15

The Ethical Case for a Blasphemy Law

Neville Cox

Introduction

The concept of a modern day blasphemy law seems intuitively anachronistic and oppressive to a typical Western liberal audience.1 It carries undertones of an Old Testament style stoning of the kind parodied in Monty Python’s Life of Brian, or of individuals being harshly punished by the law for doing something which a state fears may incur the wrath of God against it. This popular view that a blasphemy law is an inevitably and unacceptably illiberal one, best reserved for a theocracy and having no place in a modern democracy has been expressed a great deal recently and in the context of a number of different newsworthy events;

In all these cases, the expressed view of many Western commentators was that both the existence and the application of a blasphemy law must be entirely and self-evidently inappropriate7 and a blasphemy law is therefore nothing more than a tool for intolerant zealots to enable them to pursue an agenda against those who disagree with them.

What was especially stark about the reaction from many European commentators to these stories is that, as we shall see, a modern day blasphemy law is essentially one which seeks to protect religious sensitivities from abuse and in most European states and under the European Convention on Human Rights,8 there is no absolute legal objection (of the kind that exists, for example in America) to the notion of free speech being curtailed because of the offensiveness or moral unacceptability of its content. An obvious example (and one on which I shall focus) is a law prohibiting holocaust denial.9 Another example is arguably a law which prohibits so called “hate speech.” Yet the same commentators who condemn blasphemy laws are not as vehemently opposed to these other kinds of law. This indicates that the principled objection to such laws (if any) shared by these commentators cannot be at the level of classic liberalism whereby one should be prepared to die for the speech one hates and whereby, consequently, speech should never be restricted simply because it is offensive.10 Rather the objection appears to be more specifically to the concept of a blasphemy law itself, or, possibly, to the notion of the law protecting religious sensibilities from grave offence (even though it might validly protect other forms of sensibilities). Moreover, this line of principle gets such commentators a very long way, in that it allows them to conclude that any such blasphemy law must self evidently be an affront to democracy.11

In this chapter the question of whether it is possible to make an ethical case for a twenty-first century blasphemy law is considered. Emphatically, however, it is not the author’s intention to argue that a blasphemy law should be enacted in any jurisdiction or jurisdictions nor to consider the proper content of any such law. Rather the hypothesis of this chapter is simply that the desire on the part of certain individuals for the law to step in to prevent blasphemy (and punish the blasphemer) is no different in principle to the desire (for example) of other persons for the law to be used to prohibit holocaust denial and thus that any principled view that one such desire is inherently unacceptable within a democracy must necessarily cover the other and vice versa.

Three central points will be made in this chapter as to why such a link between support for holocaust denial laws on the one hand and blasphemy laws on the other can be drawn.

This is the proposition that is considered in this chapter; in order to consider it carefully though, we assess first the nature of the crime of blasphemy (or what the crime has come to mean), second, the nature of what might be termed an inappropriate blasphemy law – namely one which exists to protect the religious sensibilities of devotees against insults to religion yet in circumstances where there is no need to do so because the level of offence suffered at a corporate level is insufficient and, finally, the circumstances in which such a law might be appropriate.

Before doing so, however, one final introductory point should be made; this chapter is entitled “The Ethical Case for a Blasphemy Law” and it is important to address the question of the identity of the audience to whom the “case” is being made. After all, as will become clear, my argument assumes that individual rights and freedom of expression and so on, are important values (and self-evidently so), to the extent that it is necessary to justify restrictions on them. However, in a number of countries (including, for example, certain Sharia law led theocracies) such a proposition simply is not accepted, such that blasphemy or apostasy can be criminalized with no further debate, in that the interests of God, religion or religious feelings are at the upper end of the scale of national priorities, and there are either no such things as individual rights or freedom of expression, or else they rank very low on any such scale. Hence this chapter seeks to make the ethical case for blasphemy law to persons who are familiar with and supportive of what may simplistically and broadly be termed “Western human rights values,” and who, in consequence see rights as important social possessions which, however, are not absolute and which may be limited where this can be justified.

What is Blasphemy?

In 1660 the common law courts took jurisdiction over the crime of blasphemous libel (in place of the Star Chamber and ecclesiastical courts).16 At first, the law existed to protect religion and later it operated as a vehicle by which the offended sensibilities of religious devotees could be assuaged. These two stages in the life of the crime of blasphemy will be considered shortly, but it is worth mentioning briefly, that in fact, certainly on one analysis, “blasphemy” is properly an offence against neither religion nor a religious person but exclusively against God. So the Old Testament terms for blasphemy all stem from the words Naats and Naqab meaning to “pierce” or “sting” and the word Gadaph meaning to revile.17 This is a not unimportant point, in that it suggests that most modern so-called blasphemy laws, whereas they undoubtedly prohibit the utterance of blasphemy, are in fact not actually blasphemy laws at all, but rather laws which restrict speech in the interest of preventing offence to persons affected thereby. Indeed it is also arguable that the very name of the crime of blasphemy is one of the reasons why it attracts so much criticism, as people perceive it to be anachronistic and “medieval” in nature.18

Blasphemy as Treason

Originally, the common law offence of blasphemy, existed for a specific reason, namely to protect the established church as a part of the law of the land19 – and indeed to protect society from the wrath of a Divine force angered by insults.20 As Feinberg put it:21

The original blasphemies in an earlier time when religion was austere, did more than merely offend, as any vulgar insult might offend … the punished words were thought to be not merely offensive but dangerous to the collective interest or positively harmful in themselves. A solemn interdiction had been laid upon sacred words when used for the purpose (or with the effect) of blasphemy, and disobedience threatened the whole community with divine vengeance. For that reason, blasphemy was not merely offensive, but dreadful, that is, likely to be accompanied in the speaker’s mind and to arouse in all listeners a great dread of awful consequences.

This justification for the law meant both that even simple denial of the authority of the Anglican religion or any of its precepts constituted blasphemy (for it was a quasi treasonable denial of the authority of the law)22 and also that it was only possible to commit blasphemy against the established religion.23

Blasphemy and Offence to Religious Sensitivities

This was certainly the law in England until 1842.24 Later, however, owing to the efforts of reform bodies,25 and politicians,26 and public frustration with certain long running prosecutions,27 the position changed, such that by 1883, the law had an entirely different focus28 and existed to protect the religious devotee from comments that would offend his or her sensibilities. Hence in 1883 Coleridge LCJ commented that29

the mere denial of the truth of Christianity is not enough to constitute the offence of blasphemy … the law visits not the honest errors but the malice of mankind. A wilful intention to pervert, insult and mislead others by means of licentious and contumelious abuse applied to sacred subjects…is the criterion and test of guilt.

This change (which was copper-fastened by the decision of the House of Lords in Bowman v. Secular Society,30) naturally meant that the law would no longer be concerned with seditious or heretical blasphemy (including that most seditious kind, namely expression of unbelief) but only with what might be termed offensive blasphemy – in practice, publications involving the must scurrilous treatment of sacred things.31

What was not clarified in either Bowman v. Secular Society nor in R v. Lemon,32 – the famous 1970s case in which redoubtable social campaigner Mary Whitehouse took a private blasphemy prosecution against the publishers of the magazine Gay News – was whether this new blasphemy law continued only to apply to publications involving aspects of the established religion.33 Logically, in as much as this historic limitation was utterly based on the old rationale for the blasphemy law (the sedition justification) this should no longer have been the case, but in R v. Bow Street Magistrates, ex parte Choudhury,34 (in the context of the extreme political tension surrounding the publication of Salman Rushdie’s book The Satanic Verses which is considered later35) the English High Court held that the law still only covered the Anglican faith and that any change in this position would have to be made by parliament.36

Blasphemy Law and the Balancing of Rights and Interests

Accordingly then, the contemporary common law offence of blasphemy is one which appears to involve a balancing of rights and interests, namely the right to freedom of expression being balanced against the interests of various persons not to be offended in respect of their religious sensitivities. Different commentators and indeed law reform bodies naturally take different views as to whether as a matter of principle it is legitimate at all for speech or expression to be restricted because it is offensive,37 or, more specifically, whether religious sensitivities should be protected from offence in the same way as might be the case for (for example) racial or ethnic sensitivities.38 Nonetheless, what is notable is that the “new” blasphemy law (in as much as it involves a balancing between the right to freedom of expression and the interest of people in not being gravely offended by such expression) operates at a level of principle that is immediately cognizable within normal Western constitutional language. There is, after all, a large number of instances in which the law of various jurisdictions will restrict speech or expressive conduct on the basis that it is offensive, with obvious examples being laws against public nudity, racist or other hate speech, obscenity or holocaust denial. The modern version of the common law offence of blasphemy, simply takes the view that offence to religious sensibilities fits within that class of offenses which may justify restricting the right to freedom of expression, and proceeds accordingly by an assessment of whether the offence in question is grave enough to warrant suppression of the material.

In other words, a blasphemy law of this kind is prima facie consistent with normal Western rights theory (in the way in which a law which existed to prevent God from being offended would not be). To put it another way, if one is to submit that as a matter of principle this kind of a blasphemy law can never be acceptable, then it is necessary to argue either:

We will now consider these two issues in turn.

The Significance of Offense and the Objectification of an Offense Principle

To take the first issue first, the broad question of whether the offensiveness of speech or conduct should ever be a ground for its legal restriction is so vast, that it is simply beyond the scope of this chapter. Nor indeed is it necessary to address the question, in that the purpose of this chapter is to make an ethical case for a blasphemy law premised on the notion that such a law is indistinguishable in principle from a holocaust denial law. On the other hand what is necessary is for us to assess the question of why holocaust denial is so offensive in Germany, and more particularly why the law steps in to prohibit the cause of this offense, in order to assess whether the offense caused by blasphemy could ever rise to this level.

