THE UNIVERSITY OF NEW SOUTH WALES

Heavy Metal Blasphemy
Thomas P. Binetter
9 November 2013

Submitted to meet the require...
List of Topics
1. Introduction

3

2. Description of Contents

3

3. Legal Blasphemy

4

4. The Gay News Case

7

5. The S...
JURD7741 Censorship Contempt and the Media

Tom Binetter 3370851

Introduction
Despite operating in an largely dormant rea...
blasphemy at play in each instance. The final portion of the paper will expand into a brief
discussion of the treatment of...
England".6 As a result, the crimes of blasphemy and blasphemous libel covered acts such as
denying God's existence or prov...
Richard Carlile respectively for publishing the infamous pamphlet "the Age of Reason".17
That text, critical of the purpor...
The Gay News Case
The 1977 case of Gay News27 saw a radical reinterpretation of the prevailing common
law and a reinterpre...
Lord Scarman's finding came to the surprise of many jurists, particularly since it
seemed to reactivate an offence that wa...
Leader of Iran, Ayatollah Khomeni.40 Though no charges were laid against Rushdie, the
matter did come before the House of ...
as to whether the material was blasphemous48, but did hold that the UK blasphemy laws were
consistent with the European Co...
Act does not define blasphemy, leaving this to the common law, however with no successful
prosecutions since 1871's R v Wi...
a law of blasphemy was necessary in a modern, diverse society.62 As a result, the law
remained untouched, arguably cementi...
odds, and serves to complement the above legal analysis as a supplementary array of art that
has been tested through both ...
seminal "Death" have been of lasting influence and notoriety71. "Black metal", in contrast has
been a largely Scandinavian...
landmarks, revered for both their age, architectural significance and cultural value.76 Black
metal musicians including Va...
Circle"86 to gain social acceptance amongst fellow black metal musicians by illustrating and
"proving" their venomous oppo...
In this instance however, Faust claims to have acted in self-defence, as the victim in this
instance had made homosexual a...
reforms, including a new criminal code coming into force in 2012, the charge of blasphemy
has been repealed, rendering the...
stakes, and the use of over 80 litres of sheep's blood104 while performing songs such as
"procreating Satan" and tracks of...
Bible onstage whilst describing the Roman Catholic Church as a "criminal sect"109. Darski
was charged with "offending reli...
who sought an injunction to prevent minors from attending the festival.115 Hellfest also faced
scrutiny regarding the blas...
cancelled as a result of religious authorities (specifically the Department of Islamic
Development) claiming122 the bands ...
Merchandising has long been seen as a vehicle in which protest and freedom of speech128
actions are carried129, however in...
more than a business transaction...the t-shirt is unpleasant, but surely there is an issue of
freedom of speech involved h...
for wearing t-shirts to the Vatican which read "I love Satan".140 The band was detained and
questioned by the Police, thou...
deputy Chief Censor, wrote of the "injury to the public good that is likely to be caused by the
availability of this T-shi...
was made by the Invercargill District Court to destroy the garments.153 Skill had commented
that he was unaware of the ban...
was fined for sporting the shirt in 2003.161 Despite such incidents however, Australian
merchants have not faced the same ...
effect. Here the British act can be differentiated from those in the preceding discussion
surrounding black metal bands in...
Orthodox Church and Russian Government.172 The amendments to its Penal Code came as
three members of the Russian punk-rock...
movement to have such restrictions widely expanded.179 As discussed above, works such as
Salman Rushdie's "The Satanic Ver...
An Ideological Divide
In a Press Conference following the heated debate190, UN Secretary-General
suggested that limitation...
Conclusion

The preceding analysis paints a multifarious, malleable picture in which approaches to
blasphemy vary consider...
Bibliography
Academic Articles
Ahdar, R.T. (2008) "The Right to Protection of Religious Feelings" Otago Law Review Vol 11 ...
Jeremy, A. (2003). Religious Offences. European Journal of Crime, Criminal Law and Criminal Justice Vol 7,
pp127-127
Jones...
Wintemute, R. (1995). Blasphemy and Incitement to Hatred Under the European Convention. Kings College
Law Journal Vol 6 p1...
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Heavy Metal Blasphemy  - Thomas P Binetter 2013
Upcoming SlideShare
Loading in …5
×

Heavy Metal Blasphemy - Thomas P Binetter 2013

35,901 views

Published on

Submitted to meet the requirements for the University of New South Wales Juris Doctor Course JURD7741 - Censorship, Contempt and the Media. Comments and feedback welcome - krosstb7 [at] hotmail [dot] [com]

Published in: Education
0 Comments
1 Like
Statistics
Notes
  • Be the first to comment

No Downloads
Views
Total views
35,901
On SlideShare
0
From Embeds
0
Number of Embeds
9
Actions
Shares
0
Downloads
13
Comments
0
Likes
1
Embeds 0
No embeds

