Tuesday, August 24, 2010

"The Constitutional (In)validity of Religious Vilification Laws: Implications for Their Interpretation"

Nicholas Aroney, The Constitutional (In)validity of Religious Vilification Laws: Implications for Their Interpretation, 34 Fed. L. Rev. 287 (2006)

This article is a balanced, nuanced discussion of whether the religious vilification laws enacted in three Australian States (Victoria, Queensland, and Tasmania) comport with the Commonwealth Constitution under the High Court's doctrine of "implied freedom of political communication." The article states, as a threshold matter, that "[t]here is no a priori reason . . . why speech that happens to be about religious matters cannot simultaneously be characterised as political communication for the purposes of the implied freedom." (p. 303) However, Aroney argues that the religious vilification laws at issue are probably constitutional on their face because they contain three key limitations: (1) the incitement of hatred, contempt, ridicule, etc. must, under the terms of the statutes, be serious or severe; (2) the laws are aimed at hatred of persons, not criticism of beliefs; and (3) the statutes include special "good faith" exemptions for artistic, scientific, religious, or other types of communication. (pp. 313-314) The article is careful to distinguish between a judgment on the constitutionality of religious vilification laws and a judgment on whether such laws are good policy, and notes that statutes that may be constitutional on their face will not necessarily be constitutional as applied in the real world.

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