Firstly blasphemy is not just linked to religion but to all that is sacred, with what has a fundamental, inviolable and immeasurable meaning for the life of an individual or those of a group of people. This may mean religion, but as history had shown it can also mean nationality, ethnicity or a political ideology. In the second half of the 19th century, when nationalist feelings replaced religious beliefs as the root of social cohesion, the penal codes of many European countries added norms based on the blasphemy laws and applied them to secular values and principles. The new laws included contempt for the nation, for the national flag or anthem, which assumed the same meaning as contempt for religious symbols. Offending the constitution became the equivalent of offending a religion’s sacred books. When religion is no longer society’s binding agent, blasphemy against God, the most ancient and tested form, provides a model applied to the new gods. Gilbert K. Chesterton wrote that he feared a society in which blasphemy was impossible, because it would be a society with no ideals capable of warming people’s hearts. If we want a world that will regain the value of beliefs and persuasions we must find mechanisms to regulate blasphemy without anesthetising passions. Leaving aside exasperations that cannot be shared, this is the meaning of Austin Dicey’s description of blasphemy’s ethical characteristics in his book The Future of Blasphemy (Continuum 2012), stating that an appropriate public sphere for a liberal society and a democratic state must be created and regulated in a manner that allows for a diversity of opinions, including those that are the most unpopular and controversial.

Matters, however, are not that simple. Dicey does not take into account that nowadays blasphemy is not a question of content but above all of form. A blasphemous statement, if expressed using the form of a debate and based on reasoning, has a far less powerful impact than the same statement made using images, be this in a cartoon, a work of art or a film. This diversity is clearly perceived by Nilüfer Göle (Turkish Delight in Vienna: Art, Islam, and European Public Culture, in Cultural Politics, 2009, 5, 3, pp. 277-98), who states that the speed of images and the power of “sensorial communication” causes a crisis for the rational and discursive form of communication which is at the centre of our concept of the public sphere. In other words, blasphemy affects people’s hearts before it reaches their brains and reveals the emotional element implied in communication processes and that emerges the moment the rational element is undermined. The Danish cartoons on Mohammed or the crucified frog by Kippenberg are aimed at causing emotions well before sending a rational message and their power lies in the speed of images that bypasses the mediation of rationality. Consequently, Habermas’ idea of the public sphere, perceived as the location for a rational debate, cannot understand and manage communication processes that do not give the brain time to exercise its interpretative functions. The power of passion erupts in the public sphere and sparks violent reactions that could be avoided only by censorship of words, actions and images that provoke this clash. In this manner liberal society would be faced with an insoluble dilemma between suffering violence to defend freedom of expression or censoring expressions of thought to safeguard security and social peace. Whatever the choice, the match would be lost and this outcome proves that it is necessary to find other ways of regulating the blasphemy issue.

With no expectation of finding a solution in this short article, I believe it is appropriate to address the evolution that has characterised changes to the law on this subject in European countries. These changes provide us with interesting debating points and set an example that may be also significant for other parts of the world.

After World War II many countries on the Old Continent changed their penal code laws on blasphemy, moving the object of protection from God to those who believe in God. More specifically, the juridical element protected by the law is no longer God, religion and its symbols, but those who believe in that God and in that religion and claim the right not to be persecuted, discriminated against or offended because of their beliefs. This process is far from complete, but on one hand it has resulted in the disappearance of laws on blasphemy in countries such as France, the United Kingdom, Holland, Spain, Austria and Germany, while on the other it has led in almost all European countries to the introduction of news laws with three different but complementary objectives. Firstly they make it a crime to insult or discredit a person or a group of people because of their religion, race, ethnicity, sexual orientation and so on. Secondly they punish expressions that, for the same reasons, incite hatred against an individual or a group, and thirdly they sanction all that offends religious (or national) sensitivity. This last set of laws is the most controversial due to the imprecision of the words ‘religious sensitivity.’ In this case too, however, what is protected is not religion per se but disturbing social peace, determined by the offence. In this manner, religion is no longer attributed special protection, but is considered like all other characteristics identifying a person or a community.

This legislative evolution undergone by European countries reflects the movement of blasphemy’s core nucleus from the content to the manner in which it is expressed. The content must be totally free while its expression can be restricted when violating the dignity of a person and disturbing social order. The link between these two elements is addressed by Jeremy Waldron (The Harm in Hate Speech, Harvard Univ. Press, 2012) who says, “Public order means more than just the absence of fighting: it includes the peaceful order of civil society and the dignitary order of ordinary people interacting with one another in ordinary ways, in the exchanges and the marketplace, on the basis of arm’s-length respect. Above all, it conveys a principle of inclusion and a rejection of the calumnies that tend to isolate and exclude vulnerable religious minorities.” It is not of course easy to distinguish between content and the forms of communication, nor is it easy the draw the line separating a legitimate and healthy provocation from an insult. The direction followed by the law in European countries has the advantage of providing adequate protection to people’s dignity which is of special importance to minorities, the main recipients of discriminatory and offensive expressions. Within this framework, the juridical systems in European countries have distanced themselves not from Muslim majority countries where freedom of expression is sacrificed in the name of the protection of the majority religion, but from the law in the United States which privileges freedom of speech at the cost of leaving incitement to religious hatred unpunished.

Translated by Francesca Simmons