No notes for slide

Heavy Metal Blasphemy - Thomas P Binetter 2013

  1. 1. THE UNIVERSITY OF NEW SOUTH WALES Heavy Metal Blasphemy Thomas P. Binetter 9 November 2013 Submitted to meet the requirements of Course Code JURD7741 - Censorship, Contempt and the Media
  2. 2. List of Topics 1. Introduction 3 2. Description of Contents 3 3. Legal Blasphemy 4 4. The Gay News Case 7 5. The Satanic Verses Case 8 6. Visions of Ecstasy 9 7. Repeal 10 8. Australian Blasphemy 10 9. Societal Blasphemy 12 10. Heavy Metal and Blasphemy 12 11. The Norwegian Church Burnings 14 12. Murder and Black Metal 16 13. Norwegian Blasphemy 17 14. Black Metal Abroad 18 15. Death Metal Blasphemy 19 16. Cradle of Filth and its Infamous, Irreligious T-Shirt 22 17. The Band Speaks 28 18. Blasphemy Worldwide - Russia 29 19. The Arab World 30 20. An Ideological Divide 32 21. Conclusion 33 22. Bibliography 34 2
  3. 3. JURD7741 Censorship Contempt and the Media Tom Binetter 3370851 Introduction Despite operating in an largely dormant realm of the prevailing Australian law, blasphemy remains firmly perched at the forefront of modern societal consciousness. This paper will explore blasphemy's absorbing treatment across manifold dimensions, including conceptualisations in historic and contemporary legal, moral, religious and civil thought. Blasphemy will further be considered as a social concept attracting both mainstream political and media interest, and through an exploration of the music genre known as heavy metal will this paper illustrate the development of blasphemy along both legal and social planes. What this approach will seek to illustrate is that blasphemy serves as a malleable concept, varying considerably depending on the culture and context in which it operates. Description of Contents Commencing with a historical discussion of legal blasphemy as it has come to be known, this paper will explore the concept by looking to its definitional fluidness as illustrated through notable examples of British case law. Accompanying this discussion will be an analysis of blasphemy as it concerns its social and political dimensions, often operating beyond the immediate sphere of the law. From this point I will instigate my principle case study, that being a discussion of blasphemy within the context of the music genre known as heavy metal, and several of its many sub-genres. This will involve an academic treatment of the genre, and discussion of its history and curious development in tandem with evolving social norms. From here the discussion will centre on a range of examples where blasphemy has been claimed within the context of heavy metal concert performance, musical recording or merchandising, and make simultaneous commentary as to both the societal and legal 3
  4. 4. blasphemy at play in each instance. The final portion of the paper will expand into a brief discussion of the treatment of blasphemy across multiple jurisdictions, involving a crosscomparison between Western and Islamic states, and how recent debates surrounding the use and treatment of blasphemy have cemented the concept as one of public intrigue for the conceivable future. Legal Blasphemy As alluded to above, blasphemy is a term with a myriad of interpretations in the modern lexicon.1 In legal contexts the term is also inconsistent2, leading to a degree of uncertainty about its usage in modern day jurisprudence.3 In order to deconstruct this complexity, a look at the concept's legal history is helpful as a means of tracking how the term has grown from its medieval origins through to the developing case law. Syed notes the concepts origins in English Canon law, as used by Church authorities from the Middle Ages until its succession by the common law towards the end of the 16th Century.4 The close relationship between the Church and State during this period rendered an offence to the Church as one paralleling sedition,5 as illustrated by the well-known comment of the Lord Chief Justice Sir Matthew Hale who noted in 1676; "Christianity is parcel of the laws of 1 For example, see dictionary definitions such as those provided by Merriam-Webster: "Great disrespect shown to God or to something holy" and "the act of insulting or showing contempt or lack of reverence for God" located at http://www.merriam-webster.com/dictionary/blasphemy and the Macquarie Dictionary: "Impious utterance or action concerning God or sacred things" located at http://www.macquariedictionary.com.au/anonymous@9c9BB62450602/-/p/dict/index.html [free subscription required for access]. Legal reference guides such as that provided by Stephen's Digest of the Criminal Law are also useful, though should be consulted with the prevailing common law. See Stephen, J. F. (1887) "A Digest of the Criminal Law (Crimes and Punishments)" Macmillan Publishing London 2 See discussion in Patrick, J. (2011) "Curious Persistence of Blasphemy" The Florida Journal of International Law Volume 23 p187. 3 For commentary see Nash, D. (2003). Legal Definitions of Religion in Historical Context: Toleration versus Freedom-Some Lessons from Blasphemy. JCL, No 8 p131. 4 Syed, A. (2006) "Anatomy of Blasphemy Laws" located at http://www.martinfrost.ws/htmlfiles/july2006/blasphemy_laws1.html 5 See Hamburger, P. (1985). The Development of the Law of Seditious Libel and the Control of the Press. Stanford Law Review, 661-765 4
  5. 5. England".6 As a result, the crimes of blasphemy and blasphemous libel covered acts such as denying God's existence or providence,7 engaging in ridicule8 or "profane scoffing"9 of God, the Church or religious texts, and formed part of the four branches of criminal libel, which, along with sedition also included obscenity, and defamation.10 Thus for the purposes of this paper, the forms of expression previously described can be regarded as representative of the kinds of acts that would largely be considered to be blasphemous in both a social and legal context, nonetheless evolving substantially over time. The 17th through 19th Centuries saw the most rampant instances of blasphemy and blasphemous libel take shape.11 Taylor's Case12 is widely regarded as the first reported case of the common law offence,13 seen as its "foundation stone" by eminent Lord Sumner.14 The 19th Century saw numerous convictions in this light, including the 1842 conviction of Atheist George Holyoake for a rambunctious speech given at Cheltenham,15 the 1857 conviction of Cornish labourer Thomas Pooley for etching blasphemous comments on the gate of a Rector of the rural parish of Duloe16 and the 1797 and 1818 convictions of Thomas Williams and 6 For further commentary see Cumper, P. (2007) "The United Kingdom and the U.N. Declaration on The Elimination of Intolerance and Discrimination Based on Religious Belief" Emory International Law Review Vol 21 pp13-42 7 Nash, D. (2008) "To Prostitute Morality, Libel Religion and Undermined Government": Blasphemy and the Strange Persistence of Providence in Britain since the Seventeenth Century" Journal of Religious History Vol 32 No 4 pp439-456 8 Brown, H. H. (1918). Old Scots Law of Blasphemy. Juridical Review, Vol 30 p56 9 Holdsworth, W. S. (1920). State and Religious Nonconformity: An Historical Retrospect. Law Quarterly Review Vol 36, p339. 10 Post, RC (1988) "Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment" California Law Review Vol 76 no 297 pp305-324 11 See for example the prosecutions of Daniel Isaac Eaton, James Williams, William Hone, Richard Carlile, Robert Taylor, Henry Hetherington, Charles Southwell and Thomas Paterson, amongst others as discussed in Nash, D. (1999) "Blasphemy in Modern Britain: 1789 to the Present" Ashgate Publishing London pp1-300 12 Taylor's Case (1676) 1 Vent 293, 86 ER 189 13 Jones, P. (1980). Blasphemy, Offensiveness and Law. British Journal of Political Science, Vol 10 No 2, 12948 and Post, RC (1988) "Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment" California Law Review Vol 76 no 297 at pp305-324 at 305. 14 See the Lord's remarks in Bowman v Secular Society Ltd [1917] AC 406 at 457 15 Rowe, I. "The Case of Thomas Pooley - A Reinvestigation" located at http://www.iainrowe.co.uk/media/Iain%20RoweThe%20Case%20Of%20Thomas%20Pooley.pdf 16 Ibid 5
  6. 6. Richard Carlile respectively for publishing the infamous pamphlet "the Age of Reason".17 That text, critical of the purported corruption and questioning the servitude towards the Church of England, caused shockwaves upon its release,18 and has come to be regarded as "the book most frequently prosecuted for blasphemy".19 The late 19th Century however saw a fundamental shift in the law's treatment of the term, from examples above which illustrated the 'matter' of an offence to that which considered the 'manner' in which it was conducted. George William Foote's 1883 prosecution20 for blasphemous cartoons published in The Freethinker has been regarded as the watershed moment in which this transition materialised, replacing the dictum of Lord Chief Justice Hale in Taylor's Case21 of the late 17th Century to that of the Lord Coleridge,22 the later serving to influence jurisprudential thought on the topic until its more conservative turn in the late 20th Century.23 Arguably as a result of Coleridge's influence, the period between 192224 and 197725 was absent of any prosecutions for blasphemy or blasphemous libel, and it was not until the seminal case of Gay News26 was the 18th Century conception of blasphemy revisited. 17 See discussion in Marsh, Joss. (1998) "Word Crimes: Blasphemy, Culture, and Literature in NineteenthCentury England" Chicago: University of Chicago Press 18 See for example discussion in Hole, Robert (1989) "Pulpits, politics and public order in England, 1760–1832." Cambridge: Cambridge University Press 19 Levy, L.W. (1995) "Blasphemy: Verbal Offense against the Sacred from Moses to Salman Rushdie" Chapel Hill: University of North Carolina Press 20 See Marsh, Joss. (1998) "Word Crimes: Blasphemy, Culture, and Literature in Nineteenth-Century England" Chicago: University of Chicago Press 21 Taylor's Case (1676) 1 Vent 293, 86 ER 189 22 See Nash, D. (1999) "Blasphemy in Modern Britain: 1789 to the Present" Ashgate Publishing London pp1300 and Post, RC (1988) "Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment" California Law Review Vol 76 no 297 pp305-324 at 305. 23 Whitehouse v Lemon; Whitehouse v Gay News Ltd On Appeal From Regina v Lemon[1979] 2 WLR 281, as discussed below. 24 See R v. Gott [1922] 16 Cr.App.R. 87. in which the defendant, John William Gott, became the recipient of the last public prosecution for blasphemy, in Edward Royle (1980) Radicals, Secularists, and Republicans: Popular Freethought in Britain, 1866-1915, Manchester University Press p282. 25 Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd On Appeal From Regina -v- Lemon[1979] 2 WLR 281 26 Ibid 6
