Defending Blasphemy: Exploring Religious Expression under Ireland's Blasphemy Law

Jacob, Katherine A. E., Case Western Reserve Journal of International Law

This Note considers the blasphemy provisions of Ireland's Act and examines the Act's limitations on religious expression. By analyzing the effects of religious expression's omission from the Act's protection, this Note argues that enforcement under the Act may be impermissible under both Bunreacht na hEireann and international law. To rectify the Act's failure to defend religious expression, this Note proposes that the Act be amended to permit religious expression as a defense for blasphemy. It then applies the proposed defense to examples of speech that otherwise might run afoul under the Act.

I.   INTRODUCTION
II.  THE BLASTED PAST OF BLASPHEMY IN IRISH LAW
     A. Speech Offenses in Brehon Law
     B. Blasphemy at Common Law
     C. Blasphemy in Canon Law
     D. Irish Blasphemy Law Before Independence
     E. Blasphemy in Modern Irish Law, 1937 to Present
III. DEFINING THE PROBLEM: THE DEFAMATION ACT'S THREAT
     RELIGIOUS SPEECH
     A. Blasphemy in the 2009 Defamation Act
     B. Yes and No: Probing Problems in the Act 'S Defenses
        1. The Act restricts religious expression
        2. The State is not competent to pass judgment on an
           ecclesiastical offense
        3. By regulating religious speech, the Act is a symbolic
           barrier
        4. Irish blasphemy and Europe
IV.  A SOLUTION DE FIDE: IN DEFENSE OF RELIGIOUS SPEECH
     A. Proposed Defense
     B. Application of the Religious Speech Defense
V.   CONCLUSION: ENDING WITH A WHIMPER

I. INTRODUCTION

"Yes, she should be hanged," a group of Pakistani villagers cried out, in favor of the sentence awarded to a 45-year old woman. (1) Her crime? Speaking against a religion. (2) Her conviction occurred not in a pre-modern period, but in November of 2010. (3)

Blasphemy is a controversial subject worldwide. In 2009, the United Nations General Assembly voted in favor of adopting a non-binding resolution on the defamation of religion. The resolution was sponsored by the Organization of the Islamic Conference (OIC), and was supported by Pakistan, Saudi Arabia, and Venezuela. (4) When the resolution was resubmitted in 2010, Secretary of State Hillary Clinton vocalized U.S. opposition by stating that "the United States does not agree that protecting religious freedom means banning speech critical or offensive about religion." (5) The European Union similarly opposed Pakistan's 2009 submission of the OIC's proposal for a defamation of religion resolution, (6) with the Irish Minister for Foreign Affairs stating:

We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief. (7)

By advocating for a U.N. resolution banning defamation of religion, the OIC is attempting to globalize the crime of blasphemy. (8)

Policing speech that offends religious sensibilities is not restricted to the Middle East. Like Pakistan, Ireland has a law prohibiting blasphemy. (9) Ireland's new blasphemy law, the 2009 Defamation Act (the Act), took effect on January 1, 2010. (10) Under the Act, a person can be found guilty of blasphemy if "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. (11) Those convicted under the new law could face a fine of up to twenty-five thousand euros. (12) Many in Ireland have called for the Act's repeal and the removal of blasphemy from Bunreacht na hEireann, the Irish Constitution. (13) In a campaign to have the Act repealed, Atheist Ireland, an Irish advocacy group that promotes atheism, published a list of twenty-five "blasphemous" quotations. (14) Meanwhile, the OIC has appropriated the Act's text verbatim in its proposal to the United Nations Ad Hoc Committee on the Elaboration of Complementary Standards urging for the implementation of global anti-defamation legislation. (15)

This Note considers the blasphemy provisions of Ireland's Act and examines the Act's limitations on religious expression. By analyzing the omission of religious expression from the Act's protection, this Note argues that enforcement under the Act may be impermissible under both Bunreacht na hEireann and international law. Part I of this Note describes the historical context of blasphemy in Irish law. It examines speech offenses in Brehon law, illustrating the long tradition of regulating speech in Ireland, and also traces the subsequent development of blasphemy through Canon law, common law, and modern Irish law. Part II analyzes the extent to which the Act might restrain religious speech, and discusses potential consequences arising from the Act's failure to defend religious expression. Part III proposes that one of the best means of protecting the freedoms of religion and expression in Ireland is to permit religious expression as a defense for blasphemy under the Act. Finally, this Note applies the suggested defense to examples of potentially blasphemous speech.

