"Time for Australia to abandon blasphemy laws?"

Several months ago, media network SBS ran a long story on World News Australia Radio titled "Time for Australia to abandon blasphemy laws?"  The story noted that some countries have recently decriminalized blasphemy, while in others, particular where Islam holds sway, blasphemy prosecutions continue.  Brief interviews with experts in the field, including Dr. Helen Pringle (UNSW), Professor Gary Bouma (Monash), and myself are included in the story.

"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.

"Art, Expression and the Offended Believer"

Reid Mortensen, "Art, Expression and the Offended Believer" in Rex J. Ahdar, ed., Law and Religion (Aldershot: Ashgate, 2000).

Reid Mortensen's "Art, Expression and the Offended Believer" examines the most famous Australian prosecution for blasphemy, the 1997 "Piss Christ" case.

The first portion of the essay goes behind the opinion of Justice Harper to present interesting background to what prompted the litigation.  For example, Archbishop Pell (the plaintiff who initiated the private prosecution) made various attempts to keep Serrano's artwork from being displayed and, when it came to initiating a lawsuit, other religious bodies which supported Pell in principle refrained from joining him.

The middle portion of the essay is a brief overview of blasphemy law and the problems it poses.  One aspect of the discussion especially worth paying attention to is the question of how broad of a context should allegedly blasphemous material be examined in.  For "Piss Christ", for example, should it be considered on its own, in the context of Serrano's statements about it, in the context of the gallery's entire display of his work, in the context of modern art generally, or otherwise?  Similar issues could presumably arise regarding written blasphemy, when questions of whether the material should be viewed in isolation or considered as a small piece of an author's larger body of work may arise.

The third portion of the essay is, to my mind, the most thought-provoking.  Apart from legal considerations, what are the ethical responsibilities of publicly-funded art galleries?  Mortensen notes "as a public institution, the NGV [National Gallery of Victoria] was bound by principles of accountability to the broader Victorian community that a private institution could disregard."  (p. 191)  Mortensen goes on to state that accountability in this context "requires that real and serious consideration be given to the interests of the whole public and that the institution consult more thoroughly when it is aware that its actions will scandalize parts of the citizenry."  (p. 191-92)  He then suggests that the NGV would have been unlikely to make the same decision if a religious body other than Christians were to be the subject of offense, and that it "should not have so lightly dismissed the concerns of offended believers."  (p. 193)

Consideration of the ethical responsibilities of publicly-funded arts institutions is almost universally absent from the literature on blasphemy, and in this respect the essay makes an important contribution to the field.  That being said, I'm not convinced that the ethical responsibilities of publicly-funded galleries are necessarily different in kind than that of privately-funded ones.  They share certain ethical responsibilities: for example, ensuring that artwork is used with permission.  However, their primary mission is to curate and display art that, in their expert opinion, they consider to be of the highest possible quality.  Considerations of who may be offended is not their responsibility, as one of the fundamental purposes of much art is to provoke.  Publicly-funded galleries are ultimately responsible to taxpayers, but accountability need not take the form of avoiding offense when higher priorities are at stake.  Now, the NGV may have been guilty of hypocrisy if it were willing to offend Christians but not other segments of the community when art as good or better than Serrano's were available to display.  But this would be a problem of institutional cowardice, not of accountability.

Archbishop of Melbourne v. Council of Trustees (The Australian "Piss Christ" Case)

Archbishop of Melbourne v. Council of Trustees
96 A. Crim. R. 575 (VSC), 1997 WL 1882161

This 1997 case is the last known attempt to invoke blasphemy laws in Australia. The fact pattern is an interesting one, as were the events that transpired after the case. The dispute arose after it became known that the National Gallery of Victoria was planning to display a photograph by the artist Andres Serrano that, in the court’s words, “shows the crucified Christ as if enveloped in a mist which is infused with the colours of a red and gold sunset. Of itself, it is not only inoffensive, but might be thought to be a reverent treatment of a sacred symbol of the Christian Church . . .” However, the title of the artwork leaves the viewer with a far different understanding. Serrano labeled the photograph “Piss Christ”, and took the photograph by immersing a crucifix in his own urine.

