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Blasphemy and Censorship. The Historical Importance of Passive and Active Models

Blasphème et censure. L’importance historique des modèles de blasphèmes « passif » et « actif »
David Nash

Résumés

Le présent article se propose de revisiter certaines des théories établies par l’auteur concernant le délit de blasphème et la façon dont il a été interprété en Occident depuis la période médiévale. En particulier, la théorie de l’auteur distinguant un blasphème « passif » et « actif » sert de point d’appui pour cerner et analyser le phénomène plus général de la censure. En étudiant l’histoire du blasphème et de ses définitions par des individus et des institutions qui font autorité, il devient possible d’expliquer et de contextualiser les motivations des agents de la censure. La question du pouvoir et des intentions, qui s’avère donc centrale, est abordée à travers un dialogue avec les pensées de Foucault et de Norbert Elias. L’article conclut en avançant l’hypothèse que le modèle « passif », selon lequel les individus escomptent simplement être protégés des torts qu’on pourrait leur causer sans chercher à évaluer le degré de réalité de ces derniers, façonne à nouveau la perception du blasphème au XXIe siècle. On invitera en dernier lieu à élargir cette analyse à l’étude plus générale des formes historiques et contemporaines de la censure.

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1This article intends to investigate the wider contextual history of censorship and the questions this poses using blasphemy as a detailed ‘worked’ example. This investigates how we might gain much from thinking about how the phenomenon of blasphemy shows changes over time and how the contemporary world is reacting in a manner reminiscent of the past. When we look at this worked example it also allows us to examine a number of themes that may have considerable relevance to the wider history of censorship. The first of these is that fundamentally it is the law that drives developments and changes in the philosophy of limitation and censorship. The second is to argue for a close focus upon the function of personality — in other words an appreciation of the special context associated with the man and woman on the spot and how they react to material within a given set of circumstances. The third is to think carefully about models of how and why censorship is enacted. The fourth is to examine the potentially serious minded nature of material censored for blasphemy and presumably for other offences. This is in contrast to the crime’s often repeated formulation which concentrates upon the use of humour and the ridicule of religion. The fifth is to ask questions about what the punishment associated with censorship is actively seeking to achieve. Lastly we need to consider precisely what the mechanisms of censorship are and how they work.

Blasphemy in Historical Context

  • 1 The history of blasphemy can be best approached through a number of general surveys. See for exampl (...)

2 Before we investigate these wider issues we need to know some more about the contextual history of blasphemy itself. As an offence, blasphemy is an expression of opinions mocking God’s powers, or individuals seeking to take such powers for themselves. Blasphemy, as a crime, is important since it was the way that the medieval world made thought and opinion a crime. However it also gives us an insight into the development of some early definitions of censorship within blasphemy cases and how they were played out.1 For this we should consider censorship to be the silencing of opinion detrimental to the maintenance of authority (in its widest sense). This could mean both earthly authority and divine authority. Censorship is also similarly the silencing of opinion detrimental to the safety and prosperity of the wider commonwealth.

3 Once we accept the pivotal role of authority we can analyse more clearly the mechanisms which developed for exercising control, the justifications for such control and how these were articulated. It also becomes possible to see the fears of those who exercised such control. Nonetheless it also becomes important to the history of censorship to evade the trap of always considering it to be a calculated act. Thus any history must consider those who simply fell foul of such regulation and became pariahs within their respective societies almost by accident — the history of blasphemy is particularly prone to this.

4 In its earliest stages in the medieval west blasphemy was obscured by the crime of heresy. The religious orders of the late medieval period and the confraternities of medieval Europe were suddenly told to go out into the community and tend to the religious welfare of those they encountered and this arguably came to be substitute for the crusades. This significantly closer contact with populations at large uncovered indiscipline, inspiring an increasing interest in heresy shown by the mendicant orders of Europe. The discovery of blasphemy as a challenge to the supremacy of God was theorised as damaging all secular authority. More sophisticated power structures and mechanisms appeared in late fifteenth century Germany and these focussed upon preserving the viability of religious oaths which had become vital to commercial activity. This ‘passive blasphemy’ involved the search for those whose crimes would harm the whole community as a collectivity, there being an absence of any conception of individuals or their own belief standpoints. In the medieval period, members of the community entrusted their need for protection from providential judgement to the agency of local policing and government: they thought of danger to themselves and the community as an inseparable concept. In much later times, after the Enlightenment, this view was replaced by ideas of ‘active blasphemy’ where states retreated from policing this area leaving it to the conscience and sensibility of individual believers.

