The right to freedom of expression is a fundamental right, which has not traditionally been prescribed by law but can be considered more of a moral right.
However the enactment of the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, Article 10 of which creates a right to freedom of expression. Article 10 (1) states “Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” However this right to free speech is qualified and not absolute as Section 10 (2) imposes a number of restrictions upon its exercise; “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the reputation or rights of others.”
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Two of these “restrictions prescribed by law” are the criminal offences of Obscenity and Blasphemy, which abridge freedom of expression in order to protect individuals and in some cases the public in general, against harm to moral integrity and uphold standards pf public behaviour as well as protecting religious sensibilities. The extent to which they constitute a restriction on freedom of expression, however, is a contentious issue and will be considered in due course.
The law on obscenity is aimed at protecting those who come to it willingly, against moral harm, which the obscene article is said to threaten. It guards moral integrity or protects some public interest in maintaining moral standards in a way, which overrides personal freedoms. Consequently, any expression that contravenes accepted standards of social morality is potentially subject to restrictions.
Such restriction on peoples expression is justified by the ‘harm’ principle as developed by John Stuart Mills whereby expressive material may only be restricted/interfered with if can be shown to cause harm to others. However there are divergent views on what constitutes ‘harm.’ Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluable. Others, instead of concentrating upon material harm are prepared to include moral and ideological harm within the definition, which is less easy to establish upon objective criteria since it is not always scientifically verifiable. Hart, similar to Mills also favoured reliance upon personal harm and whereas these views are more individualistic, Devlin, on the other hand, believed that society needs a common moral core to retain its stability and therefore any attacks on basic moral standards threaten and cause harm to society as a whole even if no individual suffered immediate and identifiable personal harm. This essentially requires the law to enforce a wider range of moral demands. However, it is undesirable to indiscriminately criminalize all immoral conduct or expression, as the resulting interference with freedom of expression would be extensive especially due to the uncertain scope of morality within a diverse society.
It must be clarified that the protection of morals is not purely a philosophically or politically advanced notion, as, under Article 10(2) of the ECHR, it is laid down as one of the justifications for interferences with freedom of expression. This also recognises that the steps necessary for the protection of morals will depend upon the morality to which the country is committed and thus the European Court of Human Rights will allow a ‘margin of appreciation’ to states in deciding what moral standards they should enforce and by what means.
One of the means adopted in Britain to enforce such morality is the Obscene Publications Act 1959, which makes it an offence to publish an obscene article. Under Section 1 (1) “An article shall be deemed obscene if its effect or the effect of one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely in all the circumstances to read, hear or see the matter.” This offence is a welcome liberalisation of the previous offence of obscene libel whereby in order for an article to be considered obscenely libellous it was sufficient that some part of the “matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall’ as established in R ‘v’ Hickin (1868).
Therefore not only was it possible to obtain a conviction by taking an isolated passage in a book out of its context and prove that it tended to deprave and corrupt, but it was also sufficient to prove that it would deprave and corrupt the most sexually naïve person who may chance upon it. Thus the law was fairly wide and the tests laid down were easy to satisfy resulting in a great restriction upon freedom of expression. However, as Salmon LJ commented in R ‘v’ Calder & Boyers (1968) “the Act of 1959 was an Act to amend the law relating to the publication of obscene material” and it has certainly had a liberalising effect in many respects.
Under the current law, the likely readership who may be depraved and corrupted is far more restricted as it is “any persons who are likely in all the circumstances” to see/read the allegedly obscene material. This initially received clarification in R ‘v’ Calder and Boyers (1968) where it was held that “clearly this cannot mean all persons, nor can it mean only one person for there are individuals who may be corrupted by almost anything. The court is of the opinion that the jury should be directed to consider whether the effect of the book was to deprave and a corrupt significant proportion of the persons likely to read it.”
The issue was also addressed in R ‘v’ Whyte (1972) where the question for the Magistrates was whether pornographic material, sold by the defendant, was likely to corrupt and deprave the ‘likely readers,’ who were it was decided middle-aged men since these were the frequent customers. A ‘significant proportion’ of these ‘likely readers’ were the hardcore of these regular customers whose morals were already in a state of depravity and corruption. Therefore it was doubted that such minds “could be open to any immoral influence which the books were capable of exerting” so that the books would not have a tendency to deprave and corrupt. Although this defence was initially accepted, the House of Lords reversing the QBD’s decision allowed the prosecutors appeal on the basis that “the Act is not merely concerned with the once for all corruption of the wholly innocent, it equally protects the less innocent from further corruption, the addict from feeding or increasing this addiction.”