In doing so, we immediately encounter what many commentators regard as the most significant objection to any kind of “offense principle” namely that the subjectivity of taste and tolerance is such that anything can be offensive to somebody,40 hence an offense principle could lead to a situation where virtually all speech, especially speech which was dynamic and thought provoking could be prohibited. At the very least, it is strongly arguable that unless some “objectifying limitations” are placed on such an “offense principle” it could have very serious consequences as far as the right to freedom of expression is concerned.41 Where religion is involved, moreover, this is a particularly problematic issue in that religious like atheistic beliefs (even deeply and sincerely held beliefs) lack objective basis because of the unprovability of the existence or nonexistence of God, let alone the content of his or her mind. In other words, it is possible to believe in anything or to subscribe to any kind of doctrine and hence to be offended by any kind of remark or comment, however objectively innocuous.

Hence if any kind of “offense principle” is to be employed within a legal system, it is presumably wise to impose some constraints on such a principle. It is suggested in this chapter that one way of objectifying an offense principle (although by no means the only appropriate way) is for a nation only to restrict offensive speech which offends not only an individual but also the collective ethos or “soul” of the state itself at some deep and profound level. It will later be suggested that this is precisely what is at issue when, for example, Germany prohibits holocaust denial and that it may also explain why Islam (as a quasi nationstate) is so outraged by blasphemy. Before doing so, however, it is apposite and salutary to consider the problems that may arise where there is a “misfit” in principles; that is, where a state restricts speech because of its alleged offensiveness to individuals, yet where the state itself has no interest in restricting the material in question. By way of example, let us consider recent developments in the blasphemy law of the Republic of Ireland.

A Disconnect in Principles – Blasphemy Law in Ireland

One of the most extraordinary features of the Irish Constitution is that whereas it guarantees a limited right to freedom of expression42 it also specifically takes the unusual step of providing that the publication or utterance of blasphemous, seditious, or indecent matter; is an offence which shall be punishable by law. The only clue as to the ambit of the constitutional crime of blasphemy given at the time of the document’s enactment came from the then Taoiseach (Prime Minister) Mr. Eamonn de Valera, who suggested that the constitution did not create a new offence of blasphemy but simply supported the existing common law offence.43 This was not a remarkable conclusion given that it was in England that this common law offence was formed and developed and furthermore, during the bulk of the time when this offence was being developed, Ireland was under English legal control. The constitution came into being in 1937, and hence, if Mr. De Valera was correct, the constitutional offence of blasphemy existed in the scurrilous treatment of sacred things which has the capacity grossly to offend the religious sensitivities of devotees.

Despite (or possibly as a result of) its overtly religious ethos, there have been remarkably few prosecutions for blasphemy in Ireland either before, or after independence. The first such prosecution occurred in 1703,44 when one Thomas Emlyn, a Unitarian minister was arrested because of a book he had written entitled A Humble Enquiry into the Scriptive Account of Jesus Christ. The Chief Justice, Richard Pyne, conducting the prosecution with great zeal told the jury that if it acquitted Emlyn, the Bishops sitting in Ecclesiastical Courts would not. Almost as a matter of course, Emlyn was convicted, sentenced to one year in prison, fined £100 and ordered to produce sureties for good behavior for life. The next major Irish blasphemy case took place in 1852,45 and concerned Brother John Syngean Bridgeman, a Franciscan Friar living in County Mayo who was charged with unlawfully, wickedly and blasphemously setting fire to a bible which had the unfortunate status of being both English and Protestant. Ultimately Brother John was found to be not guilty but the court did indicate that blasphemy existed to protect the established religion (the Anglican Church). Finally in 1855, a Redemptorist priest named Padre Petcherine46 had organized a bonfire aimed at facilitating the destruction of some of the works of the devil, particularly vile English novels, whose very names are an abomination. In his zeal to destroy such literature, he had neglected to notice that, encased in a bundle of disreputable books was a bible, which was thrown unto the fire and burned. This act of bible-burning generated a charge of blasphemy for which he was acquitted, with Baron Green again endorsing the view of blasphemy law as a protector of the legal establishment.47 Equally this view of the law was unsustainable in 1937 both because of the developments in England which we have considered, and more pertinently because in 1869, the Church of Ireland was disestablished and since then no religion has been established, such that a denial of its precepts would be a denial of the law.

The first time in which an independent Irish Supreme Court dealt with the application of the “new” constitutional clause pertaining to blasphemy was some 140 years later in Corway v. Independent Newspapers.48 The Corway case arose out of the publication in the biggest selling Irish Sunday newspaper, of an article which questioned whether the recent acceptance of divorce by the Irish people signaled a move away from the historic impact that Catholic doctrine had on Irish constitutional and social policy. The article was accompanied by a cartoon depicting a stout priest in priestly vestments holding aloft the Eucharistic host and offering it to three prominent political leaders who are seen to be walking away from this offer. The applicant in the case felt sufficiently aggrieved and offended by what he saw as the contemptuous treatment of something so sacred as the Eucharist for the purpose of making a crude and rather obvious political point, that he sought leave, under the terms of s.8 of the Defamation Act of 1961, to bring a private prosecution against the newspaper.

The case proceeded to the Supreme Court which took the unusual step of deeming the constitutional clause in question, and specifically the notion of blasphemy, to be too obscure for it to interpret. Thus, having considered a dictionary definition of the term blasphemy,49 the Supreme Court encountered what it regarded as an insuperable obstacle. Since 1869, Ireland has had no established church and hence there has been no possibility of any particular religion forming part of the law of the land.50 Yet, (according to the Supreme Court) the crime of blasphemy exists to protect religion as an aspect of the law of the land. A combination of these two factors meant that it was impossible to say with any degree of certainty what the constitutional reference to blasphemy actually entailed. Indeed the problems in this regard were exacerbated by the fact that, even if such an established or (as in the case of the Roman Catholic Church) a quasi-established religion could be found, a constitutional guarantee would sit uneasily with the constitutional guarantee of religious equality. In the circumstances, the Supreme Court felt that the constitutional reference to blasphemy simply transcended judicial definition, and that its meaning should be determined by the legislature. Thus, the court concluded that51

In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists … The task of defining the crime is one for the legislature and not the courts. In the absence of legislation and in the present uncertain state of the law, the court could not see its way to authorising the institution of a criminal prosecution for blasphemy.

There are many criticisms that can be made of the Supreme Court judgment in Corway v. Independent Newspapers.52 First, it may be suggested that the Supreme Court misjudged its role in the case. After all, this was merely a case in which leave was being sought to bring a prosecution and hence all that had to be made out was a prima facie case. Second, it is surprising that the Supreme Court did not consider that the change in focus brought about by the nineteenth century blasphemy cases, and brought to full fruition in Bowman v. Secular Society obviated the need for any connection between a blasphemy law and an established church. Most pressingly, however, it is extraordinary that any Supreme Court – whose job after all is inter alia to interpret the constitution, should refuse to do so, on the basis that it felt unable to define a particular legal term.53 Indeed the weakness of the Supreme Court argument that blasphemy is indefinable is highlighted by the fact that at the beginning of its judgment it had actually referred to a perfectly workable legal dictionary definition of blasphemy. For what it is worth, it is submitted that the cartoon was probably not blasphemous in the legal sense – in that however tasteless and tacky it was, it was not a genuinely scurrilous treatment of something sacred. This conclusion, however, albeit one for a jury, is very different to a statement from the highest court in the land that it could not interpret one of the legal words used in the constitutional text.

The Defamation Act 2009 and the Statutory Crime of Blasphemy

It should be remembered that the Supreme Court, having accepted that blasphemy is a crime in Irish Law (because the constitution says that it is) called for legislative clarification of the nature of the offence.54 In 2009 the Irish legislature enacted a new Defamation Act to repeal and replace the Defamation Act 1961.55 This step posed a constitutional problem, however, in that the 1961 Act contained the procedural basis for taking a blasphemy action; hence simply to abolish such procedure without replacement would, at least on one level, emasculate the crime of blasphemy – a step with obvious constitutional implications. It would have been possible for the government to seek to amend the constitution and abolish the reference to blasphemy but politically that would have been an expensive and potentially complex step.56 Accordingly the decision was taken simply to clarify what was meant by blasphemy (thereby doing what the Supreme Court in Corway had suggested) and to encapsulate the offence in statutory terms. Hence s.36 of the Act provides as follows

1 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.

A point to note about this law is that it is virtually nonenforceable. Indeed given that one must intend to cause outrage, one must succeed in causing outrage and the material must objectively have no literary (and so forth) merit, it is difficult to see what could be covered that is not already covered by Irish law relating to incitement to hatred.57 In other words, if the legislature was aiming at adhering to the words of the constitution while actually killing off the crime of blasphemy, the law is arguably a success. Despite this, the reaction to the new law has been almost entirely negative from both commentators in Ireland and abroad who regard it as unnecessary, retrograde, and sinister.58 Even if we ignore the fact that most such comments are rather unrealistic in that they do not pick up on both (a) the constitutional obligations which faced the legislature and (b) the fact that the legislature was simply doing what the Supreme Court had asked it to do (and was doing so in a way that rendered the law unenforceable), what is notable about such comments is the fact that they almost uniformly (and irrespective of the source of such comments) regard a blasphemy law as an anachronistic blot on the Irish legal landscape. In other words, the law is perceived to violate rather than underpin any grounding ethic of the state. For many, therefore, the only appropriate step is for the constitution to be amended and the reference to blasphemy to be deleted.

