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Blasphemy, Offensiveness and Law

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.

Copyright © Cambridge University Press 1980

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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

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9 In giving his judgement on the Gay News appeal, Lord Scarman proposed that the law of blasphemy should be made more comprehensive; [1979] 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

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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

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25 Stephen, J. F., ‘Blasphemy and Blasphemous Libel’, The Fortnightly Review, N.S., XXXV (1884), 289318.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

26 Bowman v. Secular Society [1917], A.C. 406.Google Scholar

27 R. v. Lemon [1978], 3 W.L.R. 404Google Scholar; [1979] 2 W.L.R. 282.

28 See ‘Who the Hell Does She Think She Is?’ (an interview with Mrs Whitehouse), Poly Law Review, 111 (1978), 1318, 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.

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34 Feinberg, , Social Philosophy, p. 29.Google Scholar

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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

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39 Hart, H. L. A., Law, Liberty and Morality (London: Oxford University Press, 1963), pp. 3848.Google Scholar

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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), 3543, p. 38.Google Scholar

42 Nozick, Robert, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), p. 323.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

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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

50 E.g. Lord Sumner in Bowman v. Secular Society [1917], A.C. 406 at 466.Google Scholar

51 R. v. Hetherington (1840), 4 St. Tr. N. S. 563 at 590.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.

53 R. v. Bradlaugh (1883), 15 Cox C.C. 217 at 219.Google Scholar

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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’ ([1917] 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

56 R. v. Gott (1922), 16 Cr. App. R. 87 at 89.Google Scholar

57 [1979] 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’.

58 R. v. Gott (1922), 16 Cr. App. R. 87 at 90.Google Scholar

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