5 It is clearly worth thinking through precisely how far the rest of the history of censorship might conform to this model. The ‘passive’ is where others undertake action on your behalf to safeguard you from consequences and this was related to the issue of divine providence and God’s judgement upon the blasphemer here on earth. By contrast, the ‘active’ saw societies themselves retreat from taking action, thereby allowing or persuading individuals to enter the area against the unacceptable. The French Revolution and work of the Enlightenment unravelled the Church State link and its role in administering discipline and authority. This also said new things about causality, supposedly undermining providence, but only partially as we shall see. Laws began to evolve away from state control and governments started the slow process leading to conceiving of blasphemy as anti-modern, anachronistic and repressive. This process was clearly associated with the acquisition of individual rights stemming from the Enlightenment creation of the individual. The crime thus changed from one that damaged society to one that primarily damaged the feelings of individuals. This modernising development shaped the history of expression as the state was forced to define the rights of citizens as it also began to seek a balance between freedom and responsibility.

6 Anti-clericalism led late eighteenth century governments to limit and regulate the power of print culture upon the minds of the populace. The fear of blasphemers had changed to now concentrate upon ideologically motivated libertines, deists, family limitation advocates and radicals. Later nineteenth and early twentieth century secularists, atheists, anarchists and nihilists found their works scrutinised and often proscribed or prosecuted. Courts and legislators in the west considered imagined harm as much as actual disturbance of the peace, calculating the danger to society of printed material remaining in circulation. Thus this era of blasphemy’s history belongs very much to the history of censorship as it does to a history of religious toleration. The spread of advanced literature was frequently confronted by conservative organisations who genuinely believed that ruin would follow heterodox religious and social opinion.

7The American separation of Church and State under the First Amendment was seen as a model of freedom of expression. Revolutions in Europe did much to remove confessional status from states whilst change was organic. In these reforming jurisdictions, court rulings about freedom of speech slowly undermined Christianity’s claims to sovereignty of opinion, instead seeking to prove the deliberate wounding of religious beliefs and sensibilities. By 1900, governments and policing authorities were only prepared to use the law when public order was paramount, a status quo created by modernism’s mature realisation of the individual within liberal society. Thus, in the twentieth century, blasphemers were more likely to be artists or authors exploring society’s taboos or the nature of the sacred in an apparently secular world. Such an analysis explains the anti-clerical images of George Grosz in Germany in the 1920s and 1930s, counter cultural episodes of the 1960s in Austria and Holland, James Kirkup’s poem published in Gay News in 1977, and the controversy and violent reaction to Andres Serrano’s controversial artwork Piss Christ of the 1990s. This demonstrated the transition from a model of ‘passive’ to ‘active’ blasphemy, where the precise religious beliefs and feelings of individuals were considered under direct attack from the expression of others. Hereafter individuals asserted their rights to protection from the transgressive words or actions of others. The power given to the individual through both English common law and discourses of individual rights enabled the state to step away from action in this area. Ironically this may have preserved elements of providential thought since victims of blasphemy came to invoke the idea of divine judgement to substitute for states that would no longer punish sin.

  • 2 Elements of these were evident in the cases against G. W. Foote in 1883 where the blasphemy in his (...)
  • 3 In 1917, a Lithuanian, Michael Mockus, stood trial for blasphemy and upon conviction the judge made (...)

8From here on, secularisation argued that tolerance would be bred by greater contact between individuals and that globalisation would homogenise religious outlooks and lessen differences between faiths and groups. This confidence has not been borne out by the evidence of the late twentieth century that has seen blasphemy reached for by individuals as a tool capable of preventing the erosion of the sacred. For some individuals and groups, defending religion has rejuvenated nationalism in the face of the twin agendas of globalisation and in particular pan-European systems of morals and justice. In England, blasphemy cases as far apart as the 1880s, the 1930s, the 1970s and the 1990s all contained a fear of continental influences contaminating “sacred” English morals.2 Early twentieth century America also witnessed a number of panics associated with the dangerous spirituality and anti-religious views of recent immigrants.3 Seventeenth century America had seen individual states operate their own penal codes but latter day America also witnessed the use of blasphemy as a tool for the defence of local communities and their morals. The early twentieth century in particular saw American states pursuing blasphemers through local jurisdictions (recognisably similar to those of early modern Geneva, Zurich or Venice) only to see these attempts to prosecute and convict quashed by federal law.

