Dissertation Accepted: "The Curious Persistence of Blasphemy: Canada and Beyond"

I'm pleased to note that my dissertation The Curious Persistence of Blasphemy: Canada and Beyond has been accepted by my oral defence examination committee at Osgoode Hall Law School (York University, Toronto).  The dissertation includes material from the five law review articles I have published on blasphemy.  This material has been updated and reorganized, and the dissertation includes new material synthesizing the research and offering general conclusions along with a select annotated bibliography.  The dissertation should be available on SSRN shortly.

U.S. Film Causes Worldwide Protests

Much has already been written about the protests in at least twenty countries caused by online dissemination of a film made in the United States that has offended many Muslims.  The New York Times has a good commentary here, while Eugene Volokh of The Volokh Conspiracy has a well-written post about why suppressing such "blasphemous" speech would have negative results here.

"The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights"

Austin Dacey, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (London: Continuum, 2012)

This is a slim book, but it reinforces the adage not to judge books by their covers, as Dacey delivers a thoughtful, incisive analysis of the concept of blasphemy from the perspective of moral theory.  While touching on aspects of the law and history of blasphemy (and doing so well), this book is primarily concerned with the fundamental question: what is blasphemy, and should it be prohibited?  Dacey establishes several important points early:

"First, the contemporary talk of blasphemy in the international public square is neither a recent invention nor a return of a medieval theological spectre.  Rather, it is a distinctly modern phenomenon in which blasphemy has been reframed within the secular idiom of respect for persons.  Second, this principle of equal respect . . . is all too easily appropriated in the service of illiberal and patriarchal notions of identity, propriety, and 'honor.'  Third, those most vulnerable to the abuse of laws against blasphemy and therefore most vocal in defiance of them are dissidents within the very communities whose 'feelings' the laws are purportedly protecting.  Finally, such dissidents are not just engaging in 'free speech' but manifesting religiously heterodox or secular commitments of conscience that are no less worthy than those they affront."  (p. vi)

Dacey goes on to argue that the concept of respect should not be used as a reason to prohibit blasphemy:  "Holding others accountable for their commitments is a way of respecting their natures as reason-authoring creatures, their equal standing as persons who are no less capable of making up their minds than ourselves.  . . .  [A]n affront to what is held sacred by others can be, paradoxically, a way of affirming their equal membership in moral community.  The susceptibility to criticism by others is a condition of existing in community with them."  (p. 54)

This leads to Dacey formulating three reasons in favor of religiously-offensive statements:  "treating believers as equals in the moral community, exercising the civic virtue of holding public claims accountable in the space of reasons, and defending one's own vision of the sacred."  (p. 62)

I found Dacey's discussion of the nature of the concept of "the sacred" especially helpful, as it ties into a project I'm working on regarding so-called "secular" or "cultural blasphemy.


The Future of Blasphemy is a well-researched, well-written contribution to the field and certainly worth seeking out.

"The Trial and Death of Socrates"

Plato, The Trial and Death of Socrates (translation of Apology, Crito, and Phaedo by Benjamin Jowett) (introduction by Emma Woolerton) (Arcturus Publishing Ltd. 2010)

Next to the trial of Jesus, the trial of Socrates is probably the most famous blasphemy trial in Western history. In Apology, Plato provides an account of Socrates' statement in his own defense. The exact nature of the charges are unclear, but Socrates sums them up generally as consisting of allegations that he is "a doer of evil, and corrupter of the youth, and [that] he does not believe in the gods of the state, and has other new divinities of his own." (p. 17) In true Socratic fashion, there is little in the way of direct rebuttal and much in the way of rhetorical extravagance that addresses the charges in a discursive fashion. Socrates states that the charges are motivated by malice against him for his success in exposing the follies of many men who considered themselves wise. (p. 14) He cross-examines one of his accusers, a man named Meletus, and demonstrates an inconsistency in Meletus accusing him simultaneously of being an atheist and of believing in new divinities (p. 21). To his accuser Anytus, Socrates states that he would rather die now than be released on the condition that he stop teaching: "Wherefore, O men of Athens, I say to you, do as Anytus bids or not as Anytus bids, and either acquit me or not; but whatever you do, know that I shall never alter my ways, not even if I have to die many times." (p. 25) Socrates goes on to state that Athenians will regret it if he is convicted, and concludes by stating "I do believe that there are gods, and in a far higher sense than that in which any of my accusers believe in them." (p. 31) After the jury condemns Socrates to death, he proceeds to expound on why death is a good rather than an evil. In Crito, Socrates explains why he would rather submit to the laws of the state than escape, and in Phaedo Socrates further explains his views on death and on his belief in the immortality of the soul; neither has anything pertinent to the blasphemy charges.

