that an offence of blasphemy could only be justified based on the risk of public disorder. Instead, he points out that the ECHR in I.A. v Turkey 42571/98 [2005] ECHR 590 (13 September 2005) upheld a blasphemy prosecution as proportionate to the legitimate aims not only of preventing disorder but also of protecting morals and the rights of others, in particular their rights to freedom of thought, conscience and religion; for example, at paras 28-30, the Court held:

Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” … Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith ..

However, the present case concerns not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha’s arms. … God’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”

The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a “pressing social need”.

As a consequence, Michael argues (in a riposte to me that also meets some of Eoin’s points) that such a law can also be justified based on the potential of blasphemy to cause outrage among and offence to religious believers. As Michael himself anticipates, there are many problems with this analysis, but that is nevertheless what the Court held, and Michael’s reliance on it is justified. Both Eoin and Michael have made profound contributions to the legal analysis of Part 5 of the Defamation Act, 2009; but, whatever about the merits of their views, criminalising the expression of the beliefs of one religion – without more – because it causes outrage to a substantial number of adherents of another religion, amounts to a restriction on the content of the expression. As Scalia J held in RAV v St Paul 505 US 377 (1992):

The First Amendment generally prevents government from proscribing speech … or even expressive conduct … because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid … [since] content discrimination “rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace …”.

Hence, as Eugene Volokh explains,

Under nearly every theory of free speech, the right to free speech is at its core the right to communicate — to persuade and to inform people through the content of one’s message. The right must also generally include in considerable measure the right to offend people through that content, since much speech that persuades some people also offends others. … punishing speech because its content persuades, informs, or offends especially conflicts with the free speech guarantee, more so than punishing speech for reasons unrelated to its potential persuasive, informative, or offensive effect.

This doctrine has not yet been accepted in terms by the European Court of Human Rights, and it is much too early in the development of Irish free speech jurisprudence for it to have been argued in the Supreme Court. Perhaps a challenge to Part 5 of the Defamation Act, 2009 may be the occasion for its development?