That this is the case may be surprising to many external observers who would associate Ireland with deep religious piety and indeed who would observe that the text of the Irish constitution is imbued with overtly religious terminology. The point should be made, however, that despite certain racial stereotypes, certainly the Republic of Ireland (if not Northern Ireland) in 2011, is a place of considerable religious tolerance if not apathy. In fact, it is a radically different nation ideologically to that which existed when the Constitution came into being in 1937. At that time, the state was clearly extremely religious (though arguably more nationalistic than genuinely religious) and there was so little religious diversity beyond Roman Catholicism that the state could legitimately be seen as a monoreligious quasi theocracy.59 It is unsurprising that a state of this kind would seek to be underpinned by a constitution which quite overtly found its ultimate authority in the Christian60 (and arguably the Roman Catholic61) God. In 1937, moreover, at least in theory, the publication of blasphemy could have been massively offensive to vast numbers of people and, more importantly, it could have been seen as offensive to the values and beliefs that lay at the heart of the nation itself.62 This may explain and possibly legitimate the constitutionalization of the crime of blasphemy in 1937 at the time; it was a case of a newly independent and rather vulnerable state determining that certain publications or utterances were so anathema to its core values that they simply transcended acceptability. The only analogous publication which could have generated such offence in an Ireland of the time might be one lampooning the events of the great famine of 1847, or mocking those people who had lost their lives in the fight for Irish independence.

Significantly, though, for a number of reasons, the core grounding ideology for Ireland is now completely changed – and has been so changed for at least 15 years63 – and this ideological change has been reflected in legal developments. Thus since 1992, Irish law has been amended in a number of ways that involved the legalization of matters which had formerly been illegal because they violated the Catholic centered public morality of the state. Homosexual behavior was decriminalized as a new era of equality laws was ushered in;64 contraceptives were legalized and contraceptive use encouraged;65 the constitutional ban on divorce was removed by referendum in spite of strong opposition from the Roman Catholic hierarchy;66 most dramatically, following a traumatic constitutional case in which the state attempted to injunct a 14 year old alleged rape victim from travelling to England for an abortion,67 the absolute ban on abortion in Ireland was undercut. In all of these things, it is possible to see the law reflecting the fact that the grounding ethic of the state was changing, to the point that now the essential aspects of Irish public morality owe a great deal more to contemporary visions of human rights and equality, and considerably less to the teaching of the Catholic Church. Put another (and more accurate way), Christian teaching will, no doubt, influence the moral vision of the nation and will be reflected in law, but this will be because people approve of the essence of the teaching (with its focus on love, mutual respect, and the inalienable dignity of all people) and not because it is Christian teaching.

The point is that Ireland, while still by European standards a “religious” nation, is now in what many would regard as a “post-Catholic” era. Recent reports68 into the systemic level of child abuse by priests and other religious leaders and the complicity of the whole Catholic hierarchy and leadership both in Ireland and in the Vatican at the time, have led to public revulsion at the extent to which such practices were allowed to go unchecked by the law and also to a significant mood of anticlericalism in the Ireland of 2011. In consequence, the Church is facing criticism and vitriol such as was unthinkable only 20 years ago, and there are increasing calls for a complete separation of church and state. In such an era, and whereas no doubt individuals will continue to be offended by blasphemies, blasphemy will not “offend the nation” to the point where it transcends legal acceptability.

For present purposes, therefore, what is relevant is that not only does a blasphemy law not “fit” in twenty-first century Ireland (not because it is inconceivable that a blasphemy law could ever be acceptable as a matter of principle, but rather because it is simply not warranted at the moment), but indeed the existence of a blasphemy law may be offensive to contemporary values. This is arguably why the proposed change in 2009 met with such criticism, albeit that some of that criticism suggested an objection to blasphemy laws that was positioned at an inappropriately general level of principle.

Offense to the Nation – The Example of Holocaust Denial

The Irish experience is, it is submitted a salutary one. Whether or not a blasphemy law can ever be justified (in principle), it clearly does represent an intrusion into the realm of free speech, and thus if an ethical case is to be made for a blasphemy law a key element of the argument, (certainly as it is made to those versed in and supportive of the Western view of rights) must be that such a law is actually sufficiently necessary that the interests of those offended by blasphemy can trump the rights to freedom of expression of the would be publisher of blasphemy. It will now be suggested that, in order for this appropriately to happen, it is necessary not only that individuals be offended by the relevant material, but also that it offends the collective conscience of the nation as a whole and for this reason, transcends legal acceptability.

In order to consider this proposition, let us analyze another context in which speech has famously been restricted because of its inherent offensiveness, namely the approach of German constitutional law to the controversial issue of holocaust denial. In 1994, when the German constitutional court held that the “revisionist historian” David Irving’s right to free speech under Article 5 of the German Basic Law (the constitution or Grundgestz) could be limited to prevent him from speaking his holocaust denial theory, its conclusion was based, in large measure, on the fact that such speech struck at the very essence of the nation by insulting the dignity of both holocaust survivors and those who has perished in that context.69 Put another way, and whereas no doubt individual Germans would have been offended by the speech, the reason why it could validly be restricted was because it was grossly offensive (or in the terminology of Joel Feinberg profoundly offensive) at an objective and nationwide level, in that it struck at something fundamental to the collective consciousness of the nation. In dramatic terms it pierced the soul of the nation. Indeed as has been discussed earlier, it was for similar reasons that Chief Justice Rehnquist of the American Supreme Court was prepared to restrict free speech where flag burning was at issue in Texas v. Johnson.70

These two factual examples are important. Put simply, it is common knowledge that the US flag is of enormous emotional, cultural, and social significance within America, and hence that the wanton destruction of such a symbol (an act which involves a deliberate affront to something which, for whatever reason is a basic aspect of the American psyche) would be genuinely and offensive both to individuals and to the collective conscience of the nation. Similarly, it is common knowledge that, again, holocaust denial in Germany is something which (perhaps, and for obvious reasons, peculiarly to countries like Germany and Austria71) transcends normal levels of offensiveness and strikes at a particularly sensitive chord within the national psyche. Hence it may be argued that the prohibition of such activities within a nation is acceptable for that nation (and even, possibly, for a country like America which does not normally permit the prohibition of speech or expressive conduct on the grounds of its offensiveness) precisely because, on this basis, the level of offence which it causes is objectively sufficient and impacts on the people collectively and not merely individually.

This view of the matter may also explain why the decision in Holocaust Denial is arguably justifiable in spite of one superficially sizable gap in the case made for its restriction, namely that it would be remarkably easy for sensitive persons to avoid any offense arising out of Irving’s speech. The point is that in order for someone to be offended by the words themselves as uttered by David Irving at the meeting for which he was denied a license to speak, it would be necessary for that person actually to attend at the meeting and actually to hear the words being spoken (or possibly to read the words in print), yet there was no suggestion that this was likely to happen. After all, it is simply inconceivable that anyone going to the meeting (organized by the far-right NDP) would not know in advance exactly what was to be discussed. Attendees at the meeting would presumably fit either into the category of persons who would support Irving’s ideology, or else into the category of persons who opposed it – in other words, there would be no random strangers who would be surprised by what they heard. Yet for people in the first category, no offence would be suffered and for people in the second it is strongly arguable that they had actually knowingly sought out any offence which was suffered and must therefore, be taken to have consented to it.72 Put simply, they would be in the position of someone who voluntarily attends at a movie or reads a book that [s]he knows will offend him or her and then seeks to take legal action against the producer of the movie or publisher of the book because of the offence which [s]he suffered. Hence (and again at a superficial level) anyone likely to be offended by Irving’s words would either not hear them (because they would not go to the meeting) or would have sought out the offence suffered and hence their injured feelings should not receive redress. At a superficial level, this would suggest that the speech should therefore not be restricted because of its offensiveness.

Yet what this analysis fails to take into account is the fact that in as much as the speech offends the nation, what is repugnant is not the words in and of themselves, but rather the mere fact that they exist; or more accurately, that the law (and hence the state) permits them to exist unchecked.73 As Ellis points out74 “As a matter of psychological fact, what people find offensive is not the contents of erotic books, but the books themselves.” Where something as serious as holocaust denial is at stake, the bare and unchecked existence of such speech becomes a national abomination.

In this light, moreover, the utilitarian argument that such kinds of speech should be permitted in order to avoid giving the speaker publicity which will enhance his cause also breaks down. In fact, publicity becomes very important in that what is being trumpeted by a decision such as that in Holocaust Denial is nothing less than the content of a national ideal with a concomitant “outing” of the forces and factors which strike at this ideal. No doubt if David Irving had been allowed to speak his theory and a debate was to ensue, the obvious academic limitations of his argument might have shone through and he might have faded into relative obscurity. If his speech had just been offensive to individuals this might have been the sensible thing to do. But from much of the jurisprudence of the German constitutional court an inference can be drawn that the court views itself as having a responsibility to uphold and herald the ideals of the new Germany.75 Thus, the restriction on speech in this case was (on this view) both legitimate (in restricting speech the concept of which offended the nation) and productive (in that it was a vehement statement of the ideal of the nation and a rallying cry to those who supported such an ideal).

Thus, in conclusion it may be suggested that the logic behind a holocaust denial law in Germany is that it may be valid for a nation to restrict free speech by law where the speech, by its very existence, is offensive both to members of the nation and also to the “soul” of the nation itself. This logic is important in that it both objectifies the offense principle, and also allows for offensive speech to be permitted save in the most extreme circumstances – namely where the speech is profoundly offensive to the collective conscience of the nation rather than simply to individuals within it.

