Posted by Eugene Volokh:
Blasphemy Made a Crime in Ireland:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248470498
Here's the [1]just-enacted [2]statute:
A person who publishes or utters blasphemous matter shall be guilty
of an offence and shall be liable upon conviction on indictment to
a fine not exceeding �25,000.
(2) For the purposes of this section, a person publishes or utters
blasphemous matter if --
(a) he or she publishes or utters matter that is grossly abusive or
insulting in relation to matters held sacred by any religion,
thereby causing outrage among a substantial number of the adherents
of that religion, and
(b) he or she intends, by the publication or utterance of the
matter concerned, to cause such outrage.
(3) It shall be a defence to proceedings for an offence under this
section for the defendant to prove that a reasonable person would
find genuine literary, artistic, political, scientific, or academic
value in the matter to which the offence relates.
(4) In this section �religion� does not include an organisation or
cult --
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation --
(i) of its followers, or
(ii) for the purpose of gaining new followers.
Now I oppose this law, for the obvious reasons, which I won't repeat
here. The [3]Irish Constitution does expressly calls for the
punishment of blasphemy -- "The publication or utterance of
blasphemous, seditious, or indecent matter is an offence which shall
be punishable in accordance with law" -- so the absence of a blasphemy
law until now (an earlier law was [4]struck down for not defining
"blasphemy") has itself been unconstitutional. But it seems to me that
Irish legislators should have tried to [5]amend the constitution via
referendum rather than enacting this sort of ban.
But here I'd like to say a bit about some slightly less obvious
problems with the law. To its credit, the legislature tried to
minimize the risk that (say) the Satanic Verses, the Last Temptation
of Christ, the Mohammed cartoons, and other such speech would become
criminal. True, a court might well find that (1) the speech "is
grossly abusive or insulting in relation to matters held sacred by any
religion," and (2) the speech intentionally caused "outrage among a
substantial number of the adherents of that religion." But presumably
this danger might be mitigated by the defendant's ability to get off
the hook if he shows that "a reasonable person would find genuine
literary, artistic, political, scientific, or academic value" in the
speech.
Yet it seems to me that a court decision saying that the Mohammed
cartoons or the Satanic Verses can't be punished because it has
"genuine literary, artistic, [or] political ... value" would cause
even more insult and social tension than the original speech itself
would. At least without the blasphemy law, the government can say the
speech is protected no matter how awful it might be. But with the
blasphemy law, a government body must either find the speech
unprotected -- or place its imprimatur behind the view that the
"reasonable person would find genuine ... value" in it.
Likewise, another defense requires courts to decide which religions
"employ[] oppressive psychological manipulation" "of [their]
followers." Is threatening eternal damnation oppressive psychological
manipulation, for instance? How about urging women to conceal
themselves behind veils? I agree, of course, that religions should
have the right to engage in such behavior, regardless of whether the
government views it as "oppressive psychological manipulation" -- but
if the law sets up "oppressive psychological manipulation" as a legal
standard for determining which religions' adherents are protected from
"blasphem[y]," then courts would have to apply that standard. Is
religious tolerance and amity really advanced by official court
decisions (and presumably [6]jury decisions) about whether a religion
practices "oppressive psychological manipulation"?
Thanks to Baran Alpturk for the pointer.
References
1. http://www.irishtimes.com/newspaper/breaking/2009/0723/breaking4.html
2. http://www.oireachtas.ie/documents/bills28/bills/2006/4306/b43d06s.pdf
3. http://www.servat.unibe.ch/icl/ei00000_.html
4. http://www.irishtimes.com/newspaper/opinion/2009/0710/1224250387007.html
5. http://www.spiked-online.com/index.php/site/article/7171/
6.
http://www.citizensinformation.ie/categories/justice/Courtroom/jury_service
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