New crime of blasphemous libel proposed for Defamation Bill - goodbye free speech ?

[slx]

The Supreme Court was unwilling to get involved as there was no legislative interpretation of Bunreacht's guidance on blasphemy ... Dermot Ahern is now proposing this legislation and it looks as though it will make clear what blasphemy is ... so we are getting what looks like an effective anti-blasphemy law.

cYp

Which will be used by every crackpot in the country, and outside the country from ultra right wing Christians, to ultra right wing Muslims and everyone else in between to crack down on free speech.

[EarlyBird]

I've pointed out before that Ireland doesn't have good protection for free speech in our constitution. Unfortunately it seems like the government have just realised the same and intend taking advantage of this and cracking down on freedom of expression

Last year the Oireachtas Committee on the Constitution had recommended amending article 40 and ensuring free speech... Dermot Ahern has gone the other way and is proposing a €100,000 fine for blasphemy and also giving the Gardaí the rights to break down our doors to seize evidende !

So what next from Ahern ... under the same article he could bring in more anti-free speech laws

Anything that undermines: public order , morality or the authority of the State

Or matter which is seditious or indecent !


cYp

I wonder where he got this bright idea from, he certainly didn't come up with it himself.

The ACLU Shirks Another Free Speech Fight
Wendy Kaminer, 04.21.09, 12:01 AM EDT
As the U.N. Human Rights Council endorses punishing blasphemy, why is our supposed free speech advocate staying silent?

Perversely promoting censorship as a human rights initiative, the United Nations Human Rights Council recently adopted a resolution prohibiting defamation of religion. The resolution is non-binding, but not without effect; its passage is becoming something of an annual U.N. tradition, and as several commentators have noted, it legitimizes draconian punishments for blasphemy meted out in sponsoring nations, like Pakistan.

It has evoked sharp and worried criticism from some free-speech advocates and an unusually ecumenical coalition of NGOs, including atheist, Jewish and Christian groups. But one prominent group with a growing human rights agenda and a professed commitment to freedom of conscience and speech opted not to oppose the religious defamation resolution--the American Civil Liberties Union. As The Forward observed in an Oct. 10, 2008 article, the ACLU declined to join a free-speech coalition against the U.N. resolution.

The ACLU Shirks Another Free Speech Fight - Forbes.com


Is he presenting it as if it is not connected to the recent UN resolution?.

Has he even mentioned the recent UN resolution?.

[marmurr1916]

The Supreme Court was unwilling to get involved as there was no legislative interpretation of Bunreacht's guidance on blasphemy ... Dermot Ahern is now proposing this legislation and it looks as though it will make clear what blasphemy is ... so we are getting what looks like an effective anti-blasphemy law.

cYp

But, according to the Irish Times, the definition of blasphemy will be any material “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".

Now the fact is that Islam, for example, would find it grossly abusive or insulting to suggest that Jesus Christ was the Son of God.

As far as Islam is concerned, Jesus was a prophet and Islam forbids saying that he was the Son of God.

On the other hand, Christians would find it grossly insulting to say that Jesus Christ was a mere prophet and not the Son of God.

The previous Supreme Court case found that it couldn't favour one religion over another when it came to blasphemy:

From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or of Polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not? The following passage from the Judgment of Walsh, J. in Quinn’s Supermarket v. Attorney General [1972] IR 1 at p. 23 - 24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:-

“Our Constitution reflects a firm conviction that we are religious people. The preamble to the Constitution acknowledges that we are a Christian people and Article 44, s. 1, sub-s. 1, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44, s. 1, of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so”.

Based on that, blasphemy can't be a crime since one set of religous beliefs can't be preferred over another.

Of course, the Supreme Court could overturn that judgement but, as it stands now, no religion is actually covered by blasphemy laws.

[ibis]

Minister for Justice Dermot Ahern proposes to insert a new section into the Defamation Bill, stating: “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 €100,000.”
“Blasphemous matter” is defined as 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 he or she intends, by the publication of the matter concerned, to cause such outrage.”
Where a person is convicted of an offence under this section, the court may issue a warrant authorising the Garda Síochána to enter, if necessary using reasonable force, a premises

I presume that may well relate back to the Danish cartoons fuss. Unfortunately, I tend to agree with Cyp here - I think the definition is sufficiently clear to be legally useful - publication of (say) Alive! magazine would not be of itself blasphemous because its publication can't reasonably be said to "grossly abusive or insulting....thereby causing outrage" and its intent is not to cause offence to other religions (atheists, now, but nobody cares about them).