Offense to the Nation and the Case of Blasphemy against Islam

As has been mentioned at the outset, however, many people (and in particular we will focus on the position of many if not most devout Muslims) define themselves by reference to their religion and not their nationality. The question therefore arises as to whether a similar logic as was applied in the case of holocaust denial may be applied in the context of certain blasphemies. In other words, does the fact that both Muslims and Islam are outraged by certain blasphemies mean that such speech, like holocaust denial in Germany, may be legitimately prohibited by law and as a matter of principle?

In order for this to be remotely possible (or to be understandable), two initial hurdles must, however, be overcome.

Jurisdictional Concerns

The first such hurdle is a jurisdictional one. When Germany (for example) restricts holocaust denial, it does so in circumstances where the boundaries of its jurisdiction are obvious and recognizable within the law of nations. Hence, whether or not we approve of such restrictions, we can easily (or relatively easily) accept the legitimacy of a sovereign nation sorting out questions of the appropriate balance to be drawn for itself as between rights, interests, and ideals (and indeed we can say that the approach of the law is, perhaps, only understandable in Germany). Yet where Islam is concerned (and unless we are talking about a state which is governed by Islamic Law) we are talking about a quasi-nation that knows no recognizable boundaries because it works on the assumption that its legal order is predicated on universal truth. In other words, the ultimate source of this “nation’s” authority is God, whose jurisdiction is the entire universe. Thus if a case can be made that Islam is as offended by blasphemy as Germany is by holocaust denial, we still run up against the argument that this should be dealt with through religious teaching by Islam and private religious observance and not by use of law in a democratic state.

The hypothesis of this chapter, however, is not that Muslims can legitimately require all temporal governments in the world to enact blasphemy laws because Islam is affronted by insults to God, or worse, that they can assume the mantle of the state and take retributive action against publishers of such blasphemy. It is not even that individual states should restrict blasphemy as a recognition of the validity of the Islamic reaction. The purpose of this chapter rather is simply to suggest that the desire of Muslims individually and Islam generally to prohibit certain allegedly blasphemous publications and the view that the interests of justice require such prohibition are, in principle, no different from the equivalent views of Germans and the German state where holocaust denial is at issue or those of Chief Justice Rehnquist in the context of flag burning in America. Rather in all these cases there is a view that the very notion that the speech in question should be allowed to proceed unfettered represents an insult to the national ideal and an abomination which must be targeted in the name of that national ideal.

In other words, whereas this initial objection raises strong concerns in respect of practicalities (and also in respect of the question of the extent to which democratic states with strong Muslim populations should, in the interests of democracy, regard the interests of such Muslims as being a component part of the national interest) it does not really relate to the ethical case which may or may not be made for a blasphemy law.

The “Violent” Islamic Reaction to Blasphemy

The second initial hurdle to be crossed in order for this theory to be comprehensible relates to the popular perception that the attitude of Islam towards blasphemy is fundamentalist, disproportionate, and violent and hence should be opposed rather than supported. The first two of these three perceptions can be dealt with easily; the Muslim attitude to matters concerning God is indeed fundamentalist, but there is nothing necessarily wrong with being fundamentalist about one’s beliefs. After all, those who argue for an untrammelled right to freedom of expression are also fundamentalist in their views. It is one of the remarkably subtle forms of racism in twenty-first century Western culture that the term “Islamic fundamentalist” has been ascribed sinister undertones. Second, the contention that the reaction is disproportionate is merely a subjective value judgment. No one in Western society would say that, for example, imposing criminal sanction on a convicted rapist is a disproportionate reaction. This is, of course, because of the view which Western society takes of the value of bodily integrity and (arguably) because of its perceptions of the importance of equality. Similarly in Islamic societies, the importance of reverence for God and for the divine law is such that punishment for irreverence or for violation of the precepts of God will never appear disproportionate.

The third perception – that the Islamic reaction to blasphemy is also a violent or crazed and certainly illegal one – is more troubling. When an average Western audience looks at controversies such as, for example those which arose when Salman Rushdie published The Satanic Verses in 1988, or in the context of the so called Danish cartoons controversy in 2005 it is inevitably drawn to images of riots by Muslims both in the country in which publication initially occurred and worldwide. Indeed in the case of Rushdie, the defining memory of the controversy for many is surely the act of a senior Muslim leader (the Ayatollah Khomeini in Iran) in pronouncing a death sentence on the author and calling for a general effort on the part of all people and especially Muslims, to execute him. Thus the public reaction is that the response of Muslims to so called blasphemies is unacceptable in nature, and hence that even if they do genuinely suffer offence in such situations, it would be inappropriate and bad policy for the laws of any civilized nation to grant any concessions to such people.

It is, however, my submission, that in fact the view that “Muslims inherently react violently to Blasphemy” is simply incorrect. It is, at best, a gross oversimplification of what is actually happening and at worst an insidious form of stereotyping by persons with an interest in ensuring that the claims of Muslims generally are not given due consideration. In fact, to take both the Rushdie case and the case of the Danish cartoons, it is strongly arguable that in both cases, what occurred was a multifaceted response to the publication in question, of which the violent or illegal aspect was simply one (albeit a highly publicized) component and, in the case of the Danish cartoons, it was also very much the last element in a chain of reactions. That this is the case is made out by a brief evaluation of actually happened in both cases.

Take first of all the case of Rushdie’s The Satanic Verses. At the outset, it is necessary to make the point that despite a myth that radical Muslims targeted the book because it criticized Islam, in fact the book was genuinely offensive to Muslims.76 So, to take just a few examples the author uses the word Mahound to describe the Prophet-like figure who is one of the central characters in the book.77 The term means devil and is inherently insulting to Muslims. The Prophet (who of course is the most sacred figure within Islam other than Allah himself) is portrayed as being unscrupulous, lecherous, and manipulative, and as a magician, a conjurer, and a false Prophet who fabricated the Koran. His companions, Salman-al-Farsi and Bilal, who are sacred figures in the Islamic faith, are referred to as some sort of bums from Persia and as clowns, and profligates. In addition, God is referred to as the destroyer of men, and Abraham, the father of Ishmael who was the founder of Islam, who is revered by Islam as a Prophet, is vilified.78 The Archangel Gabriel, another sacred figure, is reduced to being a “pet” obeying its master. Further insult is generated by, for example, a sequence set in a brothel, where the whores are named after the Prophet’s twelve wives, who, within the Islamic faith are reverently called the mothers of Muslims. Finally by the very title of the book, Rushdie suggests that the Koran, which, according to Islamic belief has been preserved in its original form to this day, was subject to regular man made alterations.79 The book was therefore deeply insulting for individual Muslims and, as with holocaust denial in Germany, it can be regarded as insulting to Islam itself as well and by reason of its existence.

This is something which perhaps requires one further comment. No doubt the Rushdie case involved many pressing political realities. So for example it seems clear that one reason why the Ayatollah announced his fatwah against Rushdie was to shore up his own domestic authority. More pertinently, however, a political reality which explains why the book offended Islam as a religion, is the fact that both politically and sociologically, Muslims, especially those living outside of Islamic nations see themselves as being in a vulnerable position within the world.80 Since the time of the crusades, after all, Christianity and Islam have, however covertly, been at war. This tension has increased since the latter half of the twentieth century (and especially since the events of September 11, 2001).81 There is, in other words a perception that the West proclaims its own morality as constituting universal truth and undermines the Islamic view of truth, holding it up as something to be mocked and reviled. Thus Webster says,82

What Muslims see in Rushdie’s fictional adaptation of ancient stereotypes is not simply hatred, but the long, terrible, triumphalist hatred which the West has had for Islam almost since its beginning.

Certain protests both national and international greeted the publication of the book.83 Most notably, for present purposes, the British Muslim Action Front attempted to use the British blasphemy laws to have the book banned.84 As we have seen, the High Court, however, per Watkins, J. found against the Muslim petitioners, and said that existing case-law required that the offence of blasphemy continue to be confined to the protection of the established church. The court accepted that this was a gross anomaly,85 but saw it as one that arose from the chains of history, which could be unlocked only by parliament. Moreover, because of the difficulty inherent in defining the term religion and the fact that an extended blasphemy law could amount to a significant dilution of the value of free expression, the Court suggested that even if it had the power to extend the blasphemy laws it would refrain from doing so. Indeed, there was an implication that the total abolition of all blasphemy laws would be its preferred solution.86

From the Muslim perspective, this represented a clear statement that the establishment in England simply did not have respect for them or for their interests. Protests followed as Muslim groups, first in Bradford,87 and then in other British cities, burned copies of the book.88 Muslim activists petitioned the government for an extension of the blasphemy laws to cover faiths other than Christianity. But again, in response, the Secretary of State for the Home Department said that existing legal mechanisms were inappropriate for dealing with matters of individual faith and Western journalists bemoaned the lack of tolerance of Muslims who denounced the book. British Muslims were particularly galled by these reactions which their opposition to the publication of the book aroused both because it indicated a disrespect for them on the part of the establishment and also because the Western liberals who criticized the Muslim reaction, appeared to be championing Rushdie’s right to freedom of expression in writing the book, but denying their right to protest against its publication.89 Finally the view that their interests were not being taken seriously was solidified both when the second issue of the newly created Independent on Sunday newspaper was almost entirely devoted to Salman Rushdie (and contained an article by Rushdie entitled In Good Faith in which he set out his intentions in writing The Satanic Verses90 and suggested that the hostile reactions to his book were based on Muslim misreading and misunderstanding of what was in actuality, merely a dissent from orthodoxies) and later when the book was republished in paperback.