II. THE BLASTED PAST OF BLASPHEMY IN IRISH LAW

There will come a time when it will be appropriate for the blasphemy law to find its place in history. (16)

An assessment of blasphemy's history is essential to any examination of blasphemy's position in modern Irish law. This section traces blasphemy in Irish law from speech controls under Brehon law through modern Ireland's blasphemy statute.

A. Speech Offenses in Brehon Law

Brehon law was a custom-based legal system brought to Ireland by the Celts as early as 1200 B.C.E. (17) Recently, one Irish senator, speaking to the Seanad Eireann, (18) noted that Brehon law "does not answer all the questions ... [but] it is a basic point to move towards in terms of how we should approach ... issue[s]." (19) This section briefly summarizes speech and speech offenses in early Irish culture and Brehon law. It attempts to contextualize the social importance of speech and rules controlling speech in Irish culture.

As Brehon law was not a criminal law code, it did not contemplate crimes against the state--only crimes against individuals. (20) Punishment was restorative. (21) Victims were compensated based on the type of injury to their honor. (22) In early Irish society, words had force. (23) Under Brehon law, "[t]he body is not as vulnerable as the face/honor." (24) Poets were highly regarded, (25) and employed words in poetry that elevated honor or injured reputation, thereby reinforcing Irish society's hierarchical structure. (26) Legitimate satire had a key role in the early Irish justice system; it was one of the pressures that encouraged people to obey the law. (27) It was an offense to ignore satire, which Irish society believed to have the power to physically deform and mutilate a victim, thereby making the victim's shame public. (28) Further, Brehon law restrained illegitimate satirical speech by requiring the payment of a victim's honor price for: mocking a person's appearance; publicizing a physical blemish; coining a nickname that stuck; composing an unlawful satire; repeating a satire composed by another poet; taunting; wrongfully accusing someone of theft; and publicizing an untrue story which causes shame. (29)

Brehon law subsumed Christianity in a way that allowed the Irish to retain their social structure and many of their laws, while creating a unique version of Christianity. (30) Though Christianity influenced Brehon law, the ecclesiastical offenses that assimilated into Brehon law were offenses against individuals that largely supplemented pre-existing rules. (31) Blasphemy was not an offense under Brehon law, but arrived in Ireland with the common law. (32)

B. Blasphemy at Common Law

Common law (33) first arrived in Ireland with Anglo-Norman (34) settlers between 1169 and 1 172. (35) From the thirteenth to the seventeenth century, Brehon law and Common law coexisted in Ireland. (36) The territorial extent of either legal system was fluid, ebbing and flowing through centuries of frequent warfare, (37) but common law was largely confined to the area around Dublin loyal to the English Crown. (38)

Generally speaking, the Native Irish, and those Anglo-Norman families who adopted native customs, used Brehon law and spoke Irish. (39) The English perceived Native Irish culture, and the Brehon laws in particular, as barbaric. (40) Common law was mostly unavailable to the Native Irish, (41) whose legal families actively circulated eighth- and ninth-century texts on Brehon law, continuing to gloss and comment on the legal texts, through the sixteenth century. (42) Common law and Brehon law clashed over issues such as marriage and inheritance, and dissimilar ecclesiastical structures and practices. (43)

With the departure of many of the Native Irish princes in 1607, the so-called "Flight of the Earls," (44) Brehon law--and Native Irish culture--was outlawed. (45) England's resolve to eradicate vestiges of Brehon law characterized Irish legal history until the Act of Union in 1800. (46) By the twentieth century, English common law principles were securely ingrained in Ireland. (47)

One such common law offense was blasphemy, which is intrinsically connected to the history of blasphemy laws in Ireland. (48) Initially, the ecclesiastical courts had jurisdiction over punishing unorthodox religious speech. (49) Blasphemy was not an offense in common law until the seventeenth century. (50) After the English Reformation established the English monarch as both head of State and head of the English Church, blasphemy became an offense against not only the Church of England, but also the State. (51) Under common law, blasphemy "does not extend to religions other than Christianity." (52) As a result, in the eighteenth and early years of the nineteenth century, blasphemy prosecutions targeted individuals whose religious beliefs differed from the doctrines of the Church of England. (53)

However, as common law blasphemy evolved, it shifted from imposing religious orthodoxy to restraining obscene assaults on Christianity. (54) At that point, in the mid to late nineteenth century, common law blasphemy permitted academic challenges to the fundamentals of Christianity. (55) In one well-known statement from an 1883 case, Lord Chief Justice John Coleridge said that "I now lay it down as law, that if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy." (56) It was no longer a statement's substance, but its style that submitted it to accusations of blasphemy. (57)

