The instructive case of blasphemous libel
Repealing blasphemy offences to uphold free speech can help us think about how to approach proposed hate speech offences
Blasphemy codes are back, but perhaps not as you know them. Of course, no-one’s rushing to criminalise the third commandment (“thou shalt not take the name of the Lord thy God in vain”), but the commentator and author Louise Perry has argued that we’re seeing the emergence of a “modern, secular form of blasphemy” in the form of Things That Are Unsayable. Unlike the old blasphemy offences, Perry argues that this new code is “furtive”, implicit rather than explicit, but with undeniably real consequences. It’s a thought-provoking argument, particularly as our Government moves to introduce new hate speech offences. Not only that, it’s barely two years since the criminal offence of blasphemous libel was removed from New Zealand’s laws amid ringing affirmations of the importance of free speech. The parallel between blasphemy offences and hate speech offences may not be exact, but it is instructive.
Blasphemous libel and the proposed hate speech offence have two important features in common.
First, both protect religious beliefs from what would otherwise be free speech. According to a 1922 court case, the only known prosecution for blasphemous libel, that offence was designed to prevent the “provocation of any outrage of those feelings” of “reverence and respect for certain religious and sacred subjects.” Similarly, the Government’s discussion document on hate speech proposes to prevent “incitement of hatred” based on religious beliefs, among other grounds.
Second, both are designed to uphold a moral code or set of transcendent values and beliefs and to limit what made be said about them. In the case of blasphemous libel, the transcendent value is reverence for sacred things. In the case of hate speech, the transcendent values are “equality, diversity, respect and fairness” according to the discussion document.
Of course, there are some important differences between the old offence of blasphemous libel and the proposed hate speech offence, but not enough to negate the comparison.
First, both offences are concerned with social consequences. Hate speech offences are concerned with bile directed at groups of people; blasphemy with offences against a deity. But the blasphemous libel offence wasn’t merely about breaking the third commandment; the judge in 1922 said it was aimed at “insulting or contemptuous” language causing “community disorder”.
Second, designing offences around “hate” arguably sets the bar higher than prohibiting something that is merely insulting, but “hate” and “hatred” are not easily defined. This, says Maxim Institute research fellow, Professor Warren Brookbanks, “leaves it open to wide interpretation in practice.” In fact, ordinary dictionary definitions range from “intense hostility” and “extreme dislike or disgust” to “to dislike someone or something very much,” so there may be some overlap in the intensity of the speech covered by both offences. Brookbanks points out that Canadian courts have variously held that “hatred” is much more than “merely discrediting, humiliating or offending the victims,” and that it means “looking down on or treating as inferior.”
Third, while the proposed hate speech offences are likely to protect more than just religious beliefs, the underlying approach is the same in both cases—to mark out speech that offends against fundamental beliefs as unsayable, and to prevent it being said where social disorder could follow.
Lastly, while in twenty-first century New Zealand the social disorder associated with blasphemy is likely to be much milder than that associated with hate speech, that isn’t always so. Think Catholics vs. Protestants in Northern Ireland, or the Charlie Hebdo attacks in France. Closer to home, Te Papa’s exhibition of the “Virgin in a Condom” in 1998 led to protests, threats, and attacks on the exhibit.
Ultimately, both types of offence invoke fundamental questions about meaning, vision, and purpose. That means we need to debate them at that level, recognising that they reflect and shape the kind of life, shared and individual, that we believe in and that we will inhabit. We also need to debate if protecting that vision means it is right to criminalise speech alone, that is, speech that is not directly linked to tangible harm in the real world. Both hate speech offences and blasphemous libel are concerned with the good of social harmony, but they can be breached even if no actual violence occurs. That cuts across one of the other fundamental values of our society, that of free speech, and it’s encouraging to see the vigorous debate about the right relationship between these values.
It was right to abolish the blasphemous libel offence, and we should be just as concerned to uphold freedom of expression when it comes to hate speech. As the Human Rights Commission pointed out in their submission supporting repeal of blasphemous libel, that offence could have a “stifling effect on open dialogue and public discourse”. Looking even further back, the jury’s decision in the 1922 case is instructive for us in 2021. That case concerned the publication of a few lines by the war poet Siegfried Sassoon: “O Jesus, send me a wound today, And I’ll believe in your bread and wine, And get my bloody old sins washed white!” The jury found the publisher not guilty, but added to its verdict: “That similar publications of such literature be discouraged.” No-one should take hate speech lightly, but nor should we rush to criminalise the list of unsayable things. Discouragement, rather than criminalisation, is the best response in all but extreme cases.