9 Although western states had originally been interested in religious conformity and were prepared to convict and punish accordingly, the twentieth century saw government and judicial enthusiasm for this collapse. Blasphemy laws then entered a legal and cultural limbo in which their use was only occasionally contemplated, yet they remained as a reassurance against moral and cultural disintegration.

The History of Blasphemy and its Contribution to the History of Censorship

  • 4 For more on this area see Francisca Loetz, “How to do things with God: Blasphemy in Early Modern Sw (...)

10We now turn to examining the themes we outlined in the introduction, which will illuminate detailed and important aspects of blasphemy that are relevant to the history of censorship. Firstly we suggested that the law is a fundamental aspect which pushes developments. In its earliest years the punishment of blasphemy was targeted against lapses in discipline. Such lapses could include jokes that were not amusing to the audience, or those cursing God whilst drunk or agitated or angry.4 All this was linked to the conception of providence and an immanent God dispensing judgement and punishment on the guilty — both perpetrator and importantly victim — if the victim did not pursue the perpetrator sufficiently. Thus, governing attitudes reflected the fact that the individual was in peril being in the presence of blasphemy. Although we should note the knowledge that blasphemy had occurred elsewhere was also a trigger — knowing it had happened still put individuals in peril. Individuals were cocooned within a community which protected their sense of the universe from attack — this was the essence of passive blasphemy.

  • 5 For Venice, see Elizabeth Horodowich, “Civic Identity and the Control of Blasphemy in Sixteenth-Cen (...)
  • 6 See David Nash, Blasphemy in Modern Britain: 1789 to the Present, Aldershot: Ashgate, 1999, 32-37.

11The late seventeenth century saw the security of the state become important through the application of the law. This was part of a Europe-wide imposition of discipline upon unruly populations through the centralising confessional state. Venice had possessed since late medieval times a unique jurisdiction to prosecute and punish blasphemy alone whilst Calvinist Geneva revived the offence. The appearance of French statutes in 1594, 1617, 1631, 1651 and 1681 emphasised the connection with monarchical power by confirming mutilation and capital punishment as sentences dispensed by royal decree.5 This was legislative change intended to maintain a continuity of moral policing as the secular arm became the senior partner in maintaining authority. Such innovations were reflected across the Channel by the English Lord Chief Justice Sir Matthew Hale. In passing sentence upon John Taylor in 1675, Hale argued that attacks upon religion were attacks upon the law. The law should thus defend itself, and the moral underpinning offered by religion was the English monarchy’s contribution to re-establishing discipline.6

12Statute law in England built upon the Hale judgement. The relevant statute (9 & 10 William III c.32) resembles some of the French statutes pronouncing against anti-trinitarian views, denial of Christianity or the scriptures. Many similarities exist between colonial American legislation and contemporary European statutes. They both sought to discipline populations and ensure civil peace through the maintenance of respect for authority. Much of this legislation also caught the religiously unorthodox (especially anti-trinitarian groups) who regularly excited both popular and official hostility. However changes occurred at the end of the eighteenth century and the early part of the nineteenth. In the United States (1811), Justice Kent in the Ruggles case (the trial of an individual who declared Christ to be bastard and his mother a whore) could still argue that the legacy of English common law should allow blasphemy prosecutions. However, the opposition echoed Jeffersonian distrust of English common law as a kind of Church / State Conspiracy and by the middle of the nineteenth century there was a drive underway to remove the absolutes from the law. The US developed this first, where the idea of “manner” and “intention” in publishing or saying something was closely debated as constituting some sort of defence.

13 In England the watershed was a landmark judgment in 1883/4 which was substantially in favour of G. W. Foote and The Freethinker, a periodical which had published blasphemous cartoon depictions of God and Christ. Foote was first convicted but in a subsequent case overseen by Justice Coleridge the “part and parcel” argument was effectively unwound by the verdict dismissing the case against Foote. This brought forward the issue of “manner” which Foote had peripherally discussed in the course of the case. The Coleridge dictum and its logic prevailed until 1977 when the Gay News judgement took the law back to its pre-1883 condition. Here again we can see the law reflecting cultural changes which do not by definition equate with an ongoing liberalisation in line with a recognition of the secular. This is also evident elsewhere in blasphemy’s history. It is salutary to compare the libertarian optimism of the New South Wales Law Commission of the early 1990s with its counterpart in England — the Select Committee of the House of Lords on Religious Offences — which met in 2003. The former was bullish about repeal of the law of blasphemy, accusing religion of special pleading which should not be recognised by a modern multi-cultural society. In contrast, the House of Lords Committee in England was much more cautious and sought to balance freedom with the need to provide protection for minorities endangered by the supposedly religiously motivated animosity of others.