  7. 7. The Gay News Case The 1977 case of Gay News27 saw a radical reinterpretation of the prevailing common law and a reinterpretation of the 'manner'/'matter ' distinction that had proved influential in the Freethinker case referred to above. The facts of the case concerned a poem published in the fortnightly Gay News newspaper by prolific British author James Kirkup entitled "The Love That Dares To Speak Its Name". The poem envisioned a lust and attraction for Jesus Christ by a Roman Centurion soldier, attracting the attention of Mary Whitehouse, then secretary of the (still) influential National Viewers and Listener's Association who launched a private prosecution against the publisher of the newspaper and its editor, Denis Lemon.28 On assessing whether the content of the poem was blasphemous, the presiding Lord Scarman wrote that the words in question "must constitute an interference with our religious feelings, creating a sense of insult and outrage by wanton and unnecessary profanity".29 On whether the charge was still needed in contemporary British jurisprudence (as the Coleridge dictum doubted) Lord Scarman commented "I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in modern law... the offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the Kingdom".30 As a result of the above, the Court found Gay News editor Denis Lemon guilty of the offence of blasphemy and sentenced to a nine-month suspended jail term and fined one thousand pounds.31 27 Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd On Appeal From Regina -v- Lemon[1979] 2 WLR 281 See Wintemute, R. (1995). Blasphemy and Incitement to Hatred Under the European Convention. Kings College Law Journal, Vol 6 p143 and Jeremy, A. (2003). Religious Offences. European Journal of Crime, Criminal Law and Criminal Justice, Vol 7 pp127-127 for more detail. 29 Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd On Appeal From Regina -v- Lemon [1979] 2 WLR 281 and as discussed in Fernandes, D. A. (2003). Protection of Religious Communities by Blasphemy and Religious Hatred Laws: A Comparison of English and Indian Laws. Journal of Church & State. Vol 45, p669 30 Routledge, G. (1989) "Blasphemy: The Report of the Archbishop of Canterbury's Working Group on Offences Against Religion and Public Worship" Ecclesiastical Law Journal Vol 1 No 4 pp27-32 31 See Burton, P. (1994) "Obituary: Denis Lemon" The Independent 23 July located at http://www.independent.co.uk/news/people/obituary-denis-lemon-1415565.html 28 7
  8. 8. Lord Scarman's finding came to the surprise of many jurists, particularly since it seemed to reactivate an offence that was long deemed to have fallen into desuetude, having been previously declared "obsolescent" by Lord Goddard and referred to as a "dead letter" by Lord Denning.32 Interestingly however, Lords Scarman and King-Hamilton thought the scope of the offence could be broadened to include all forms of Christianity, Judaism and arguably,33 all monotheistic faiths though this was later rejected by the House of Lords in The Satanic Verses case34. Regardless, the reactivation of the offence alarmed many commentators35, and through financing provided by the "Gay News Fighting Fund"36 the defendants put forth an ineffective legal challenge to the European Court of Human Rights in 1982.37 Irrespectively, the Gay News case lives in infamy and, as subsequent challenges have shown, may have marked the last stand as regards the endurance of an existing blasphemy law in England. The Satanic Verses Case The 1988 publication of Salman Rushdie's "The Satanic Verses" prompted a legal attempt to recreate the outcome obtained in the Gay News case. Incredible social and political pressure had mounted on the UK Government to charge the Author with blasphemy, particularly following months of protest and civil unrest from Muslims worldwide amid death threats, assassination attempts38 and the issuing of a Fatwa on Rushdie's life39 by the Supreme 32 See discussion in Routledge, G. (1989) "Blasphemy: The Report of the Archbishop of Canterbury's Working Group on Offences Against Religion and Public Worship" Ecclesiastical Law Journal Vol 1 No 4 pp27-32 33 Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd On Appeal From Regina -v- Lemon [1979] 2 WLR 281 34 Note that in R. v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 3 WLR 986 the Divisional Court found that attacks on Islam were not included. 35 See for example Post, R. C. (1988). Blasphemy, The First Amendment and the Concept of Intrinsic Harm. Tel Aviv University. Stud. Law.,Vol 8 p293 and Elliott, D. W. (1993). Blasphemy and other Expressions of Offensive Opinion. Ecclesiastical Law Journal, Vol 3 (313) p70 36 Humphreys, B. (2002) "The Law that Dared to Lay The Blame" Gay and Lesbian Humanist Summer located at http://www.pinktriangle.org.uk/glh/214/humphreys.html 37 Gay News Ltd. and Lemon v United Kingdom [Eur Comm HR] 5 EHRR 123 (1982), App. No. 8710/79. 38 See Grieg, G. (2012) "Life and Love In the Shadow of the Fatwa: Salman Rushdie Tells His Painful and Dramatic Secrets" Mail Online located at http://www.dailymail.co.uk/news/article-2203692/Salman-Rushdiememoirs-The-authors-painful-secrets-life-love-shadow-fatwa.html 8
  9. 9. Leader of Iran, Ayatollah Khomeni.40 Though no charges were laid against Rushdie, the matter did come before the House of Lords, where it was confirmed that the existing blasphemy laws did not extend to Muslims and anti-Islam blasphemy. The Court stated "the mere fact that the law is anomalous or even unjust does not, in our view, justify the court in changing it, if it is clear."41 Justice Ashurst added that "it is upon this round that the Christian religion constitutes part of the law of England"42 and as such, a blasphemy charge was inapplicable to any blasphemous libel of the Islamic faith. "Visions of Ecstasy" Akin to the failure of the Rushdie affair to amend the law of Blasphemy, the case surrounding the 1997 banning of the short-film "Visions of Ecstasy" was also unable to further the law's development, though it did assist in bringing the issue further to the forefront of public debate43. The Director, Nigel Wingrove44 claimed his freedom of expression45 had been infringed by the films banning on account of its blasphemous content46 and took the matter to the European Court of Human Rights in 1997.47 The Court did not make a finding 39 As noted in BBC (2008) "On this Day: 1989 - Ayatollah Sentences Author to Death" British Broadcasting Corporation located at http://news.bbc.co.uk/onthisday/hi/dates/stories/february/14/newsid_2541000/2541149.stm 40 Though calls for his death have lingered, the fatwa was resurrected in 2012 following the release of the "Innocence of Muslims" YouTube video, despite having nothing to do with Rushdie. See Tait, Robert (2012) "Iran Resurrects Salman Rushdie Threat" The Telegraph 16 September located at http://www.telegraph.co.uk/news/worldnews/middleeast/iran/9546513/Iran-resurrects-Salman-Rushdiethreat.html 41 R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All ER 313 42 Ibid 43 Also note the arrest of Birmingham teacher Michael Newman for selling the video in 1992. See "Security Imperial Student Arrested" Felix 28 February 1992 Issue 928 located at http://felixonline.co.uk/archive/IC_1992/1992_0928_A.pdf 44 A frequent collaborator of the British black metal band Cradle of Filth, as discussed below. 45 As protected by Article 10 of the European Convention of Human Rights located at "Convention for the Protection of Human Rights and Fundamental Freedoms" located at http://www.echr.coe.int/Documents/Convention_ENG.pdf 46 The film featured a fantasy involving Jesus Christ engaging in a sex act with Saint Theresa. The Classification Board relied on the Obscene Publications Acts of 1959 and 1964 as a legal basis for its decision. See "Wingrove v UK" Minority Rights Group International 25 November 1996 located at http://www.minorityrights.org/3049/minority-rights-jurisprudence/wingrove-v-uk.html 47 Wingrove v. UK. 25 November 1996. Application no. 17419/90. RJD 1996-V; 24 EHRR. 9
  10. 10. as to whether the material was blasphemous48, but did hold that the UK blasphemy laws were consistent with the European Convention on Human Rights49 resulting in the film remaining banned until 2012, when it was released under the "18" classification certificate.50 Repeal The preceding cases illustrate an altogether meandering approach to the issue of blasphemy in British courts. Though at an impasse as a result of the Gay News case, it can be argued that the last few centuries has seen a slow move towards the law's repeal, one which gained particular momentum following the Satanic Verses and Visions of Ecstasy controversies. In 2008 such momentum was realised, with an amendment to the Criminal Justice and Immigration Act 2008 passing, thereby abolishing the common law offence of blasphemous libel in England once and for all.51 It can be argued however, that accusations of blasphemy are still rampant in Western society, and despite its disuse, the law remains "on the books" in several states in Australia and elsewhere worldwide.52 Australian Blasphemy Despite lingering as part of s574 of the NSW Crimes Act 1900, there is considerable uncertainty as to whether there actually exists a law concerning blasphemy in Australia.53 The 48 As the ECHR regarded this as a matter for the domestic British Courts to determine. Wingrove v. UK. 25 November 1996. Application no. 17419/90. RJD 1996-V; 24 EHRR. 50 "Visions of Ecstasy" remains the only film to ever be refused classification on the grounds of Blasphemy by the British Board of Film Classification and was eventually classified as a result of the law of blasphemy's repeal in 2008."Visions of Ecstasy Gets UK rating after 23 Year Ban" British Broadcasting Corporation 31 January 2012 located at http://www.bbc.co.uk/news/entertainment-arts-16809977 51 Beckford, M. (2008) "Blasphemy Laws are Lifted" The Telegraph 10 May located at http://www.telegraph.co.uk/news/1942668/Blasphemy-laws-are-lifted.html 52 Including New South Wales (Crimes Act 1900 s574), Tasmania (Criminal Code s119) and arguably Victoria (Remedy potentially available under the Racial and Religious Tolerance Act 2001) and South Australia. See the section "Global Blasphemy" for more discussion below. For discussion see Dyett, Greg, (2013) "Time for Australia to Abandon Blasphemy Laws?" Special Broadcasting Service located at http://www.sbs.com.au/news/article/2013/05/27/time-australia-abandon-blasphemy-laws 53 Patrick, J. (2011). Curious Persistence of Blasphemy, The Florida Journal of International Law, Vol 23 p187. Also note the differences in blasphemy laws in the Australian States, with provisions repeal in Western Australia, Queensland and the Australian Capital Territory and its degree of uncertainty elsewhere. See Law Reform Commission New South Wales, Discussion Paper 24(1992) – Blasphemy 49 10
  11. 11. Act does not define blasphemy, leaving this to the common law, however with no successful prosecutions since 1871's R v William Lorando Jones54, it remains in doubt whether there is any practical effect to the provision. That being said, numerous attempts have been made in recent years to reactivate the law, with Ogle v Strickland55 and the case surrounding the art work "Piss Christ"56 most noteworthy. In a matter reminiscent of the Visions of Ecstasy case above, Ogle v Strickland concerned the Australian Censorship Board clearing the film "Hail Mary" for import, despite the objections of the Catholic and Anglican Church on the grounds that the film was blasphemous. The priests in question attempted to challenge the Board's decision, yet were denied standing upon reaching the full Federal Court in 1987.57 Similarly the 1997 case Pell v Council of Trustees of the National Gallery of Victoria58 was refused an injunction59 to prevent the display of the Andres Serrano photograph "Piss Christ", with the Court commenting that it would be improper for a civil remedy to be used to restrain alleged criminality.60 The Court did however make commentary regarding the alleged blasphemy at issue, suggesting an incompatibility of the offence with s116 of the Australian Constitution61 as well as observations made by Harper J as to whether 54 R. v. William Lorando Jones (unreported, Parramatta Quarter Sessions, Simpson J., 18 February 1871) Ogle v Strickland (1987) 13 FCR 306 56 Pell v The Council of Trustees of National Gallery of Victoria [1998] 2 VR 391 57 Ogle v Strickland (1987) 13 FCR 306. See commentary in Goodie, J., & Wickham, G. (2002). Calculating ‘Public Interest’: Common Law and the Legal Governance of the Environment Social & Legal Studies, Vol 11 No 1, 37-60. 58 Pell v The Council of Trustees of National Gallery of Victoria [1998] VSC 52 59 Harris, B. (1998). Pell v. Council of Trustees of the National Gallery of Victoria-Should Blasphemy Be a Crime-The Piss Christ Case and Freedom of Expression. Melbourne University Law Review Vol 22 p217 60 See commentary in Priestly, Brenton 2006) "Blasphemy and the Law: A Comparative Study" located at http://www.brentonpriestley.com/writing/blasphemy.htm 61 I.e. The Preclusion of the State from making any laws for establishing any religion, imposing any religious observance or prohibiting the free exercise of any religion as interpreted narrowly by the High Court. See Clarke, Jennifer; Keyzer, Patrick; Stellios, James (2009). Hanks' Australian Constitutional Law: Materials and Commentary (8th ed.). Chatswood, NSW: LexisNexis Butterworths. 55 11
