"Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws"

Helen Pringle, Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws, 34 University of New South Wales Law Journal 316 (2011)


This short article discusses the turn in Australian law away from "blasphemy" laws and towards "religious vilification" laws.  


Pringle persuasively argues that, as there has not been a successful prosecution for blasphemy since 1871 (p. 319), "[w]here ostensibly blasphemous acts are the subject of prosecution in Australia, they are charged not as blasphemy but instead as offensive conduct or language.  That is, in both legal and cultural terms, blasphemy has generally been absorbed into the category of obscenity or offensiveness."  (p. 321)  


A second major argument in the article, and I think a more controversial one, is that religious vilification laws are not sui generis, and instead should stand or fall on exactly the same terms as racial vilification laws:  "So while blasphemy laws do not appear to have any contemporary justification, religious vilification laws have as much (or as little) validity as racial vilification laws." (p. 317)  Pringle argues that the common way in which critics of religious vilification laws attempt to distinguish them from racial vilification laws is incorrect: "Making such a distinction rests on the assumption that religious beliefs are matters of voluntary choice, or at least that they can be held at 'arm's length', rather than being constitutive of the believer, that is, a part of his or her identity that is as fixed, unchosen and indelible as race is often portrayed as being.  Religious bearing . . . is not necessarily so different from racial identity as to merit completely asymmetrical treatment[.]" (p. 330)


Third, Pringle argues that vilification laws are best understood, and perhaps theoretically defensible, when closely linked to the concept of discrimination rather than the concept of offense.

"The Curious Persistence of Blasphemy" Now Published

My article "The Curious Persistence of Blasphemy" has now been published by the Florida Journal of International Law.

"The Curious Persistence of Blasphemy"

A draft of my new article The Curious Persistence of Blasphemy is available for free download on SSRN here.

Abstract:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the "defamation of religion" movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting "religious vilification" laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred--religiously or culturally--blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

"Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law"

Rex Tauati Ahdar, Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law, 26 U. Queensland L.J. 293 (2007)

Ahdar's article is focussed on religious vilification in Australia. The article briefly canvasses a purported justification for such laws, the need to prevent discrimination and abuse that hateful statements may cause in society. Ahdar argues that the argument is unconvincing because "the linkage here is indirect, conjectural, and rather diffuse. Some sorts of disparaging or inflammatory speech may provoke improper conduct in some hearers in some circumstances." (p. 297) Next, Ahdar discusses several arguments against religious vilification laws, including the chilling effect the laws have on freedom of speech, the divisiveness they tend to cause between religious groups who use the laws as a blunt instrument to attack each other, the false analogy between religious hate speech and racist hate speech, and more. A good portion of the article is devoted to discussing the 2006 case Catch the Fire Ministries v. Islamic Council of Victoria, which was the first real test of Victoria's religious vilification law. According to Ahdar, the case revealed several problems with religious vilification laws that remain unsolved despite a long and complex court opinion. In the end, he concludes that such laws fall into the category of "things that clearly do not work" to "promote religious harmony and tolerance in society." (p. 316)

"Drawing the Line--Balancing Religious Vilification Laws and Freedom of Speech"

Geoff Holland, Drawing the Line--Balancing Religious Vilification Laws and Freedom of Speech, 8 UTS L. Rev. 9 (2006).

This interesting article examines the hypothetical question "Would publication of the [Danish Mohammed] cartoons in Australia have amounted to religious vilification under current legislation?" (p. 9) The article begins with a good summary of the cartoons and their publication in Denmark, and includes the interesting fact that Denmark had (and has) a blasphemy statute that prosecutors decided not to use against the cartoons. Here's the statute: "Any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country shall be liable to imprisonment for any term not exceeding four months."

The article concludes that the key to answering the hypothetical is whether publication in Australia of the cartoons took part in the context of a debate over the cartoons or the phenomenon of self-censorship. If published as part of such a debate, then there would be a credible argument that the cartoons were published "reasonabl[y] and in good faith" under Australian religious vilification laws. However, the author argues, "the publication of the cartoons, removed from the context of the public debate on self-censorship that occurred in Denmark, would not likely meet the requisite standard of reasonableness." (p. 18)

"Religious Vilification Laws: Quelling Fires of Hatred?"

Dermot Feenan, Religious Vilification Laws: Quelling Fires of Hatred?, 31 Alternative L.J. 153 (2006).

Feenan's paper adds to the debate over the religious vilification laws which exist in three Australian states. With a primary focus on Victoria's Racial and Religious Tolerance Act 2001 and the subsequent Catch the Fire Ministries case, the article suggests that religious vilification laws may be over-broad. As Feenan explains,

"The danger in framing religious vilification as a wrong lies partly in the fact that it may capture views which represent legitimate disagreements about the appropriateness of different religious beliefs or practices. Arguably, the inclusion in the Act of the words 'serious contempt for, or revulsion or severe ridicule' of another person or class of persons on the ground of religious belief or activity may be infringed by the trenchant condemnation of beliefs or practices on which people may reasonably take opposing views." (p. 156)

The article provides a brief summary of some international human rights instruments and cases on balancing freedom of expression with other values. It also mentions England's recent "religious hatred" law and suggests that it is narrower in scope than Victoria's religious vilification laws because it limits itself to "threatening" words or behaviour. (p. 157)

"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.

"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.

"Truth, Civility, and Religious Battlegrounds: The Contest Between Religious Vilification Laws and Freedom of Expression"

Joel Harrison, Truth, Civility, and Religious Battlegrounds: The Contest Between Religious Vilification Laws and Freedom of Expression, 12 Auckland U. L. Rev. 71 (2006)

This is a strong, impassioned critique of the entire idea of religious vilification laws. Using two prosecutions as examples (Victoria's Catch the Fire Ministries and Ontario's R. v. Harding), Harrison argues that vilification laws inevitably require courts to decide contested questions of religious truth in a manner that is clearly outside of their competency and in a fashion that runs aground of the freedom of religion and expression values that are so central to modern democracies. Further, Harrison argues that the natural result of such vilification laws are that "high" speech (civil, balanced, decorous, academic-style debate) is allowed as "reasonable" or "made in good faith", while "low" speech (raucous, vulgar, polemical) is deemed out of bounds, thus drawing distinctions in allowable speech for what may be nothing more than the class, education, or zealousness of the speaker. Finally, it suggests that prosecutions for religious vilification almost invariably result in the impugned speaker becoming a "martyr" or otherwise far more popular than before.

An excellent article, full of persuasive arguments against vilification laws.