Thread by @ClaireBerlinski

And in that context, bravo Ireland: joe.ie/news/ireland-b…. Except while it's been removed from the Constitution, there is a *new* law--2009--banning "publication or utterance of blasphemous matter." And that remains.

https://twitter.com/ThackerX/status/1056262457117806592

So when you see the headline, "Ireland Repeals its Medieval Blaspemy Laws," well ... yes and no. It changed its Constitution (which can only be done by referendum). But within very recent memory it passed the 2009 Defamation Act, which remains, and I don't know about you, but--

This sounds positively Savonarola to me:

36.— (1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000.

(2) For the purposes of this section, a person publishes or utters blasphemous matter if—

(a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion,

thereby causing outrage among a substantial number of the adherents of that religion, and

(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

But changing the Constitution was an important first step--this one is hard for Americans to imagine, but their Constitution said nothing like "Congress shall make no law abridging speech," it said:

"The publication or utterance of blasphemous, seditious, or indecent matter is an offense which shall be punishable in accordance with law.” (That is why our forefathers came to America, you see.) Oh, by the way: to newspapers calling this Constitution "medieval," no--

It was written in 1937. Not medieval at all. Anyway, the 2009 Act was used as recently as last year to hassle Stephen Fry for saying something critical about God on RTÉ, though I believe he wasn't prosecuted. (Correct me if I'm wrong.)

But the Irish referendum results were good: It passed overwhelmingly, with 71 percent support. So maybe the 2009 law will go the same way, soon. By the way, the objection to changing the Constitution did not come from Muslims, but came, as you'd expect, from the Church.

And naturally so, because the laws only applied to Christianity.

The 2009 law was actually an improvement: The 1961 Defamation Act prescribed maximum penalties of seven years’ penal servitude for blasphemous libel.

But: There were no prosecutions for blasphemy in Ireland during from 1855 to 1995.What happened in 1995?

John Corway (Catholic) claimed a magazine editorial and cartoons in The Irish Times and the Irish Independent, were blasphemous. His complaint noted that he had--

“suffered offence and outrage by reason of the insult, ridicule and contempt -- shown towards the sacrament of the Eucharist as a result of the publication of the matter complained of herein and I am aware of other persons having also so suffered.”

The case was dismissed, but that doesn't mean the laws are meaningless: It costs money to defend yourself against such a case, and this has a chilling effect, obviously. I should note: If you think blasphemy laws are an outrage to free speech in Europe,

you should take a look at the libel laws. (Like the ones Trump would like to see enacted in the US). These have, on a daily basis, a *much* greater chilling effect on speech and truly essential investigative journalism. God bless the First Amendment.

But also note: Blasphemy laws and all, Ireland ranks higher than the US (much higher) on a number of press freedom indices. These must be taken with a grain of salt--the people who compile them confuse Trump's rhetoric with what he's actually allowed to do--

--and their methodology is really sketchy, but some of their points are deadly serious, because they're based on the number of actual prosecutions or other sanctions people really face for the crime of saying something.

So, e.g. Reporters without Borders ranks Ireland's press as the 16th-most free; and of the top 15, 12 are in Europe (despite the blasphemy and libel laws). The others are New Zealand, Costa Rica, and Jamaica. (Good job, Jamaica! I didn't realize you were so strong on speech.)

The US ranks 45. Again, their methodology is incoherent, but it does mean something real that the US is *so* low. Its ranking began dropping well before Trump. Obama was *awful* on press freedom. In 2015 it was 49, so it's actually improved slightly under Trump.

Among their complaints: Whistleblowers face prosecution under the Espionage Act; there is no federal “shield law” guaranteeing reporters’ right to protect their sources; journalists and their devices are searched at the US border.

You can visit their US press freedom tracker here: pressfreedomtracker.us. Ireland consistently beats the US in every ranking of civil liberties: Freedom House, obviously, is not afflicted with "left-wing, anti-American" bias, but ranks Ireland as "free" with a score of 18--

--higher is better--and the US as "free" with a score of 23. (I suspect that's much closer to reality than RSF. The frightening graph in the report, though, is this one. And the whole report is just horrifying freedomhouse.org/report/table-c….

It doesn't get more encouraging if you broaden the scope and look at their "Freedom in the World" report: freedomhouse.org/report/freedom….

We do better than Ireland on the World Index of Moral Freedom (US-7, Ireland-40), but that's a dubious honor, because they give heavy weight to "bioethical freedom," i.e., the freedom to do things that I'm not fully persuaded one should be free to do. Like killing yourself.

The Economist's Intelligence Unit, in another highly depressing report about the decline of freedom globally, gives Ireland an overall score of 6th in the world, and its highest score--10--for civil liberties. Seems off to me given that blasphemy remains illegal. (Continued)

Ireland is considered a "full democracy." The US has fallen to "flawed democracy," tied with Italy for 21st place, with a score of 8.24 for civil liberties. I don't see a "methodology" section, but this paragraph suggests to me that they're measuring the same things I would:

Full report here: pages.eiu.com/rs/753-RIQ-438…. So in short: Freedom of expression is in big trouble everywhere (except Jamaica. Go, Jamaica!) Many of the *highest-ranked* countries still have blasphemy laws on the books.

