Published online by Cambridge University Press: 27 January 2009
Of all the freedoms cherished by liberals, perhaps none is more cherished than freedom of expression. Most would accept that some limits should be placed upon that freedom, but what sort of limits those should be and how far they should extend are matters of controversy. That controversy is all the greater when the purpose for which free expression is limited is itself one which is as potentially compromising to liberalism as the prevention of offence to people's feelings. In this paper I shall examine the relative claims of free expression and offended feelings by focusing on a subject which juxtaposes the two particularly clearly: blasphemy.
2 The Times, 3 09 1976, p. 2.Google ScholarThe Times itself suggested that if Thorsen made his film, he should be confronted by ‘the ancient, but comprehensive and still capable of pouncing, common law offence of blasphemy’; 4 09 1976, p. 13.Google Scholar
5  2 W.L.R. 281.
6  3 W.L.R. 404.
7  2 W.L.R. 281.
9 In giving his judgement on the Gay News appeal, Lord Scarman proposed that the law of blasphemy should be made more comprehensive;  2 W.L.R. 281 at 308–9. An attempt was made to reform the law in this way as long ago as 1885; see Kenny, Courtney, ‘The Evolution of the Law of Blasphemy’, Cambridge Law Journal, 1 (1922), 127–42, p. 138.CrossRefGoogle Scholar
10 In 1787 a ‘Proclamation for the Encouragement of Piety and Virtue’ was issued calling for the suppression of impiety, licentiousness, profaneness and other evils ‘fearing lest that they should provoke God's wrath and indignation against us’. Reprinted in Blom-Cooper, Louis and Drewry, Gavin, Law and Morality (London: Duckworth, 1976), pp. 239–41.Google Scholar
11 See Nokes, G. D., A History of the Crime of Blasphemy (London: Sweet and Maxwell, 1928), pp. 64–5.Google Scholar
12 Although Taylor's case was the first in which blasphemy was named as an offence, it has been argued that it represented an extension of the existing law rather than a genuine innovation. See Nokes, , A History of the Crime of Blasphemy, pp. 52–61.Google Scholar
13 I Ventris 293; also reported in 3 Keble 607, 621. It is unclear from either report whether Hale thought his famous dictum that ‘Christianity is parcel of the laws of England’ simply followed from his argument about the relation between religion and obligation or whether he asserted it upon other grounds.
14 See, for example, the remarks of Raymond C. J. in R. v. Woolston (1729) Fitz-G. 64 at 65Google Scholar, of Ashhurst J. in R. v. Williams (1798) 26 St. Tr. 653 at 715–9Google Scholar, and of Abbott C. J. in R. v. Carlile (Richard) (1819)Google Scholar 4 St. Tr. N.S. 1423 at 1423–4. Even Locke was sufficiently persuaded by this argument to exclude atheists from toleration. Locke, John, A Letter on Toleration, Klibansky, Raymond, ed. (Oxford: Clarendon Press, 1968), p. 135.Google Scholar
15 See, for example, the remarks of Best J. in R. v. Carlile (Richard) (1819)Google Scholar 3 B. and Ald. 161 at 167, and in R. v. Carlile (Mary) (1821) 1 St.Tr. N.S. 1033at 1045–6Google Scholar, and the argument of the Attorney General (Sir John Campbell) in R. v. Hetherington (1840) 4 St. Tr. N.S. 563 at 568.Google Scholar
16 Devlin, Patrick, The Enforcement of Morals (London: Oxford University Press, 1965), pp. 23, 25.Google Scholar
18 Mill, John Stuart, On Liberty, Himmelfarb, G., ed. (London: Penguin, 1974), p. 119.Google Scholar
19 Rawls, John, A Theory of Justice (London: Oxford University Press, 1972), pp. 212–13.Google Scholar
20 See, for example, the remarks of Lord Gardiner in the debate on bill, Lord Willis's; Hansard, vol. 389, cols. 313–15.Google Scholar
21 In R. v. Carlile (Richard) (1819)Google Scholar, Abbott C. J. told Carlile ‘you are not here called in question for having published any work containing a calm, serious, and dispassionate inquiry into the truth, or the evidence of the truth, of our religion; you are called in question for the publication of a work which reviles and calumniates it’. Yet he also stated categorically that ‘the law says no man shall deny the truth of the Christian religion, or deny that the scriptures of the Old and New Testament are of Divine authority’ (4 St. Tr. N.S. 1423–4).
22 See, for example, the concern expressed for the poor and ignorant in R. v. Williams (1797), 26 St. Tr. 653 at 664Google Scholar, and in R. v. Carlile (Mary) (1821), 1 St. Tr. N.S. 1033 at 1048, 1054.Google Scholar
24 R. v. Bradlaugh (1883), 15 Cox C.C. 217 at 230–1.Google Scholar Lord Denman had already moved the law very much in this direction in his summing up in R. v. Hetherington (1840), 4 St. Tr. N.S. 563 at 590.Google Scholar In R. v. Moxon (1840)Google Scholar, he put the question to the jury, ‘are the lines in question calculated to shock the feelings of any Christian reader?’, 4 St. Tr. N.S. 693 at 721.
