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What’s so blasphemous about free speech?

Credit: David McNew/Getty Images

Credit: David McNew/Getty Images

November 2, 2018   6 mins

Thomas Aitkenhead, an undergraduate at the University of Edinburgh, liked sounding off about Christianity. He thought its theology nonsense; that Jesus couldn’t possibly be divine; that Muhammad was a more intellectually consistent religious leader, and that the story of the virgin birth was laughable.

He sounds like a lot of university students, especially Scottish ones. Scots, after all, are famously outspoken and Scotland is at the headwaters of that period of European history known as ‘The Enlightenment’.

However, the year was 1696 and Aitkenhead had made the mistake of airing his views within earshot of Tron Kirk in Edinburgh High Street. He was charged with and convicted of blasphemy. On 8 January 1697, he was marched from the Tollbooth by St Giles’ Cathedral through the streets and hanged at the gallows mid-way between Edinburgh and Leith.

Thomas Aitkenhead was the last person to be executed for blasphemy in Britain. He was 20.

He’s not particularly well-known. But nor do many people know that blasphemy laws are still pervasive across the EU – and Europe more widely. They are coming to realise that now, though, in the wake of last week’s decision by the European Court of Human Rights to uphold Austria’s blasphemy law.1

The last successful blasphemy prosecution in England and Wales took place in 1977.2 AC 617 at 635, HL, per Lord Diplock.] Ireland only repealed the clause criminalising blasphemy in its Constitution on October 26th (yes, that’s last Friday), and Norway had a blasphemy law until 2015. Among other things, Norway’s was used — briefly — to ban Life of Brian. Germany, Italy, Poland, Spain, Sweden, Portugal, and Greece all still have either blasphemy laws or hate speech laws directed to preventing religious vilification, which amount to the same thing.

Enforcement varies across countries. Poland and Greece will send you to gaol, while Spain and Italy will let you off with a small fine. Scotland, meanwhile, still has a version of the blasphemy law that killed Thomas Aitkenhead but — given it hasn’t been enforced since 1843 — most Scots lawyers are of the view that it’s no longer a crime. Austria, as we now know, disposes of blasphemy with a fine.3

An awful lot of the commentary over the past week has been downright hysterical. On top of the failure to appreciate how common laws of this type are, people were convinced that an EU-wide blasphemy law had been introduced; that Muslims were now entitled to protections denied Christians and Jews, and that mocking Muhammad would be impossible in future.

All the Court has done, however, is hold that an Austrian law making it a crime to ‘disparage’ religion is compatible with the European Convention on Human Rights.4 The law here is Austrian and applies only in Austria.

That said, civilised countries should not have blasphemy laws. Blasphemy laws don’t just stop people criticising or joking about religion; they stifle reasonable debate. They are routinely used to silence critics, often — in the case of Islam — apostates. There is ample evidence Muslims who want laws to protect their Prophet and their feelings are prompting fear of Islam over the long term and contributing to support for anti-immigration populists. Austria is itself a prime example of this phenomenon: the Freedom Party that’s done so well in recent elections (it’s now part of the country’s governing coalition) has done so in large part by banging an anti-Islam, anti-refugee drum.

But many countries don’t only have ‘blasphemy laws’; they have ‘hate speech laws’ too. Some countries, after repealing their blasphemy laws, have gone on to enact ‘religious vilification laws’ — typically as part of a suite of hate speech legislation.

In England, for example, the Blair government — two years before abolishing the common law offence of blasphemy — introduced the Racial and Religious Hatred Act 2006, which criminalises “threatening words and behaviour” or “written material” that evinces the intent “to stir up religious hatred”.

In Ireland, the process is unfolding before our eyes — the Irish Council for Civil Liberties is calling for the introduction of hate speech and hate crime laws in the wake of the referendum result. Ireland doesn’t yet have this sort of legislation in place, because it has been using its blasphemy laws to do that sort of ‘work’.

Religious vilification laws, like blasphemy laws, turn on the protection of religious doctrine. In Islam, for example, they’ll disallow the depiction of Muhammad in cartoons; in Christianity, they’ll prevent the sexualisation of Jesus Christ.5 ECHR 60.] This is also why Christian blasphemy laws (as they have been in Austria’s case) can be repurposed to protect Islam: the two monotheisms are theologically similar on this point. In fact, the only organisations opposing the repeal of the blasphemy clause in Ireland’s Constitution were Islamic.6 It is things like this that make those concerned with Islam’s capacity to integrate into liberalism so nervous.

