The Council of Europe has just published the Venice Commission’s Report on Blasphemy, insult and hatred – Finding answers in a democratic society (Science and Technique of Democracy No 47, 2010) (cover left) (earlier related publications here). Religious accommodation, mutual understanding, and social diversity constitute a significant challenge for modern western democracies. This report argues that “diversity is undoubtedly an asset, but cohabiting with people of different backgrounds and ideas calls for a new ethic of responsible intercultural relations”. The recent Irish response has been to introduce an offence of blasphemy in the Defamation Act, 2009. At its conference last weekend, the Labour Party debated and passed three motions (111, 112, 113) which condemned the introduction of the offence of blasphemy, and called for its repeal, and called for a referendum proposing to delete the word “blasphemous” from the Constitution (presumably as part of its wholesale constitutional revision). This is welcome, but doesn’t go far enough: the entire free speech clause should be thoroughly reformed (especially if there is to be a convention to develop a new constitution). Of course, this might not be necessary in the short term, since the provisions might very well conflict with the current text of the constitution in any event.

This is not the case in Indonesia. On Monday, that country’s Constitutional Court held that a controversial 45-year-old law banning religious blasphemy was constitutional. Mahfud CJ held that the law did not contradict the country’s 1945 Constitution or its national ideology, known as Pancasila, which nominally guarantee freedom of religion.

Later in the week, Islamists – to predictable controversy – warned the creators of provocative TV show South Park that they could face violent retribution for depicting the Prophet Muhammad in a bear suit (BBC | Guardian here and here | Independent | Irish Independent | Irish Times | LA Times | The Daily Show with John Stewart). On Human Rights in Ireland, Liam Thornton considered whether such gratuitous mocking of religion is permitted under human rights law. Starting from David Keane “Cartoon Violence and Freedom of Expression” (2008) 30 (4) Human Rights Quarterly 845, and observing that South Park purposefully courts controversy and seeks to mock all religions and atheism in a gratuitous fashion, he concludes that the purpose of the controversial episodes

… was to show the mental acrobatics which have to be gone through to justify the limitation of freedom of expression from mocking of one groups beliefs, yet allowed to freely ridicule the religious beliefs of others. In the words of the South Park creators, they are “equal opportunity offenders”. To those who are offended by shows like South Park, which does not provoke hatred on the ground of religious belief, the solution is simple, change the channel.

I couldn’t agree more.

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The Long Room Hub, Trinity College Dublin, presents a public lecture entitled

Blasphemy: Historical anachronism or modern crime?

by Professor David Nash, Department of History, Oxford Brookes University, UK.

The lecture will take place from 4:00pm to 5:30pm on Tuesday, 20 April 2010 next, in the Swift Lecture Theatre (Room 2041A), Arts Building, Trinity College Dublin (map here).

David Nash is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 | Amazon) and I am told that all are welcome to attend (though it is probably best to contact the Hub to be sure). I’m really looking forward to this; it is just one of many forthcoming events organised by the Hub, especially their fascinating Trinity Week events (next week, from 12 to 17 April) under the banner of Ideas For the Future.

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An Act against Atheism and Blasphemy, 1697; Massachusetts; 1759 printing, via Wikipedia

The Massachusetts Act against Blasphemy, 1697 (pictured right) amplified the common law offence of blasphemous libel. It was one of the four heads of the common law crime of libel which applied throughout the common law world, including Ireland. Section 35 of the Defamation Act, 2009 abolishes three of those four heads: the common law offences of defamatory, seditious and obscene libel. Similarly, section 73 of the Coroners and Justice Act 2009 in the UK does the same thing. However, the positions in Ireland and the UK diverge in their treatment of the fourth head, that of blasphemous libel. In the UK, the Blasphemy Act, 1697 (9 Will 3, c 35) was repealed by section 10 and Schedule 4 to the Criminal Law Act 1967, and section 79 of the Criminal Justice and Immigration Act 2008 abolished the common law offences of blasphemy and blasphemous libel. On the other hand, in Ireland, the already-notorious section 36 of the Defamation Act, 2009, goes in precisely the opposite direction, providing for an offence of blasphemy. The difference is not so great as it might appear, however, since the Racial and Religious Hatred Act 2006 made incitement to religious hatred a crime in the UK. In Ireland, the Prohibition of Incitement to Hatred Act, 1989 (also here) had already done so, and the blasphemy provisions of the Defamation Act, 2009 simply amplify this. Indeed, given that incitement to religious hatred was already a criminal offence at Irish law, it is difficult to locate the Constitutional gap relied upon by the Minister for Justice to justify the introduction of the blasphemy offence into the 2009 Act.