However, if someone published the equivalent of the Danish cartoons, I think the case would be open and shut - the only tricky bit would be the 'intent' clause. However, if there were a sufficiently strong argument that it was not the intent, then the incident is also less likely to produce public outrage amongst the Muslim community - and, at the end of the day, that's what this law is intended to prevent. It's to allow the government to come down heavily - and be seen to come down heavily - on anyone who deliberately set out to offend Ireland's expanding Muslim community.

Heaven only knows where they get the idea people might want to do that...perhaps they've been reading p.ie?

[marmurr1916]

But the Supreme Court case says that one religion can't be favoured over another:

The following passage from the Judgment of Walsh, J. in Quinn’s Supermarket v. Attorney General [1972] IR 1 at p. 23 - 24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:-


“Our Constitution reflects a firm conviction that we are religious people. The preamble to the Constitution acknowledges that we are a Christian people and Article 44, s. 1, sub-s. 1, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44, s. 1, of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so”.

The state isn't permitted to 'confer any privilege...upon any religious denomination'.

If that's the case, then the state can't protect 'any religious denomination' from blasphemy as to do so would 'confer [a] privilege' on it with respect to other religious denominations, named and 'unnamed'.

[ibis]

But the Supreme Court case says that one religion can't be favoured over another:

The state isn't permitted to 'confer any privilege...upon any religious denomination'.

If that's the case, then the state can't protect 'any religious denomination' from blasphemy as to do so would 'confer [a] privilege' on it with respect to other religious denominations, named and 'unnamed'.

I appreciate what you're saying there, but the definition here isn't one of privileging one religion over another - it's defined as anything that attacks any religion in such a way as to be both malicious and to cause widespread offence. There isn't a question of privileging any particular religion - if you outrage and offend the Muslim community, having set out to do so, by particularly insulting or abusing anything they hold sacred (such as the Prophet), then you're liable to this. It doesn't matter what your religion is, or the truth of the religion - hence the term "matters held sacred", which exempts the court from adjudging the truth of any particular religion. It is sufficient that you cause outrage by abusing their beliefs, and it applies to all and any religions without favour or preference.

The reason the Supreme Court couldn't decide on a blasphemy law as such is because defining 'blasphemy' as such requires the State to take a position on the truth of one religion. This, however, does not, nor does it attempt to create a crime of blasphemy, nor is the commission of blasphemy necessary to the commission of this crime. This is a public order offence, not a religious one.

[marmurr1916]

I appreciate what you're saying there, but the definition here isn't one of privileging one religion over another - it's defined as anything that attacks any religion in such a way as to be both malicious and to cause widespread offence. There isn't a question of privileging any particular religion - if you outrage and offend the Muslim community, having set out to do so, by particularly insulting or abusing anything they hold sacred (such as the Prophet), then you're liable to this. It doesn't matter what your religion is, or the truth of the religion - hence the term "matters held sacred", which exempts the court from adjudging the truth of any particular religion. It is sufficient that you cause outrage by abusing their beliefs, and it applies to all and any religions without favour or preference.

The reason the Supreme Court couldn't decide on a blasphemy law as such is because defining 'blasphemy' as such requires the State to take a position on the truth of one religion. This, however, does not, nor does it attempt to create a crime of blasphemy, nor is the commission of blasphemy necessary to the commission of this crime. This is a public order offence, not a religious one.

But "Blasphemous matter" is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion."

So Danish-type cartoons would be 'grossly abusive or insulting' to Islam.

The relevant Supreme Court case was about the publication of allegedly 'blasphemous material', a cartoon to be precise.

The Supreme Court judgement asked the question:

Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not?

The answer was that the constitution "does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so".

If you convict someone of a public order offence on the basis that what they've published would offend public order because of the outrage caused by an insult to a 'matter held sacred' by 'that religion', then you 'confer [a] privilege' on that religion by making it an offence to publish any material that might insult any adherents of 'that religion' so much that public order is offended.

Basically what the conviction would be stating is that to insult Islam (or whichever religion made the complaint) is to cause a public order offence because the material published was offensive to Islam, not because it was offensive to religion in general.

The constitution doesn't permit that, according to the Supreme Court case cited. Making it a public order offence to cause such outrage to a 'matter held sacred' by a particular religion would violate the constitution by conferring a privilege on that particular religion, namely that nothing which would cause an offence to public order by insulting a 'matter held sacred' by that religion could be published.

To secure a conviction, you'd have to prove (to the standards required in a criminal trial), that the material published was offensive to all religions.

Now, you could claim that all religions are offended by claims that God (called by whatever name) or gods don't exist.

However, you'd have to prove that the existence of God or gods was a 'matter held sacred' by all religions and you'd have to prove that a claim that God or gods didn't exist was 'grossly abusive or insulting' to all religions and that it caused 'outrage among a substantial number of the adherents' of all religions and that the person who published the claim intended 'to cause such outrage' to all religions.