  12. 12. a law of blasphemy was necessary in a modern, diverse society.62 As a result, the law remained untouched, arguably cementing its dormant, if not extinct status. Societal Blasphemy The preceding study has analysed blasphemy largely in terms of its legal origins, examining the case law that has seen the notion developed, scrutinised and eventually repealed in numerous common law jurisdictions. However elsewhere conceptions of blasphemy are alive and well, particularly in society's moral, ethical and religious spheres. The following portion of this paper will analyse one area of contemporary society that has demonstrated a rambunctious flirtation with the social regulation of blasphemy, that being the music genre known as Heavy Metal. Heavy Metal and Blasphemy Heavy metal has long been positioned at the fringes of societal normality and acceptability. This section will evaluate the genre through a blasphemy-oriented lens, examining its history, legacy and legitimacy, as has often come into question. Specifically, this section will position itself to explain the historical context that has shaped many of the debates surrounding heavy metal serving as a source of blasphemy, and use this as a launchpad with which examples of recent controversies can take shape. Heavy metal serves as a fascinating case study in which community norms and freedom of expression are often at 62 See commentary in Priestly, Brenton 2006) "Blasphemy and the Law: A Comparative Study" located at http://www.brentonpriestley.com/writing/blasphemy.htm. Also note Pringle's commentary on whether the criminal charge remains legitimate regardless of whether it is repealed. See Pringle, Helen (2006) ‘Are we capable of offending God? Taking blasphemy seriously’, in Elizabeth Burns Coleman and Kevin White (eds.), Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, Canberra: ANU E Press, pp. 31-43, at p. 32. 12
  13. 13. odds, and serves to complement the above legal analysis as a supplementary array of art that has been tested through both the judiciary and the media.63 Since its creation in the United Kingdom in the 1960s, heavy metal has been deemed 'shocking', flirting with many of the concepts that are often the objects of the blasphemed.64 Evolving from the Rock'n'Roll of the 1950s,65 bands such as Led Zeppelin and Black Sabbath took the rhythmic intensity of the genre and amplified its audible and visual elements to forge something entirely new. Black Sabbath was particularly novel in this regard66, applying a dark and demonic overture to this new style and sound by incorporating themes of horror and the occult.67 The band is now widely credited as a pioneering influence68 over an entire umbrella of heavy metal sub-genres, including "thrash", "doom metal", "power metal" "death metal", "black metal" and many others.69 It is these last two genres which are of most relevance to the current study, attracting the vast majority of attention due to their extreme lyrical content, visual imagery and abrasive tonality. Death metal can be understood as heavy metal's (even) more aggressive, faster and louder offspring, where American70 bands such as "Morbid Angel", "Deicide" and the 63 The Author recognises that Heavy Metal is but one genre that comes under this description, and recognises that other genres face similar issues, such as those discussed in Gregg, Lindsay D. (2002) "Freedom of Expression and Music Contracts: Is There a Place for Blasphemy Anymore?" Entertainment Law Vol 1 No 3 Autumn pp53-71 64 See for example the 'moral panic' associated with "shock rocker" Marilyn Manson in the United States, and worldwide. See Wright R. (2000) "I'd Sell You Suicide: Pop Music and Moral Panic in the Age of Marilyn Manson" Popular Music Vol 19 No 3 pp365-385 65 Recall Elvis' hip gyrations that were deemed morally reprehensible at the time and revolutionary since. See Wallace, Marice "History - Elvis Presley: A Revolutionist" La Grange College located at http://www.lagrange.edu/resources/pdf/citations/2012/11_Wallace_History.pdf 66 See Cope, A. L. (2010). Black Sabbath and the rise of heavy metal music. Ashgate Publishing, Ltd.. 67 See Christian Assemblies International "Black Sabbath" located at http://www.cai.org/files/themesheets/en/c/sc0145au.pdf and Mankey, Jason (2012) "Black Sabbath and the Occult" Panmankey located at http://www.panmankey.com/blacksabbathtoccult.htm 68 Lester, Paul (2013) "Black Sabbath: 'We Used to Have Cocaine Flown in by Private Plane'" The Guardian located at http://www.theguardian.com/music/2013/jun/06/black-sabbath-cocaine-private-plane 69 See for example Weinstein, D. (2009). Heavy Metal: The Music and its Culture. Da Capo Press. Cambridge 70 Note that the legal application of blasphemy has not developed in the United States due to strong Freedom of Religion protections brought by the First Amendment to the U.S. Constitution, though this has been challenged See Joseph Burstyn, Inc. v. Wilson 343 U.S. 495 (1952) 13
  14. 14. seminal "Death" have been of lasting influence and notoriety71. "Black metal", in contrast has been a largely Scandinavian affair72, with bands such as "Mayhem", "Burzum" and "Gorgoroth" antithesising many of the elements of death metal by focussing on complete and utter darkness, iniquity and in many cases, exhorting blasphemy. The following section will examine these elements, highlighting bands that have been beleaguered for their views, artistic expressions and deeds across multiple jurisdictions.73 These cases serve as remarkable examples of the modern scope of blasphemy, both in terms of legal application and as a unique social phenomenon that in many ways has built on the case law and rich history that has accompanied the development of blasphemy to date. The Norwegian Church Burnings Between 1992 and 199574, a group of pioneering black metal musicians carried out a wave of arson attacks on some of Norway's oldest and most prolific Christian churches75. Many of these Churches had long been recognised by Norwegian authorities as historic 71 See discussion in Mishrell, Kirk W. (2012) "Rockin' The Tritone: Gender, Race & The Aesthetics of Aggressive Heavy Metal Subcultures" George State University History Thesis located at http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1053&context=history_theses 72 Though note that black metal has spread to now include bands from all over the world. As a prominent example, this paper will go on to discuss the British black metal band "Cradle of Filth" who have arguably been reached the most notoriety as a result of their "blasphemous" merchandising. 73 Canada also represents an interesting study in this regard, though unfortunately more time is not available to examine its unique case law. See for example Patrick, Jeremy (2010) "Canadian Blasphemy Law in Context: Press, Legislative and Public Reactions" Annual Survey of International and Comparative Law Vol 16 Issue 1 pp129-163 74 Yet note subsequent calls for additional church burnings. See examples of incitement by Gorgoroth front-man "Gaahl" in Deathbringer (2007) "Gorgoroth Frontman Calls for More Church Burnings; Police to Investigate" Metal Underground located at http://www.metalunderground.com/news/details.cfm?newsid=24092 75 Note that numerous copycat church burnings followed once these attacks achieved cultural notoriety in black metal circles, including arson attempts by black metal musicians on the Porvoo Cathederal in Finland in 2006, the Uniting Church in Ascot Vale, Victoria Australia in 2004 and the Minnedosa United Church in Manitoba Canada in 2006. See La Canna, X. (2004) "Arsonists Destroy Historic Church" The Age August 30 located at http://www.theage.com.au/articles/2004/08/29/1093717837780.html and Pritchard D. (2006) "Canadian Church Fire Linked To Norwegian Black Metal Movement" Blabbermouth.net April 29 located at http://www.blabbermouth.net/news/canadian-church-fire-linked-to-norwegian-black-metal-movement/ respectively. Note that charges were laid in the case of the Australian Ascot Vale incident, with the perpetrator Novak Majstorovic of the black metal project "SchwarzReich" sentenced to three years youth detention for crimes of arson and burglary, (but not blasphemy). 14
  15. 15. landmarks, revered for both their age, architectural significance and cultural value.76 Black metal musicians including Varg Vikernes77, "Faust"78, "Samoth"79 and Jorn Tunsberg80 each took part in manifold arsons, in some cases facing arrest and later conviction for their crimes81. However, with over fifty Church burnings taking place in total during this period, a majority of the arsons were left unsolved due to a lack of evidence, leaving suspicion as to whether these men were the culprits of additional crimes, or whether there were additional suspects who to this day remain unidentified.82 Motive for the mass-arsons remains in dispute, with many quick to suspect the individual's affiliation with Satanism and Satanic rituals as the principle causes83. Interviews with these individuals in the years since the incidents however suggest a range of motivations84, with Varg Vikernes citing paganism and heathenism as influences85, but equally, protest and retaliation against what was perceived as overbearing Christian cultural and religious influence on Norway, and thus appearing to satisfy the requirements for the charge of blasphemous libel. Critics and commentators however, have assessed the arsons in a different light, pointing to the desire of members of what became known as the "Black 76 Most significantly Fantoft Stave Church, an eleventh-century national landmark as destroyed by Varg Vikernes on the 6th of June 1992. Vikernes has since claimed that the church was built on "sacred pagan ground". See Campion, C. (2005) "In the Face of Death" The Guardian 20 February located at http://www.theguardian.com/music/2005/feb/20/popandrock4 77 Also known as "Count Grishnackh" and of the seminal black metal band "Burzum". Grishnackh also appeared on one album by the equally influential "Mayhem" as discussed. 78 Real name Bård Guldvik Eithun, of the popular and recently reformed "Emperor" and "Zyklon" 79 Real name Tomas Thormodsæter Haugen, also of "Emperor" and "Zyklon" 80 Of the bands "Immortal" "Old Funeral" "Hades Almighty" and others. 81 The sentences for these crimes ranged from 16 - 24 months, however in the case of the Fantoft Stave Church, Vikernes was charged but never convicted. Vikernes and the others however were all incarcerated in relation to these and other crimes following this period. 82 For in depth discussion of the incident see Williams, Thomas J.T. (2012) "A Blaze in the Northern Sky: Black Metal and Crimes Against Culture" Public Archaeology Vol 11 No 2 pp59-72 83 See discussion of the use of Satanism in black metal in Cordero, Jonathan (2009) "Unveiling Satan's Wrath: Aesthetics and Ideology in Anti-Christian Heavy Metal" Journal of Religion and Popular Culture Vol 21(1) Spring 84 See commentary by "Gaahl" in "Metal: A Headbanger's Journey" as discussed in Deathbringer (2007) "Gorgoroth Frontman Calls for More Church Burnings; Police to Investigate" Metal Underground located at http://www.metalunderground.com/news/details.cfm?newsid=24092 85 See discussion in Granholm, Kennet (2011) ""Sons of Northern Darkness": Heathen Influences in Black Metal and Neofolk Music" Numen no 58 pp514-544 15