C. Blasphemy in Canon Law

As in common law, the ecclesiastical definition of "blasphemy" has developed over time from the Bible's indefinite uses for the term. (58) In the Bible, Jesus, who himself was convicted under Jewish blasphemy law, (59) says: "[A]lthough all matter of sins could in the end be forgiven, the sin of blasphemy against the Holy Spirit would not." (60) In Canon law, "[s]in is an act contrary to reason. It wounds man's nature and injures human solidarity." (61) Blasphemy is a sin under Canon law. (62) It is an offense committed against God, rather than an offense against a person. (63) Blasphemy means assigning false attributes to God, or denying God's true characteristics. (64) As a mortal sin, blasphemy must concern a grave object and be committed deliberately "with full knowledge" of its sinfulness. (65) Thus, unlike common law blasphemy, blasphemy in Canon law focuses on the substance of a statement, rather than its style. (66)

D. Irish Blasphemy Law Before Independence

There are three recorded prosecutions for blasphemy in Ireland before its independence in 1922. (67) The earliest reported blasphemy case in the Irish Common Law Courts was in 1703 when Thomas Emlyn, a Unitarian minister, was convicted for writing a book that argued that Jesus Christ was not equal to God. (68) The second blasphemy prosecution in Ireland was in 1852, when a Franciscan Friar was convicted of blasphemy for burning a Protestant Bible in public. (69) Similarly, in 1855 a Redemptionist Father was acquitted of the same charge after he burned a pile of "evil" literature and unknowingly burned a copy of a Bible. (70) Only one of the Irish cases, the earliest, truly dealt with the issue of denial of Christian doctrine. (71) The remaining blasphemy prosecutions were directed at Catholics. (72) Between the Church of Ireland's disestablishment in 1869, (73) and the 1922 enactment of Saorstat Eireann, the "Constitution of the Irish Free State," (74) there is no record of any blasphemy prosecution in Ireland. (75) It would be one hundred and thirty years before Ireland saw another prosecution for blasphemy. (76)

E. Blasphemy in Modern Irish Law, 1937 to Present

British law greatly influenced Bunreacht na hEireann, adopted in 1937. (77) All common law principles that do not directly conflict with Bunreacht na hEireann or a statute remain valid law. (78) Beside common law, Catholicism had the largest influence on the document's content. (79) The inclusion of religious elements in Bunreacht na hEireann reflected not only the "special relationship" of the new Republic to the Roman Catholic Church and the country's Catholic majority, (80) but also the history of exclusion of Catholics from Irish politics. (81)

Today, the majority of Ireland's population is Catholic. (82) The government's Catholic heritage is still evident in a number of other ways, including providing financial assistance to denominational schools and the twice daily broadcasting of the Angelus on public radio and television stations. (83) There has been some criticism that such an inherently Catholic broadcast discriminates against those with other religious beliefs. (84)

Bunreacht na hEireann includes a prohibition on blasphemy in its civil liberties section as a limit to freedom of speech. (85) It outlaws "[t]he publication or utterance of blasphemous, seditious, or indecent matter is an offense which shall be punishable in accordance with law." (86) Bunreacht na hEireann does not define blasphemy, (87) though its provision is similar to the Catholic Church's Definition of Sin: "Sin ... has been defined as 'an utterance, a deed, or a desire contrary to the eternal law." (88) Eamon de Valera, who prepared the first draft of Bunreacht na hEireann, (89) opined that "no new offense had been created ... the offense of blasphemy is one at common law." (90) Blasphemy's common law definition protected only the beliefs of the Church of England, and for fifty years there were no prosecutions for blasphemy in Ireland, a majority Catholic country. (91)

In 1999, the Irish Supreme Court considered a case that gave it an opportunity to define the offense of blasphemy. (92) In Corway v. Independent Newspapers, the Court found that the blasphemy law was unenforceable: Without a statutory definition, the Court had to rely on common law, which recognized only blasphemy against the Church of England. (93) In that case, a carpenter from Dublin commenced a private criminal prosecution against the owners and editor of the Sunday Independent, a widely circulated weekly newspaper, for violating Section 13.1 of the Defamation Act of 1961. (94) A 1995 cartoon that accompanied an article discussing the implications of Ireland's divorce referendum had offended the plaintiff. (95) At the time of the case, there was no act of the Oireachtas that defined blasphemy. (96) Consequently, the Court "consider[ed] first the evolution of the crime of blasphemy in England and then its evolution in Ireland," (97) and found that "the common law offense of blasphemy could not have survived in a situation where there was no officially established religion." (98) Further, the Court held that "in the absence of any legislative definition of the constitutional offense of blasphemy, it is impossible to say of what the offense of blasphemy consists." (99) The Court's failure to define the offense of blasphemy had the consequence of eliminating blasphemy from Irish law. (100)