Such proof would be impossible to obtain.

Furthermore, a 'matter held sacred' by one religion (or a set of religions) is not necessarily held sacred by all religions.

For example, Jesus Christ's divinity is a 'matter held sacred' by Christianity. However, it's not a 'matter held sacred' by Hindus. Therefore, convicting someone on the basis that they've insulted the divinity of Jesus confers a privilege on Christianity because the conviction is based on a 'matter held sacred' only by Christianity. If such a conviction was allowed to stand it would, in effect, disbar anyone (including members of non-Christian religions) from publishing material that denies the divinity of Jesus. However, such a situation would mean that all non-Christian religions which publish material denying the divinity of Jesus would be open to conviction, thus conferring an unconstitutional privilege on Christianity.

Likewise, convicting someone on the basis that they've insulted Mohammed, a 'matter held sacred' to Islam, confers a privilige on Islam and so on.

[ibis]

But "Blasphemous matter" is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion."

So Danish-type cartoons would be 'grossly abusive or insulting' to Islam.

However, the relevant Supreme Court case was about the publication of allegedly 'blasphemous material', a cartoon to be precise.

The Supreme Court judgement asked the question:

The answer was that the constitution "does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so".

If you convict someone of a public order offence on the basis that what they've published would offend public order because of the outrage caused by an insult to a 'matter held sacred' by 'that religion', then you 'confer [a] privilege' on that religion by making it an offence to publish any material that might insult any adherents of 'that religion' so much that public order is offended.

Basically what the conviction would be stating is that to insult Islam (or whichever religion made the complaint) is to cause a public order offence because the material published was offensive to Islam, not because it was offensive to religion in general.

The constitution doesn't permit that, according to the Supreme Court case cited. Making it a public order offence to cause such outrage to a 'matter held sacred' by a particular religion would violate the constitution by conferring a privilege on that particular religion, namely that nothing which would cause an offence to public order by insulting a 'matter held sacred' by that religion could be published.

To secure a conviction, you'd have to prove (to the standards required in a criminal trial), that the material published was offensive to all religions.

Now, you could claim that all religions are offended by claims that God (called by whatever name) or gods don't exist.

However, you'd have to prove that the existence of God or gods was a 'matter held sacred' by all religions and you'd have to prove that a claim that God or gods didn't exist was 'grossly abusive or insulting' to all religions and that it caused 'outrage among a substantial number of the adherents' of all religions and that the person who published the claim intended 'to cause such outrage' to all religions.

Such proof would be impossible to obtain.

I'd like to think you're right, and it's possible you are, but I don't think you are. I think the use of "matters held sacred" is the key. Faced with your argument in court, I would argue that holding matters sacred is the key defining element of religion, that all religions do hold some or other matters sacred, and that the protection afforded by this law extends equally to them all whensoever their particular sacred matters are insulted or abused.

After all, it is not necessary to prove that a personal libel would destroy the good name of every and any citizen it was aimed at, since people's particular good names consist in different things - but all of them have without privilege a right to their good name howsoever constituted, and equally all religions have without privilege a right to not have their sacred matters - howsoever constituted - insulted or abused. It is not a privilege of any particular religion, but a protection offered to all equally.

Arguing against it, I would endeavour to show that the matters in question were not in fact held sacred by all adherents to that religion, or, if formally held sacred, were in fact not held sacred in practice by all adherents, and that it was impossible to determine the sanctity of any given matter without, indeed, privileging one or other interpretation of a given religion over all others...

[marmurr1916]

I'd like to think you're right, and it's possible you are, but I don't think you are. I think the use of "matters held sacred" is the key. Faced with your argument in court, I would argue that holding matters sacred is the key defining element of religion, that all religions do hold some or other matters sacred, and that the protection afforded by this law extends equally to them all whensoever their particular sacred matters are insulted or abused.

After all, it is not necessary to prove that a personal libel would destroy the good name of every and any citizen it was aimed at, since people's particular good names consist in different things - but all of them have without privilege a right to their good name howsoever constituted, and equally all religions have without privilege a right to not have their sacred matters - howsoever constituted - insulted or abused. It is not a privilege of any particular religion, but a protection offered to all equally.

Here's the bit I added to my post above after you'd replied:

Furthermore, a 'matter held sacred' by one religion (or a set of religions) is not necessarily held sacred by all religions.

