USA and Canada

This page considers blasphemy regimes in North America.

It covers -

• Canada
• US

     Canada

The preamble to the Canadian Constitution refers to the supremacy of God but does not establish a particular religious faith or Church. The Charter of Rights & Freedoms provides for freedom of religion.

Section 296 of the Canadian Criminal Code deals with "blasphemous libel" as part of offences against the person and reputation -

Offence (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Question of fact (2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

Saving (3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

Blasphemous libel is not defined in the Code or the Constitution. In contrast to Tasmania, where there are similar provisions with a shared basis in UK law, the federal Attorney-General's consent is not required in order to commence a prosecution.

As noted in the NSW Law Reform Commission report, the Canadian case law (primarily relating to Quebec) is contradictory and there is uncertainty about the precise features of the offence, although it has been construed as encompassing Christian faith generally (rather than an established Church).

The provisions are not considered to cover non-Christian faiths. Past writing on reform of the Criminal Code has suggested abolition of the offence on the basis that is inconsistent with the Charter of Rights.

It should be noted that the hatespeech provisions of the Criminal Code create offences of public incitement of and wilful promotion of hatred against an identifiable group, defined as including a religion.

     USA

The US inherited - and during the early colonial period strengthened - the UK regime, with protection varying on which church was established in particular jurisdictions.

Chapter 272 (36) of the Massachusetts code (concerned with "crimes against chastity, morality, decency and good order") thus provides that

Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

The offence is a relic of the era when New England jurisdictions such as Connecticut prescribed the death penalty for witchcraft, blasphemy, "cursing or smiting of parents" and the "incorrigible stubbornness" of children.

At the federal level the state blasphemy statutes and local ordinances have essentially been rejected as inconsistent with the First Amendment's protection of free speech.

The landmark judicial ruling was by the US Supreme Court in Joseph Burstyn, Inc v Wilson during 1952. New York had banned exhibition of Roberto Rossellini's The Miracle as "sacrilegious", with the court accepting that the state law was an unconstitutional prior restraint on freedom of speech.

It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures.

Justice Clarke commented that

In seeking to apply the broad and all-inclusive definition of 'sacrilegious' given by the New York Courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor. Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority.

The ruling has been acknowledged in subsequent litigation over the exhibition of films - notably Scorsese's The Last Temptation of Christ (Nyack v MCA Inc in 1990), discussed in Hollywood Under Siege: Martin Scorsese, the Religious Right and the culture wars (Uni Press of Kentucky 2008) by Thomas Lindlof - and the graphic arts, with opponents of particular works accordingly seeking restrictions on funding bodies such as National Endowment for the Arts (eg over Serrano's Piss Christ) or organising boycots of media groups and curatorial institutions.

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