Blasphemy Laws: Religion v Expression

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Blasphemy LawsReligion v Expression

• Carmen Ka-wan Tsoi Irvine Kam-lun KwongMartijn
  Schreuder GoedheijtWinson Sau-yin Chu

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Outline

• Fundamental Issue
• Are blasphemy laws justified in a liberal
  society?
• Content of Presentation
• (1) Introduction
• (2) Review of Status Quo
• (3) Debate on Justification
• (4) Proposals Conclusion

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1. INTRODUCTION
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Introduction

• What are blasphemy laws?
• Blasphemy laws are generally laws that prohibit
  or limit the defamation of a religious faith or a
  religious organization.
• Q1 What constitutes blasphemy?
• Q2 What constitutes religion?

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Introduction

• Q1 What constitutes blasphemy?
• (a) Action Actus reus
• Blasphemy merely requires innocent dissent and
  opinions?
• Or, does it require aggressive defamation and
  actual insult?
• (b) Intention Mens rea
• Blasphemy merely requires religious groups to be
  offended?
• Or, does it require actual subjective intention
  to insult?

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Introduction

• Q2 What constitutes religion?
• (1) Primary religion
• In some states, blasphemy laws only regulate the
  primary faith. (e.g. Christianity)
• (2) Recognized religion
• In other states, blasphemy laws stipulate a list
  of recognized faith protected.
• (3) Any faith or religion
• In other states, blasphemy laws protect any faith
  or religion, and the courts have a wide
  discretion on determining what constitutes a
  faith or religion.
• However, it is dubious whether atheism is
  included in any of such definition.

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2. REVIEW OF STATUS QUO
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Review of Status Quo

• Factor 1
• (a) Protection of the primary religion(s)
• (b) Protection of multiple religions
• Factor 2
• (a) Blasphemy offence regulated by Criminal Laws
• (b) Blasphemy offence regulated by Civil Laws
• (c) Blasphemy offence regulated by Religious Laws

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Review of Status Quo
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Review of Status Quo
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Review of Status Quo
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Constitutionality in Europe

• European Convention of Human Rights
• Art 9 guaranteed the freedom of religion
• Art10 guaranteed the freedom of expression
• Restriction possible when (1) prescribed by law
  (2) in pursuing a legitimate aim stated in Art
  10(2),(3)
• Wingrove v UK
• ECHR held that blasphemy laws (as it existed
  then) in the UK did not contravene the Covention.
  
• Suggested that blasphemy laws will be allowed if
  a proportionate balance is struck between
  offensive antireligious sentiments and
  civil/temperate free speech.
• The determination of the delicate balance were
  within the margin of appreciation enjoyed by
  individual member-states.

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Constitutionality in United States

• US Constitution First Amendment
• Protects the freedom of speech
• Protects the free exercise of religion
• Prohibits government establishment or preference
  for a religion
• Joseph Burstyn Inc v. Wilson
• State law allowed the censorship of any films
  that was deemed to be sacrilegious .
• USSC held that the law restrained freedom of
  speech, and thus, violated the free speech clause
  under First Amendment.
• USSC also held that the law allowed government
  intervention in religion, and thus violated the
  non-establishment clause under the First
  Amendment.

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3. DEBATE ON JUSTIFICATION
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Overview of Debate

• Debate That there should be Blasphemy Laws.
• Affirmative Martijn Winson
• Negative Irvine Carmen
• (A) Rights of the Public
• Martijn vs. Irvine
• (B) Rights of the Individual
• Winson vs. Irvine
• (C) Feasibility Efficacy
• Martjin v Carmen

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A. Rights of the Public

• Affirmative (Martijn)
• Enhances public order
• versus
• Negative (Irvine)
• Causes public disorder

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A. Rights of the Public

• Affirmative (Martijn)
• Causes social harmony
• versus
• Negative (Irvine)
• Causes social segregation

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A. Rights of the Public

• Affirmative (Martijn)
• Protection of religious groups
• versus
• Negative (Irvine)
• Democracy of the majority

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B. Rights of the individual

• Affirmative (Winson)
• Obligation to respect religion
• versus
• Negative (Irvine)
• No obligation to respect religion

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B. Rights of the individual

• Affirmative (Winson)
• Free speech to be constructive speech
• versus
• Negative (Irvine)
• Free speech to be rarely curtailed

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C. Feasibility Efficacy

• Negative (Carmen)
• Impossible to define religion
• versus
• Affirmative (Martijn)
• Clear borders of religion

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C. Feasibility Efficacy

• Negative (Carmen)
• Discrimination of religious minorities
• versus
• Affirmative (Martijn)
• No preferential treatments

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4. PROPOSALS CONCLUSION
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Proposals Conclusion

• Scenario 1
• Existence of blasphemy laws to protect the
  major/primary religion.
• Scenario 2
• Existence of blasphemy laws to protect a list of
  recognized/established religion.
• Scenario 3
• Existence of blasphemy laws to protect any
  religion, faith or established belief.
• Scenario 4
• Abolishment of all blasphemy laws.

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• What do you think?