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... Therefore this provision offers justification for the publication of articles that are obscene and thus allows more scope for expression. There has consequently been a fall in prosecutions, with pornographic production becoming increasingly productive and their products ever more odious. Similarly, by contrast to the prosecution initiated against the novel Last exit to Brooklyn, now books such as American Psycho, which depicts explicit sexual violence, are being published without risk of legal action. It has been recognised that sociological or ethical merit may justify publishing such an obscene book, due to the potential benefit to society as a whole in having such matter canvassed.
However, the courts have not allowed too expansive a use for the defence and have attempted to restrict its use by interpreting the scope of Section 4 narrowly, adopting a literal interpretation of the matters falling within the words of the section. For instance, in A-G Reference (No 3 of 1977) it was held that sex education for children could not be classified as learning as this signifies scholarship rather than being correlative of teaching. Similarly in DPP v Jordan (1977) failed to permit the defence on the grounds argued by the defendant that pornographic magazines were of psychotherapeutic value, enabling people to relieve their sexual tensions through masturbation, harmlessly. He went further contending that it saved them from psychological disorders and diverted them from anti social and criminal activities directed at others.
The court held that the therapeutic value of obscene articles for members of the public was not in the interests of other objects of general concern since the provision was not wide enough to cover this. Ultimately, whether there is a defence under this provision is a question for the jury, which requires them to perform a balancing exercise, considering whether the good flowing from the expressive merits of a publication, outweigh the public harm that flows from the risk of people being depraved and corrupted by the article. Although obscenity does limit the right to freedom of expression to some extent The offence of Blasphemous libel aims to protect peoples right to keep their sensitivities free from outrage as opposed to guarding moral standards as Obscenity seeks to do. The offence is archaic in nature dating back to the times when Christianity was the constitutionally established religion of the state and blasphemy was invoked for the protection of state interests rather than strictly religion and the sensibilities of citizens.
The law of blasphemy as it exists today, although retaining much of its antiquity, has evolved. It remains a common law offence but the change in reliance from the Church of England has meant that it is now regarded as providing wide ranging legal protection to the religious sensibilities of individual believers rather than the state. It achieves this by restricting the publication of material that may deny the truth of the Christian doctrine, the bible or vilifies God and Jesus of unnecessary profanity, which is likely to shock and outrage the feelings of Christians. Today prosecutions for blasphemy are rare and following 50 years of desuetude, the offence was revived in Whitehouse v Lemon (1979) in which the defendants were the publishers Gay News, a magazine intended primarily for a homosexual readership. The case arose when they published an illustrated poem which purported to describe in explicit detail various homosexual acts with the body of Christ. They were charged with blasphemous libel as it was alleged that this was an obscene poem and illustration vilifying Christ in his life and crucifixion, which had outraged the religious sensibilities of the applicant who was a Christian.
The trial judge directed the jury that in order to secure a conviction it was sufficient that a publication vilified Christ and it was not necessary to prove an intention other than an intention to publish that which in the jurys view constituted blasphemy. The defendants were convicted but appealed to the Court of Appeal contending that a subjective intent to shock and arouse resentment among Christians had to be proved. The appeal was dismissed and later confirmed by the House of Lords confirmed the trial judges direction. The consequence of rejecting the more expansive definition of the mens rea is that the reach of the offence has been widened since the mens rea is now easier to satisfy.
Therefore this may have some effect of restricting freedom of expression with a greater amount of religious expression liable for prosecution as the offence is now more inclined to capture within its ambit those who would have been otherwise excluded if they had not had the intention to cause shock and outrage among Christians. Lord Edmund Davies, who dissented, acknowledged this, contending that promoting freedom of expression should push the courts towards accepting the more expansive definition. However the majority judgment rather than addressing the manner in which blasphemy laws interfered with freedom of expression, turned upon this narrow question of law relating to the mens rea In this sense it can be seen that the law on blasphemy restricts freedom of expression. It is argued by liberals that the common law in a modern, multi faith and largely secular society should find no place for an offence of blasphemy as it restricts debate about religious matters and advancement of new ideas.