  16. 16. Circle"86 to gain social acceptance amongst fellow black metal musicians by illustrating and "proving" their venomous opposition to Christianity, akin to a gang initiation. Regardless, the church burnings unsurprisingly resulted in an onset of moral panic across Scandinavia during the period,87 a fact exacerbated by the non-arson crimes committed by some of these individuals concurrently. Murder and Black Metal In tandem with the series of Church burnings, several prominent black metal musicians engaged in morbid behaviour which has earned them equally eternal notoriety and furthering existing allegations of blasphemous libel. As a prominent example, upon discovering the bloody suicide of Mayhem vocalist "Dead" at his home in April 1991, bandmate Euronymous photographed the corpse88, allegedly cannibalised the deceased by cooking a stew with his brain and finally made a necklace with pieces of the deceased's skull.89 Yet Euronymous became infamous on another account still, when he was brutally murdered by Varg Vikernes in the year following the iniquitous Church burnings referred to above.90 Rumours have circulated that the death was committed via a Satanic ritual, though alternate theories frame the act as one of an assault following a quarrel. 91 Though the most notorious, this was not the only heinous crime overshadowing the legacy of black metal, with Faust also guilty of murder soon following the Church burnings. 86 A designation given to a loose organisation of black metal musicians who gathered at a record store in Oslo, seen as one of the principle birthplaces of the genre. Note however that supposed members, including Varg Vikernes, have denied the group's existence. 87 Bennett likens this to a similar moral panic felt in mainstream America during the 1980s following the mainstream growth of Heavy Metal. See Bennett, Andy (2001) "Cultures of Popular Music" Open University Press 1st Edition Berkshire United Kingdom p56 88 The image later adorning the album cover of the band's bootleg live release "Dawn of the Black Hearts" 89 Metal Injection (2011) "Top 10 Worst Crimes Committed By Black Metal Musicians" February 27 located at http://www.metalinjection.net/lists/top-10-crimes-committed-black-metal-musicians/4 90 Vikernes was sentenced to 21 years prison over the incident, though received parole after almost 16 years in 2009. See Michaels, S. (2009) "Norway's Most Notorious Musician To Be Released from Prison" The Guardian March 11 located at http://www.theguardian.com/music/2009/mar/11/norwegian-black-metal-varg-vikernes 91 "Euronymous" Spirit of Metal located at http://www.spirit-of-metal.com/membre_groupe/membre_groupenom-Euronymous_-id-12398-l-en.html 16
  17. 17. In this instance however, Faust claims to have acted in self-defence, as the victim in this instance had made homosexual advances towards him that, when refused, escalated to an grievous assault.92 Both Faust and Varg Vikernes were met with lengthy sentences from the Norwegian criminal justice system, however continued to write black metal music throughout each of their incarcerated years apiece.93 The infamy of these individuals seems to have only grown whilst imprisoned, and upon receiving parole continued to release records94 and perform live concerts, particularly in the case of Faust who to this day tours around the world with his current projects Zyklon and the recently reformed Emperor. As such, these musicians have created a legacy that encompasses both civil and criminal extremity. Norwegian Blasphemy The early history of Norway's black metal scene is absurd as much as it is legendary. Murder, arson and assault, often deliberately performed in the name of blasphemous ritual, should plainly meet our conceived perception of the legal requirements for a charge of blasphemy in addition to the charges laid.95 However, despite Norway possessing a blasphemy law at the time under Section 142 of its Penal Code, no charges of blasphemy or blasphemous libel were ever laid on these perpetrators. With only two charges laid in the last century,96 those of Arnfred Olsen in 191297 and Arnulf Overland in 1933,98 the law of blasphemy in Norway has long faced practical abandonment. As a result of a series of law 92 See "Mord - Murders By Black Metal Figures" located at http://www.angelfire.com/de3/kirkeniasker/Mord.html 93 Faust was sentenced to 16 years but released after 12. Also note other Black Metal musicians who were involved in murderous crimes as described in Ibid. 94 Note that Vikernes also produced several albums whilst in jail where he was given access to a synthesiser and basic recording equipment. See BNR Metal Pages "Burzum" located at http://www.bnrmetal.com/v3/band/band/Burz 95 It is arguable that the actions described above would meet the threshold tests associated with s574 of the Crimes Act 1900 (NSW) 96 Each for blasphemous critiques of Christianity. 97 For a blasphemous depiction of Christian festivities See "Andre Krenkelser" located at http://www.nored.no/Juss/Andre-krenkelser [Translated using Google Translate online software] 98 For a lecture series entitled "Christianity - The Tenth Plague" as discussed in Human-Etisk Forbund "Blasfemiparagrafen" located at http://www.human.no/Livssynspolitikk/Flere-saker-vi-mener-noeom/Blasfemiparagrafen/ [Translated using Google Translate online software] 17
  18. 18. reforms, including a new criminal code coming into force in 2012, the charge of blasphemy has been repealed, rendering the law both practically and officially obsolete.99 Thus, despite easily meeting the criteria for a successful prosecution in other jurisdictions100 and arguably at the time of the acts, the blasphemous actions of the early Norwegian black metal scene were decided solely through the use of more habitual criminal justice charges. Consequently, although falling short of being a prominent example of a successful blasphemous legal prosecution, this period in Norway's black metal history remains an enthralling example of how blasphemous acts have been treated by foreign legal systems, particularly those of the civil system, and equally engaging, as a study of a counterculture that remains an influential social phenomenon today. 101 Black Metal Abroad With the above considered within the context of the Norwegian legal system, it is important to note however that even though many of these early black metal acts escaped charges of blasphemy in Norway, others have come under more pressure abroad. In the case of Norwegian black metal band "Gorgoroth" it was their on-stage performance, rather than its non-band activities102 that earned them eternal notoriety, with a 2004 concert in Krakow, Poland making mass news headlines.103 The performance involved the display of satanic and anti-Christian symbols, four naked "impaled" models on crucifixes, multiple sheep heads on 99 In a similar fashion to the repeal of Blasphemy in English law, as discussed above. Including Australia and England before the laws appeal. 101 Hjelm et al characterise the incidents as a "national... and international concern" in Hjelm T., Kahn-Harris, K. and LeVine, M. (2012) "Heavy Metal as Controversy and Counterculture" Popular Music History Equinox Publishing pp1-14 102 Though note that in 2007 frontman Gaahl faced an additional police investigation for calling for more Church burnings and offering arsonists his support. See Deathbringer (2007) "Gorgoroth Frontman Calls for More Church Burnings; Police to Investigate" Metal Underground located at http://www.metalunderground.com/news/details.cfm?newsid=24092 Also note Gaahl's convictions for assault and torture located at Metal Injection (2011) "Top 10 Worst Crimes Committed By Black Metal Musicians" February 27 located at http://www.metalinjection.net/lists/top-10-crimes-committed-black-metal-musicians/9 103 For example, see the cover of Polish newspaper "Metro" located at http://www.rockandmetal.com/images/gorgorothnewspapercover.jpg and Polish television report on "Fakty" TV located at http://www.youtube.com/watch?feature=player_embedded&v=QGz_3HcNo04 100 18
  19. 19. stakes, and the use of over 80 litres of sheep's blood104 while performing songs such as "procreating Satan" and tracks off the album "Antichrist".105 Unsurprisingly a police investigation was launched to consider whether Gorgoroth had violated Poland's antiblasphemy "religious offence" laws, particularly Article 196 of the Polish Penal Code.106 Ultimately however the band escaped without charge, though the promoter was heavily fined, the band dropped from their record label and footage of the concert confiscated by Polish police until its eventual DVD release in 2008.107 The band claimed ignorance as to the existence of the laws during the ordeal, however it was clear from the footage, that they had the very intention of demonstrating their opposition to Christianity and provoking, if not directly causing, religious offence. Death Metal Blasphemy The unambiguous intentions that are evident by the blasphemous acts of prominent bands within the black metal scene can be contrasted with accusations of blasphemy put to numerous death metal bands who have similarly faced great controversy in recent times. The death metal band "Behemoth" faced the Polish Supreme Court over front-man Adam "Nergal" Darski's108 2007 concert performance in which he ripped up a copy of the Christian 104 For a full description see Metal Injection (2011) "Top 10 Worst Crimes Committed By Black Metal Musicians" February 27 located at http://www.metalinjection.net/lists/top-10-crimes-committed-black-metalmusicians/3 105 See "Gorgoroth: 'Black Mass Krakow 2004' DVD Preview Available" Blabbermouth.net May 12 2008 located at http://www.blabbermouth.net/news/gorgoroth-black-mass-krakow-2004-dvd-preview-available/ 106 Kodeks Karny s196. It was speculated that the band was to be charged under Poland's cruelty to animals laws as well. 107 See "Gorgoroth: 'Black Mass in Krakow' DVD May Get Released After All" Blabbermouth.net March 3 2005 located at http://www.blabbermouth.net/news/gorgoroth-black-mass-in-krakow-dvd-may-get-releasedafter-all/ 108 A household name in his native Poland, having recently appeared as a judge on the Polish version of "The Voice" and at one point dating the domestic equivalent of Britney Spears, Dorota "Doda" Rabczewska. Interestingly Doda herself came under similar scrutiny, having been successfully found guilty under Polish Blasphemy laws for "offending religious sensibilities" due to comments that suggested that the Bible's authors were drunks and drug-abusers. See Day, M. (2010) "Pop Star Claims Bible Written By Drunks" The Telegraph 5 May located at http://www.telegraph.co.uk/news/worldnews/europe/poland/7681981/Pop-star-claims-Biblewritten-by-drunks.html and Aktualizacja, O. (2012) "Doda Skazana Za Obraze Uczuc Religijnych" Rzeczpospolita 18 June located at http://www.rp.pl/artykul/21,894222-Doda-skazana-za-obraze-uczuc- 19