Despite the obvious increase in tension, Rushdie himself appeared oblivious to the risks involved91 until February 14, 1989, when the Ayatollah Khomeini, the religious leader of Iran issued his now famous fatwah, an order for the execution of Rushdie and anyone else connected with the book.92 Ettore Capriolo, translator of the Italian edition of the book, was beaten and stabbed. Hitoshi Igarashi, the Japanese translator was murdered as was Abdullah-al Ahdal, director of the Belgian Islamic centre, who denounced the fatwah and said that the book should not be banned in a democratic country.93

So there were violent and illegal elements within the overall reaction to the book. Significantly, though, what should be clear is that it is unfair to characterize all Muslim reaction to the Satanic Verses as being inherently violent or illegal. In fact the vast bulk of such reaction was peaceful if passionate and was utterly genuine and indeed it is certainly arguable that the violent reaction followed the unfair characterization of the peaceful reaction as being nothing more than the shouts of intemperate zealots. In addition, what is key is that the peaceful reaction of shock and horror (while undoubtedly and no more than holocaust denial something that has been fuelled by its own controversy) indicates that what was at stake was material which both in and of itself and also by reason of the political and social context in which it was published, was something which was grossly offensive both to Muslims and to Islam itself

A similar analysis can be applied to the Danish cartoons controversy. The facts briefly are as follows. In September 2005, Flemming Rose, editor of the Danish newspaper Jyllands Posten commissioned 12 cartoonists to draw cartoons depicting the Prophet Mohammad. This was in itself a reaction to the fact that children’s author Kåre Bluitgen had sought to publish a children’s book about the life of the Prophet but had been unable to find an illustrator to work with him. The general perception was that such illustrators were scared to do so because of possible violence from Islamic extremists. Moreover, there was a significant basis for such fears in that there is, within Islam a cultural prohibition on any visual depiction of the prophet. On September 30, 2005, the 12 cartoons were published. Naturally they were all different, but the one link between them was that, in one form or another, they all represented the Prophet as having involvement with terrorism (and thus carried the implication that Islam was itself, connected with terrorism).

It will be obvious that these cartoons were grossly offensive to individual Muslims and to Islam as a religion. This is for two reasons; first (and far less significantly despite popular misunderstanding of the issue), there was the fact that any visual depiction of the Prophet is unacceptable to Muslims. Second, and more significantly however, the particular depictions at stake in this case were grossly offensive. We have already seen the extent to which the figure of the Prophet is revered within Islam. To treat the Prophet irreverently is thus unacceptable. Worse still, to lampoon him in any way by grotesque caricature, let alone to depict him as a terrorist is obviously incredibly offensive. At another level, however, there is an even more dramatic offensiveness at issue. The point is that most Islamic devotees would contend that, properly understood, Islam is a religion of peace, yet the cartoons carry the implication that it is a quasi-terrorist organization. Such a depiction is most grievously offensive for Muslims, in that it perverts the basic essence of their religion – and in doing so feeds off and refuels the Western stereotypes that, as has been discussed, have left Muslims in what they perceive to be a situation of vulnerability. Indeed the impact of these stereotypes were particularly marked in Denmark at the time, where there was a significant and vocal body of antiimmigration opinion and where Prime Minister Rasmussen had himself come to power on a strong antiimmigration platform and with the support of the antiimmigration Danish People’s Party. Moreover, on this analysis, the link between these cartoons and the situation of holocaust denial in Germany is thus readily understandable in that both offend what I have termed the “soul of the nation” rather than simply offending an individual reader.

Finally, in so far as the Islamic cartoons were concerned, there is, again, the additional Islamic perception that Western liberals (including Western governments) were using issues like the Danish cartoons controversy, deliberately to perpetuate a stereotype of Islam as an inherently and entirely evil organization where the most extreme views of radicals came to be regarded as an expression of mainstream doctrine which all Muslims shared, in order for western liberalism to gain and retain the moral high ground in its ongoing war with Islam (particularly in the post-9/11 era). The success of this perceived effort at racial stereotyping is evidenced, for example in the view held by many Americans at the time of the invasion of Iraq in 2003 that there must be a connection between Sadaam Hussein and Osama Bin Laden, despite the fact that the two were poles apart in ideological terms.94

As with the Rushdie affair, (indeed arguably more than the Rushdie affair), the initial reaction from Muslims was both muted and peaceful. In October 2005 11 ambassadors from Muslim majority countries who had been petitioned by Danish Imams asked for a meeting with Prime Minister Rasmussen to discuss a range of issues which they felt amounted to a general smear campaign against Islam, of which the cartoons controversy was but one example, and they asked the Prime Minister to “take all those responsible to task under the law of the land in the interest of inter-faith harmony, better integration and Denmark’s overall relations with the Muslim world.”95 The Prime Minister wrote a letter in reply, noting that because of the nature of the right to freedom of expression, any governmental intrusion in what the press was doing would be impossible in Denmark and, despite further clarification from the Egyptian government that what was being sought was simply an official statement that there was an obligation to respect religions and to avoid offending members of a religion, the Prime Minister refused to meet the ambassadors – a decision which met with considerable criticism both at home and abroad.

Denmark does, in fact have a law which prohibits blasphemy, hence in October 2005 various Muslim groups made a complaint under this law.96 Both the Regional Public Prosecutor in Viborg and later the Director of Public Prosecutions, however, determined that there should not be a prosecution as there was no evidence to support the argument that what had occurred constituted a criminal offence in that, according to both prosecutors, what was at issue was a matter of public interest and in such circumstances, the blasphemy law could not be enforced having regard to the need to protect the right to freedom of expression of the media.

Significantly then, the initial “Muslim response” to the cartoons, at both a political and public level was peaceful and in accordance with normal legal principles. Yet in both instances these responses were effectively ignored or rejected. The groups petitioning for a prosecution were told that the insult to their faith which they perceived was a matter of public interest. Worse, the senior Islamic diplomats who had written to the Prime Minister were effectively told that their concerns were so insignificant that he could not even be bothered meeting with them to discuss such concerns. Moreover, much of the Western world (inevitably) took the side of the Danish publishers. Thus for example, Italian reform minister Roberto Calderoli (who again endorses a strongly antiimmigration stance) had t-shirts made depicting the cartoons and offered to hand them out to anyone who wanted them.97 Moreover, the photos were republished in over 50 newspapers throughout Europe and the world. On the other hand, representatives of the Governments of the United States, Canada, the United Kingdom (and, indeed, Ireland) as well as the United Nations and the European Union all made statements essentially endorsing the right to free speech but stating also that it must be accompanied by responsibilities, one of which involved being sensitive to the beliefs of others.

In any event, dissatisfied with the lack of reaction of the Danish government to the issue, two Danish Imams prepared a dossier in respect of the issue and formed an umbrella group comprising various other Islamic organizations.98 Representatives of this group then travelled to various middle eastern and Islamic countries distributing the dossier and making their case for support for their position. It was as a result of this that the issue became well known and sensationalized (and indeed hyped) and what followed was a succession of riots and violent acts with a widespread boycott of Danish goods, with embassies being burnt, and with over 100 deaths and various further high profile death threats being made.99 In other words, at a certain point and in certain locations the vehemence of the reaction led to violence but, as with the Rushdie issue, it is simply wrong to suggest that there was an inherently violent reaction against the cartoons on the part of Muslims. Moreover, and making suitable allowances for the agendas pursued by political forces on both sides, the events indicate that where blasphemies of this kind occur, the offense in question is not merely suffered by Muslims but by the whole Islamic religion.

That being the case, we can overcome the opposition that sees Islamic reaction to blasphemy as inherently violent (we would not, for example, say that a holocaust denial law was inherently unacceptable because of sporadic illegal acts by those offended by holocaust denial) and move to the more substantive question of whether an ethical case can, on this basis, be made for a blasphemy law.

The Nature of Religious Belief

What the above analysis demonstrates is not that a blasphemy law is a good or a desirable thing, but merely that in so far as Islam as an ideology (and an individual Muslim or Muslims as a devotee) is concerned, the simple unchecked existence of certain blasphemies is profoundly offensive, in that they strike at something which, within the collective consciousness of Islamic ideology, should be off limits. Moreover, it is unnecessary in the case of blasphemy, that the words actually be heard or read by someone liable to be offended by them. Rather it is the concept that such blasphemies should be permitted to go unchecked and unpunished which is relevant, for it amounts to the legalized degradation or perversion of the essence of its value system. In other words, these blasphemies are offensive in exactly the same way as Holocaust denial is offensive in Germany or flag burning is offensive in America. Thus, if we are prepared to accept the principled nature of the opposition to holocaust denial, then we should logically accept the principled nature of a blasphemy law as being cut from the same cloth.

We now turn, however, to the second of the principled objections to a blasphemy law which was considered earlier, namely the view that there is something different about religion, such that whereas we may protect certain sensitivities from offence (including sensitivities in respect of holocaust denial), religious sensitivities do not come within this class.

As an initial point, it is worth noting that such a restriction on an offense principle is simply not one which is universally recognized at the level of International Human Rights evaluation, in that the notion that the right to free speech may be restricted in order to protect religious sensitivities is a well known and indeed often accepted one. Thus in its dealings with free speech, the United Nations Human Rights Council has controversially been concerned with the concept of defamation of religions, and has sought to take measures aimed at preventing the same.100 Similarly, as far as the European Court of Human Rights is concerned, it would appear that a blasphemy law which restricts offensive speech in order to protect religious sensitivities is consistent with the requirements of Article 10 of the European Convention on Human Rights – albeit that this is perhaps in large measure a concession to the “margin of appreciation” afforded by the European Court to individual states where a proposed restriction on liberty is justified by reference to an element of the public morality of that state.101 Hence in Otto Preminger Institute v. Austria,102 the court upheld an Austrian blasphemy law and in doing so spoke of a right not to be offended in one’s religious sensitivities.