From an historical perspective, of course, we have no way of knowing for certain how much of Socrates' statement in the Apology actually took place and how much is Plato's creation of what could have or should have been said. From a legal perspective, the charges and facts underlying them are so vague in the Apology that little analysis is possible. If nothing else, however, Plato's work serves as a useful reminder that the concept of blasphemy existed long before the three major monotheistic religions became fully formed.

"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.

"Religious Freedom, Democracy, and International Human Rights"

John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory Int'l L. Rev. 583 (2009).

Witte and Green's article is a general overview of some of the religious freedom issues facing nation-states around the globe. Noting that democracy and human rights guarantees are flourishing in theory, the article cautions that "religion and freedom do not yet coincide in many countries, however rosy their new constitutional claims are as to religious rights and freedoms for all." (p. 584). The article briefly examines the question of whether religious freedom is a universal good or an artefact of Western/Christian hegemony (it favors the former view). A summary of the various international law documents on the subject of religious freedom is given, including the two Islamic declarations of human rights. In a key section, the article identifies three main issues countries are grappling with on the religious freedom front: 1) Proselytism/Evangelization, 2) Conversion & Apostasy, and 3) Blasphemy and "Defamation of Religions". The article works well as a survey/introduction to this area of law, but is too general to be of much use to scholars in the field.

"The Permissibility of Incitement to Religious Hatred Offenses Under European Convention Principles"

Susannah C. Vance, The Permissibility of Incitement to Religious Hatred Offenses Under European Convention Principles, 14 Transnat'l L. & Contemp. Probs. 201 (2004).

Vance's article is a useful examination of the history of France's existing and England's (at the time) proposed statutes on religious hatred. The validity of each is analyzed under European Court of Human Rights jurisprudence, with particular attention paid to the Court's two decisions upholding domestic blasphemy statutes: Wingrove v. United Kingdom (1997) and Otto-Preminger Institute v. Austria (1994). Vance concludes that both country's religious hatred statutes would likely be upheld if challenged under Article 10 (the free speech guarantee) of the European Convention (p. 226).

In the course of this analysis, Vance makes several interesting points regarding the relationship between blasphemy and religious hatred. She notes:

"A law criminalizing religious hate speech may be analogized either to the racial incitement provisions contained in Britain's and France's civil rights legislation, or to blasphemy laws enacted to protect a country's established church." (p. 229)

"When contrasted with blasphemy laws, religious incitement laws of the sort enacted in France and contemplated in Britain appear better adapted to protecting the religious feelings of others. First, blasphemy laws in their traditional form are designed to protect the integrity of doctrine (typically the doctrine of the established church) from defilement; their primary focus is not on insult to individual adherents of the faith. Second, and more importantly, blasphemy laws are radically under-inclusive in their coverage; they protect only the established religion." (p. 237)

Human Rights Committee Addresses Blasphemy in ICCPR

Several outlets are reporting that the United Nations Human Rights Committee has released a new collection of comments on the International Covenant on Civil and Political Rights. In paragraph 48 of the comments, the Committee addresses blasphemy laws. With my explanations interpolated, it states that:

"Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant ["Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law"]. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3 [allowing restrictions on freedom of expression only to protect national security, public health and morals, or the rights and reputations of others] as well as such articles as 2, 5, 17, 18 and 26 [guaranteeing equal protection, religious freedom, and more]. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith."

It is unclear to my mind whether this comment is significant. The Committee's broad statement against blasphemy laws is counter-balanced by reference to a notable exception (Article 20, Para. 2) that incorporates the exact rationale that modern supporters often give for the existence of blasphemy legislation: the need to prevent religious hatred and offence.

"Blasphemy" in the Encyclopedia of Religion, Second Edition

Lindsay Jones, Editor in Chief, Encyclopedia of Religion (2nd ed.) (Farmington Hills, MI: Thomson Gale, 2005) at pp. 968-977.

The second edition of the Encyclopedia of Religion contains three articles under the general entry "Blasphemy." The three articles are "Blasphemy: Jewish Concept", "Blasphemy: Christian Concept", and "Blasphemy: Islamic Concept".