  • 7 This analysis can be followed in D. Nash (1999), 107-166.
  • 8 See ibidem, 134-162, and note 15 infra.
  • 9 See M. Heins op. cit., for an extended discussion of this topic.

14 The issue of personality was fundamentally important to this aspect of the history of blasphemy: essentially that the man and woman on the spot carried enormous power to influence and alter the history and practice of censorship. Whilst space prevents a detailed investigation here, it seems worthwhile to mention a few examples in passing ranging from government officials, through police operatives on to morality crusaders. The case against George William Foote, in the early 1880s, was orchestrated and brought to court by the actions of the Home Secretary Sir William Harcourt,7 who was determined to ensure that Foote should be tried and that the issue of blasphemy should be discussed. Harcourt arguably saw Foote in the guise of a public menace that may have looked similar to many other contemporary causes of disorder in the England of the 1880s. The archetypal men on the spot might be envisaged to be the numerous police constables who were instrumental in arresting J. W. Gott, T. W. Stewart and Ernest Pack, three individual blasphemers in England in the first years of the twentieth century.8 These men preached to large crowds in a number of English towns. In such contexts it was individual police constables who were empowered to intervene to prevent breaches of public order when blasphemous material was discussed. These policemen and their actions epitomise the role of the man/woman on the spot faced with difficult, sometimes split-second decisions, about issues simultaneously encompassing actual theology and the propriety of offending belief. Related to these early century men on the spot we might consider the role of their later counterparts across the Atlantic. The police discovered that, thanks to legislation passed in the 1990s, censorship powers were being located back within local communities. Suddenly these policemen were empowered to define and enforce local standards of morality. They thus began touring local video shops seeking to remove offensive material and thereafter became powerful arbiters of taste and morality.9

  • 10 For material on this see Guy A. Aldred, Richard Carlile, Agitator: His Life and Times, (3rd ed) Gla (...)
  • 11 For Anthony Comstock, see Heywood Broun and Margaret Leach, Anthony Comstock, Roundsman of the Lord(...)
  • 12 See D. Nash (1999), 180-210.

15 Beyond policemen, we might also look at public campaigners for action against blasphemers and others who are deemed to threaten established versions of morality. The early nineteenth century in England saw the campaigns of the Society for the Suppression of Vice and its attempts to prosecute Richard Carlile and his colleagues for publishing Paine’s Age of Reason and a number of other works.10 The Society had its transatlantic equivalent in the work of Anthony Comstock whose career suppressing literature commenced in the mid 1860s and lasted until the second decade of the subsequent century. Comstock was a quite prolific opponent of immoral literature and his was easily the most concerted and focussed career in seeking to limit the scope of what was permissible in print.11 The last third of the twentieth century in England witnessed the many sided career of Mary Whitehouse who was involved in campaigns against immorality in publishing, broadcasting and was responsible for the last common law prosecution for Blasphemous Libel (Gay News 1978/9).12

16 It is also important to investigate models of how and why censorship is exercised. Within the medieval world an accusation of blasphemy functioned as a clear censorship of the act, closely linked to the imperative to discipline as well as to the endurance of providentially inspired fear. On occasions, this providential fear was also demonstrated by campaigns overseen by late medieval monarchs, supposedly to protect their regimes from divine harm. During the Reformation the imperative to discipline was development of the state and served as an aid to the conscious process of confessionalisation.

  • 13 Alain Cabantous, Blasphemy: Impious Speech in the West from the Seventeenth to the Nineteenth Centu (...)
  • 14 Although it is possible to trace a growing leniency of punishment in the west it is significant tha (...)

17 Some issues about how and why the censorship of blasphemy occurs are highlighted by the work of a number of theoreticians. For Michel Foucault, the blasphemer becomes the object of study and the process of censorship is clearly about advancing this process of objectification and therefore constitutes another aspect of his critique of the Enlightenment. Foucault’s ideas are most readily reflected in Alain Cabantous’ study of French blasphemy that sees the subjectivity of individuals successfully expunged by the dawn of the Enlightenment era.13 The history of blasphemy and modern society’s treatment of it does not encourage the optimism that violence no longer exists for the individual, nor that it is successfully hidden in the apparatus of the state. Blasphemers are no less prosecuted and imprisoned by some modern societies than they were by pre-modern ones, whilst individuals and their contact with violence against the sacred continue.14

  • 15 The examples are numerous. The Freethinker case of 1883 focussed on a ribald, arguably lavatorial, (...)