Opponents of the notion of a blasphemy law (those who oppose such law genuinely on principle) will, however, point to what they may regard as two fundamental differences between a blasphemy law and a law prohibiting holocaust denial which, they will contend, explains why the former if not the latter is inherently unacceptable. First, they will say that religion is simply incapable of replacing nationality as a source of self-identification. Second, they will argue that a holocaust denial law protects the sensitivities of a citizen in respect of a vital aspect of his or her national identity, and that this is appropriate because one’s national identity (like one’s gender, color, or sexual orientation) is something self-defining and over which one has no control. Yet religion on the other hand (so the argument runs) is a matter of voluntary choice and if one chooses to be religious, one must deal with the consequences of such a choice, including the consequence that one may be routinely misunderstood by the society in which one lives and one cannot rely on the law for protection in this regard.

Let us first deal with the argument that religion is not a genuine source of self-identification. It is submitted, that such an argument ignores most starkly the reality of the nature of religion. The point is again worth making, that for a huge number of people in the world, their principle source of self-identification is not the name of the country in which they were born or happen to be resident (and of course one can quite easily choose and change one’s nationality) but is instead their religion. Indeed it is further submitted that much of the intolerance displayed by allegedly liberal commentators in the face of Islamic reaction to “blasphemy” is arguably reflective of a failure to accept or process this point (and presumably it is, in fact, a virtually incomprehensible logic for people who do not come from such a position).

To understand this notion of religion replacing nationality as a primary source of self-identification it is of course necessary to understand what belief in God entails – namely a view that at some eternal and infinite level, there is a divine being in overall control of the planet, whose “jurisdiction” (to put it crudely) is the universe, and whose subjects are every life form within that jurisdiction. If one genuinely tries to understand the nature of a belief of this kind (without of course, having to subscribe to such a belief), and bears in mind the gigantic and eternal nature of the dominion of any such entity (should he or she exist) then it must surely be accepted that it is possible that the sense of identification and belonging which it provides to the believer is an incredibly profound and strong one. Logically such a sense of identification and belonging must also (arguably) be a somewhat vulnerable one (as compared to the sense of identification which one receives from one’s nationality) in that, unlike one’s nationhood, the identity which one receives from one’s religious beliefs is constantly under threat from the possibility that God does not exist, and hence that one’s beliefs are based on a falsehood. Nonetheless, the argument remains that if a nation may be protected from an attack on its fundamental values because of its inherent preciousness; there is no reason why religion may not similarly be protected.

What of the argument that the analogy between nationality and religion is invalid in that one chooses one’s religion but is born into one’s nationality (and even more emphatically into one’s ethnicity or gender)? Again it is submitted that the argument that religion is a voluntary matter is a flawed one.103 Quite apart from the fact that a person’s religion may be more fundamental to him or her than race or gender, it is simply incorrect to suggest that religion is in any but the most literal sense a voluntary matter. After all, each of the major monotheistic religions requires an allegiance which transcends rationalization.104 This does not mean that it is impossible to present rational arguments either for or against the truth of a particular religion. Furthermore, it does not preclude the possibility that some people will seek to approach religion from an intellectual or questioning standpoint. It does, however, mean that for many, perhaps even most seriously genuine followers, the decision to commit to a particular religion, while possibly the result of an accident of birth, is nonetheless one that is made on faith and without any methodical consideration of the truth or otherwise of alternative religions, nor is deviation from this religion possible in psychological terms for that person. In other words the likelihood of renouncing the religion into which one is born and to which one has clung devoutly, in favor of another religion, while by no means impossible, is slim – and arguably slimmer than the decision to change nationality. Fundamental in nature, religious faith for those who are genuinely committed is, thus, essentially involuntary, self-defining, and inexorable.

If this is true, then, that one’s religion can become the essence of one’s self-identification and is not genuinely a voluntary matter for many if not most people, it is presumably also true that something which demeans that religion at a fundamental level can be as powerfully and profoundly offensive an attack as is, for example, a statement which strikes at the very core of a nation’s value system – in the manner that, for example, holocaust denial appears to do in Germany. Again this is not to say that either holocaust denial or blasphemy should be legally prohibited, but simply that it is difficult to explain why an Islamic leader or an individual Muslim who wishes the publication of blasphemy to be a crime must inevitably be classifiable as an intolerant religious fundamentalist, whereas a German who supports a law prohibiting holocaust denial (whether or not we agree with him or her) may be regarded as having a fair point, or why certain commentators might argue that the latter restriction on speech is potentially acceptable as a matter of principle but the former is inevitably not, being archaic and reactionary. Indeed there may be a hint in the reaction of many in the West to the notion of a blasphemy law, that their condemnation of perceived intolerance may carry deeply if unintentionally ironic undertones. On this basis, it is difficult to see why, in the right circumstances, blasphemy laws cannot simply be justified on normal principles applying to the restriction on free speech

Conclusion

All of the above of course does not amount to any sort of argument for the proposition that any particular nation should enact a law which limits free speech in order to protect the religious sensitivities of devotees. Indeed more particularly, it does not even attempt to deal with:

Rather, as has been explained, the hypothesis of this chapter is more modest than this, namely to propose that in as much as membership of a religion may be a form of virtually involuntary citizenship to certain people – and especially those who regard their religion as a form of global nation – the links between the kind of attack on the dignity of the nation which we see with holocaust denial in Germany and the kind of attack on Islam which is felt by many in the context of certain blasphemies may give us pause for thought. In particular an appreciation of such links may go some way to dispelling the notion that the only people who could support a blasphemy law (or a law protecting religious sensibilities) in appropriate circumstances are intemperate, illiberal reactionary zealots. Rather they, like those who objected to Nazi marches in Skokie Illinois, or flag burning in Texas, or to David Irving’s posturing in Germany, may simply be people who see the entity from which they derive their sense of belonging as being grotesquely undermined by a particular statement or other communication, and who wish to use the law to prevent this from happening. At the very least, such an understanding of the issue commits those who support free speech to argue against a blasphemy law at a more advanced level of principle, rather than permitting them to assume that it is their opponents and not they whose views are rooted in intolerance.

Notes

1 See for example the comments of the Reporters without Borders group at www.rsf.org/spip.php?page=article&id_article=35672 (accessed June 28, 2010).

2 See “Sudan charges British teacher in Muhammad teddy bear case,” New York Times November 28, 2007, “Sudan jails teacher for teddy bear name,” Herald Sun December 1, 2007

3 See “Jerry Springer the Opera puts Blasphemy in the Dock,” Daily Telegraph, November 20, 2007. In R (on the application of Green) v City of Westminster Magistrates’ Court & Ors [2007] EWHC 2785 it was held by the English High Court that a prosecution would not be permitted to proceed against the producers of the show in question.

4 See on this issue (which is dealt with in more detail later) O’Dell (2009).

5 Thus in March 2009, the Human Rights Council passed a resolution condemning “defamation against religion.” See generally www.reuters.com/article/idUSTRE52P60220090326 (accessed June 28, 2010). See also http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/139/90/PDF/G0613990.pdf?OpenElement (accessed June 28, 2010).

6 Again this issue is dealt with in detail later. See generally Cowell (2006).

7 See for example Greenslade “Ireland’s new Blasphemy Law is a Disgraceful Inhibition of Free Speech” at www.guardian.co.uk/media/greenslade/2010/jan/06/freedom-of-speech-press-freedom (accessed June 28, 2010) and Healy (2009).

8 In fact Article 10(2) of the European Convention on Human Rights permits the right to freedom of expression to be restricted in the interests of “Public morality.” To some extent the jurisprudence of the European Court of Human Rights is uncertain on this point. The court has regularly spoken of the freedom to “shock, offend and disturb” (Handyside v. UK (1976) 1 EHRR 737, (1979) 1 EHRR 737, [1976] ECHR 5, [1976] ECHR 5493/72) but, as we shall see, it has always upheld the legitimacy of a state having a blasphemy law on its statute books. See for example Otto Preminger Institute v. Austria (1995) 19 EHRR 35. See also Wingrove v. UK, (1997) 24 EHRR.

9 For a bibliography of materials on the subject see www.york.cuny.edu/∼drobnick/holbib.html (accessed June 28, 2010).

10 Generally on this issue see the decision of the US Supreme Court in Texas v. Johnson 491 US 397. See also Tucker (1986) and Barendt (2005).

11 On a related point see Dershowitz (2007).

12 Joel Feinberg famously used the term “profound offense” to denote those kinds of offense which are not specific to individuals by targeting their senses (and which constitute offensive nuisances) but rather which are impersonal and cause offense by reason of the fact that they affect the victim’s sense of reverence or view of what is appropriate. See Feinberg (1985).

13 An example of this in practice may well be a law against public nudity. After all, nudity is an inherently natural state nor is there anything empirically wrong with being naked, but to many people the concept of public nudity (or worse, public fornication) is unacceptable because it is offensive and it is offensive because it strikes at a settled public consensus of what is and what is not acceptable upon which consensus the society is, at least in part, built. This analysis is, of course, not far removed from Lord Devlin’s famous “social disintegration” theory which held that public morality could in principle be enforced because society was at least in part dependent on such public morals. See Devlin (1965).