Be that as it may, sections 36 and 37 of the Defamation Act, 2009 now require, in essence, that the material be intentionally grossly offensive to a large number of adherents of a religion, and that it not have any redeeming value. It is an oddly drawn offence. Read the rest of this entry »

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Part 5 of the Defamation Act, 2009 (also here), which came into effect on 1 January this year, controversially makes blasphemy a criminal offence. In the view of the Minister for Justice, Dermot Ahern, the Constitution’s reference to blasphemy could not be ignored. It now seems that this reference might be removed. If so, the opportunity should be taken to revise the Constitution’s free speech clause in its entirety.

Stephen O’Brien reported in the Sunday Times last week that the Minister for Justice, Dermot Ahern, intends to propose an Autumn referendum to remove the offence of blasphemy from the Constitution (athiest.ie | Attracta | Dispatches | Guardian | Human Rights in Ireland | Human Rights World | Jurist | Bill Tormey | Volokh | William Quill). This was confirmed on Wednesday by Carol Coulter writing in the Irish Times (ABC | Catholic Lawyers | Iona | Sunday Times).

I have long argued that the protection of freedom of expression in the Irish Constitution is very puny indeed and ought to be replaced at the first opportunity. I argue in today’s Irish Times that a referendum to remove the offence of blasphemy from the Constitution would provide just that opportunity:

Referendum on blasphemy should revise free speech clause

The promised referendum to remove the reference to blasphemy from the Constitution should go further, and entirely revamp the very limited guarantee of freedom of expression … Deleting one objectionable word, rather than thoroughly revising the whole gruesome clause, would be equivalent to repairing a single broken slate on the roof of a house which needs complete refurbishment. … The freedom of expression guarantee in the Irish Constitution is an example of the wrong way to protect free speech. The forthcoming referendum should replace it with something far better suited to the needs of a modern constitutional democracy.

The full text of a possible alternative is available here. The cases referred to in the piece are:

• Murphy v Independent Radio and Television Commissions [1999] 1 IR 26; [1998] 2 ILRM 360 (Supreme Court held that free speech is fundamental both for personal development and as a foundation of democracy);
• Corway v Independent Newspapers 1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999) (Supreme Court held that the common law crime of blasphemous libel was too uncertain to give content to the constitutional crime);
• Mahon v Post Publications [2007] 3 IR 338; [2007] 2 ILRM 1; [2007] IESC 15 (29 March 2007) (Supreme Court asserted that the right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society); and
• Dillon v DPP [2007] IEHC 480 (4 December 2007) (High Court held that section 3 of the Vagrancy (Ireland) Act 1847 infringed constitutional protections of speech).

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In an earlier post, I suggested a wording for a complete revision of Article 40.6.1(i) of the Constitution. That makes a recent Irish Times poll very interesting:

65% would support a referendum to remove the reference to blasphemy from the Constitution. So, how about it, Minister?

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The free speech guarantee in Article 40.6.1(i) of the Constitution is a fragile freedom, much to the inglorious discredit of Irish democracy. However, there is a slim chance that the controversy over the blasphemy provisions in Part 5 of the newly-commenced Defamation Act, 2009 might provide an opportunity to replace the current text of Article 40.6.1(i) with something rather more robust. Consequently, much more in hope than expectation, this post concludes with a suggestion for a replacement text, on which I would welcome any comments and suggestions.

