Shut up and listen
Newton Emerson has the real story behind Ireland’s new blasphemy law
I believe I can explain Ireland’s otherwise apparently inexplicable new blasphemy law. I will concede that my belief is partly based on speculation. However, under Ireland’s new blasphemy law, any comment on my belief that I find “abusive or insulting” could land you with a substantial fine. So just shut up, okay? Just shut up and listen.
The official logic behind the new provision is a masterpiece of Jesuitical legalism. Ireland’s constitution requires blasphemy to be an offence. This was covered by the 1961 Defamation Act, which also defined Ireland’s ferocious libel and slander laws. But in 1999 the Irish Supreme Court threw out a private suit against a newspaper after finding that it was not able to say “of what the offence of blasphemy consists”. From this point on, Ireland had a constitutional loose end.
In 2006 the Irish government commenced a review of defamation law, under pressure from newspaper owners sick of fighting ridiculous lawsuits. It soon became apparent that the political class saw this as a favour to the media class and in the small world of Dublin society, favours are supposed to be returned.
There followed a series of attempts to insert pet clauses into the proposed legislation. Former justice minister Michael McDowell proposed making it a criminal offence for police officers to speak to the media. Prison sentences were suggested for a new crime of “publishing gravely harmful statements”. It took an unprecedented complaint from the Organisation for Cooperation and Security in Europe to kill these proposals off. As recently as July Sinn Fein requested a clause allowing members of parliament to remain in office after declaring bankruptcy.
In this context, the inclusion of two clauses on blasphemy in the final draft seems almost reasonable. Blasphemy was covered by the previous defamation law. Leaving it out of the new one would leave a hole in the constitution. Changing the constitution requires a referendum, which nobody wants in the middle of an economic crisis. There is a re-run of the Lisbon treaty referendum in October and some have suggested that a question on blasphemy could easily have been added to the ballot. But there is a widespread feeling that this would only have muddied waters that are muddy enough already.
Meanwhile, the Irish media is very pleased with the rest of the new defamation bill, which passed into law on 23 July. It introduces new defences for “publication in innocence” or in the public interest, allows newspapers to print apologies without admitting liability and entitles judges to advise juries on maximum awards. True, it also defines blasphemy as the intentional causing of “outrage” by abusing or insulting “matters held sacred by any religion”. But how much complaining can you do after getting everything else you want?
So that is the how of Ireland’s new blasphemy law, which leaves the question of the why. Suspicion quickly turned to Fianna Fail justice minister Dermot Ahern, an old-school Catholic republican. Was he channelling the Church as he steered the bill? Mr Ahern denied any such thing, giving rise to a more sophisticated theory. Rather than a backward blast from the bog, could the new blasphemy law be an all-too-modern surrender to militant faith groups? After all, the defamation law review began at the height of the Danish cartoon scandal.
The boosting of the penalty for blasphemy strongly supports this suspicion. Under the 1961 Defamation Act blasphemy attracted a fine of £500 or up to seven years in prison. The new law abolishes imprisonment but raises the fine to €25,000. Furthermore, Mr Ahern originally wanted a fine of €100,000 and this was only reduced by parliament in the final stages of the bill’s passage.
If the new law was just a technical fix, why increase a fine that inflation had eaten away to a nominal sum back up to a frightening sum? A €100,000 penalty plus costs would ruin most people and €25,000 plus costs is not much better. However, the removal of the threat of imprisonment neatly denies martyrdom to those so pursued.
I believe this proves that far from being a harmless tidying up of an obscure loose end, the new blasphemy law is a provision the Irish government has drafted with the intention to use, and to get away with using. It has been brought in under cover of a gift to media interests via a minister who appears to have only old-fashioned interests.
One hesitates to use a term as lofty as Machiavellian about Fianna Fail but you could certainly call them Machia-cunning. There is just one loose end they have forgotten. If a case of blasphemy goes to the Supreme Court, will it be able to say “of what the intentional causing of outrage consists”?