For example, Jesus Christ's divinity is a 'matter held sacred' by Christianity. However, it's not a 'matter held sacred' by Hindus. Therefore, convicting someone on the basis that they've insulted the divinity of Jesus confers a privilege on Christianity because the conviction is based on a 'matter held sacred' only by Christianity. If such a conviction was allowed to stand it would, in effect, disbar anyone (including members of non-Christian religions) from publishing material that denies the divinity of Jesus. However, such a situation would mean that all non-Christian religions which publish material denying the divinity of Jesus would be open to conviction, thus conferring an unconstitutional privilege on Christianity.

Likewise, convicting someone on the basis that they've insulted Mohammed, a 'matter held sacred' to Islam, confers a privilige on Islam and so on.

Convicting someone on the basis that they've published material insulting a 'matter held sacred' by all religions is theoretically possible, because it doesn't confer a privilege on one religion over another.

However, you'd also have to prove all the other elements of the offence: that the matter published was grossly insulting or abusive, that it caused outrage amongst a substantial number of adherents and that it was intended to cause such outrage.

This is what the Koran says about the Trinity and the Son of God:

"Certainly they disbelieve who say: Surely Allah is the third (person) of the three; and there is no god but the one God, and if they desist not from what they say, a painful chastisement shall befall those among them who disbelieve."

...

"Regarding Sonship of Jesus: That is Jesus, son of Mary, in word of truth, concerning which they are doubting. It is not for God to take a son unto Him. Glory be to Him! When He decrees a thing, He but says to it " Be" , and it is. (Qur'an 19:34,35) And they say, 'The All-merciful has taken unto Himself a son.' You have indeed advanced something hideous. The heavens are well nigh rent of it and the earth split asunder, and the mountains well nigh fall down crashing for that they have attributed to the All-Merciful a son; and it behoves not the All-Merciful to take a son. None is there in the heavens and earth but he comes to the All-Merciful as a servant. (Qur'an 19:88-93) Truly the likeness of Jesus, in God's sight, is as Adam's likeness; He created him of dust, then said He unto him, " Be" , and he was. (Qur'an 3:59) People of the Book, go not beyond the bounds in your religion, and say not as to God but the Truth. The Messiah, Jesus, son of Mary, was only the Messenger of God, and His Word that He committed to Mary, and a spirit from Him. So believe in God and His Messengers, and say not, 'Three', Refrain, better is it for you. God is only One God. Glory be to Him - that He should have a son! To Him belongs all that is in the heavens and in the earth, God suffices for a guardian." (Qur'an 4:171)

As far as Christians are concerned that's blasphemous; the divinity of Jesus is denied and the Trinity is also denied (although not all Christians are Trinitarians).

However, if someone was convicted for publishing the Koran, because it was an insult to the Christian belief that Jesus is divine, a 'matter held sacred' to Christianity, then effectively Christianity would have been conferred with a privilege over Islam.

It's a 'matter held sacred' to Islam that Jesus is not divine, and convicting someone for publishing the Koran would restrict the right of Muslims to practice their religion freely by preventing publication of the Koran, thus conferring a privilege on Christianity which would not face the same restrictions.

Conferring such a privilege would be unconstitutional according to the Supreme Court case.

[Thranduil]

I'd like to think you're right, and it's possible you are, but I don't think you are. I think the use of "matters held sacred" is the key. Faced with your argument in court, I would argue that holding matters sacred is the key defining element of religion, that all religions do hold some or other matters sacred, and that the protection afforded by this law extends equally to them all whensoever their particular sacred matters are insulted or abused.

After all, it is not necessary to prove that a personal libel would destroy the good name of every and any citizen it was aimed at, since people's particular good names consist in different things - but all of them have without privilege a right to their good name howsoever constituted, and equally all religions have without privilege a right to not have their sacred matters - howsoever constituted - insulted or abused. It is not a privilege of any particular religion, but a protection offered to all equally.

It is absolute heresy (heresy to matters 'sacred' to me!) to what modern nations are supposed to be about to enact a law that protects what a specific section of the state holds as 'sacred' from free speech but which only protects that and not other things held sacred by other sectors of the population. It is even more incredible when we realise that these matters held sacred are really matters relating to space fairies and magic and superstitious nonsense.

Are we trying to roll back the Enlightenment? No doubt this is indeed about the numbers of religious hardliners coming to our shores and as such is evidence incarnate that such migrations will bring about fundamental change in this country, transforming it utterly. Ahern is obviously in the grip of his own personal religious prejudices, that part of his reputation precedes him.

This debacle is yet another argument (if ever another was needed) of the madness that representative democracy can bring. Somebody send these corrupt clowns back to school and please give them an education, a history lesson specifically in just how hard it has been to win freedom of speech, how painstaking and slow the process has been - the elegant and eloquent truths of Voltaire and others taking a great deal of time to penetrate, wiped away by ignoramouses with a wave and a snort.