The Irish Times view on the blasphemy referendum: A ‘Yes’ for free speech

If the Government were serious about free expression, it would do something about the State’s extreme defamation laws

Freely expressing one’s opinion is a constitutional right. But it’s also a circumscribed right, as Bunreacht na hÉireann makes clear. The State should try to make sure that “organs of public opinion” shall not be used to “undermine public order or morality” or the authority of the State. Article 40.6.1 also states that it is an offence to publish or utter blasphemous, seditious or indecent matter. In a referendum tomorrow, voters will be asked to remove the reference to blasphemy. (The Government wishes to retain sedition and indecency).

Nobody has been prosecuted for blasphemy since 1885. Not until 2009, when a Fianna Fáil-led government introduced it as a statutory offence, was the word actually defined. Today, publishing or saying something that is “grossly abusive or insulting” on matters held sacred by any religion is an offence punishable by a fine of up to €25,000. Yet the 2009 Act deliberately set the bar for prosecution very high. Blasphemous material must cause “outrage” among a “substantial number” of believers, and the speaker can defend herself by arguing that there is genuine literary, artistic, political, scientific or academic value in the offending words. What we have, then, is a nod-and-a-wink law: an offence plainly designed to be unenforceable.

Three key arguments have been made for keeping blasphemy in the Constitution. First, the referendum is a waste of money. Second, there are more important things to be dealing with. And, third, protection for religious belief is an important value statement.

None of these is an argument for retaining the provision. By holding the referendum on the same day as the presidential election, the Government has kept costs down. It’s true that there are more important things to change, but that’s not an argument for rejecting this one. Protection for religious belief is indeed important, but it’s already there; religious freedom will continue to be safeguarded under article 44.2.1.

It’s highly unlikely that anyone feels inhibited by the blasphemy ban, but that’s not the point. A Constitution is not part of the criminal code; it is a statement of society’s values. As such, blasphemy has no place in it. Across the world, repressive regimes use such laws to persecute, imprison and kill adherents of minority religions. It is a medieval crime that has no place in a pluralist republic.

Not surprisingly, the Irish churches have acknowledged that the provision is largely obsolete. Indeed, the broad social consensus on the issue makes this a largely uncontroversial proposal, which is perhaps why the Fine Gael-led administration chose to prioritise it. If the Government were seriously committed to free speech, it would go beyond symbolic gesture and reform the extreme defamation laws, which serve to shut down public interest journalism every day of the week.