All of these indices are a methodological mess--some of the comments I made about the methodological problems with TI's Corruption Perception Index apply, hoover.org/research/dark-…. Also, we have no way to measure "chilling effects;"

that there are laws against certain forms of speech doesn't entail that anyone takes them seriously, etc. (No one in Illinois, I presume, lives in fear of falling asleep in a bakery: ilga.gov/legislation/il…)

In response to questions I was asked yesterday:

Are the complainants mostly Muslims?

It doesn't seem so, although some activists or journalists bring them *on behalf* of Muslims, as in the ES case.

I don't know how thorough the Campaign to End Blasphemy Laws' account is: end-blasphemy-laws.org/countries/euro….)

If someone has better information, would you kindly send it to me? But they say:

In Austria, four times since 2009: 1) The ES case; 2) by Catholic clerics offended by a cartoon, 3) against an Austrian politician who said what ES said, and

4) by a Muslim who claimed his neighbor was mocking him by yodeling the call to prayer while he mowed his lawn.

Cyprus: not used recently.

Finland: Used to prosecute a politician who, again, called Mohammed a pedophile. FIned 330 Euros.

(Again, unsure if complainants were offended Muslims, or people who just hate the far right and want to shut them up in any way possible.)

Germany: They give no examples, but Germany's hate speech laws--another category of law that's an outrage to free speech--

--are used liberally and widely criticized by groups like Human Rights Watch--hrw.org/news/2018/02/1…. They may well amount to blasphemy laws in practice.

Then again, this is Germany. If Germans decide for themselves that they don't really trust themselves with free speech,

I'm inclined to say, "Fair enough. Your record does suggest you're a bit unusual. Perhaps best to keep the training wheels on for another century or two, or at least, until no one there really *wants* to do this: dw.com/en/german-neo-…."

So: Germany, special case. Greece has been applying its blasphemy laws quite enthusiastically of late: in 2012, organizers, producers and cast in the play “Corpus Christi” were arrested and charged; in 2013, an artist was tried for drawing (I assume offensive) cartoons of Christ.

Acquitted.

A man was charged with posting “malicious blasphemy and religious insult' on Facebook for creating a page called "Elder Pastitsios the Pastafarian." 10-month suspended prison sentence, reversed on appeal--not on principle, but to reduce a court backlog.

This is the video for which Stephen Fry was investigated (for blasphemy) in Ireland: . There have been no prosecutions under the 2009 law, but the Campaign to End Blasphemy Laws points out--and rightly so, this is critical--

"Islamic states and proponents of 'blasphemy' and 'defamation of religion' laws have pointed towards the Irish law, and in particular its recent introduction, to justify their own draconian legislation." So even if these laws are rarely or never used in Europe,

it's a moral responsibility to repeal them, because that is exactly true: Especially in the Islamic world, but also elsewhere, enthusiastic Inquisitors point to these laws and say, "There's no country in the world where you can just insult people's religion." I've heard that--

--too many times to count. (Yes, a lecture from me on 1A jurisprudence follows, but it would be a much stronger argument if the US wasn't the exception to the rule.)

Italy doesn't use its laws much, but it does use them:

In 2009, an atheist was prosecuted for funding an ad campaign with the slogan, "The bad news is that no god exists. The good news is you don’t need one.” Acquitted, three years later. But always remember, "acquitted" doesn't mean "unpunished."

The legal fees, the stress--these are extreme, and the desire to avoid them unquestionably has a chilling effect. As do strict libel laws. I've had more than a few solid stories shot down because small newspapers, especially, can't afford-to defend themselves--

even if they're sure they would win, because I've got notes, tapes, evidence, everything. Mostly this has happened to me in the UK, but it's also happened in the US.

Also, key point. Really important: It takes nothing more than an e-mail to the server hosting a publication--

--saying that the content is "defamatory" for the host to send the publisher a letter saying, "You must take this down within 24 hours or your whole site will go." This has happened to me. In the US. Website hosts don't care about freedom of speech. Not their business.

Contracts often contain clauses like this: 'Users shall not transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder."

That's why you can only read this article on my website, berlinski.com/2016/09/13/whe…, and it's one reason (among many) that I no longer write for that publication. They wouldn't back me up, even though they could have----if there's one thing they *did* have, it was money.

Journalistic ethics, not so much. So I'm glad I quit, especially since they've since gone totally off the rails. But NB: That's how easy it is to censor something in the US. One e-mail--from a Turkish lawyer--and US publications will fold.

I won't go through the rest of the list; you can read it, here: end-blasphemy-laws.org/countries/euro…. But it seems most of these laws are rarely used, and when used, directed at those who either blaspheme Christ or call Mohammed a pedophile.