14 Generally see Ely (1975).

15 The notion of the preciousness of nationality as a source of self-identification for both individuals and society is well illustrated by the nature of the reaction to the attacks on the Twin Towers on September 11, 2001. Naturally there was horror at the scale of atrocity, the loss of human life, and the possibility that future attacks might follow. Yet similar attacks in other countries (even when American targets were involved) did not and could not have provoked the level of reaction by Americans that followed on 9/11 – and this is obvious. The point is that what happened for many Americans on that day was an outrageous attack on something utterly precious – namely American values and beliefs and the very concept of America itself. Would people on September 12, 2001 have been prepared for the law to permit a jihadist group in New York to stage a celebratory parade or to lampoon the American situation in a crude newspaper cartoon (and apart from the obvious risk of counter violence this would entail)? The answer, surely, is no. The citizens of the nation are bound in reverence to the land which gives them a sense of identity and therefore that which undermines America hurts Americans at the most profound level possible.

16 Generally see Webster (1990), Blom-Cooper (1981), Walter (1977), Simpson (1993), Cox (2000a).

17 Simpson (1993, p. 7).

18 See Lee (1990), and Cox (2000a). See also Travis (2004).

19 See Cox (2000a, pp. 5ff).

20 Taylor’s Case, (1676) 1 Vent 293, 3 Keble 607 (1676). See generally, Levy (1981).

21 Feinberg (1985) p. 194. See also Smith (1990, pp. 15–16).

22 Woolston’s Case, Fitzg 64, 2 Str 834, 1 Barn KB 162 (1729).

23 As Baron Alderman put it in R v. Gathercole “If this is only a libel on the whole Roman Catholic Church generally, the defendant is entitled to be acquitted. A person without being liable to prosecution for it, may attack Judaism or Mohammedanism or even any sect of the Christian religion save the established religion of the country, and the only reason why the latter is in a different situation from the others, is because it is the form established by law and is therefore a part of the constitution of the country” R v. Gathercole (1838) 2 Lew 237 at 284 ER 1140 at 1145.

24 The case seen as beginning a move to a “new” blasphemy law is R v. Hetherington, (1841) 4 St Tr 563, where the court found that mere denial of Christian doctrine did not constitute blasphemy. See Robertson (1993).

25 Generally see Calder-Marshall (1972).

26 In 1833 in a parliamentary address Lord Macauly said that “It is monstrous to see any judge try a man for blasphemy under the present law. Every man ought to be at liberty to discuss the evidences of religion. But no man ought to be at liberty to force upon unwilling ears and eyes, words and sights which must cause irritation.” See Kenny (1923, p. 135).

27 Notable among these were the prosecutions arising out of Thomas Paine’s seminal work Age of Reason. See for example, Thomas Carlile’s case, (1819) 1 St. Tr. (ns) 1387, Mary Carlile’s case, (1821) 1 St Tr. (ns) 1033. Generally see Clifford (1993).

28 R v. Bradlaugh, (1833) 15 Cox CC 217, R v. Ramsay & Foote, (1883) Cox CC 23. Generally see Calder-Marshall (1972, pp. 169ff).

29 R v. Bradlaugh, p. 236.

30 [1917] AC 406.

31 R v. Gott, (1922) 16 Criminal App Reps. 87. Finally, it is also clear that the modern (that is, twentieth century) blasphemy law was also a crime of strict liability, to the extent that the fact that the publisher may not have considered that the impugned material was blasphemous is irrelevant.

32 [1979] AC 617. Generally see Cox (2000a) pp. 23ff, Robertson (1993, p. 249), Buxton (1978). The most significant clarification of blasphemy law afforded by the House of Lords judgment in this case is that the crime may be committed unintentionally – that is one can be convicted of blasphemy without intending to blaspheme.

33 Lord Sumner (at pp. 457ff in Bowman v. Secular Society) did suggest that the new blasphemy law continued to apply only to the established church, but this proposition was not endorsed (nor indeed rejected) by the rest of the court. For criticism of this suggestion by Lord Sumner see Cox (2000a, p.17).

34 [1991] 1 All ER 306.

35 See inter alia Cox (2000a) pp. 38ff, Ahsan and Kidwai (1993), Eralp (1989), Easterman (1992).

36 For analysis of the social problems which this statement created see Lee (1990, p. 88). Generally see Robertson and Nicol (1993 p. 163) for the view that “To punish Rushdie … would have been offensive to justice, but no more so than the punishment of the editor of Gay News.” See also Cox (1997).

37 See for example Conway (1974), Ellis (1984). See also the Law Commission (UK) (1985), Law Reform Commission (Ireland) (1991).

38 See Blom-Cooper (1981, p. 12) and, for a different view Simpson (1993, p. 21). See generally Feinberg (1985, p. 193) for the view that “It is because most people hold some things to be sacred … that blasphemous epithets … can be so powerfully offensive and so effective as insults, exclamations, oaths and the like.”

39 See also Blom-Cooper (1981, p. 12) for the view that “Public outrage at the contents of an idea expressed should never be sufficient to warrant the suppression of that idea. If this were not so, toleration of the views of minorities would be jeopardized whenever they were sufficiently unpopular with majorities.”

40 See for example Cox (2000a, p. 173).

41 Moreover, this does not even take into account the additional fact that some people are simply more sensitive than others.

42 Article 40.6.1.

43 O’Higgins (1960, p. 153), Cox (2000a, chapter 3). See also the Law Reform Commission (Ireland) (1991) p. 81 and Corway v. Independent Newspapers, [2000] 1 ILRM 426 at 436. It is not clear how the Irish statutory prohibition on blasphemy fits into this equation. Under section 13(1) of the 1961 Defamation Act the punishment for publishing or printing a blasphemous or offensive libel consisted of a fine of £500 or two years in prison. Section 13(2) of the same act provided for extensive provisions for search and seizure on suspicion of the existence of blasphemous materials. This Act has been repealed by the Defamation Act 2009 which, as we shall see, provides for a statutory offense of blasphemy. The other statutory provision concerned with blasphemy is s.7 of the 1923 Censorship of Films Act which permits a certificate for a film to be refused on the grounds inter alia of its blasphemous content.

44 See Law Reform Commission (Ireland) (1991) para 1:14 also O’Higgins (1960) p. 159. See also Levy (1981, p. 334) and Matthews (1839).

45 See Law Reform Commission (Ireland) (1991) para 1:15 and Kenny (1923, p. 140.

46 Padre Petcherine Case (1855) 7 Cox 79. See Kenny (1923, p. 140), the Law Reform Commission (Ireland) (1991) para 1:16 and O’Higgins (1960, p. 160).

47 Padre Petcherine Case (1855) 7 Cox 79, p. 84.

48 [2000] 1 ILRM 426.

49 [2000] 1 ILRM 426 at p. 430. The definition from Murdoch (1988) said that “The crime … consists of indecent and offensive attacks on Christianity or the scriptures or sacred persons or objects, calculated to outrage the feelings of the community …the mere denial of Christian doctrine is not sufficient to constitute the offence.”

50 [2000] 1 ILRM at 435.

51 [2000] 1 ILRM 426 at 436–437.

52 See Cox (2000a, pp. 56ff), Cox (2000b), Ranalow (2000, p. 95,) Purcell (1999), Synon (1999), O’Hanlon (1999, p. 19).

53 Cox (2000a, p. 57). See O’Hanlon (1999, p. 19).

54 Indeed the call is resonant of that made by the Supreme Court in respect of Article 40.3.3 of the constitution (the clause protecting the right to life of the unborn) in AG v. X [1992] IR 1, where legislative inactivity was popularly blamed for something of a constitutional crisis faced by Ireland in respect of a 14 year old rape victim who wished to travel to the United Kingdom for an abortion but who faced an application by the state for a court order preventing her from doing so. What is, perhaps, surprising, therefore, is the reaction of many who would have supported the Supreme Court’s view as to the culpability of the legislature in failing to legislate for abortion, yet who characterized the recent legislative step in doing precisely what the Supreme Court called for it to do in Corway as being unnecessary. The point is, perhaps worth making, that genuine principles must be consistently held; the alternative is simply to admit that one wants what one wants and not on the basis of principle.

55 The Act came into force on January 1, 2010.

56 The reason why the step of holding a constitutional referendum on the issue in 2009 was so problematic was because clearly this would have led to significant expense being incurred (which would be unacceptable in a recessionary era) unless it was held on the same day as some other national plebescite (and this was what the Law Reform Commission had essentially recommended in 1991). But the only plebescite to be held that year was one in respect of the European Union focused Lisbon Treaty, which, in the view of the government vitally needed support. One major strand of opposition to this treaty came from people who argued that it would involve a devaluing of national values, especially religious values. Hence to hold a referendum asking the people to remove the constitutional reference to blasphemy on the same day as that relating to the Lisbon treaty would have imperiled the passage of the latter in that it would have created a link in the voters’ minds between it and the removal of legal protection for national religious values.

57 Prohibition of Incitement to Hatred Act 1989.

58 See among the many such comments Reidy (2009), O’Neil (2009). A notable response came from the group Atheist Ireland which published 25 quotes on its webpage which, it claimed, might generate prosecution for itself. With respect, it is the view of this author that this was something of a feeble stunt. See generally www.blasphemy.ie (accessed June 28, 2010). For reporting see Adam (2010).

59 Generally see Farrell (1988).

60 So for example (and quite apart from the constitutional reference to blasphemy) the preamble to the constitution states that the document is “In the name of the most holy Trinity” and acknowledges “all our obligations to our Divine Lord, Jesus Christ.” Article 6 provides that “All powers of government, legislative, executive and judicial, derive, under God, from the people” and Article 44 provides that “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honor religion.” Finally, the interpretation of the constitution, was, for many years informed by a Thomistic view of natural law. So in Ryan v. AG [1965] IR 294 Kenny J, held that the type of rights protected by the Irish constitution, albeit not enumerated therein were those which flowed from the “Christian and Democratic nature of the state.” See also Walsh J’s judgement in McGee v. A.G. [1974] IR 274.