25 Stephen, J. F., ‘Blasphemy and Blasphemous Libel’, The Fortnightly Review, N.S., XXXV (1884), 289–318.Google Scholar See also Pankhurst v. Thompson (1886), 3 T.L.R. 199.Google Scholar To those who know Stephen only as the opponent of Mill it may be a surprise to learn that he opposed a blasphemy law of any kind and drafted a bill abolishing the offence of blasphemy. See Bonner, Hypatia Bradlaugh, Penalties upon Opinion (London: Watts, 1934), p. 141.Google Scholar
28 See ‘Who the Hell Does She Think She Is?’ (an interview with Mrs Whitehouse), Poly Law Review, 111 (1978), 13–18, p. 13.Google Scholar
29 Hereafter, to avoid confusion, I shall use the word ‘offence’ to refer only to the condition of being offended and not to that which is unlawful.
31 Feinberg, Joel, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973), p. 26.Google Scholar
33 For an attempt to restructure Mill's utilitarianism so that no account need be taken of offence caused to people in virtue of their beliefs, see Wollheim, Richard. ‘John Stuart Mill and The Limits of State Action’, Social Research, XL (1973), 1–30.Google Scholar Wollheim's argument is criticized by Ten, C. L., ‘Self-Regarding Conduct and Utilitarianism’, Australasian Journal of Philosophy, LV (1977), 105–13.CrossRefGoogle Scholar
35 ‘The purpose of blasphemy is to wound and hurt other people in areas of the mind which are, to them, sacred. This is violence, likely to prove more painful to many than physical violence. Therefore, while violence remains a crime, so should blasphemy.’ Richard Adams, letter to The Times, 23 07 1977, p. 13.Google Scholar
36 ‘All exhibitions, which, being to the minds of individuals taken in any considerable number, productive of uneasiness on a religious account, are offered to their senses in such manner as that the unpleasant sensation produced by them, whatever it be, is unavoidable – all such acts are, in my view of the matter, objects calling for prevention by means of punishment.’ Jeremy Bentham, ‘Letters to Toreno’; see Bowring, John, ed., The Works of Jeremy Bentham, Vol. VIII (New York: Russell and Russell, 1962), p. 546.Google Scholar On ‘simple mental injuries’ in relation to law, see III (‘Principles of Morals and Legislation’), p. 225 and note.Google Scholar
39 Cmnd. 247 (1957), para 13.
39 Hart, H. L. A., Law, Liberty and Morality (London: Oxford University Press, 1963), pp. 38–48.Google Scholar
41 Mill, , On Liberty, p. 168.Google Scholar This passage has often been regarded as a momentary aberration, but it may reveal just how much Mill was taking for granted. See Letwin, Shirley Robin, ‘Law and Morality’, Encounter, XLIII (11, 1974), 35–43, p. 38.Google Scholar
43 Scanlon, T., ‘A Theory of Freedom of Expression’, Philosophy and Public Affairs, 1 (1972), 204–26Google Scholar
44 E.g. people may object to public nudity or to public sexual acts only because these cause them embarrassment.
45 Mrs Mary Whitehouse would seem to be a case in point. While she accepts that the law of blasphemy is and ought to be concerned with the prevention of offence, her own reason for taking action against Gay News was rather different: ‘I simply had to protect Our Lord.’ New Statesman, 15 07 1977, p. 74.Google Scholar See also ‘Who the Hell Does She Think She Is?’, p. 15.Google Scholar
46 For a discussion of this issue see Buxton, Richard, ‘The Case of Blasphemous Libel’, Criminal Law Review, (1978), 673–82.Google Scholar
47 For an answer to this question, see Hart, , Law, Liberty and Morality, pp. 45–8Google Scholar, and for a critique of that answer and of the public-private principle in general, see Conway, David A., ‘Law, Liberty and Indecency’, Philosophy, XLIX (1974), 135–47.CrossRefGoogle Scholar
48 72 J.P. 188 at 189.
49 E.g. Feinberg, Joel, ‘“Harmless Immoralities” and Offensive Nuisances: Reply’, in Care, Norman S. and Trelogan, Thomas K., eds., Issues in Law and Morality (Cleveland and London: Case Western Reserve University Press, 1973), pp. 131–3.Google Scholar
52 R. v. Ramsey and Foote (1883), 15 Cox C.C. 231 at 238.Google Scholar Coleridge made explicit use of the manner-matter distinction.
55 In R. v. Boulter (1908)Google Scholar, Phillimore J. remarked that Boulter's words might have led to a breach of the peace, but it is unclear whether he thought that tendency to cause a breach of the peace could affect the question of law as to whether words constituted a blasphemous libel (72 J.P. 188 at 189). In Bowman v. Secular Society, Lord Parker offered the opinion that ‘to constitute a blasphemy at common law there must be such an element of vilification, ridicule or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace’ ( A.C. 406 at 446). This view of the law was clearly followed in R. v. Gott (1922) 16 Cr. App. R. 87.Google Scholar
57  2 W.L.R. 281 at 312. Lord Edmund-Davis (at 307) simply rejected the suggestion that ‘in order to justify a conviction for blasphemous libel, the publication, when objectively considered, must tend to lead to a breach of the peace’.
59 R. v. Gott (1922), 16 Cr. App. R. 89Google Scholar; R. v. Bradlaugh (1883) 15 Cox C.C. 217 at 230.Google Scholar
60 Mrs Whitehouse has claimed this as a ‘basic human right’, Daily Telegraph, 22 01 1979, p. 3.Google Scholar
61 On the strong and weak senses of a ‘right’, see Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977), pp. 188–9.Google Scholar