The Volokh Conspiracy - Blasphemy Made a Crime in Ireland:

Here's the just-enacted statute:

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 £25,000.

(2) For the purposes of this section, a person publishes or utters blasphemous matter if --

(a) 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, and

(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

(4) In this section "religion" does not include an organisation or cult --
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation --
(i) of its followers, or
(ii) for the purpose of gaining new followers.

Now I oppose this law, for the obvious reasons, which I won't repeat here. The Irish Constitution does expressly calls for the punishment of blasphemy -- "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law" -- so the absence of a blasphemy law until now (an earlier law was struck down for not defining "blasphemy") has itself been unconstitutional. But it seems to me that Irish legislators should have tried to amend the constitution via referendum rather than enacting this sort of ban.

But here I'd like to say a bit about some slightly less obvious problems with the law. To its credit, the legislature tried to minimize the risk that (say) the Satanic Verses, the Last Temptation of Christ, the Mohammed cartoons, and other such speech would become criminal. True, a court might well find that (1) the speech "is grossly abusive or insulting in relation to matters held sacred by any religion," and (2) the speech intentionally caused "outrage among a substantial number of the adherents of that religion." But presumably this danger might be mitigated by the defendant's ability to get off the hook if he shows that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value" in the speech.

Yet it seems to me that a court decision saying that the Mohammed cartoons or the Satanic Verses can't be punished because it has "genuine literary, artistic, [or] political ... value" would cause even more insult and social tension than the original speech itself would. At least without the blasphemy law, the government can say the speech is protected no matter how awful it might be. But with the blasphemy law, a government body must either find the speech unprotected -- or place its imprimatur behind the view that the "reasonable person would find genuine ... value" in it.

Likewise, another defense requires courts to decide which religions "employ[] oppressive psychological manipulation" "of [their] followers." Is threatening eternal damnation oppressive psychological manipulation, for instance? How about urging women to conceal themselves behind veils? I agree, of course, that religions should have the right to engage in such behavior, regardless of whether the government views it as "oppressive psychological manipulation" -- but if the law sets up "oppressive psychological manipulation" as a legal standard for determining which religions' adherents are protected from "blasphem[y]," then courts would have to apply that standard. Is religious tolerance and amity really advanced by official court decisions (and presumably jury decisions) about whether a religion practices "oppressive psychological manipulation"?

Thanks to Baran Alpturk for the pointer.

	[Eugene Volokh, July 24, 2009 at 5:21pm] Trackbacks Blasphemy Made a Crime in Ireland: Here's the just-enacted statute: 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 £25,000. (2) For the purposes of this section, a person publishes or utters blasphemous matter if -- (a) 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, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage. (3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates. (4) In this section "religion" does not include an organisation or cult -- (a) the principal object of which is the making of profit, or (b) that employs oppressive psychological manipulation -- (i) of its followers, or (ii) for the purpose of gaining new followers. Now I oppose this law, for the obvious reasons, which I won't repeat here. The Irish Constitution does expressly calls for the punishment of blasphemy -- "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law" -- so the absence of a blasphemy law until now (an earlier law was struck down for not defining "blasphemy") has itself been unconstitutional. But it seems to me that Irish legislators should have tried to amend the constitution via referendum rather than enacting this sort of ban. But here I'd like to say a bit about some slightly less obvious problems with the law. To its credit, the legislature tried to minimize the risk that (say) the Satanic Verses, the Last Temptation of Christ, the Mohammed cartoons, and other such speech would become criminal. True, a court might well find that (1) the speech "is grossly abusive or insulting in relation to matters held sacred by any religion," and (2) the speech intentionally caused "outrage among a substantial number of the adherents of that religion." But presumably this danger might be mitigated by the defendant's ability to get off the hook if he shows that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value" in the speech. Yet it seems to me that a court decision saying that the Mohammed cartoons or the Satanic Verses can't be punished because it has "genuine literary, artistic, [or] political ... value" would cause even more insult and social tension than the original speech itself would. At least without the blasphemy law, the government can say the speech is protected no matter how awful it might be. But with the blasphemy law, a government body must either find the speech unprotected -- or place its imprimatur behind the view that the "reasonable person would find genuine ... value" in it. Likewise, another defense requires courts to decide which religions "employ[] oppressive psychological manipulation" "of [their] followers." Is threatening eternal damnation oppressive psychological manipulation, for instance? How about urging women to conceal themselves behind veils? I agree, of course, that religions should have the right to engage in such behavior, regardless of whether the government views it as "oppressive psychological manipulation" -- but if the law sets up "oppressive psychological manipulation" as a legal standard for determining which religions' adherents are protected from "blasphem[y]," then courts would have to apply that standard. Is religious tolerance and amity really advanced by official court decisions (and presumably jury decisions) about whether a religion practices "oppressive psychological manipulation"? Thanks to Baran Alpturk for the pointer.