  20. 20. Bible onstage whilst describing the Roman Catholic Church as a "criminal sect"109. Darski was charged with "offending religious feelings",110 yet claimed to have no such intention, with his lawyers (curiously) commenting that "we were dealing with art, which allows more critical and radical statements"111 and argued that since Darski lacked the necessary mens rea of the charge, that he should be spared a guilty verdict.112 The Polish Supreme Court unsurprisingly disagreed, stating that a crime was committed regardless of the "direct intention" of the accused, and in January 2013 referred the matter to the District Court for a re-examination, of which is yet to take place.113 This, and the aforementioned Gorgoroth example illustrate the state of the law of blasphemy in Poland as one far more pronounced than as historically treated by the Norwegian courts, yet still, seeming to opt for fines in place of incarceration in its sentencing practice. This suggests that whilst blasphemy remains firmly part of Polish law, it is practically treated as more of a penalty, rather than an incarcerate-able offence. On a broader scale, numerous European heavy metal festivals have faced considerable scrutiny as regards accusation of supporting blasphemy. The French festival "Hellfest" has faced religious and political opposition114 since its birth in 2006, most recently facing litigation from the Associations Familiales Catholiques (Association of Catholic Families) religijnych.html [translated using Google Translate online software]. Doda eventually was spared jail time though was ordered to pay a hefty fine. 109 See Szymanowski, G. and Lowe, Christian (2012) "Court Rules Against Polish Rocker Who Tore Up Bible" Reuters October 29 located at http://www.reuters.com/article/2012/10/29/entertainment-us-poland-blasphemyidUSBRE89S19G20121029 110 Again under section 196 of the Kodeks Karny (Polish Criminal Code) 111 Darski's lawyers also put forth a free speech argument. See "Poland's Supreme Court Paves Way for Rock Star to be Sentenced Over Bible-Tearing" Polskie Radio 30 October 2012 located at http://www.thenews.pl/1/9/Artykul/116879,Polands-Supreme-Court-paves-way-for-rock-star-to-be-sentencedover-bibletearing 112 See Michaels, S. (2012) "Polish Singer Faces Two Years In Jail Over Bible-Tearing Stunt" The Guardian located at http://www.theguardian.com/music/2012/oct/31/polish-singer-bible-tearing-stunt 113 "Poland's Supreme Court Paves Way for Rock Star to be Sentenced Over Bible-Tearing" Polskie Radio 30 October 2012 located at http://www.thenews.pl/1/9/Artykul/116879,Polands-Supreme-Court-paves-way-forrock-star-to-be-sentenced-over-bibletearing 114 See "Hellfest: l'incroyable requete de Christine Boutin aupres De Kronenbourg" Le Huffington Post 19 March 2010 located at http://archives-lepost.huffingtonpost.fr/article/2010/03/19/1995335_l-incroyable-requetede-christine-boutin-aupres-de-kronenbourg.html [Translated using Google Translate online software]. 20
  21. 21. who sought an injunction to prevent minors from attending the festival.115 Hellfest also faced scrutiny regarding the blasphemous desecration of French graves in the name of Satanic death metal performers "Deicide" in the days prior to their scheduled appearance at the festival116, with the organisers cancelling the band's performance as a result of the resulting media and political frenzy117. Front-man Glen Benton commented on the bands cancellation, pointing to the promoter's "show of weakness towards censoring us"118 and fact that the band was punished for acts beyond its control: "someone does something stupid and us and the fans have to pay for it".119 Here commentary can be made regarding the relative innocence of the band yet still deemed socially punishable as a result of their profane image and reputation for engaging in blasphemous acts.120 Other European heavy metal festivals have also faced considerable public scrutiny in a similar fashion to Hellfest, with the Dutch Festival "Els Rock" accused by Church officials in Holland of promoting blasphemy.121 In this instance however, the media attention generated had little effect, as the permit for the festival had long been approved and the festival proceeded without incident. Though the above mentioned bands arguably have remained in the "underground", other, more prominent heavy metal artists have too been accused of committing blasphemy. One of the world's more successful heavy metal bands, Lamb of God, is one such act that recently made headlines after the bands scheduled performance at a festival in Malaysia was 115 The Judge in this case refused their demand and the festival to this day allows minors to attend with parental supervision. Also note that ticket sales for the festival doubled in light of the media coverage. 116 "Deicide Kicked off Hellfest Due to French Grave Desecrations" Blabbermouth.net March 21 2006 located at http://www.blabbermouth.net/news/deicide-kicked-off-hellfest-due-to-french-grave-desecrations/ 117 See the front page story of Le Telegramme (2006) "Sur La Piste Des Satanistes" (On the Track of Satanists) February 11 edition. 118 "Deicide's Benton Comments on Being Kicked Off France's Hellfest" Blabbermouth.net March 22 2006 located at http://www.blabbermouth.net/news/deicide-s-benton-comments-on-being-kicked-off-france-shellfest/ 119 The desecrator has to this day not been identified. Ibid 120 For example, Benton is known for having an inverted cross branded into his forehead. See Woods J. and Heck, M. (2003) "Roc's Interview With Glen Benton" The Roc located at http://www.theroc.org/rocmag/textarch/roc-11/roc11-10.htm 121 "Church Officials Attempt to Ban Blasphemous Dutch Metal Festival" Blabbermouth.net July 13 2006 located at http://www.blabbermouth.net/news/church-officials-attempt-to-ban-blasphemous-dutch-metalfestival/ 21
  22. 22. cancelled as a result of religious authorities (specifically the Department of Islamic Development) claiming122 the bands use of Koranic text in one of its songs was blasphemous.123 In this instance the Communications and Multimedia Ministry refused the permit to allow the band to perform, commenting that doing so "could infringe on Malaysia's religious sensibilities and cultural values".124 The band issued a statement commenting that "it is very evident (and a bit frustrating) that the groups, parties and powers that have taken the most offence to our music and lyrics have themselves only made a passing glance at the content and meanings of those songs".125 As such, the Authorities had ignored the facts that the band was not scheduled to perform the song in question and secondly, that the band has never possessed an intention to blaspheme or critique Islam, either in the song in question or otherwise.126 Thus, this example can also be contrasted with the above analysis in that despite having no desire to blaspheme, accusations of blasphemy have been attached to heavy metal musicians worldwide.127 Cradle of Filth and its Infamous, Irreligious T-shirt Beyond theatrical performance and criminal activity lies a third element of extreme heavy metal musicians that has also attracted accusations of blasphemy, the humble t-shirt. 122 "Ban Lamb of God Show as its Songs are mix of Metal, Quaranic Verses, Says Jakim - Bernama" The Malaysian Insider August 31 2013 located at http://www.themalaysianinsider.com/malaysia/article/jakimobjects-to-lamb-of-gods-performance-bernama 123 "Malaysia Bans Gig by Heavy Metal Band Lamb of God as Blasphemous" The Guardian 5 September 2013 located at http://www.theguardian.com/world/2013/sep/05/malaysia-bans-lamb-of-god-metal-blasphemy 124 Ibid 125 Ibid 126 The band is however known for their anti-Christian sentiment, and have frequently met opposition from Church groups in the United States, specifically for their band name and former band name "Burn the Priest". See "About Lamb of God" MTV Artists located at http://www.mtv.com/artists/lamb-of-god/biography/ 127 Note that many other non-heavy metal artists have also faced similar accusations in Malaysia, including most recently R&B singer Erykah Badu and pop singers Kesha and Beyonce, though it appears that Heavy Metal attracts a disproportionate amount of such controversies. See Ibid, "Malaysia Bans Kesha Concert Over Religious Fears" Hindustan Times October 26 2013 located at http://www.hindustantimes.com/entertainment/music/malaysia-bans-kesha-concert-over-religious-fears/article11140661.aspx and Porter, B. (2009) "Beyonce Cancels Malaysia Concert After Furor Over Racy Clothes" Bloomberg October 20 located at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aDpBHh9Ic0rg 22
  23. 23. Merchandising has long been seen as a vehicle in which protest and freedom of speech128 actions are carried129, however in the case of British black metal band "Cradle of Filth" one of their t-shirt designs has landed them, and their fans in repeated hot water since its 1997 release. The t-shirt in question featured the front-image design of a woman dressed in a Nun's cornette and habit masturbating, with her breasts exposed atop a caption "vestal masturbation". The back design continued this theme, with, in large white capital letters a caption reading "Jesus is a cunt".130 Interestingly, the t-shirt was designed by none other than Nigel Wingrove, a frequent artistic collaborator of the band also known for his role as director of the banned UK film "Visions of Ecstasy" as discussed above.131 As such it should be of no surprise that the shirt was considered blasphemous upon release.132 Both civil and religious authorities have called for outright bans of the shirt on the grounds of blasphemous libel, with fans and merchants each coming under considerable scrutiny across numerous common law jurisdictions, though falling short of any litigious judicial attention. For example, in 2007 a police sting operation charged an Edinburgh shopkeeper with "selling obscene material aggravated by religious prejudice"133, for offering to sell the t-shirt to an undercover policeman. During his appearance at Edinburgh Sherriff Court, the shopkeeper's lawyer rejected the charge, commenting that "the initial suggestion that the offence was aggravated by religious prejudice is clearly unfounded - this was nothing 128 See for example recent controversy regarding pop-star Rhianna's "DIY" t-shirt Carpenter, C. (2013) "NewlySingle Rihanna Pushes the Boundaries of Taste As She Steps Out in Self-Pleasure T-Shirt" Mail Online 16 May located at http://www.dailymail.co.uk/tvshowbiz/article-2325415/Rihanna-pushes-boundaries-taste-steps-selfpleasure-T-shirt.html as well as the provocative American Apparel "period" t-shirt as discussed in "Piotrowski, D. and Young, M. (2013) "Most Provocative T-Shirt Of All Time? American Apparel's Vagina Tee" News Limited October 9 located at http://www.news.com.au/business/your-business/most-provocative-tshirt-of-alltime-american-apparel8217s-vagina-tee/story-fn9evb64-1226735328329 129 See Paul Robert Cohen v State of California (1971) 403 U.S. 15 91 S. Ct 1780 130 Hereafter "JIAC" 131 "UK Blasphemy Ban Overturned for Visions of Ecstasy" 3 News 1 February 2012 located at http://www.3news.co.nz/UK-blasphemy-ban-overturned-for-Visions-ofEcstasy/tabid/418/articleID/241453/Default.aspx 132 See "Kerrang! X-Mas Festivale" Rahab December 19 2007, located at http://rahab.tripod.com/cofgig.html 133 "Shopkeeper Who Sold 'Obscene' Jesus T-Shirt Escapes Trial For Prejudice" The Scotsman 8 November 2007 located at http://www.scotsman.com/news/shopkeeper-who-sold-obscene-jesus-t-shirt-escapes-trial-forprejudice-1-699026 23
