The Lady of Heaven, blasphemy and free speech

The Lady of Heaven is a British historical drama about the life of Fatimah, daughter of the Prophet Muhammad, written from the perspective of Shia Islam. It was released on 3 June 2022 in cinemas in the UK and immediately generated enormous controversy. The Muslim Council of Britain condemned it as “divisive” and, after protests by some Muslim groups, the Cineworld cinema chain decided not to screen it – though some other cinemas did. The British Board of Film Classification gave it an age-15 certificate and explained why it did so here.

Controversies about the historicity of the film are a matter for Islamic scholars, which I am not: the subsequent calls for its suppression, however, raise important issues about alleged blasphemy and free speech.

Blasphemy and blasphemous libel

In his 1949 Hamlyn Lectures, Freedom under the law, Lord Denning said this at p 49:

“For many centuries the judges held that Christianity was part of the law of the land, so much so that any denial of the existence of God amounted to the offence of blasphemy punishable in the criminal courts of the land. You will find it stated in the law books that it is an offence to use language having a tendency to bring the Christian religion or the Bible into contempt; or to burn the Bible! The reason for this law was because it was thought that a denial of Christianity was liable to shake the fabric of society, which was itself founded on the Christian religion. There is no such danger to society now and the offence of blasphemy is a dead letter. But it is only 30 years ago that the House of Lords made the change.”

The last public prosecution for blasphemy in England & Wales was in 1922: the last successful prosecution in Scotland was in 1843.

As to blasphemous libel, in 1977 Mary Whitehouse brought a successful private prosecution against Gay News for publishing a poem by James Kirkup, “The love that dares to speak its name”. The defendants were convicted on a majority verdict of 10 to 2; their appeal went all the way to the House of Lords and was dismissed: Whitehouse v Lemon and Gay News Ltd [1979] AC 617. Gay News was fined £1000, while Denis Lemon was fined £500 and sentenced to nine months’ imprisonment, suspended.

The two offences were abolished in England and Wales by the Criminal Justice and Immigration Act 2008, in Scotland by the Hate Crimes and Public Order (Scotland) Act 2021, and in Ireland by the Blasphemy (Abolition of Offences and Related Matters) Act 2019. But both offences are still on the statute book in Northern Ireland, and though Justice Minister Naomi Long has stated that she wants to repeal them, that is a fairly unlikely prospect in the short term, given the current situation in the NI Assembly.

Hate speech

What has replaced the two offences in Great Britain, in effect, are laws against religious hate speech. For example, the Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 for England & Wales by adding Part 3A Hatred against persons on religious grounds or grounds of sexual orientation, which says:

“A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.”

There are also other offences which may have the incidental effect of protecting religious sensibilities: for example s 127(1) Communications Act 2003 provides that:

“A person is guilty of an offence if he—

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.”

A recent example of a successful prosecution is that of Alison Chabloz, who has twice been jailed for posting antisemitic videos on YouTube – most recently in April 2022. We posted a note about her earlier conviction here.

It has been said more than once that there is no right not to be offended, and taking exception to opinions with which one might disagree is surely the common currency of political debate. It may be that one has a right not to be grossly offended, but the threshold for what is “grossly offensive” seems to be very high.

In DPP v James McConnell [2016] NIMag 1, a preacher was acquitted in a prosecution under s 127(1)(a) of the Communications Act 2003 for posting a video of a sermon in which he asserted, inter alia, that

“Islam’s ideas about God about humanity, about salvation are vastly different from the teaching of the Holy Scriptures. Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell.”

The District Judge held that the words were “offensive”, but not “grossly offensive” within the meaning of the Act and concluded at [23]: “It is not the task of the criminal law to censor offensive utterances”.

In DPP v Collins [2006] UKHL 40, Lord Bingham said at [9] that

“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates”.

So “gross offensiveness” is to some extent in the eye of the beholder, and I would suggest that the words complained of in McConnell went well beyond any reasonable threshold of what one might regard as “gross”.

Religion, hate speech and “clashing rights”

As every reader of this blog knows, Article 9 ECHR protects freedom of thought, conscience and religion, while Article 10 ECHR protects freedom of expression, with a saving in Article 10(2) for restrictions that are “necessary in 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”. The courts, therefore, have to carry out a balancing exercise between the right to free expression and the expectations of believers that they will not be gratuitously offended – and that balance is not always easy to strike.

Specifically on religion/blasphemy, the ECtHR’s current case-law guide to Article 10 says this:

“106. In cases concerning the protection of morals and religion, the Court weighs up the [applicant’s] right to impart to the public his or her views on religious doctrine on the one hand and the right of believers to respect for their freedom of thought, conscience and religion on the other hand …

107. The Court has reiterated the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs, including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and blasphemous.”

Protecting “religion”?

Article 9 protects believers, rather than the religions or beliefs themselves, and it was pointed out during the Religion Media Centre briefing that Jews and Sikhs also benefit from special protection as racial groups under UK race relations legislation, while Hindus and Muslims do not. Whether that is a satisfactory state of affairs remains an open question – but the law seems to have been much better at protecting racial groups than religious ones.

A briefing by the Religion Media Centre in which Mark Hill QC and I took part is available here.

Cite this article as: Frank Cranmer, "The Lady of Heaven, blasphemy and free speech" in Law & Religion UK, 22 June 2022, https://lawandreligionuk.com/2022/06/22/the-lady-of-heaven-blasphemy-and-free-speech/

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