But first, the context. The blasphemy provisions in the 2009 Act are provoking quite a bit of commentary in the media, both in Ireland (Sunday Independent | Sunday Tribune | Irish Times here and here | Sunday TImes) and abroad (BBC | CNN | Guardian | MSNBC | New York Daily News | Sydney Morning Herald | Washington Post). Even the Drudge Report has commented on the story; and there are more here). I particularly like the Post piece, because I’m quoted in it. More seriously, much of the coverage revolves around the publication by Atheist Ireland of 25 potentially blasphemous quotations in the hope of provoking a prosecution; and they’ve opened an online petition to challenge the blasphemy provisions of the 2009 Act. As Fiona argues here and here, it is actually rather difficult to commit the offence. Difficult perhaps, but not impossible – it’s unlikely that Atheist Ireland’s 25 quotes do so, though this poem has been found to be blasphemous, and questions have been seriously raised about this cartoon.

The Minister’s justification for the offence was that the last line of Article 40.6.1(i) of the Constitution provides that the “publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law”. There have been some calls to amend this provision; but, according to the Sunday TImes, a spokesman for the Department of Justice said:

The minister is quite happy to have a referendum to remove the reference to blasphemy from the constitution, but doesn’t believe that should be done this year, given the other serious challenges facing the country.

The First Report of the Joint Oireachtas Committee on the Constitution (July 2008) concerned freedom of expression in Article 40.6.1(i) with a particular focus on blasphemy. As I noted at the time, the Committee that the Article is unsatisfactory and drafted in such a way that the limitations on free speech are accorded undue prominence, and recommended that it therefore be amended along the lines of European Convention on Human Rights. However, the Committee went and spoiled it all by concluding that the amendment was not immediately necessary, but should be undertaken when an appropriate opportunity presented itself.

If there is to be amendment to Article 40.6.1(i), I think it should go considerably further than removing the reference to blasphemy in the last sentence of Article 40.6.1(i), or even removing that last sentence itself. Like the Joint Oireachtas Committee, I think that the entire article should be replaced; but I think we should go even further than that. In my submission to the Committee, I argued that Article 10 should be a starting point but not the end point, and I provided an alternative text:

Everyone has the right to freedom of thought, belief, speech and expression. This right includes the freedom to seek, receive, hold and impart convictions, opinions, information and ideas of any kind in any form without interference by public authority. This right also includes the freedom of the press and other media of communication.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such necessary limits as are prescribed by law and proportionate only to the interests of national security, territorial integrity, public safety or the common good, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or the rights of others, preventing the disclosure of information entitled to a reasonable expectation of privacy or otherwise received in confidence, or maintaining the authority and impartiality of the judiciary.

Comments, please, on this suggestion.

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Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book. Posing the question “Why exactly are Jackson Pollock’s paintings protected by the First Amendment?”, he argues that

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. …

This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. … Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. … Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.

It’s worth reading Tushnet’s review in full, and then it’s worth reading Bezanson’s book too. It demonstrates that the most profound questions about freedom of expression are often raised not in the context of the participatory political process but in the contested field of human emotions. The problems outlined in the book are universal; the analysis may be centred on the First Amendment; but it will surely provide a sure guide if and when the issues come up in other courts on foot of other free speech guarantees.

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Alison Healy, writing in today’s Irish Times, quotes a spokesperson for the Department of Justice as saying that

… no part of the [Defamation] Bill had come into force yet but the [Defamation] Act was expected to be commenced in January.

Healy continues that, whilst in July, the Department had said that the Act was expected to commence in October, the spokesperson confirmed that it is now expected to commence in January 2010. For earlier comments to the same effect, see Rossa McMahon (see also here).

Unfortunately, the headline is the far more sensationalist

Blasphemy law unlikely to come into force this year

Yes, the Defamation Act, 2009 (pdf) does indeed have provisions relating to blasphemy; yes, I’ve written quite a bit about those provisions on this blog; (and yes, international reaction (pdf) continues (pdf) to be negative); but there is far more to the Act than that. If you want to find out more, you could do worse than to attend this event.

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