As freedom of speech priorities go, blasphemy laws are not as significant as "hate speech laws," which are widely abused in Europe. The US doesn't have hate speech laws, but it's come closer than many realize: (Continued.)

The Supreme Court *upheld* the constitutionality of Illinois's hate speech laws in 1952, for example. supreme.justia.com/cases/federal/…. On grounds very similar to those of the ECHR in the ES case, actually.

It wasn't until Brandenburg v. Ohio that the First Amendment came to mean what we now think it's always meant. The idea that it's been this way since the drafting of the Constitution is dead wrong. Our 1A jurisprudence dates from a series of key decisions in the 1960s.

And the period--between then and perhaps 10-15 years ago--is probably the closest humanity has ever come to enjoying genuine, full, freedom of expression. Anywhere, in all history. (If you can think of another one, please tell me. I'm racking my mind, but can't.)

This is important, because it seems to be a default intuition, everywhere, that speech should not be entirely free; indeed, that this is obviously stupid and dangerous, because if you let people say any idiot thing they want, they'll quickly kill each other,

or a society will go to hell, morally. Most people--everywhere, throughout history--has seen this as "basic common sense." And unfortunately, the idea is not ridiculous. Had someone shut up Radio Télévision Libre des Mille Collines,

it would surely have saved tens of thousands of lives, if not entirely prevented the Rwandan genocide. (This study puts the number of deaths in the genocide attributable to it at 51,000: academic.oup.com/qje/article-ab….)

We would not, could not, have had the Holocaust if Germany had (and enforced) the hate speech laws it now has.

There's a wealth of evidence that genocides have a certain pattern. One of them--"Stage 3," according to Gregory H. Stanton--

"Members of [the population that is about to be the victim of genocide] are equated with animals, vermin, insects or diseases. ... At this stage, hate propaganda in print and on hate radios is used to vilify the victim group."

genocidewatch.org/aboutgenocide/…

Given the evidence, and given Germany's history, their laws are not indefensible.

Americans seemed to do fine with unrestricted speech: I thought we were an advertisement for it, a living proof of concept. "See? We let everyone say *anything they want.*

"Yes, even Nazis. Even the Klan. And we're fine. In fact, we're the wealthiest and most powerful country in the world. So why don't you be free, like us?"

Except that it very much seems Americans aren't fine.

The desire--universal to every society save ours for about half a century--to prohibit speech, to see speech itself as dangerous, to reject the notion that "sticks and stones may break my bones but words can never hurt me"--has come roaring back.

Perhaps that shouldn't surprise us. We did, after all, try a revolutionary experiment. Revolutions are known for coming full circle. But the biggest threat to freedom of expression in America right now, it seems to me, does not come from the ECHR's modest ruling. Nor, certainly,

from Muslims. It comes from our own desire to shut each other up because we're hurting each other's feelings--and inciting the dregs of our society to send bombs to politicians, shoot up synagogues, shoot black men in a Kentucky store--all within the past few days--

and everyone knows, deep down, that this *does* have something to do with the way we're speaking to each other. The ancient and universal wisdom is right: hateful speech incites hateful action. The only way the 1A as we've recently conceived it can work--

--and that recent conception has been a miracle, one that made an equally eternal and universal dream of freedom *real,* on this earth, not the next--is if we have a society in which people are basically pretty decent and pretty much no one would think it a good idea--

-- to shoot, or bomb, Jews, or black people kneeling in prayer in a church, or Senators playing baseball, or politicians in their homes, or attack a Mosque, or shoot Sikhs because they look like Muslims, or tear hysterical Hispanic children out of their terrified mothers' arms--

or walk into a high school and shoot every student in it. If we can't contain these violent impulses, we'll lose the 1A. (And the 2A, for that matter. Given that we've trashed the 4A already, and the 6A seems like a Utopian fantasy at this point, as do 7A and especially the 8A--

--and 9A was probably a bad idea to begin with, the 10A is now a distant dream; and frankly, the only one not under threat is 3A--I'd say that certainly, we--not Europe--are the biggest threat to our own rights. Don't look at Europe as a "cautionary tale."

Look at all the ways we're trying to get around the 1A: The campus speech codes. The endless number of punishments we inflict upon each other for speech crimes: And yes, there's a difference between a state with the power to punish you and a society with that power,

but the latter isn't trivial. Ask Hugh Heckman, latterly fired for sexually harassing ... a photograph of Megan Markle. Two words--"not bad"--cost him his career at PBS. He's 72. Does this sound like a climate of freedom to you?

So ... I think the First Amendment as we've interpreted it since the 1960s is glorious. I also think it's in considerable danger. But not from Muslims. It's in danger because it's human nature to censor, and in many cases, just common sense. Unless we deeply believe in it--

--not only in a legal sense, but *as a moral principle.* Unless we can refrain from becoming the kind of society where people commonly say the sorts of things that incite people to commit murder--and likewise refrain from being incited--

I reckon it will have been a glorious but short experiment.

That would be a shame.