  24. 24. more than a business transaction...the t-shirt is unpleasant, but surely there is an issue of freedom of speech involved here".134 Two separate issues are at play at this juncture. For one, a lack of intent to blaspheme should assist the shopkeeper in his defence, akin to the death metal discussion above. Consequently, the necessary intent associated with the Australian conception of the Blasphemous Libel charge would not be present.135 Further, the free speech issue is even more illuminating in this instance, as fans that have worn this t-shirt have discovered in multiple jurisdictions. Starting with their native England, multiple fans of the band have faced authorities as a result of wearing the JIAC t-shirt.136 In 2004 a fan by the name of Dale Wilson was arrested for sporting the shirt in Norwich. Wilson escaped any conviction, though was told to "grow up" by the presiding Magistrate.137 Similarly in 2005 a fan by the name of Adam Shepherd was fined and sentenced to 80 hours community service following complaints from a member of the public.138 More noteworthy still, even the band's then-drummer, Nicholas Barker, was arrested and charged with "creating a public disorder" in May 2005, though no further proceedings resulted from the arrest.139 No strangers to controversy, the band has also landed in hot water over another merchandise incident, being arrested by Italian authorities in 1998 134 "Shopkeeper Who Sold 'Obscene' Jesus T-Shirt Escapes Trial For Prejudice" The Scotsman 8 November 2007 located at http://www.scotsman.com/news/shopkeeper-who-sold-obscene-jesus-t-shirt-escapes-trial-forprejudice-1-699026 135 The shopkeeper in question escaped prosecution for the offence, instead facing a "fiscal fine". This indicates a discretionary element at play as regards sentencing. Ibid 136 In addition to the following examples, note the case of Rob Kenyon, who was found guilty of committing an act of "profane representation" and fined 150 pounds. The fine was subsequently paid for by the band. "Bloodsongs Interview" MkCof 1997 located at http://mkcof.tripod.com/i2.htm . Also note protests by "Christians of Haverfordwest" in Wales who protested the selling of the t-shirt to a 13 year old in Wales in 2006. See Monitor (2006) "Filthy T-Shirt Offends Again" MediaWatchWatch located at http://www.mediawatchwatch.org.uk/2006/01/18/filthy-t-shirt-offends-again/ 137 "Shopkeeper Who Sold 'Obscene' Jesus T-Shirt Escapes Trial For Prejudice" The Scotsman 8 November 2007 located at http://www.scotsman.com/news/shopkeeper-who-sold-obscene-jesus-t-shirt-escapes-trial-forprejudice-1-699026 138 Ibid 139 Ibid. The drummer was also arrested en route to playing the Dynamo Festival in Holland, however was released after being charged with "creating a public disorder". "Bloodsongs Interview" MkCof 1997 located at http://mkcof.tripod.com/i2.htm 24
  25. 25. for wearing t-shirts to the Vatican which read "I love Satan".140 The band was detained and questioned by the Police, though eventually released without charge and allowed to continue their Italian tour. The JIAC t-shirt has also been the subject of a prolonged political campaign, with the then Lord Provost of Glasgow, Alex Mosson, campaigning between 1999 and 2003 to have the Tower Records chain cease stocking the garment, calling the shirts "sick and offensive".141 Mosson succeeded in having Scottish police raid the Glasgow store twice, however on the second occasion, and undoubtedly due to the widespread and sensationalised media coverage of the first instance, the police were left embarrassed to discover that the tshirts in question had in fact, sold out.142 Though defiant at first by releasing a statement that proclaimed "we pride ourselves on offering the largest range of products available and leaving it to the customer to choose whether they wish to purchase them", Tower Records eventually succumbed to public pressure, withdrawing the t-shirt from sale at all UK locations.143 Again in this instance, freedom of expression had lost in the face of public scrutiny. Outside the UK, the t-shirt has also earned considerable attention,144 being officially banned in New Zealand.145 On the 26th of June 2008, the New Zealand Office of Film and Literature Classification released classification decision number 800513, regarding the apparel entitled "Vestal Mastur#ation (Cradle of Filth)". In its decision, Ms Nicola McCully, 140 "Cradle of Filth: They're Sicks Sicks Sicks!" NME November 1 1998 located at http://www.nme.com/news/cradle-of-filth/688 141 The band were quick to seize on the publicity, featuring the quote on the back cover of their DVD "Peace Through Superior Firepower". See "Cradle of Filth: Peace Through Superior Firepower" DVD Empire located at http://www.dvdempire.com/762279/cradle-of-filth-peace-through-superior-firepower-movie.html 142 "Tower of Strength" NME January 12 2001 located at http://www.nme.com/news/cradle-of-filth/5975 143 "Shopkeeper Who Sold 'Obscene' Jesus T-Shirt Escapes Trial For Prejudice" The Scotsman 8 November 2007 located at http://www.scotsman.com/news/shopkeeper-who-sold-obscene-jesus-t-shirt-escapes-trial-forprejudice-1-699026 144 "Man Fined for Selling 'Offensive' Cradle of Filth T-Shirt" Blabbermouth.net located at http://www.blabbermouth.net/news/man-fined-for-selling-offensive-cradle-of-filth-t-shirt/ 145 "Censor's Ban on 'Cradle of Filth' T-Shirt" Scoop located at http://www.scoop.co.nz/stories/PO0807/S00009.htm 25
  26. 26. deputy Chief Censor, wrote of the "injury to the public good that is likely to be caused by the availability of this T-shirt" and commented further that "a fair interpretation of the messages conveyed by this T-shirt is that Christians should be vilified for their religious beliefs, and that women including caste and celibate women, cannot stop themselves engaging in sexual activity".146 The decision was hailed by John Mills, President of the New Zealand Society for Promotion of Community Standards, who regarded the decision as "bold, morally courageous and legally sound".147 A cursory examination of blasphemy law in New Zealand renders these comments curious at best, as though there exists the charge of blasphemous libel (section 123 of the New Zealand Crimes Act 1961) there has historically only been one successful charge of blasphemy in New Zealand148, that being John Glover in 1922.149 More-so however, Mills comments seem to conflict with the broader application of the New Zealand Bill of Rights Act 1990, specifically Section 14 which protects freedom of expression.150 Regardless, such legislative protections have not stopped New Zealand fans of the band and merchants from considerable scrutiny over the shirt, with attempts to circumvent the decision of the Office of Film and Literature Classification since its ban in 2008. Retailer Warren Craig Skill was fined $500 NZD151 on a charge of "possessing an objectionable publication", derived from the Films, Videos and Publications Classification Act.152 An order 146 "Censor's Ban on 'Cradle of Filth' T-Shirt" Scoop located at http://www.scoop.co.nz/stories/PO0807/S00009.htm 147 Ibid 148 Note that a prosecution for blasphemy may only proceed with leave from the New Zealand AttorneyGeneral. See Ahdar, R.T. (2008) "The Right to Protection of Religious Feelings" Otago Law Review Vol 11 No 4 pp629-656 149 "Story: Religion and Society" The Encyclopaedia of New Zealand located at http://www.teara.govt.nz/en/religion-and-society/page-6 150 New Zealand Bill of Rights Act 1990 s14 located at http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225513.html 151 "Man Fined for Selling Derogatory Clothing" The Southland Times 15 February 2012 located at http://www.stuff.co.nz/southland-times/news/6418972/Man-fined-for-selling-derogatory-clothing 152 Films Videos and Publications Classification Act 1993 located at http://www.legislation.govt.nz/act/public/1993/0094/latest/DLM312895.html 26
  27. 27. was made by the Invercargill District Court to destroy the garments.153 Skill had commented that he was unaware of the ban, and noted that the shirt had been one of his stores fastest selling items.154 Thus, despite the 2008 ban effectively making any act of "possessing, wearing distributing or selling the t-shirt, or another top with the same wording or imagery, illegal"155 fans and retailers have taken issue with the classification board's decision.156 Interestingly the shirt is still available for import157 suggesting that the conflict of laws at play here between the classification board's decision and the NZ Bill of Rights Act 1990 is yet to be fully clarified. Australia too has faced scrutiny from the JIAC shirt, though to a lesser extent than in New Zealand and the UK. In 2010 a fan by the name of Alexsei Vladmir Nikola faced public nuisance charges for sporting the shirt in the Brisbane CBD,158 and similarly a Gold Coast Teenager was charged with offensive behaviour under the Summary Offences Act 2005 (QLD) in 2008.159 Further, a Townsville woman faced scrutiny for wearing the t-shirt in a shopping mall in 2001,160 whilst another Queenslander by the name of Mathew John Bowdler 153 xFiruath (2011) ""Jesus is a Cunt" Cradle of Filth Shirts Reportedly Seized from Invergcargill Store" Metal Underground June 8 located at http://www.metalunderground.com/news/details.cfm?newsid=68976 154 "Man Fined for Selling Derogatory Clothing" The Southland Times 15 February 2012 located at http://www.stuff.co.nz/southland-times/news/6418972/Man-fined-for-selling-derogatory-clothing 155 xFiruath (2011) ""Jesus is a Cunt" Cradle of Filth Shirts Reportedly Seized from Invergcargill Store" Metal Underground June 8 located at http://www.metalunderground.com/news/details.cfm?newsid=68976 156 Note incidents as described in Bowden, Anna (2006) "Offensive Religious T-Shirt Angers" Bay of Plenty Times 28 February p3 and Dudding, Adam (2010) "Nice Pens, a Rude T-Shirt and Sausages" Sunday Star Times 8 August p8 both in Pringle, Helen (2011) "Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws" UNSW Law Journal Vol 34 (1) p318 157 For example, see the popular heavy metal merchandising website "Rockabilia" who ship worldwide "Cradle of Filth" Rockabilia located at http://www.rockabilia.com/cradle-of-filth-vestal-masturbation-t-shirt.html as well as the bands official webshop "Vestal Masturbation - Long Sleeve T-Shirt" JSR Direct located at http://www.jsrdirect.com/bands/cof/vestal-masturbation-long-sleev?options=cart. Note that this also has the option to ship to New Zealand. 158 Bentley, A. (2010) "Heavy Metal Fan Charged Over T-Shirt" Brisbane Times October 7 located at http://www.brisbanetimes.com.au/queensland/heavy-metal-fan-charged-over-tshirt-20101007-168u8.html 159 "Cradle of Filth - Australian Teenager Arrested for his Supposedly Blasphemous T-Shirt" Religious Watch 26th June 2008 located at http://www.religiouswatch.com/thread00243_cradle_of_filth.htm 160 Bettina Giardina, (2001) 'How Dare She: Woman Wore Offensive Shirt in Shopping Mall" Townsville Bulletin 4 May in Pringle, Helen (2011) "Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws" UNSW Law Journal Vol 34 (1) p318 27