It penalties the expression of opinions merely on the ground that some people find the opinions, or the manner in which they are expressed, objectionable. However, the view that the offence violates freedom of expression was not accepted by the European Court of Human Rights, when Lemon made an application to Strasbourg in Gay News v UK (1982) on these grounds. The ECHR held that the application was manifestly ill founded since the conviction was a proportionate measure to protect the religious sensibilities of others. One can understand this justification for the offence which intends to restrict the harm caused by such scurrilous vilification to prevent hurt feelings, injured sensitivities and general unrest. This was the view of Prof Kenny who contended that the common law does not interfere with free expression of bona fide opinion but it prohibits and renders punishable the use of coarse and scurrilous ridicule on subjects which are sacred to people in this country.
However the view of adherents to the harm principle expounded by John Stuart Mills, is that such harm flowing from permitting free speech concerning religion is outweighed by the benefit which accrues from permitting free course of ideas. Despite these misgivings, Lord Scarman, in Lemon, strongly endorsed the offence of blasphemy stating that, the offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the Kingdom. Not only did he maintain the protection given to Christians under the current law, he went as far as to say that, my criticism of blasphemous libel is not that it exits but that it is not sufficiently comprehensive. It is shackled by the chains of history.
What he was referring to here was one of the many weaknesses of the offence the fact that it is only the religious sensibilities of proponents of the Christian faith that are protected due to the link with the state and its established religion which is retained from earlier centuries. He advocated legislative intervention to protect religious beliefs and feelings of non-Christians justifying this on the grounds that in an increasing plural society such as Britain, it is necessary not only to protect differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. However Lord Scarmanss enthusiasm for extending the offence to protect non-Christians was not reflected by the courts in the recent case of R v Chief Metropolitan Magistrate ex parte Choudhury (1991) which concerned a Muslim who sought judicial review of the Magistrates refusal to issue summons for blasphemy against Salman Rushdie in connection with his book the Satanic Verses which purported to insult the Islamic religion, on the grounds that law of blasphemy was confined to the protection of the Christian religion. The application was dismissed by the QBD who confirmed, We have no doubt that as the law now stands it does not extend to religions other than Christianity.
Moreover it stated that it was outside its powers to extend the law to cover religions other than Christianity since the function of Parliament alone can change the law. Even if it had not been bound, the court considered that it would have been unwilling to initiate an extension since not only would (it) be impossible by judicial decision to set clear limits to the offence, if the judiciary did take this step, it would essentially mean overturning centuries of precedents and it is unlikely that any court will be willing to do this. The applicants subsequent application to the ECHR, claiming that this was a contravention of freedom of religion under Article 9 was rejected on the grounds that the convention does not compel freedom for adherents of any religion to bring legal proceedings in respect of scurrilous abuse and thus does not require creation of a law of blasphemy to protect Islam. It was contended that, in fact, what the applicant was attempting to do was interfere with Mr Rushdie's right to freedom of expression, as there were no grounds to bring Mr Rushdie, within one of the exceptions in Article 10 (2) which requires the existence of a pressing social need for an interferences with free speech for one of these purposes i.
e. restricting his expression was not in the interests of national security, public safety, for the prevention of disorder or crime, or protection of health or morals. Therefore in terms of this it is apparent that although Lord Scarmans professed wish to extend the reach of the offence is desirable in terms of non discrimination of religions, especially in a multi ethnic, multi cultural society, it is wholly detrimental to the concept of the freedom of expression, as it would grant the same repressive entitlements provided to Christians to a still larger proportion of the population. On the whole the law relating to blasphemy continues to impose an acute restraint upon freedom of expression, expression that is often of serious artistic merit.
The credibility of the law is further undermined by its antiquity and failure to offer protection to adherents of other religions, which although is desirable in terms of enhancing freedom of expression, it poses the question of why one religion i. e. Christianity should be protected and not another when in both situations sensibilities may be outraged to an equal degree. It is due to such anomalies that the law is in need of reform. It has been argued that perhaps we should take note of the US constitutional tradition whereby there is no room for a law criminalizing blasphemy since it is wholly incompatible with the First Amendment and it has been held by the courts that from the standpoint of freedom of speech the state has no legitimate interest in protecting any or all religions from views distasteful to them suppress attacks upon religious doctrine.
The Law Commission in 1985, did recommended that the offence be completely abolished but the Government has declined to make any changes. Sebastian Poster has advanced an alternative compromise proposal, which would involve expanding the current law on incitement under the Public Order Act 1986, to include incitement to racial hatred and outraging religious sensibilities, which would also include protection for other religions. Although not without its faults, this would meet some of the criticism and would go some way in improving the current state of the law relating to blasphemy.
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Research essay sample on Obscenity Blasphemy And Freedom Of Expression
