Blasphemy: Religion Challenges Freedom of Speech

• Author: Mr. Justice Peter Charleton - Mr. Ross Pratt-O'Brien - Ms Emma Libreri
• Pages: 15-30

IRISH JUDICIAL STUDIES JOURNAL

[2017] Irish Judicial Studies Journal Vol 1 15

BLASPHEMY: RELIGION CHALLENGES FREEDOM OF

SPEECH

Mr Justice Peter Charleton, Supreme Court

Mr Ross Pratt-O'Brien, LL.M (UCL); Emma Libreri, LLB, (Ling Franc) MPhil (Trinity)

Introduction

The right to freedom of thought, conscience, religion or belief protects the individual

conscience of every human being. At the global level, the right was first recognised in 1948 by

the Universal Declaration of Human Rights in Article 18. This was given the power of

International law by Article 18 of the International Covenant on Civil and Political Rights in

1976.

As place and time changes, human expectations of what is right changes also. In the Europe of

the 21st century people have become habituated to the idea that there is no one system of

values that is right for every person in every situation. In itself, this idea, as an encapsulation of

relativism in liberal thought, has aspects of unassailability that in their absolute nature reflect

an almost religious belief. The concept of the mutability of beliefs means that everything is up

for discussion, that no one law or set of laws is sacred. Hence, in order for consensus to

emerge as to how society is to be ordered, freedom of speech is essential. Tyranny demands

the totality of our lives: that we should act, think and speak as the despot demands. From the

societies that predated the revolution in France in 1789, to the suffocating spying by citizen on

citizen in aid of total knowledge and total control that characterised the Soviet Bloc up to 1989,

the lesson of history is obvious

This form of government is odious. Freedom of speech is thus not only a bulwark against

totalitarianism but its absence is a litmus test that lights up fundamental defects in the entire

organisation of society. Where people organise themselves by setting apart ideas as beyond

discussion they are submitting to the erosion of every right that modern liberal societies see as

the essence of what they are.

Religion and its adherents say: we object to you insulting us, to making our beliefs an object of

satire, we have rights as well, in this case the right to privacy of belief without being cut off

from the society of which we are a valuable part through ridicule. They go so far as to argue

that attacks on what faith holds most sacred should be a criminal wrong. The very idea seems

anathema; that freedom to speak should be curtailed by criminal sanction. Yet, for thousands

of years it was so. Little by little, however, in the Christian world blasphemy has retreated.

Increment by increment, the consciousness of Islam has become part of Europe. With it has

come the need for mutual respect as between our liberal post-Christian societies and citizens

who hold as absolute and sacred that religion is beyond satire.

Should European societies adjust to a different model? And if so, how? And should that

adjustment involve the protection of religion as a space into which mockery must not intrude?

These are the questions posed by this article.

IRISH JUDICIAL STUDIES JOURNAL

[2017] Irish Judicial Studies Journal Vol 1 16

A brief history of blasphemy in Britain and Ireland

Blasphemy consists of the attribution to God of that which is not of God, such as malice or

deceit

1

. Claiming that there is no God or that religion is pointless is not blasphemy. Cannon

2323

2

of the Catholic Church, in discussing blasphemy holds that blasphemy shall be punished

by the local bishop. Irish practitioners have defined blasphemy as “spoken or written words of insult

to God or His Saints or sacred things.”

3

The earliest and most famous eyewitness account of

condemnation for alleged blasphemy is recorded in the Gospel of Matthew

4

; the

‘blasphemous’ statement, a positive answer to the question, “are you the Christ?” The very last

person given a jail sentence in England for blasphemy, and the last person officially prosecuted,

was the ironically named John Gott

5

. A freethinker, atheist and socialist, his 1921 offence was

indeed mild by today’s standards; as emerges from the judgment of Lord Trevethin upholding

the sentence of four months

6

:

It does not require a person of strong religious feelings to be outraged by a

description of Jesus Christ entering Jerusalem "like a circus clown on the back of

two donkeys". There are other passages in the pamphlets equally offensive to

anyone in sympathy with the Christian religion, whether he be a strong Christian,

or a lukewarm Christian, or merely a person sympathizing with their ideals. Such a

person might be provoked to a breach of the peace.

In reality, whatever the definition, the crime of blasphemy has been treated as the mockery of

the Christian religion.

The earliest recorded case is that of John Taylor from Surrey

7

. He proclaimed in 1676 that he

was “A King’s son” and “younger brother to Christ” and that religion was “a cheat”. He was

thought to be mad but the overseers of Bedlam proclaimed him sane. Hale J presided over his

trial and proclaimed that Christianity was “parcel of the laws of England” and that to reproach

that religion “is to speak in subversion of the law.” The convict was pilloried in three different

places holding a warrant stating that his punishment was for “blasphemous words tending to

the subversion of all government.”

1

A precise definition of blasphemy is difficult to come by. Although we may know it when it is seen, it is

nonetheless difficult to describe. Interestingly, Canon Law does not define the offence of blasphe my but it

does state the punishment in Canon 1369 P.A. Ó’Síocháin SC defines blasphemy as “To speak or write

offensively about God or religion, as to deny the existence of God, or to bring God or religion into contempt,

ridicule, or to bring God or religion into contempt, ridicule, or disbelief, is blas phemy.” The Criminal Law of

Ireland, at page 215, 3rd ed 1952. This definition was not updated in any of the subsequent five editions.

2

This is pre-Vatican 2. Since Vatican 2, the canon law does not define what is meant by the ter m

‘blasphemy’. The only reference to blasphemy is in Canon 1369 which states that, “ A person is to be

punished with a just penalty, who, at a public event or assembly, or in a published writing, or by otherwise

using the means of social communication, utters blasphemy, or gravely harms public morals, or rails at or

excites hatred of or contempt for religion or the Church”.

3

O’Higgins, P. Blasphemy in Irish Law, 23 Mod. Law Rev. 166 (1960) fn. 82 at p. 166. Canon 2323 did not

specifically define the concept of blasphemy, describing instead as “Persons who commit blasphemy or perjure

themselves outside of court, are to be punished at the discretion of the Ordinary, especially if they are clerics.” The

quotation itself is taken from P. O’Higgins who wrote on the topic of blasphemy.

4

Matthew 26:61-26:68

5

R v Gott (1922) 16 Cr. App. R. 87

6

Ibid.

7

Taylor’s Case, (1676) 1 Vent 293.