A controversy predictably ensued in Victoria, and the Archbishop of Melbourne initiated civil proceedings for an injunction to prevent the Gallery from displaying the photograph. He based the application for the injunction on the grounds that the photograph constituted an “indecent or obscene figure or representation” under the Summary Offences Act, and (more importantly for our purposes), that it violated “the common law misdemeanour of publishing a blasphemous libel by reason of the fact that the photograph is so offensive, scurrilous and insulting to the Christian religion that it is beyond the decent limits of legitimate difference of opinion and is calculated to outrage the feelings of sympathisers with or believers in the Christian religion.”

Interestingly, the Gallery did not question the Archbishop’s standing to seek the injunction or deny that the photograph was offensive to a large number of Christians. In response to the blasphemous libel allegation, however, the Gallery argued that “blasphemous libel is not now, if it ever was, an offence known to the law of this jurisdiction; and even if such an offence presently exists, it is inappropriate to restrain a threatened breach by use of the civil remedies which the plaintiff seeks to invoke.”

In deciding whether application should be granted, presiding Judge Harper briefly summarized the state of the English law of blasphemous libel. Stating that “[t]he law in England does not necessarily coincide with the law in Victoria[,]” he then noted that Victoria had never recognized an established church, that the Australian Constitution forbids the Commonwealth from establishing a religion, and that only one prosecution for blasphemy had been initiated in Victoria in the past century and it was withdrawn prior to trial. However, after concluding that “[i]t may be . . . that the offence of publication of a blasphemous libel has lapsed through desuetude[,]” Harper notes references to blasphemous libel in a 1987 Federal Court decision and in a Victorian statute.

Harper finds it unnecessary to decide whether the offence has lapsed or not because he concludes that, even if it does exist, a key element of the offence is that “the matter complained of must raise the risk of a breach of the peace, perhaps general civil unrest.” He then states that “[t]here is no evidence before me of any unrest of any kind following or likely to follow the showing of the photograph in question” and denies the application for the injunction on that and unrelated grounds.

After Judge Harper’s decision, the Gallery proceeded to display Serrano’s photograph. As Bede Harris noted, Vandals promptly damaged the work and the Gallery withdrew it, fearing injury to its staff should a subsequent attacks occur. In the Spring of 2011, “Piss Christ” was again vandalized while under display at a French gallery.

"Blaspheming in the Suburbs: The Offence of Blasphemy in a Free Speech Regime"

Helen Pringle, Blaspheming in the Suburbs: The Offence of Blasphemy in a Free Speech Regime (available here).

Pringle's paper begins with a description of the arrest of an Australian Gold Coast teenager in 2008 for wearing a heavy metal band's t-shirt which depicted a nun masturbating with a crucifix and the words "Jesus is a cunt". Noting that the teen was charged with a summary offence prohibiting "offensive, obscene, indecent or abusive language", Pringle uses the arrest as a springboard for discussing how Australian authorities are often more comfortable using obscenity laws than blasphemy laws in jurisdictions where both exist:

"Where ostensibly blasphemous acts are the subject of prosecution in Australia, they are charged not as blasphemy but instead under the rubric of offensive conduct or language. That is, in both legal and cultural terms, blasphemy has generally been absorbed into a more 'neutral' category of obscenity or offensiveness." (p. 8)

Pringle goes on to discuss the scattered and mostly forgotten references to blasphemy in various Commonwealth and State statutory provisions and uses original newspaper research to demonstrate that blasphemy prosecutions in Australia took place as early as 1835 and into the 1920s, thus improving on Coleman's standard work. According to Pringle, during this time period, "instead of being a crime that was rarely prosecuted, [blasphemy] was frequently and successfully prosecuted, although the penalties were relatively light." (p. 14)

New South Wales' Blasphemy Statute

Below is the text of the blasphemy statute for the Australian State of New South Wales. I've often seen this referred to as a statute that abolishes the crime of blasphemy in the jurisdiction, but if you read it closely it actually only limits prosecutions to occasions where there is "scoffing or reviling", "violating public decency", or "manner tending to a breach of the peace". Since these criteria can often be found in traditional common law blasphemy prosecutions, the statute may not accomplish very much in the way of safeguarding freedom of speech.

Source: Crimes Act 1900 No. 40 s. 574 (valid as of July 9, 2010)

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574. Prosecutions for blasphemy

No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any matter tending to a breach of the peace.

Tasmania's Blasphemy Statute

Here is the text of the Australian State of Tasmania's statute on blasphemy, which is still in force. It contains several elements that are familiar: no definition of what "blasphemous libel" is, an exception for speech made "in good faith and in decent language", and a provision that requires the consent of the Attorney-General to prosecute.