18The passing of Foucault’s “era of surveillance” does not bring a qualitative change to perceptions of the crime of blasphemy. The new “age of confinement” which follows it does not end the link between blasphemy, libertineage, immorality and issues of public order — indeed the link remains quite marked. Evidence from nineteenth and early twentieth century England suggests that the ribald depiction of God proved to be the most offensive whilst policing authorities linked disbelief with the spread of potentially immoral knowledge. In the twentieth century, portrayals of Christianity or figures from the Christian tradition linked with sexual behaviour have similarly proved the most provocative.15 Interestingly when blasphemy ceased to be a crime under American federal law individuals tried to get around this fact by bringing prosecutions for obscenity; it is fascinating to watch the same situation now playing itself out in England where recent attempts at prosecution have involved precisely this change of focus.

  • 16 The work of Robert Darnton and Roger Chartier is especially relevant here: Robert Darnton, The Lite (...)

19Norbert Elias, however, might argue that the censorship of blasphemy, or even censorship in general, was fundamentally linked to his notion of the “civilizing process”. Blasphemy’s links with gambling, drink and libertinage persist some distance past the supposed arrival of civilised society and institutionalised systems of politeness. The link of oaths, profanity and various species of blasphemy to emotionally charged situations when individuals require luck or are in peril persists within popular culture well into quite modern times. Yet equally the growth of reading publics as a result of the Enlightenment led to a more sophisticated and cost effective print culture with a more obviously literary pedigree.16 Print culture’s ability to frame and repeat pre-meditated, violent and serial offence against ideas at a distance in both time and space is a factor absent from the “civilizing process” and its explanations. Yet it is also important to realise that censorship may not fit well with other aspects of Elias’ theoretical legacy. The “civilizing process” and the changes that were central to its narrative of progress spoke of these as being generated within individuals, rather than as specific leads created by coercive or disciplinary societies. Thus the “civilizing process” ought to have eradicated the need for censorship as politeness and interconnectedness rendered these responses supposedly unnecessary. With both blasphemy and censorship there is actually a quite poor fit with the ideas which underpin the idea of the “civilizing process” and its model of social development. Blasphemous crimes were not removed or marginalised from society; their enduring and sometimes still potent legacy meant that they served as important models for thinking about violence that could be perpetrated against belief or identity. From these models it is also evident that this line of thinking led modern societies to clearly develop the concept of hate crime and laws which reflect this. Within these modern agendas of “protection”, the idea of hate crime and incitement to religious hatred seeks to bring back state involvement when it has been in retreat since the onset of more individualised and modern society. This reinvents the passive blasphemy model bringing a societal responsibility to install an agenda of protection.

20From here we move to considering what the punishment associated with censorship is seeking to achieve. In the early modern period, blasphemy attracted a range of punishments which varied from country to country, yet all contained the fundamental elements of visual display and shame. The pillory was widely used as was banishment and the obligation to attend church in shameful or ludicrous apparel. Alongside this, some of the American colonies exhibited the individual on the scaffold to receive mock execution whilst others indulged in sham crucifixion. For more serious offences, there were various species of branding, mutilation and, in extreme cases, execution, although the last of these was rare. Many of the components of punishment were intended to restore people to their commonwealth in the medieval and early modern period through the purgative and cathartic experience of shame.

  • 17 See David Nash and Chara Bakalis, “Incitement to religious hatred and the ‘symbolic’: How will the (...)

21In the nineteenth century when the focus of blasphemy prosecutions centred upon print culture, several cases really turned around the desire of the authorities to prevent and destroy the opportunity to continue publishing. In England, this imperative was evident in actions from the government and the Society for the Suppression of Vice against Richard Carlile and his dedicated followers in the 1820s and 1830s. Thus, a concerted campaign to promote freethought and blasphemous ideals was deprived of a platform to expound these views although it eventually managed to improvise one in court. In the contemporary period we might well think of the much publicised and discussed “chilling effect” on the production of art and performances of new legislation which constitutes evokes a dark and unknown and untried mechanism of censorship.17