61 Up until 1973 the Constitution had provided (Article 44.1.3) that “The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” Following the 5th amendment to the constitution, however, this clause was removed.

62 This perhaps explains why there was so little reporting of sexual abuse by priests at the time (and why any such reporting tended not to be acted on). In other words, an allegation that a priest was abusing a child was seen as a blasphemy, being an attack on the whole modus operandi of the state.

63 For a somewhat partisan account of such changes see Bacik (2004).

64 The decriminalization of homosexual behavior was effected by the Criminal Law (Sexual Offences) Act 1993, albeit foreshadowed in large measure by the decision of the European Court of Human Rights in Norris v. Ireland (1991) 13 EHRR 186, (1988) 13 EHRR 186, [1988] ECHR 22, [1988] 13 EHRR 186, 13 EHRR 186.

65 The statutes which genuinely liberalized the law on contraceptive use in Ireland were the The Health (Family Planning) (Amendment) Act, 1992 and the Health (Family Planning) (Amendment) Act, 1993.

66 The original constitutional ban on divorce was lifted by the 15th Amendment to the Constitution in 1995. See Burley and Regan (2002).

67 AG v. X [1992] IR 1

68 See the Ryan Report (2009) and the Murphy Report (2009). Both reports disclosed widespread and systemic abuse of children by representatives of the Roman Catholic church, and a massive failure of the institutional church to deal with something which it knew was occurring.

69 From the huge amount of literature on this topic, see for example Teachout (2006), Fish (2001), Kahn (2006), Knechtle (2008), Rosenfeld (2003).

70 A similar logic is found in the opinion of Judge O’Connor in the US Supreme Court’s decision in Virginia v. Black 123 S. Ct. 1536; 155 L. Ed. 2d 535 from which an inference can be drawn that one of the reasons why cross burning could, in her view, legitimately be restricted was because of its long and pernicious history within American culture.

71 In February 2006, David Irving was, in fact, sentenced to three years in prison in Austria for holocaust denial. See http://news.bbc.co.uk/2/hi/4733820.stm (accessed June 28, 2010). In December 2006 he was released when an appeal judge suspended the final two thirds of his sentence.

72 On the significance of reasonable avoidability of offence see Feinberg (1985, pp. 60 et seq).

73 To this extent, it may in fact be the immoral nature of any publication rather than its offensiveness which is the real reason why people would like to see it prohibited.

74 Ellis (1984, p. 21).

75 See for example the Luth case 7 BverfGE 198 (1958).

76 Mahmood Ahmed Mirpuri, secretary of the Islamic Sharia Council in Britain said that the book was a blatant insult to Islam, see New Statesman, October 15, 1988. For further analysis of the reasons why the book was offensive, see Webster (1990, pp. 34–44, 96–97), see also Lee (1990, p. 307). In addition see Umar Azam (1990), Akhtar (1989), Ahsan and Kidwai, (1993) and Eralp (1989).

77 The term Mahound is used predominantly in chapter 2 of The Satanic Verses.

78 This vilification, apart from the references to Abraham as a bastard, concerns Abraham’s treatment of his Egyptian slave girl Hagar. See Genesis, chapter 16, and also, Chapter 21: 8–21.

79 One of the most controversial topics in the whole Rushdie affair is the question of the Satanic Verses themselves. The title of the book refers to an historical incident the veracity of which is uncertain and a matter of controversy for Islamic scholars. The verses in question are in Arabic, tilk al-gharaniq al-ula wa inna shafaata-hunna la-turtaja, which translated, means these are exalted females whose intercession is to be desired (See Rushdie, 1988, p. 340). The verses comprising this sentence are said to have been added to the 53rd Sura of the Koran entitled Surat-annajm, in order to acknowledge the validity of the goddesses Lat, Manat and Al’Uzza. The tradition goes on to say that the verses were later withdrawn and denounced as of Satanic origin. Some commentators, and Islamic historians accept the validity of this tradition, but the prevailing Muslim view is that it is a fabrication created and developed by Western orientalist unbelievers to imply that the Prophets were not infallible. See Muir (1986). See also Dashti (1985), especially pp. 32ff, Haykal M.H. (1976) especially pp. 105ff, and Bashier (1991) especially pp. 173ff. Most notable, in this context, because of its similarities with Rushdie’s book is Watt (1956).

80 Webster (1990). Also Armstrong (1988).

81 See Webster (1990, p. 38) for a description of anti-Arab racist cartoons in the United States at the time of the OPEC oil crisis in 1973, which depicted Muslims as being anti-Semitic and greedy.

82 Webster (1990, p. 40). As Samuel (1992, p. 3) points out “The Muslim world is deeply sensitive to the plot of international racism mounted against it … and to anything that attacks it, from American and Israeli F-1 8s to the various other Arab regimes themselves. The kind of attack sustained by a trendy cultured Indian/British writer will be taken as an attack not only on the hermeneutic intricacies of Islam, but also on the code of living which has historically always been manipulated by the west for the latter’s benefit.” For an interesting analysis of Western bias against Islam as it is shaped in our print and electronic media see Edward Said (1981).

83 The book was published in September 1988. In October 1988, the book was banned in both India and South Africa. On November 8, 1988, it won the annual Whitbread award for best novel. Also in November 1988, it was banned in Sudan and in Bangladesh. In December 1988 it was banned in Sri Lanka. Since then it has been banned in Pakistan (February 1989), Iran, Tanzania, Singapore and Indonesia, (March 1989), and Venezuela (June 1989).

84 R v Bow Street Magistrates Court ex parte Choudhury [1991] 1 All ER 306.

85 R v Bow Street Magistrates Court ex parte Choudhury [1991] 1 All ER 306, p. 317. Watkins J. is in fact quoting the comments of the 1914 Attorney General Sir John Simon.

86 R v Bow Street Magistrates Court ex parte Choudhury [1991] 1 All ER 306, pp. 318–320. The court also rejected an argument based on the European Convention of Human Rights, on the basis that an extension of the blasphemy law to encompass Salman Rushdie, would offend against Article 7’s prohibition on retrospective criminal offences.

87 Bowen (1992).

88 These book burnings occurred predominantly in January 1989, significantly, one month before the fatwah was announced.

89 This inconsistency prompted Rana Kabbani to ask Is the Western conscience not selective? Kabbani (1989). In addition as Samuel (1992, p. 3) points out, the International Media’s response to the Rushdie situation was stereotypically and informationally dead-ended. Most notable, in his view, was the fact that in covering the Rushdie incident, few Western journalists saw the need to interview third world intellectuals.

90 This is reprinted in Rushdie’s 1992 collection of essays Imaginary Homelands. See Lee (1990, chapter 15) and Webster (1990, chapters 3 and 4).

91 He had after all said that It would be absurd to think that a book can cause riots. See The Indian Press, September 18, 1988. In fact, in February 1989, 12 people died in anti-Rushdie riots in Bombay. In August 1995, the Indian distributor of Rushdie’s (1995) new book The Moors Last Sigh, delayed release of the book in Bombay due to Hindu protests.

92 On Teheran Radio, July 14, 1989 just prior to the 2.00 pm news the following announcement was made on behalf of the Ayatollah Khomeini; “In the name of God Almighty … I would like to inform all the intrepid Muslims in the world, that the author of the book entitled The Satanic Verses … as well as those publishers who were aware of its contents have been sentenced to death.”

93 Webster (1990, p. 4) and Smith (1990, p. 20).

94 According to a March 2006 Zogby International Poll, 90% of Americans fighting in Iraq believed they were doing so in order to avenge Saddam Hussein’s role in the 9/11 attacks. In similar vein in a speech given on September 25, 2002, President George W Bush said “You can’t distinguish between Al Qaeda and Saddam when you talk about the war on terror.”

95 For a copy of this letter see www.rogerbuch.dk/jpabrev.pdf (accessed June 28, 2010).

96 S. 149 and 266b of the Danish Criminal Code.

97 He subsequently resigned. See “Italy cartoon minister quits” at http://news.bbc.co.uk/2/hi/europe/4727606.stm (accessed June 28, 2010).

98 This was the European Committee for Prophet Honouring.

99 See “Muslim Cartoon Fury Claims Lives” at http://news.bbc.co.uk/2/hi/ 4684652.stm (accessed June 28, 2010).

100 The UN Human Rights Council has regularly passed resolutions calling for increased restrictions on speech which involves “defamation of religions”’ most recently (at the time of writing) in March 2009. For analysis see www.reuters.com/article/idUSTRE52P60220090326 (accessed June 28, 2010). Since then (December 2009) the 3rd Committee of the General Assembly of the United Nations passed a similar resolution and recommended it to the General Assembly, see www.un.org/News/Press/docs/2009/gashc3966.doc.htm (accessed June 28, 2010). For analysis see International Humanist and Ethical Union (2009).

101 See for example the decision of the European Court of Human Rights to uphold the legitimacy of Ireland’s statutory ban on religious advertising in Murphy v. Ireland (2004) 38 EHRR 13, [2003] ECHR 352.

102 (1995) 19 EHRR 35. See also Wingrove v. UK, (1997) 24 EHRR 1.

103 In the Otto Preminger Institute case, the European Court of Human Rights said that “[Religion is] one of the most vital elements that go to make up the identity of believers and their conception of life.”

104 Thus in the context of Islam, JND Anderson (1971) writes that “It has often been remarked that, in the past at least, the life of an orthodox Muslim was dominated by the twin sciences of theology and the sacred law. It was the law moreover that could claim pride of place, for Islam has always been much more explicit and unequivocal about the way of life God has ordained for his creatures than about any self-revelation of his own character or nature.”

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