Defending blasphemy: exploring religious expression under Ireland's blasphemy law.

• Author: Jacob, Katherine A.E.

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.

1. 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.

2. 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.

   1. 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)

   2. 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...