22I have also suggested that it is crucial to look much more closely at the content of blasphemy (and arguably by extension the content of anything that is censored). The precise content of the censored has sometimes been overlooked in the rush to consider the procedures and effects of censorship. There is often too much focus upon the ribald, offensive and transgressive nature of the material censored or prosecuted. Ways in which it outrages and offends are seen as fundamental to the point of the artistic product. At its very extreme, this can manifest itself in postmodern assumptions that the issue of blasphemy and the production of material that is censored is located entirely around analysis of this as simply a transgressive act. However it is very important to consider that the blasphemous is not always entirely flippant even though at first sight it might appear to be so. Often a closer examination reveals that it is more than the simple transgression of postmodernists and Bhaktinians. Many species of blasphemy often have real intent and real aims and attempt to display Christian ideas as repulsive, uncivilised and unacceptable. George William Foote often published cartoons which lampooned and ridiculed Bible stories. His comic depiction of the sacrifice of Isaac by Abraham provoked amusement but also showed the barbarity of a God who would test the patriarch in this way. Likewise his comic cartoon life of Christ saw the son of God “run in for blasphemy”. Whilst profoundly ironic, this also suggested how any social or political prophet may well be assaulted by the authorities at any time. If we also look at more modern censorship of the supposedly blasphemous, the case of Andres Serrano is interesting. Whilst irrefutably blasphemous, his Piss Christ, a photograph of a crucifix suspended in a vat of the artist’s own urine, attempted to display how the sacred could be readily cheapened as contemporary society was regularly capable of so doing.

23 Thinking about the history of blasphemy, there are also some questions we can answer about the precise mechanisms of censorship and what motivates them. At heart, they demonstrate a belief that opinions can be damaging. Within this, it is considered that the opinion is deemed blasphemous and/or seditious and damages the peace or stability of society. Some Christian and other religious groups have moved boldly to make the concept of blasphemy a building block of identity to resist everything from unpopular laws to other phenomena which might homogenise and otherwise damage aspects of unique religious cultures. Thus, many religious groups who associate their beliefs with species of identity are rejuvenating the ideal of religious community. This in turn can be seen as reviving the passive blasphemy model which in its earlier phase allowed communities of believers to determine the nature of language and utterance in public space. Western society has not retreated from the idea that beliefs are beyond criticism and this issue, once seemingly resolved, is now significantly up for debate.

24 Agendas of incitement to religious hatred, reflected in most legislation that has come to replace blasphemy, constitute a renewed focus upon censorship of the act, generally because public order implications of the offence are frequently thought of first. This has tended to mean that legislators within modern states frequently work with a concept of the imagined harm done to others. This began to tarnish and change the outlook for blasphemy from the year 2000 onwards since when it has been possible to see passive blasphemy returning. When I gave evidence to the House of Lords Select Committee on Religious Offences in 2003 the Committee appeared to be offering a deal to the secularist side of the argument. Repeal of the blasphemy law would be granted in return for the acceptance of a replacement incitement to religious hatred law. The secularist response to this was to argue that an incitement to religious hatred law would contain the same inherent problems that afflicted the alternative of extending the law of blasphemy to other religions. Defining religion, it was argued, would prove an insurmountable difficulty since creating a stable definition was almost impossible and the difficulties of revising such a definition were similarly fraught. Likewise the imperative to protect one religion from the conflicting beliefs of other religions was similarly deemed a problem without a recognisable solution by the secularist side of the argument.

25 It might from here seem a legitimate question to ask why any of this became the business of the state again after an immense period in which the state tried to evade responsibility for the issue. Modern governments counter this question by suggesting that the state has a duty to protect its people. Unfortunately this means that, like medieval society, governments have been persuaded to imagine a fearful and cowering victim. However we all know that laws can be used by swaggering and dangerous individuals. Such a law fundamentally assumes the innocence of the offended, but in the hands of the unscrupulous or the morally crusading it can also be used retrospectively.

26 In England the law of Blasphemous Libel has gone but has effectively been replaced by a law of Incitement to Religious Hatred. It might be suggested this appears to be a triumph of libertarianism. Blasphemy as a legal reality after all might have been considered to be a dead letter since it had not been used for 30 years. However the blasphemy law only fell in England because the Anglican Church felt damaged by it. This concession by the Established Church actually gives considerable impetus to evangelical groups to revisit their discourse that Anglicanism is ultimately a soft betrayer of Christianity.

