An Act against Atheism and Blasphemy, 1697; Massachusetts; 1759 printing, via Wikipedia

The Massachusetts Act against Blasphemy, 1697 (pictured right) amplified the common law offence of blasphemous libel. It was one of the four heads of the common law crime of libel which applied throughout the common law world, including Ireland. Section 35 of the Defamation Act, 2009 abolishes three of those four heads: the common law offences of defamatory, seditious and obscene libel. Similarly, section 73 of the Coroners and Justice Act 2009 in the UK does the same thing. However, the positions in Ireland and the UK diverge in their treatment of the fourth head, that of blasphemous libel. In the UK, the Blasphemy Act, 1697 (9 Will 3, c 35) was repealed by section 10 and Schedule 4 to the Criminal Law Act 1967, and section 79 of the Criminal Justice and Immigration Act 2008 abolished the common law offences of blasphemy and blasphemous libel. On the other hand, in Ireland, the already-notorious section 36 of the Defamation Act, 2009, goes in precisely the opposite direction, providing for an offence of blasphemy. The difference is not so great as it might appear, however, since the Racial and Religious Hatred Act 2006 made incitement to religious hatred a crime in the UK. In Ireland, the Prohibition of Incitement to Hatred Act, 1989 (also here) had already done so, and the blasphemy provisions of the Defamation Act, 2009 simply amplify this. Indeed, given that incitement to religious hatred was already a criminal offence at Irish law, it is difficult to locate the Constitutional gap relied upon by the Minister for Justice to justify the introduction of the blasphemy offence into the 2009 Act.

Be that as it may, sections 36 and 37 of the Defamation Act, 2009 now require, in essence, that the material be intentionally grossly offensive to a large number of adherents of a religion, and that it not have any redeeming value. It is an oddly drawn offence. For example, whilst pamphlets containing inflammatory anti-Islam images including a depiction of the Prophet Muhammed engaging in bestiality and an Islamic Crescent surrounding a swastika would be may have constituted protected speech in the US, they would plainly be intentionally and grossly offensive to a large number of Muslims, and the terms of the Irish blasphemy offence would be satisfied. The same may be true of criticism of Mohammed’s first marriage in flagrantly offensive language. Moreover (unlike the Danish cartoons) it is difficult to see the redeeming value here, so that the terms of the defence would not be satisfied.

The controversy about these provisions spilled over into the mainstream and international media. For example, on Tuesday, 12 January 2010, on RTÉ1 television, the Prime Time programme reported on Ireland’s new blasphemy law and the impact it is likely have upon Irish society (also YouTube). Katie Hannon‘s report included contributions from Abi Philbin Bowman, comedian, Ali Selim, Islamic Cultural Centre of Ireland, David Quinn, Director of the Iona Institute, Graeme Keyes, cartoonist, and Michael Nugent, Chair of Atheists Ireland, as well as the blasphemy clip from Monty Python‘s classic The Life of Brian (a movie which was banned in Ireland for blasphemy until 1987) and the “careful now”, “down with this sort of thing” scene from Father Ted. The subsequent studio debate featured Thomas Byrne TD, Ali Selim, and Sejal Parmar, Senior Legal Officer, Article 19. Then, at various times in the week from 12 February 2010, the Listening Post programme on Al Jazeera English reported on controversy surrounding the blasphemy law (also YouTube). Sinéad O’Shea’s report again interviewed Michael Nugent, and featured very clear contributions from Carol Coulter, Legal Affairs Correspondent of the Irish Times. During this two-month period, the only government politician to defend the offence was Senator Jim Walsh.

There was a chink of light in this depressing gloom when, earlier this month, there came news that there might be a referendum to remove the crime of blasphemy from the Constitution, presumably as a precursor to repealing the blasphemy offence from the Defamation Act, 2009. However, this chink of light, if it has not been entirely extinguished, was seriously enfeebled last week. In the Dáil last Thursday, Deputy Pat Rabbitte askedMinister for Justice, Dermot Ahern, for

… his views on whether there should be a constitutional referendum on blasphemy; his further views on whether such a referendum will be held in 2010; and if he will make a statement on the matter.

The Minister replied [with added links]:

My views on the question of a referendum on blasphemy are as stated in the House during the debate on 20 May 2009 on Committee Stage of the Defamation Bill 2006. I clearly stated that I hoped the matter could be addressed by referendum at a suitable opportunity in the near future. …

I remain of the view that on grounds of cost, a referendum on blasphemy on its own should not be held. It should possibly be run together with one or more other referenda. I would be happy to propose to the Government a referendum on blasphemy at the appropriate time when there will be a possibility of other referenda, in order to save costs. …

It is not for me to decide here on the floor of the House whether I should hold a referendum. That is a matter for Government to propose and for the Oireachtas to dispose of. The Government has no plans to hold a referendum on blasphemy in the immediate future. … If we were to have a number of referendums on one day, it would be appropriate to put to the people a question on the section of the Constitution relating to blasphemous and seditious libel.

In a follow-up question, Deputy Rabbitte asked:

Taking the Minister at his word that there will be a referendum some time within the lifetime of this Government, which is looking particularly rickety at the moment, I ask him to explain his intended proposition. He gave us a long justification of the re-installation of the section concerned in the Defamation Act, which relates to Article 40.6.1 of the Constitution. Is it his intention only to excise the word “blasphemous” from the article, or is it his intention, as recommended by the Constitution Review Group, to recast the entire article, which, at the moment, from the point of view of freedom of expression, reads more like something that might have been imported from a theocratic state in the Middle East?

And the Minister replied:

… [as to] how we would deal with the article in the Constitution – whether to remove it altogether and say nothing on the subject, or go along with the recommendations of the Joint Committee on the Constitution – all of these things will be taken into account and, based on the advice of the Attorney General, the Government will make a decision.

So, there we have it. Clearly as mud. There might or might not a referendum on blasphemy; and it might or might not go further and revise the entire free speech clause. The Minister should stop prevaricating. The sooner this happens, the better. Writing on the the Guardian blog ‘Comment is Free’ in January, Ophelia Benson arguedd that blasphemy laws grant religion an unjustified privilege. In her view, religion is exactly the kind of institution that needs to be exposed to criticism, not exempted from it. In my view, she is absolutely right; religion is plays an important role in many people’s lives, but it is precisely this power – for good, for controversy or for ill – that must be discussed, especially where it proceeds from contested doctrinal claims.

Finally, a treat for those who have persisted this far: “Everybody Knows What Blasphemy Is” – A Short Film About Ireland’s Blasphemy Law from WellBoyFilms on Vimeo; see also these YouTube clips.