The first article, "Blasphemy: Jewish Concept", is written by Daniel J. Lasker. According to the article, some actions which would be deemed blasphemous in most religions, like arguing with God, are actually part and parcel of Jewish history and are considered legitimate. However, Lasker identifies four actions that could be considered blasphemous: "(1) cursing God and God's name; (2) using God's name in vain, pronouncing it illicitly, or destroying its written form; (3) saying inappropriate things about God; and (4) acting in a manner that would bring disrepute upon the God of Israel (and, therefore, upon the people of Israel)." (p. 968) Lasker devotes several paragraphs to the meaning of cursing God, while the other three acts receive a smaller amount of space. Interestingly, Lasker notes that, "although the Bible prescribes capital punishment for a number of crimes [including blasphemy], rabbinic law was instrumental in limiting the possibility of judicial executions" by imposing stringent requirements on proof and other restrictions. (p. 969) Another interesting feature of blasphemy in Judaism, one that sets it apart from most other religions, is the idea that pronouncing or writing the true name of God is blasphemous--and, as Lasker notes, various alternatives or euphemisms tend to be imbued with holy status over time, and become themselves forbidden.

The section on blasphemy in Christianity was written by Leonard Levy in 1987, and includes material that appear in his two books on blasphemy. Levy traces Christianity's prohibition on blasphemy to Exodus 22:28 ("You shall not revile God") and the punishment of death by stoning to Leviticus 24:16. An interesting discussion in the article is the relationship between heresy and blasphemy. For much of Christian history, according to Levy, the two terms were largely interchangeable. Over time, distinctions began to be drawn between blasphemy, which was a more narrow sin which required cursing or mocking of God directly, and heresy, which was a broader term that could encompass divergent doctrinal views. Levy notes that "Protestants during the Reformation had to reinvent the crime of blasphemy on the fiction that it was distinguishable from heresy. Because 'heresy' was the Catholic description for Protestantism, Protestant leaders tended to choke on word heretic and preferred to describe as 'blasphemy' anything they disliked or disagreed with, just as the church had used 'heresy.'" (p. 973) Levy goes on to trace how the concept of blasphemy evolved from a religious sin into a secular crime in seventeenth century England. The rest of the article is a concise distillation of the legal history of blasphemy in England and the United States, drawn all or in part from Levy's books.

The article on blasphemy in Islam was written by Carl Ernst in 1987. According to Ernst, blasphemy in Islam includes insulting Muhammad or any part of the divine revelation. Ernst notes that "[t]here is no exact equivalent to blasphemy in the Islamic tradition," (975) but that prohibitions on apostasy or "infidelity" ("the deliberate rejection of God and revelation") are comparable. The article briefly discusses the concept of blasphemy in early Islam before moving on to blasphemy in Islamic law, theology, and Sufi mysticism.

"The Curious Persistence of Blasphemy" in the Florida Journal of International Law

I'm happy to report that my article The Curious Persistence of Blasphemy has been accepted for publication in 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.

New Report on Blasphemy in Seven Countries

As noted in Howard Friedman's Religion Clause Blog, an organization called Freedom House has issued a major report titled Policing Belief: The Impact of Blasphemy on Human Rights. The report examines blasphemy in seven countries (Algeria, Egypt, Greece, Indonesia, Malaysia, Pakistan, and Poland) and concludes that such laws severely impact freedom of expression and religion. I haven't yet read the report, but I hope to do so and discuss it in more depth in a future post.

"Is Critique Secular? Blasphemy, Injury, and Free Speech"

Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood, Is Critique Secular? Blasphemy, Injury, and Free Speech (Berkeley, CA: Townsend Center for the Humanities, 2009).

In the Fall of 2007, UC-Berkeley held a symposium on the topic "Is Critique Secular?" The results have been published in a slim 153-page volume, with the subtitle of "Blasphemy, Injury, and Free Speech." The book consists of two main essays, "Free Speech, Blasphemy and Secular Criticism" by Talal Asad, and "Religious Reason and Secular Affect: An Incommensurable Divide?" by Saba Mahmood, plus a response by Judith Butler and then replies to Butler's response by Asad and Mahmood.

An important thing to note is that these essays are written in the style of literary criticism, and bear all of the hallmarks of that discipline (anyone who has been to panels at the Modern Language Association will know what I'm talking about): they are jargon-heavy, opaque, discursive, theory-heavy, implicitly critical of the West, and prone to leaving the reader feel like a lot of words have been expended without concrete ideas having been expressed. A subtle implication throughout, one which I think lacks historical foundation, is that "blasphemy" is purely something the secular West does to the religious East as an act of oppression.