Blasphemy and Censorship Regimes of the Future

27 Despite this discussion of repeal, blasphemy has a bright and strident future ahead of it since the agenda of the International Declaration of Human Rights is now systematically questioned. The United Nations agencies received and adopted resolutions from Muslim countries on this issue each year between 2002 and 2005. Similar proposals went before the UN general assembly in 2005, 2007 and 2008. Since 28th March 2008 the UN Special Rapporteur has been required to report on the “abuse” of freedom of expression, which invariably means that blasphemy will become once more the means and the language of cultural battle. Thus the post-war world of the Declaration of Human Rights is now undone by different agendas. The first argues religious rights belong to individuals, the second that rights belong to religious beliefs and religions per se — a clear reactivation of the passive blasphemy model. Michael Martin, the then Irish Minister for Foreign Affairs, opposing attempts in 2009 by Islamic states to make defamation of religion a crime at UN level stated: “We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.”

28 This did not stop his own country from enacting its own blasphemy law later the same year. This was a demonstration par excellence of the return to a passive blasphemy model in which the state does all the work of detection policing and punishment. In particular this law was constructed anew in response to a supposed need. It did not evolve or constitute the legacy of past laws. Looked at from a distance it was a collision of panic measure and poorly considered safeguard. Both of these imperatives looked uncannily like the passive blasphemy model of the medieval world. In a real sense, blasphemy becomes a crime reborn. The history of blasphemy becomes circular as criminal codes are redrawn to include it and reflect it, with this protection for whole communities taking us back to the passive blasphemy model. Again it is worth thinking about how far this series of developments fits in with the history of wider censorship cultures, how much retrenchment and the proscription of freedom of expression seek to protect communities from imagined harm rather than actual offence demonstrable in court. Liberal individualism and fundamentalist religion have thus dangerously become armed camps. Faced with the power of religious discourse backed by government it is worth considering that (unless we are careful) the Enlightenment will be considered a mere blip, a libertarian experiment that we have grown out of. Our ability to question, to evaluate and to consider the cultures that present themselves to us is an essential freedom — indeed an identity that goes with post- Enlightenment culture — and vigilance is now required to protect this.

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Notes

1 The history of blasphemy can be best approached through a number of general surveys. See for example Leonard Levy, Blasphemy: Verbal Offense against the Sacred from Moses to Salman Rushdie, New York: Knopf, 1993; Marjorie Heins, Sex, Sin, and Blasphemy: a Guide to America's Censorship Wars, New York: New Press, 1993 and David Nash, Blasphemy in the Christian World, Oxford: Oxford University Press, 2007. For its early history, see Gerd Schwerhoff, Zungen wie Schwerter: Blasphemie in alteuropäischen Gesellschaften 1200-1650, Konstanz: Universitätsverlag Konstanz, 2005.

2 Elements of these were evident in the cases against G. W. Foote in 1883 where the blasphemy in his periodical The Freethinker could be shown to be directly influenced by French prototypes. In the 1930s, Britain also witnessed an attempt to extend the blasphemy law as a means of excluding “foreign” Jewish freethinkers and their ability to undermine the morals of the British Empire. Similarly the Gay News case of 1977 was preceded by the Home Office’s exclusion of Jens Jurgen Thorsen from Britain. The early 1990s saw the Salman Rushdie affair persuade some to see blasphemy as a multicultural issue whilst the perceived pressure from Europe to standardise legal practice informed the British Government’s reaction to Nigel Wingrove’s film Visions of Ecstasy. Censorship of this work was confirmed by the European court allowing Britain to maintain a blasphemy law as a part of its “margin of appreciation”.

3 In 1917, a Lithuanian, Michael Mockus, stood trial for blasphemy and upon conviction the judge made clear reference to the potentially dangerous views held by immigrants. See L. Levy, Blasphemy, op.cit., 513-515.

4 For more on this area see Francisca Loetz, “How to do things with God: Blasphemy in Early Modern Switzerland,” in Mary Lindemann (ed.), Ways of Knowing: Ten Interdisciplinary Essays, Leiden: Brill Academic Pub., 2004, 137-151, and also her Dealings with God, Farnham: Ashgate, 2009.

5 For Venice, see Elizabeth Horodowich, “Civic Identity and the Control of Blasphemy in Sixteenth-Century Venice,”Past and Present, 181, 2003. For France, see Élizabeth Belmas, « La Montée des blasphèmes », in Jean Delumeau (dir.), Injures et blasphèmes; Mentalités, ii, Paris : Imago, 1989.