It was also held that in determining the question of who are the likely readers of an obscene article, it is not appropriate to consider what is the largest category of ‘most likely’ readers and then to exclude persons falling within other categories for consideration as some of the material may still fall into their hands and thus they may also constitute the likely readership. Therefore the jury may be directed that the readership may include any persons not unlikely to see it. This is a narrow more intrusive test, which limits the scope of the offence to some extent, thus limiting the restrictions upon various forms of expression.
These likely readers must be ‘depraved and corrupted’ for the article to be considered obscene and thus a more difficult question is in relation to this is what constitutes being depraved or corrupted. This is the aspect of the offence based upon the aforementioned ‘harm’ principle so that restriction of obscene materials can be justified on the grounds that it causes harm to those who come into contact with it. However, what constitutes harm in this context is also unclear as the case law has not been explicit on the matter. Some clarification was attempted in R ‘v’ Anderson (1972) in which the defendants, who were publishers of a magazine aimed at school children, were charged under the 1959 Act for publishing articles of a violent and sexual nature without any suggestions that such activities were wrong.
The defendants, having bought in a highly qualified psychologist, attempted to show that the articles in question were not obscene, as they did not tend to deprave and corrupt. The judge directed the jury that they should convict if they were satisfied that the articles were objectively “filthy, lewd, loathsome or lewd.” On appeal, it was held the judge had misdirected the jury since articles that were “filthy, lewd, loathsome or lewd” were not necessarily obscene within the meaning of the Act. Lord Widgery commented that obscenity means more than mere disgust or repulsion and involves an element of moral harm, which is not scientifically evaluable so that the use of expert evidence on the issue, as was the case here, was erroneous since the matter “must be tried by jury without assistance or expert evidence.”
Therefore in accordance with this, an article can be said to deprave and corrupt a person if it results in as suspension or complete destruction of their moral standards. It was further advanced in Whyte (1972) that deprave and corrupt referred to the effect of an obscene article on the mind, including emotions, and it was not necessary this was manifested in any physical or overt behaviour, therefore in this sense, the harm may be seen as more individualistic.
However it has been established that obscene material may not always morally harm its likely readers and thus will not tend to deprave and corrupt, where it produces in them an aversion to the behaviour described, often referred to as the ‘aversion theory.’ This argument was advanced in Calder and Boyers (1969) where it was the novel ‘Last exit to Brooklyn’ that was alleged to be ‘obscene’ on the grounds that it purported to give graphic descriptions of the depravity and degradation in Brooklyn. At trial the defendants, although claiming that the novel was in the interests of literature, conceded that the tendency of the book was to shock the reader into a rejection of the evils described. The trial judge failed to put this defence to the jury and consequently, the defendants were convicted. On appeal, this was criticised and the ‘aversion argument’ was endorsed. It was held that the effect of the book was “intentionally disgusting, shocking and outrageous; it made the reader share in the horror it described and thereby so disgusted and outraged him that he would do what he could to eradicate those evils.” Therefore “instead of tending to encourage anyone to homosexuality, drug-taking, or brutal violence, it would have precisely the reverse effect” so that the book was not obscene.
This indicates that extremely offensive material may benefit from the ‘aversion argument’ and thus this will not allow all forms of expressions to be interfered with, enhancing rather than restricting freedom of expression.
Ultimately, however, there is still potential for the legislation to restrict freedom of expression, but this potential interference is mitigated significantly through the legal defence of public good which was established in 1959 was under Sec 4 (1) of the Obscene Publications Act. This states that “a person shall not be convicted of an offence against section 2 of this Act…if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern” and under Sec 4(2) expert witnesses can be called to identify “the literary, artistic, scientific, or other merits of the article” but not to comment on its alleged tendency to deprave and corrupt.
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 that 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 jury’s 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 men’s rea is that the reach of the offence has been widened since the men’s 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 men’s 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 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 penalises 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 the 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 a 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 exists 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 increasingly 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 Scarmans’s 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 a 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 applicant’s 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 the 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 interference 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 Scarman’s professed wish to extend the reach of the offence is desirable in terms of non-discrimination of religions, especially in a multi-ethnic, multicultural society, it is wholly detrimental to the concept of 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, an 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…to suppress attacks upon religious doctrine.”
The Law Commission in 1985, did recommend that the offence be completely abolished but the Government has declined to make any changes. Sebastian Poulter 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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