Those (very large) caveats aside, there is something interesting in Mahmood's essay, and Butler's response to it, on the nature of the "harm" felt by Muslims in response to the Danish Muhammed cartoons. Briefly put, the argument is that Muslims identify so strongly with the Prophet that insults to him bring about emotions of grief and emotional pain that are difficult to understand and account for in the traditional framework of "blasphemy vs. freedom of speech." As Butler explains it, the cartoons are problematic not because of the offensive ideas inherent within them but because they are seen as attempts to "coerce disbelief" and "any attempt to coerce someone away from his or her belief is an effort to break a relation to a transcendence by which one is sustained." (p. 118)

Remarks on International Blasphemy Rights Day (2010)

On Thursday, I delivered introductory remarks for the International Blasphemy Rights Day event sponsored by the Centre for Inquiry at the 2010 Atheist Alliance International/Humanist Canada North American Convention. That event, and the convention as a whole, was interesting, educational, and simply a lot of fun. I want to thank the organizers of the event for inviting me and putting on a great show. Here is the draft text of the remarks I gave at the IBRD event:

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Thank you all for coming to this special event in recognition of International Blasphemy Rights Day.

Blasphemy is a topic that often lays dormant for years, until suddenly sprouting into public view—a few weeks ago there was the Florida preacher who wanted to burn the Koran, before that the Danish Muhammad cartoons, and going back further the uproar of Salman Rushdie’s Satanic Verses. However, blasphemy as a purely religious concept, and the peaceful give-and-take between so-called blasphemous speech and its inevitable condemnation by religious leaders is a phenomenon that fits easily within the free speech tradition of a healthy democratic society.

However, International Blasphemy Rights Day marks the dismay that advocates of freedom of speech, thought, and religion feel all over the globe about the curious persistence of anti-blasphemy legislation.

When I started studying blasphemy laws several years ago, I thought they were true legal anachronisms, obsolete pieces of legislation that stuck around, more or less harmlessly, because legislatures were simply too lazy to repeal them. And sometimes this is true—Canada, for example, still has a law on the books against “blasphemous libel”, but it hasn’t been used successfully by the government since the 1930s.

However, old laws, including old blasphemy laws, don’t always stay dead. England’s common law ban on blasphemy was inert for 55 years before leading to a conviction in the late 1970s, and was invoked (fortunately unsuccessfully) by Muslim activists in the late 1980s against the publishers of Salman Rushdie’s book and then just a few years ago against the stage production Jerry Springer: The Opera . Ireland’s ban remained unused for 141 years before an unsuccessful prosecution against a newspaper in 1996—and just last year, the Irish Parliament passed a new ban on blasphemy. Pakistan provides an even more startling example, as religious minorities are often targeted by domestic blasphemy laws that provide support and rhetorical ammunition to the vigilante-style murder of alleged blasphemers.

Perhaps the greatest threat the West faces, however, is the old wine of blasphemy being poured into a new glass and given a different name. These new laws, although different in concept and focus, often replicate the effects of blasphemy laws. Worse, courts and the general public seem to think they’re necessary if multiculturalism is to flourish. Inevitably, however, they simply cause more conflict as religious groups have a new means to express their frustration over speech they don’t like. In Australia, they’re called “religious vilification” laws and have led to court cases between Christians and Muslims; in Canada, they’re called “religious hate propaganda” laws and have led to magazines being taken in front of human rights commissions; in the United Nations, they’re called “Defamation of Religions” resolutions, and have been the basis of several successful resolutions before the General Assembly.

In other words, there is a global trend of anti-blasphemy laws being given new vigor by being re-packaged. In many countries around the world, the threat of being prosecuted under blasphemy laws or their modern-day counterparts is a real one—and atheists, humanists, and freethinkers can easily become victims.

The main idea I want to leave you with is that the promise of the Enlightenment and Modernity has certainly not yet been fulfilled in this area. Laws against blasphemy remain a genuine threat to the ideals of secularism and free speech, and this is the reality we should recognize on International Blasphemy Rights Day.

American Muslim Magazine on Blasphemy and Free Speech

The Volokh Conspiracy has this post about a statement signed by several prominent American and Canadian Muslims about recent blasphemy controversies and the importance of freedom of speech.