6 See David Nash, Blasphemy in Modern Britain: 1789 to the Present, Aldershot: Ashgate, 1999, 32-37.

7 This analysis can be followed in D. Nash (1999), 107-166.

8 See ibidem, 134-162, and note 15 infra.

9 See M. Heins op. cit., for an extended discussion of this topic.

10 For material on this see Guy A. Aldred, Richard Carlile, Agitator: His Life and Times, (3rd ed) Glasgow: Strickland Press, 1941; G. D. H. Cole, Richard Carlile, Fabian Society Biographical Series, No. 13, London, 1943; Thomas Alfred Jackson, Trials of British Freedom: Some Studies in the History of the Fight for Democratic Freedom in Britain, London: Lawrence & Wishart Ltd, 1940; Joel H. Wiener, Radicalism and Freethought in Nineteenth-Century Britain: The Life of Richard Carlile, Westport, Connecticut: Greenwood Press, 1983.

11 For Anthony Comstock, see Heywood Broun and Margaret Leach, Anthony Comstock, Roundsman of the Lord, New York: Boni, 1927 and Anna Bates, Weeder in the Garden of the Lord: Anthony Comstock's Life and Career, Lanham, Maryland: University Press of America, 1995.

12 See D. Nash (1999), 180-210.

13 Alain Cabantous, Blasphemy: Impious Speech in the West from the Seventeenth to the Nineteenth Century, New York: Columbia University Press, 1998.

14 Although it is possible to trace a growing leniency of punishment in the west it is significant that the offence of blasphemy and judicial proceedings against it remain possible and have recently witnessed something of a revival in some European countries (notably Spain, Germany, Austria, the Netherlands, Greece and Ireland). The concept of blasphemy and the desire for draconian punishment of it has been noted as a growing feature of Islamic fundamentalism.

15 The examples are numerous. The Freethinker case of 1883 focussed on a ribald, arguably lavatorial, portrayal of God whilst the Edwardian period saw blasphemers, such as J. W. Gott and T. W. Stewart, offer advice on family limitation alongside coarse critiques of revealed religion. Since the 1970s, the work of the Dane Jens Jurgen Thorsen has covered similar territory. Thorsen was responsible for a mural painted in Copenhagen which depicted Christ with exaggeratedly over-sized genitalia whilst he also spent several decades seeking to film the Sex Life of Christ (Jesus Vender Tilbage) which finally appeared in 1992. In England in the 1990s, Nigel Wingrove found his sexually graphic portrayal of St Theresa of Avila’s visions refused a certificate by the BBFC. The 1977 case against the publication Gay News also indicted a portrayal of a homosexual promiscuous Christ. In 1990s America, Andrés Serrano’s sculpture Piss Christ (depicting a crucifix immersed in human urine) received stridently adverse reactions. Martin Scorsese’s film The Last Temptation of Christ was considered blasphemous because it contained a human Christ tempted by sexual desire.

16 The work of Robert Darnton and Roger Chartier is especially relevant here: Robert Darnton, The Literary Underground of the Old Regime, Cambridge (MA): Harvard University Press, l982, and The Forbidden Best-Sellers of Prerevolutionary France, New York: W.W. Norton & Company, 1995; Roger Chartier, The Cultural Origins of the French Revolution, London: Duke University Press, 1990, and The Cultural Uses of Print in Early Modern France, Princeton: Princeton University Press, 1990.

17 See David Nash and Chara Bakalis, “Incitement to religious hatred and the ‘symbolic’: How will the Racial and Religious Hatred Act 2006 work?” Liverpool Law Review 28, 3, 2007: 349-375.

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David Nash, « Blasphemy and Censorship. The Historical Importance of Passive and Active Models », Revue LISA/LISA e-journal [En ligne], Vol. XI – n° 1 | 2013, mis en ligne le 30 mai 2013, consulté le 09 avril 2020. URL : http://journals.openedition.org/lisa/5173 ; DOI : https://doi.org/10.4000/lisa.5173

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David Nash

Oxford Brookes University, R-U. David Nash is Professor of History at Oxford Brookes University and a Fellow of the Royal Historical Society. He has published widely on the subject of atheist history, the history of shame (Cultures of Shame, Palgrave Macmillan) and upon the history of blasphemy. He has published Blasphemy in the Christian World with Oxford University Press and has also advised a number of governments in the west about the issue. He is currently involved in advising the Republic of Ireland’s government and the United Nations Special Rapporteur on Freedom of Religion about Ireland’s recently constructed blasphemy laws.

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