Human history has been amply soaked in blood from religious wars, in large part because religious people take their doctrines seriously. However, the experience of religious belief — and any feeling of hurt from another’s disbelief in it — is a subjective one. It’s very difficult to convey to modern people why heretics were once burnt at the stake, or even why someone like Aitkenhead was executed.

Yet subjective feelings of this type are central to all conceptions of hate speech — whether they concern religion, race, sex, or orientation. The words ‘hurt’, ‘offend’, ‘harm’, and ‘insult’ are used in legislation as a matter of routine. By this logic, if a punch hurts and harms, so can words: words are construed as capable of damage on a par with violence.

This is precisely why the American First Amendment lawyer Ken White argues that hate speech isn’t capable of legal definition — because baked into any such legislation is the claim that certain words cause direct harm in the same way a violent act does. The problem with this is that what is hateful to one person may be amusing or even meaningless to another. As a result, “hate speech is whatever someone in power thinks it is”, White suggests. It’s important here to note the distinction here between hate speech and incitement, which is a crime. Incitement requires a causal link between speech and the commission of a crime. Hate speech does not.

It is such US-style legal reasoning that led Irish politician Councillor Keith Redmond to call hate speech (all of it) “secular blasphemy law” during Ireland’s referendum campaign, and to argue that hate speech laws generally and religious vilification laws in particular amount to “blasphemy by the back door” — and constitute a direct assault on freedom of speech.

Something similar is happening to freedom of speech in Britain. Blasphemy laws may be long gone but other ways have been found of shutting down unwelcome interventions. In the past 12 months, two prominent comedians — Markus Meechan (“Count Dankula”) and Graham Linehan (Father Ted; The IT Crowd) — have been criminalised for things they have posted online (the former convicted and fined; the latter made subject to police warning). The favoured silencing instrument in the UK is not, however, hate speech legislation, which is seldom used. It’s Section 127 of the Communications Act 2003, criminalising “grossly offensive” online speech.

Its approach is uneven – ridiculously so. Because Section 127 only applies online, people can make the most outrageously racist, sexist, or bigoted jokes at, say, a comedy club or down the pub. If, however, their speech is recorded and finishes up on the internet, they’re in trouble. Thousands of people have been convicted under this statute — we’ve only heard about Meechan and Linehan because they’re famous. It is Section 127 that allows police up and down the country to pitch up on people’s doorsteps — while loosely throwing the phrase “hate speech” around — for something they’ve posted on Facebook or Instagram.

Both Europe and the UK need to draw lines concerning freedom of speech and the extent to which we protect religious sensibilities and prevent subjective feelings of offence. Blasphemy has metastasised into hate speech across the continent, which — coupled with various high-handed attempts to micromanage the internet — means freedom of speech now only truly exists in the United States.

  1. The ruling criminalised a woman — anonymised in the judgment as ‘E.S.’ although her identity is widely known among lawyers and journalists — for saying in a 2009 seminar that Muhammad married a six-year-old and consummated the marriage when she was nine. The Prophet of Islam, E.S. went on to argue, was a paedophile. What she said is the generally accepted historical version of events in the Muslim Ummah. She was convicted, effectively, for telling the truth about a particularly toxic bit of religious history.
  2.  Whitehouse v Gay News Ltd [1979
  3.  In E.S. v Austria, the Court was asked to rule on whether conviction under Article 188 of the Austrian Criminal Code — which criminalises disparagement of religious doctrines — contravened Article 10 of the European Convention on Human Rights. Article 10 protects freedom of expression. A version of Article 188 has existed in Austria for centuries; its application was extended to Islam — during the Austro-Hungarian Empire — in 1912. In considering Article 10, the Court also turned its attention to Article 9 of the Convention, which protects freedom of thought, conscience, and religion. The Court chose to balance Article 10 against Article 9 because Austria has a blasphemy law on its statute books. In making its ruling, the ECHR held that a fine of 480 euros plus costs “was at the lower end of the scale”.
  4.  The ECHR falls under the auspices of the Council of Europe. It rules only on matters to which signatory parties have consented. It has nothing to do with the European Union or the EU’s supranational court, the European Court of Justice. The ECJ doesn’t defer to municipal law — it’s there to rule on questions of EU law in member states — and is much more powerful and better-resourced.
  5.  See Wingrove v. United Kingdom [1996
  6.  See further Barry, Aoife. ‘Muslim scholar could seek legal advice if Irish media republish Mohammed cartoon’ TheJournal.ie

Helen Dale is an Australian writer and lawyer.


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