Tuesday, August 17, 2010

"Should Blasphemy Be a Crime? The 'Piss Christ' Case and Freedom of Expression"

Bede Harris, Pell v. Council of Trustees of the National Gallery of Victoria: Should Blasphemy Be a Crime? The "Piss Christ" Case and Freedom of Expression, 22 Melb. U. L. Rev. 217 (1998)

This article discusses an Australian case from the mid-1990s over whether Serrano's "Piss Christ" (a crucifix suspended in the artist's urine) could legally be displayed at a gallery. The litigation was launched by a Catholic Archbishop, and one of the two major claims of the suit was that the artwork was blasphemous. As the article notes, the court refused to issue an injunction, stating that even if the common law crime of blasphemy still existed in the State of Victoria (an open question), there was no evidence that the artwork would lead to a breach of the peace, which the court indicated was an essential element of the offense. (ironically, the artwork was later vandalized)

Harris' article supports the judge's ruling, and discusses the relationship between blasphemy laws and religious vilification laws. Harris rejects the argument that blasphemy laws are a sub-set of vilification laws:

"[T]he anti-vilification argument is based on a fundamental misunderstanding of the nature of blasphemy on the one hand and vilification on the other. . . . [B]lasphemy consists in vilification of Christian beliefs (rather than believers) in a manner likely to outrage believers. . . . [V]ilification consists of hostile expression directed towards a person on the basis of some characteristic. . . . There is, in short, a crucial difference between saying 'you Catholic bastard' on the one hand and 'Christ was a charlatan' on the other." (p. 224)

I've noticed this issue--whether criticism of beliefs can be distinguished between criticism of believers--recurring in the literature on blasphemy and vilification laws, and I think it goes to the heart of why segments of society think these laws should exist and the types of speech they think should be prohibited. However, I'm not confident that the distinction between criticism of beliefs and criticism of believers is capable of being drawn either legally or conceptually, and this is one of the issues I hope to address in my next article.

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