"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.

New Egyptian Constitution Approved by Voters

Religion Clause Blog notes that the new Egyptian Constitution was overwhelmingly supported by voters in last week's referendum.  This post on the same site includes a rough translation of some of the religion provisions of the new Constitution.  It establishes Islam as the official religion of the country, but does contain a freedom of religion guarantee.

"To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy"

Gillian Steward, "To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy" in Janet Keeping, et al. (eds), Deal with it!  Free Speech, Ethics and the Law in Canada (Sheldon Chumir Foundation for Ethics in Leadership, 2013).

Steward's article provides a nice summary of the reaction of the Canadian newspaper and broadcast press to the worldwide controversy over the famous Jyllands-Posten Muhammed cartoons.  Steward notes that in Canada, no mainstream media organization was willing to show the cartoons while reporting on the controversy.  Steward provides extracts from editorials by Canadian newspaper and t.v. news stations about why they didn't show the cartoons, and summarizes them nicely:

"The rational provided by television and newspaper executives regarding their decision not to publish the cartoons emphasized respect for religion and other cultures as the main reason.  The discourse reveals that the media executives did not want to offend members of the audience.  It also emphasized Islamic belief that it is disrespectful or blasphemous to publish images of the prophet Mohammed, even though Canada is a secular society.  None of the television or newspaper executives explained why the cartoons had been published in the first place or what issues they raised for citizens of a liberal democracy as [editor] Flemming Rose of the Jyllands-Posten had done when the cartoons were originally published.  Although all the news media executives cited freedom of speech or the press as vital to democracy they opted to give respect for religion a higher priority in this situation.  And yet, in their own code of ethics, freedom of expression tops the list."  (p. 91)

Two small publications, the Jewish Free Press and The Weekly Standard were the only members of the media that did reprint the cartoons, and Steward also includes extracts from their editorials explaining why.

Overall, she concludes:

"In both Canada and the United States freedom of expression did not win the day during the cartoon controversy.  Instead, mainstream media executives employed a different discourse, one which emphasized control, social harmony and respect.  In many ways, it was a discourse that seemed closer to the ideals of Islamic media codes of ethics than those of a liberal democracy.  It was left to smaller, more vulnerable publications to exercise freedom of expression and publish the cartoons." (p. 93)

"The Conjurer"

Blewett Lee, The Conjurer, 7 Va. L. Rev. 370 (1920-21)

My new research project is on what I call "freedom of religion at the margins": fortune-telling, witchcraft, and New Age beliefs.  I've had an enjoyable time reading the secondary legal literature on these topics, and one of the most prolific writers in the area was Blewett Lee.

In The Conjurer, Lee begins by discussing the historical distinction between "conjuration" (where a mortal compels the devil to obey his or her wishes by invoking the name of God) and "witchcraft" (where a mortal has a friendly relationship with the devil or a demonic familiar in order to carry out selfish wishes).  "The conjurer has really fared much better than the witch," Lee says, "who was considered from the start to be in voluntary league with the evil one."  (p. 372)

Lee goes on to discuss some medieval and English common law statutes and cases dealing with conjuration and witchcraft, some of which respect the distinction and others that do not.  Some note is made of American cases dealing with faith-healing.

The major thrust of the article, however, is whether and how mostly forgotten laws dealing with such topics apply to the then-burgeoning fascination with spiritualism (especially the practice of spiritual mediums conversing with the dead through seances).  As Lee writes, "The only thing that is left to us of the primitive magician is the spirit medium.  He has not only survived but thrived, while the witch, whose association with the powers of darkness was supposed to be friendly at all times, has entirely disappeared, at least where our law prevails." (p. 373-74)

Lee discusses how popular spiritualism is at the time, but makes an argument which I plan to question in my article:  "If spiritualism should be ultimately proved to have a real basis, the result would be simply that we would have to say that life is longer than we supposed.  There is nothing religious about this conclusion.  Indeed, it is a great mistake to treat spiritualism as a religion at all.  It should be regarded as simply a question of scientific fact."  (p. 376)

Now Published: "A Polemic Against the Standing Requirement in Constitutional Cases"

My article A Polemic Against the Standing Requirement in Constitutional Cases has now been published by the Capital University Law Review.  You can find the final version for free download on SSRN.

"Transnational Nonestablishment"

Claudia E. Haupt, Transnational Nonestablishment, 80 George Wash. L. Rev. 991 (2012)

This article is set in the context of the widespread entrenchment in international law of the right to freedom of religion without the concomitant (to many American eyes) entrenchment of a principle of nonestablishment.  Haupt intriguingly argues that a recent trend towards nonestablishment might be gleaned from a review of European Court of Human Rights cases dealing with religious freedom.  Haupt says:

"Under the [European Convention on Human Rights], we may be observing an emerging trend toward nonestablishment.  A number of recent [European Court of Human Rights] decisions addressing the relationship between religion and the state in democratic societies seem to implicitly assume a nonestablishment principle.  This trend is normatively supported by developments on the EU level and in individual European countries." (p. 1004)

Haupt argues that the "textual anchor" for this trend towards nonestablishment is actually contained in a clause in the Convention that serves as a limitation on the right to freedom of religion: Article 9(2).  She goes on to discuss several cases that she argues demonstrates the existence of this trend (pages 1008-1012), but also discusses an arguable counter-example, Lautsi.  She also concedes that many individual European countries have various forms of establishment domestically.

I'm not familiar enough with the Convention or the decisions that Haupt cites to evaluate how persuasive the claim of an emerging trend is.  I can say that the article is thorough, well-researched, and balanced.  The treatment of the nonestablishment principle in international law is an important topic, and well-worth watching closely.

Proposal to Remove Blasphemy Provision from Ireland Constitution

As The Volokh Conspiracy discusses, the present Irish Constitutional Convention has recommended a referendum to remove the document's provision on blasphemy.  The Irish Constitution presently exempts blasphemous statements from its general guarantee of free speech.  After Ireland's highest court determined that blasphemy was not illegal in the absence of a statutory ban, the Irish national parliament made blasphemy a crime in 2009.