In Corway, the Court left it to the Irish legislature to "consider modernizing the law of blasphemy to protect all faiths," (101) to which one senator warned that "[t]he difficulty in that regard is that the essence of the offence seems to consist of the hurt that is caused to the believer ... a dangerous basis for an offence." (102) In both 1991 and 1996, constitutional review commissions encouraged removing the blasphemy provision. (103) Yet, blasphemy remains in Bunreacht na hEireann. (104) A decade after Corway, the Irish Government finally decided to define blasphemy. (105)

III. DEFINING THE PROBLEM: THE DEFAMATION ACT'S THREAT TO RELIGIOUS SPEECH

A. Blasphemy in the 2009 Defamation Act

The Act re-establishes blasphemy as a criminal offense in Irish law. (106) The Act took effect on January 1, 2010. (107) With Pakistan making news for prosecuting under its own blasphemy law, the media did not hesitate to report on the new Irish Act alongside stories of Pakistani mothers facing death by hanging. (108) Critics lambasted the Act as "medieval" and an unjust restriction of freedom of expression in order to protect religion. (109) Yet, no Irish religious leaders had asked for the blasphemy legislation. (110) Instead, the Irish government defended the Act's enactment, claiming that Bunreacht na hEireann requires Irish law to define blasphemy. (111) In March 2010, the Irish Justice Minister, Dermot Ahem, released a statement asserting that he would propose a referendum to eliminate the crime of blasphemy from Bunreacht na hEireann in the fall of that year. (112) No referendum on blasphemy occurred in 2010, but in March 2011 Ireland's two largest political parties agreed to hold a constitutional convention to consider removing the blasphemy provision, among other issues. (113)

To be liable under Ireland's blasphemy Act, an individual must publish or utter "matter that is grossly abusive or insulting in relation to matters held sacred by any religion," that causes "outrage among a substantial number of the adherents of that religion," with the intent to cause that outrage. (114) By requiring a mens rea for the defamation itself, anyone prosecuted under the Act must have intended not only to speak or write the offensive words, but also to use those words with the intent to offend. (115) Under the Act's defenses, to avoid conviction for blasphemy, a defendant must "prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates." (116) The Irish government, as well as some Irish legal scholars, has suggested that the Act is unenforceable because its defenses seem to be all encompassing. (117) However, the Act's defenses still leave certain types of speech to the potential prosecution. (118) This Note will focus on one such category of expression excluded from the Act's enumerated defenses: religious speech.

B. Yes and No: Probing Problems in the Act's Defenses

1. The Act restricts religious expression

For freedom that Christ has set us free. (119)

While the Act cannot condemn blasphemers to death, it does present an impediment to freedom of expression. (120) As is the case in the Middle East, blasphemy laws in any jurisdiction can be used to enforce an ever-increasing code of religious morality. (121) According to the United States Commission on International Religious Freedom:

   National or international laws purporting to ban criticism or
   "defamation" of religions do not solve the very real problems of
   religious persecution and discrimination faced by the adherents of
   many religions around the world. In fact, such prohibitions do more
   harm than good, as evidenced by the documented human rights abuses
   perpetrated under them in countries such as Pakistan and Egypt.
   (122)

William Butler Yeats, a senator in the Irish Free State and the first Irishman to be awarded the Nobel Prize in Literature, (123) argued in a session of the Seanad Eireann that "attempt[ing] legislation upon religious grounds... open[s] the way for every kind of intolerance and for every kind of religious persecution." (124) Ireland is now a more open society than most Middle Eastern nations, perhaps due to the liberalizing effects of membership in the European Union, but these restrictions were used quite frequently in the early days of the nation to censor books and other informational materials. (125) Thus, as long as the Act's defenses fail to include a protection of religious expression, the threat of tyranny remains. (126)

The constitutional provision that includes blasphemy as an offense, Article 40.6.1 .i, also professes to ensure "the right of the citizens to express freely their convictions and opinions." (127) Yet, this guarantee is limited because "organs of public opinion" may not be used "to undermine public order or morality or the authority of the State." (128) Like much of Bunreacht na hEireann, this provision reflects the Catholic Church's …

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Publication information: Article title: Defending Blasphemy: Exploring Religious Expression under Ireland's Blasphemy Law. Contributors: Jacob, Katherine A. E. - Author. Journal title: Case Western Reserve Journal of International Law. Volume: 44. Issue: 3 Publication date: Winter 2012. Page number: 803+. © 2009 Case Western Reserve University School of Law. COPYRIGHT 2012 Gale Group.

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