International Blasphemy Rights Day and the AAI/HC North American Convention

September 30 is International Blasphemy Rights Day, and a special event is being held (sponsored by the Center for Free Inquiry) in Montreal that evening to kick off the Atheist Alliance International/Humanist Canada North American Convention, Atheists Without Borders. I'll be speaking briefly at that event, and then delivering a workshop the next day (Friday, October 1) on The Curious Persistence of Blasphemy Laws and Their Modern-Day Counterparts.

"Blasphemy: Art That Offends"

S. Brent Plate, Blasphemy: Art That Offends (London: Black Dog Publishing, 2006)

This is an impressive book: a full-colour collection of images deemed blasphemous (by some element of society) along with strong and insightful essays on how society categorizes art as "sacred" and "profane." Although not a traditional "scholarly" study, and not specifically devoted to legal analysis, this work is certainly a worthwhile addition to the library of anyone who is seriously studying the phenomenon of blasphemy.

The Introduction contains a brief background into the events that led to the 2005-2006 "Danish cartoon controversy", along with some general musings on blasphemy in general. Plate accurately notes that "[b]lasphemy is a contested, fluid, and dynamic category of meaning" (p. 27) and argues that "[b]lasphemy, and the accusation of blasphemy, is a culturally symbolic marker that helps define societies and religious traditions, as well as provide identities for people in terms of gender, race, class, and sexuality." (p. 27) This idea is clearly born out when one sifts through the "blasphemous" images in the book: many involve some sort of combination of sacred images along with images that redefine, distort, or undermine that image by adding erotic, gendered, commercial, or racial elements.

Chapter 1, "Defining and Delimiting Blasphemy" argues that the best way to understand blasphemy is as a deliberate intermixing of the sacred and the profane ("profane" meaning simply "everday [or] ordinary", not necessarily negative on its own). Plate, smartly in my opinion, notes that the "sacred" doesn't necessarily coincide with religious: the things that many people hold sacred in America today, for example, such as patriotism, the flag, or even the free market can give rise to the same sort of outrage if transgressed as religious items have in other places or times. The chapter also provides a very brief overview of the notion of blasphemy in Judaism, Christianity, and Islam.

Chapter 2 provides a fuller history of blasphemy in the three world monotheistic religions--a wise reader should still seek a more in-depth treatment elsewhere, but as a short introduction to the subject it could be helpful. Intriguing sections of this chapter talk about how words can become images, and how blasphemy can be seen as a means of resisting dominant culture.

Chapter 3, "Blaspheming the Gods of Modernity" explores the broadened, non-religious conception of blasphemy I mentioned earlier. It argues that one of the things many modern Westerners hold sacred is "freedom of expression", and that in many ways the Danish Cartoon Controversy involved two types of blasphemy: "If the controversy revealed what some Muslims find authoritative and sacred--that is, the Prophet Muhammad and his representation--it also proved what many modernists hold authoritative and sacred--freedom of expression. If Muhammad can be blasphemed against, then, it seems, so can expressive freedom." (p. 170)

Text aside, the images in the book are full-colour and many are full-page. Helpful captions add context and explain why particular images were or are considered blasphemous. I especially found helpful actually seeing the images that I've often only read about in legal journals: The Danish cartoons, Andrea Serrano's Piss Christ, and stills from Theo Van Gogh's Submission. For something that seems, at first glance, to be a mere coffee-table book, Blasphemy: Art That Offends turns out to be something far more.

"Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World"

Charles C. Haynes, Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World, 2008-2009 Fides et Libertas 56.

Haynes looks at several recent world developments--successful "defamation of religion" resolutions at the U.N., the U.K.'s new "incitement to religious hatred" law, the new Irish blasphemy statute, etc.--and concludes that "freedom of speech is losing ground in nations across the globe, most disturbingly in the democracies of Europe." (p. 58) He argues, quite rightly in my opinion, that religious groups who support censorship laws are being short-sighted, because times change and there's a fair chance those very same laws will be used against them someday. Haynes is strongly against blasphemy laws and their modern counterparts, but also makes an insightful point:

"That does not mean, of course, that we should sit back and do nothing to address concerns about speech that deeply offend people of faith. If speech codes or other government regulations are not the answer, what is? . . . It is simply not enough for one side to proclaim 'free speech' or 'free press' and for the other to cry 'blasphemy' or 'hate speech.'" (p. 61, 63)

He argues that education is better than censorship when it comes to reduce hateful speech, but this point needs further analysis.

Still, the question is worth pondering: beyond condemning blasphemy laws, what do civil liberties advocates have to say to religious minorities who are fearful of the rise of hate-groups?