Source: Criminal Code Act 1924 s. 119

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119. Blasphemy

(1) Any person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime.

(2) The question whether any matter so published is or is not blasphemous is a question of fact.

(3) It is not an offence under this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.

(4) No person shall be prosecuted under this section without the consent in writing of the Attorney-General.

"Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia"

Peter Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia, (rev. ed.) (Brisbane: Angus & Robertson, 1974).

Coleman's book, though written decades ago, is still one of the best sources for information on the early history of blasphemy in Australia. Chapter Four, "The Blasphemers", discusses a handful of prosecutions starting as early as 1871 and as recently as 1919.

The 1871 case involved the prosecution of a street preacher named Lorando Jones for giving a talk in a public park in which he denied the divinity of Christ and the divine inspiration of the Bible. Although Jones was convicted and spent some weeks in jail, Coleman states that "the case made the idea of prosecuting people for blasphemy so unpopular that it was largely responsible for finally killing the idea of blasphemy as a crime." (p. 65)

After a few pages devoted to the government campaign to suppress a freethinker magazine named Liberator (using laws other blasphemy, such as Sunday laws), the chapter goes on to discuss the Australian Post-Master General's vendetta against an Italian newspaper ("L'Asino") for publishing caricatures of God and a joint prosecution by the Post Office and the police in the State of Victoria against a Communist newspaper ("Ross's Magazine") for publishing a satire of what would happen if Bolsheviks took over Heaven. According to Coleman, this latter prosecution "is the last in which a Government instrumentality has taken action against a publication for its blasphemy." (p. 74)

I can't independently verify that statement, but no other cases have come to my attention either. Given the dearth of research on blasphemy laws in Australian history, Coleman's book is still worth tracking down.

* Note: This post is about the 1974 revised edition of the original 1963 book. I've seen some indications online that another edition was released in 2000 with slightly different subtitle.

Recent Blasphemy Controversies

Although the Dove World Outreach Center has discontinued its plans to hold "International Burn a Koran Day," controversies over blasphemy continue.

* Queensland University of Technology in Australia has suspended a lawyer for smoking a cigarette rolled with a combination of pages from the Koran and the Bible. (Religion Clause Blog).

* Justice Breyer of the United States Supreme Court was apparently unsure whether burning the Koran is protected by the First Amendment to the United States Constitution (Religion Clause Blog), but then decided it is. (Volokh Conspiracy)

* An advertising standards organization in the U.K. has rejected an ad for being offensive to Catholics. The advertisement showed a pregnant nun eating ice cream with the tag line "Immaculately conceived . . . Ice Cream is Our Religion." (Volokh Conspiracy)

* The New Jersey Transit authority has fired an employee for burning pages from the Koran. (Religion Clause Blog)

"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.

"Blasphemy in a Secular State: A Pardonable Sin?"

Reid Mortensen, Blasphemy in a Secular State: A Pardonable Sin?, 17 University of New South Wales L. J. 409 (1994)

This is an older article, but one still relevant for scholars interested in how Australia has treated blasphemy. According to the piece, the Commonwealth (Federal government) does not have a statutory prohibition on blasphemy. However, blasphemy as a common law offence is a possibility in a few Australian states--the evidence is equivocal, balancing dicta and oblique statutory references against the possibility of abrogation through desuetude. At the time this article was written in 1994, a clear answer as to the status of blasphemy in Australia could be found only in three jurisdictions: Tasmania, which has a direct prohibition on blasphemy in its Criminal Code; and Queensland and Western Australia, which have abolished common law crimes and do not have a statutory prohibition on blasphemy. (p. 417-18) Mortensen argues that blasphemy laws are not consistent with principles of secularism in a modern nation-state, though (from what I can tell) the lack of both recent prosecutions and a constitutional bill of rights applicable to state legislatures means the crime of blasphemy is difficult to challenge.* Mortensen concludes that "The case for the abolition of the blasphemy laws is a strong one. It has still met with little success, and if the more recent trend towards the extension of [religious] vilification laws should persist, the law will continue to claim it can know and designate its heresiarchs, of old kinds and new." (p. 431)

* In upcoming posts, I'll examine more recent law review articles that discuss how the situation has changed in regard to these two points.