Sunday, June 28, 2009

Noorani on Freedom of Speech and Religion: A Comment

I read A.G.Noorani’s article titled ‘Free Speech and Religion’ in the June 6th issue of EPW with interest wherein he argues that the March 26th resolution 7/19 of the Human Rights Council of Geneva on ‘Combating Defamation of Religions’ was entirely appropriate and criticizes Western opposition and Indian skepticism. As for the resolution itself which was previously discussed on this blog and elsewhere, it is generally consistent with Indian laws and India could therefore have justified virtually any position it took. Noorani however makes some additional points: (1) that defamation of religion is well recognized and ‘the distinction [between defamation and criticism] is well settled in law, politics and civic discourse’ (2) Citing the Danish cartoon controversy, he appears to suggest that blasphemous libel is no different from ordinary defamation (3) Western free speech arguments against blasphemy are false. All of these claims are debatable.

He cites Lord Scarman’s views expressed in his opinion in R v. Lemon (1979) to support these arguments. That judgment is however only a part of the record. The question in R v. Lemon (1979) was whether, in order to secure a conviction of blasphemous libel, it is necessary or not for the prosecution to prove the intent of the defendant to blaspheme (in addition to his intent to publish the allegedly blasphemous material). The Lords held, by a 3-2 decision that it is not required. Lord Scarman summarized his view as follows:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as bylaw established. It is not blasphemous to speak or publish opinions hostile to the Christian religion. or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.

Following this, the Law Commission, in a working paper in 1981 followed by a full report in 1985 recommended abolition of the offense. Here, it discussed in detail each of the points that he mentions. On the question of whether matter and manner may be distinguished for the purpose of the offense as Lord Scarman suggests, it said:

Frequently matter and manner cannot easily be disentangled and upon analysis it is often the message which repels as much as the language in which it is couched. That may well have been so in regard to much if not all of the material found to be blasphemous in reported cases. Matter which consists only of vulgar abuse or insults may thus on examination prove to be so insignificant in quantity and so insignificant as a social problem as scarcely to merit notice by the criminal law; and it seems to us that any wider categorization may indeed have adverse consequences for freedom of speech and communication.

Such restrictions would in particular have adverse consequences for what many would consider to be proper criticism of matters pertaining to religion and religious belief. Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue

On the question of extending a similar protection to other religions in a plural society (English common law only extended this protection to the Church of England) as Lord Scarman suggested and Noorani endorses, it noted:

The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society. Here one person’s incisive comment (or indeed seemingly innocent comment) may be another’s “blasphemy”, and to forbid use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable. But such would be the consequence if, as many of our commentators urged, a crime of blasphemy were to be extended to religions other than Christianity. Of course, such abuse or insults directed at the beliefs or practices of a particular religion may in substance amount to an attack upon adherents of that religion because of the views they hold. The line may be a fine one; but as we have emphasized above, if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence penalizing the publication of matter likely to arouse hatred towards persons on account of their race so that it would penalize publication of matter likely to arouse hostility to others on account of their religious beliefs.

This is very similar to the Canadian delegate Terry Cornier’s view that ‘it is individuals who have rights and not religions’. Indeed, the Racial and Religious Hatred Act passed in 2006 incorporates this view. While making the publishing or distribution of offensive material with the intent to stir up religious hatred an offense, it explicitly declares that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system’ (section 29J). Clearly, there is nothing preposterous about it as Noorani suggests.

Quoting an article from The Economist regarding the Danish cartoon controversy, Noorani argues that ‘A living per­son caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libeled.’ Firstly, it was reported that the lower courts in Denmark had dismissed libel charges against Jyllands-Posten and the matter had been appealed in the Supreme Court. Secondly, unlike ordinary libel, neither the artistic nor other merits of the material nor a public good defense was available for blasphemous libel under English common law (Media Law by Sallie Spilsbury, 2000). Also, as the working paper noted, it was doubtful that dissemination could be prevented by application of criminal law as ‘special protection for the religious believer could lead to widespread flouting of legal sanctions by those wishing to focus attention upon its discriminatory character or to be seen as martyrs in the cause of freedom of expression’ and it ‘might well stimulate activities designed to display its unacceptable character and the impossibility of securing its proper enforcement’. Several previous episodes attested to this reality. William Foote, a journalist determined to bring down English blasphemy laws in the 19th century published irreverent pieces on biblical characters in his paper Freethinker including pictures depicting the ‘Comic Life of Christ’ and an image of the Almighty’s posterior. His prosecution however resulted in the widespread dissemination of the material turning him into a cause célèbre (Blasphemy in the Christian World by David Nash, 2007). Again, few people had heard of the gay newspaper or of James Kirkup before the Lemon case was brought to court. Clandestine distribution of the material afterwards helped it reach a much wider audience than it would otherwise have. If the idea is to protect society by preventing dissemination, it appears unlikely to have a salutary effect.

Finally, based on this recommendation and others (including a report by a select committee of the House of Lords delineating the various options in 2002), the offenses of blasphemy and blasphemous libel under the common law of England and Wales were abolished by the Criminal Justice and Immigration Act, 2008. Lord Scarman’s view is therefore no longer good law.

Noorani also refers on several occasions to ‘some US talk on free speech’. I have no idea what that means but it suffices to note that he cites no American case to buttress his claim that religions require special protection. The US Supreme Court has never ruled on blasphemy but it did hold the New York state law on sacrilege which was defined in very similar terms to be unconstitutional in Joseph Burstyn Inc. v. Wilson 343 US 495 (1952) ((Blasphemy: Verbal offense against the sacred from Moses to Salman Rushdie by Leonard W. Levy, 1995). The majority opinion in that case held: "In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor..." Justice Frankfurter, in an eloquent concurrence was even more explicit. Though several states continue to retain blasphemy laws on their statutes, prosecution attempts ended in the early 1970s. It is virtually certain that any such censorship today would be struck down on First Amendment grounds (In the more recent National Endowment for the Arts v. Finley (1998), even Justices Scalia and Thomas did not dispute an artist's right to create indecent and disrespectful art).

Whatever one thinks of the resolution, some things are clear. Blasphemy in the West is headed to oblivion if not extinction – several countries have abolished it while others that retain the offence on their statute no longer enforce it. He says that ‘the issue is not freedom; it is self-indulgence with an eye on publicity’. With respect, this is a distinction without a difference. He further adds 'Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe'. I do not believe this either. Blasphemy laws in Europe have been shaped by centuries of struggle both within Christianity usually spearheaded by marginal sects such as Unitarians and Socinians against its dominant form as well as against Christianity led by the deists and others. From that standpoint, it is not difficult to see why preserving these hard earned freedoms is very much a matter of principle in these countries.

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