  28. 28. was fined for sporting the shirt in 2003.161 Despite such incidents however, Australian merchants have not faced the same pressure as those abroad for stocking or selling the item, nor has the shirt come before Australian Classification Board. Similarly the item remains readily available for ordering through the internet.162 The Band Speaks The preceding analysis exemplifies the tremendous controversy that the JIAC t-shirt has disgorged across multiple jurisdictions and sectors of society. Yet little attention has been paid to the band's intensions behind the shirt's release, or the message that they are trying to advance with it. When interviewed, the band's vocalist Dani Filth163 commented "It's got nothing to do with the Church...I agree, it's a very over-board statement to make, but it was an adversity, going against the usual mediocre statement of 'Jesus Loves You'. I mean, what does it mean? The 'Jesus is a Cunt' thing is just a reaction to that".164 The band's thendrummer, Nicholas Barker, having been scrutinised multiple times for wearing the shirt165 added "everything's censored over here. Basically, because of the bullshit in England, it was like having a go at the establishment. You know, I'm an Adult, I can think for myself, yet we're told what to do, what we can watch and what we can't watch."166 These comments suggest that the band are simply protesting what they perceive as unquestionable societal adherence to the influences of the Church of England and further, of censorship and restrictions on one's individual liberty and freedom of choice. The band has not shown a specific intention to cause blasphemous libel, even though this was its practical 161 Bettina Giardina, (2001) 'How Dare She: Woman Wore Offensive Shirt in Shopping Mall" Townsville Bulletin 4 May in Pringle, Helen (2011) "Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws" UNSW Law Journal Vol 34 (1) p318 162 "Cradle of Filth Bring Back Infamous Jesus Is A Cunt Shirts; Now Available Via Official Webshop" Brave Words & Bloody Knuckles November 14 2011 located at http://www.bravewords.com/news/172578. 163 Also known as Dani Davey 164 "Bloodsongs Interview" MkCof 1997 located at http://mkcof.tripod.com/i2.htm 165 As discussed above. 166 "Bloodsongs Interview" MkCof 1997 located at http://mkcof.tripod.com/i2.htm 28
  29. 29. effect. Here the British act can be differentiated from those in the preceding discussion surrounding black metal bands in Norway as regards the issue of blasphemous intent, as entirely different legal contexts have framed the response to their respective actions. One can speculate as to the legal and media response to the Norwegian musicians in question had their acts taken place within England or a similar common law jurisdiction. Blasphemy Worldwide - Russia As the preceding analysis explored, the legal regime that has characterised these acts has focused on the civil or criminal aspects (including charges of public nuisance, importing a prohibited product and arson) rather than utilise any of the blasphemous libel charges available. This suggests an inherent motive to move away from what has been critiqued as a draconian167 and outdated law.168 Yet elsewhere in the world, the law of blasphemy not only remains, but is growing,169 with some nations drafting new legislation170 in an effort to curtail what is perceived as growing social unrest. For example, Russia has recently ushered in a new set of laws171 designed to combat the ability to insult "religious feelings" in a move strongly backed by both the Russian 167 See, for example, the law's repulsion from Holland in Bezhan, F., "Dutch Parliament To Revoke Blasphemy Law" Radio Free Europe Radio Liberty November 5 2013 located at http://www.rferl.org/content/dutchparliament-revokes-blasphemy-law/24785198.html 168 For commentary see "Blasphemy Law Outdated, Says Dobson" British Broadcasting Corporation 21 November 2001 located at http://news.bbc.co.uk/2/hi/uk_news/politics/1668192.stm 169 Note recent comments made by A Catholic Bishop in Germany: "Bishop Calls for Blasphemy Laws" The Local 2 August 2012 located at http://www.thelocal.de/society/20120802-44127.html 170 See for example the case of Ireland, who in 2009 enacted the Defamation Act 2009, specifically s36 covering the "publication or utterance of blasphemous matter" located at http://www.irishstatutebook.ie/2009/en/act/pub/0031/sec0036.html , However, note commentary by O'brien, K.A. (2002-2003) "Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law" University of Connecticut Journal of International Law p395 171 Russia has also recent introduced laws aimed at curbing homosexual "propaganda" though this topic is outside the scope of this paper: Weaver, C. (2013) "Russia Gay Propaganda Law Fuels Homophobic Attacks" Financial Times August 16 located at http://www.ft.com/cms/s/0/71eaa49e-0580-11e3-8ed500144feab7de.html#axzz2inmBZEc0 [free subscription required for access] 29
  30. 30. Orthodox Church and Russian Government.172 The amendments to its Penal Code came as three members of the Russian punk-rock band "Pussy Riot" were incarcerated for "hooliganism"173, legally defined as "any deliberate behaviour that violates public order and expresses explicit disrespect toward society" under Article 216 of Russia's penal code.174 Here it appears that hooliganism is used as a broad term to encapsulate conduct that goes against the established order. The parallels between this definition and the intentions of those associated with the early Norwegian black metal movement seem readily apparent. Russia also has a bill currently under consideration proposing prison sentences for "desecration", which would include the destruction of Church property and other 'sacrilegious' acts.175 Again, such legislation seems eerily reminiscent of that debated in Scandinavia during the 1990s, however in this case, it appears that the legislation is more protective of the religious right than the human rights protections that have prevailed elsewhere. The Arab World Though heavy metal does exist within the Arab World,176 it very much lingers in the underground,177 and in States with well established blasphemy laws178 there is a growing 172 Duke, Barry (2013) "Russia Embraces Religious Intolerance With Draconian Blasphemy and Anti-Gay Laws" The Freethinker June 12 located at http://freethinker.co.uk/2013/06/12/russia-embraces-religiousintolerance-with-draconian-blasphemy-and-anti-gay-laws/ 173 Smith-Spark, L. (2012) "Russian Court Imprisons Pussy Riot Band Members on Hooliganism Charges" Cable News Network August 18 located at http://edition.cnn.com/2012/08/17/world/europe/russia-pussy-riottrial/index.html 174 O'brien J. (2012) "Pussy Riot Hooliganism" Global Post August 17 located at http://www.globalpost.com/dispatch/news/regions/europe/russia/120817/pussy-riot-hooliganism 175 "'Jail for Sacrilige': Vandalism by Pussy Riot Supporters Angers MPs" Russia Today August 22 2012 located at http://rt.com/politics/sacrilege-law-church-punishment-272/ The Norwegian incidents of the 1990s would likely come under these laws. 176 See for example bands discussed in "The Official Site of Arabian Rock & Metal Music" Arabian Metal located at http://www.arabianmetal.com/news.php and note the response to heavy metal bands playing in Muslim-majority countries, such as Lamb of God, as discussed above. 177 See for example Janaza (Iraqi anti-Islamic one-woman black metal project) and others as discussed in Kelly, K. (2012) "When Black Metal's Anti-Religious Message Gets Turned on Islam" The Atlantic July 11 located at http://www.theatlantic.com/entertainment/archive/2012/07/when-black-metals-anti-religious-message-getsturned-on-islam/259680/ 178 Particularly those where Sharia Law operates, for example Afghanistan, Malaysia, Saudi Arabia and many more. Note that in several of these jurisdictions, the penalty for blasphemy is death. See for example Aeneas (2013) "Shi'a Cleric Sentenced to Death for Blasphemy in Saudi Arabia" International Civil Liberties Alliance 30
  31. 31. movement to have such restrictions widely expanded.179 As discussed above, works such as Salman Rushdie's "The Satanic Verses" have long been deemed blasphemous180 across the Middle East resulting in its banning in multiple countries and widespread calls for the death of its Author.181 More recently however, it is another Western work that has inflamed the debate182, with the American "YouTube" film trailer "Innocence of Muslims" causing global183 furore184 and resulting in the blocking of the film185 and the video-hosting website186 in multiple Arab and Muslim-majority countries.187 The film has served as a catalyst to have long-running domestic blasphemy laws188 expanded, and at a September 2012 meeting of the United Nations did blasphemy take centre stage as a global issue.189 April 21 located at http://www.libertiesalliance.org/2013/04/21/shia-cleric-sentenced-to-death-for-blasphemyin-saudi-arabia-sign-the-petition-calling-for-the-immediate-release-of-ayatollah-nimr-baqr-al-nimr/ 179 McCormick, T. (2012) "Why is Saudi Arabia Beefing Up its Blasphemy Laws?" Foreign Policy July 12 located at http://blog.foreignpolicy.com/posts/2012/07/17/why_is_saudi_arabia_beefing_up_its_blasphemy_laws_0 [free subscription required for access] 180 Note that in Islam there is no direct equivalent of the Christian/British notion of blasphemy but insulting God, Muhammad or any related scripture is deemed a serious crime under Sharia law. See Hassan, R. (2006) ‘Expressions of Religiosity and Blasphemy in Modern Societies’, in E.B. Coleman and K. White (eds) Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, pp. 119–30. Canberra: ANU E Press. 181 See Rushdie, S. (2012) "The Disappeared" The New Yorker September 17 located at http://www.newyorker.com/reporting/2012/09/17/120917fa_fact_rushdie 182 In addition to the furore caused by the Jyllands-Posten Muhammad Cartoons Controversy. See Shields, M. (2012) "Danish Mohammad Cartoonist Rejects Censorship" Reuters September 20 located at http://www.reuters.com/article/2012/09/20/us-protests-cartoonist-idUSBRE88J0BY20120920 183 See for example, the sentencing in absentia of its director to death in an Egyptian Court. "'Innocence of Muslims' Filmmaker Sentenced To Death in Egypt" The Sydney Morning Herald November 29 2012 located at http://www.smh.com.au/world/innocence-of-muslims-filmmaker-sentenced-to-death-in-egypt-201211292ahvx.html 184 Notably, even Salman Rushdie has condemned the film. Elgot, J. (2012) "Muslims Call For Blasphemy Law in UK and UN to Prevent Repeat Of Anti-Mohammad YouTube Film" The Huffington Post UK 25 September located at http://www.huffingtonpost.co.uk/2012/09/25/muslims-blasphemy-law-uk-un-mohammedyoutube_n_1912004.html 185 Gross, M.J. (2012) "Disaster Movie" Vanity Fair December 27 located at http://www.vanityfair.com/culture/2012/12/making-of-innocence-of-muslims 186 Zielenziger, D. (2013) "Google Blocking Access to 'Innocence of Muslims' In Middle East, India" International Business Times 4 November located at http://www.ibtimes.com/google-blocking-access%E2%80%98innocence-muslims%E2%80%99-middle-east-india-789258 187 Though note that the Russian Justice Ministry has also banned the film "Russia Bans 'Innocence Of Muslims' Video As Extremist" Radio Free Europe Radio Liberty October 2 2012 located at http://www.rferl.org/content/russia-innocence-of-muslims-banned/24726173.html 188 Blasphemy laws are already enacted across most Muslim-majority nations including Iran, Indonesia and Pakistan. See for example Thames, Knox (2012) "The Ravages of Pakistan's Blasphemy Law" Freedom House located at http://www.freedomhouse.org/blog/ravages-pakistan%E2%80%99s-blasphemy-law 189 Elgot, J. (2012) "Muslims Call For Blasphemy Law in UK and UN to Prevent Repeat Of Anti-Mohammad YouTube Film" The Huffington Post UK 25 September located at 31
  32. 32. An Ideological Divide In a Press Conference following the heated debate190, UN Secretary-General suggested that limitations to freedom of speech were appropriate when such speech was "used to provoke or humiliate"191 adding that "freedom of expression, while it is a fundamental right and privilege, should not be abused by such people, by such a disgraceful and shameful act".192 Western commentators have responded fiercely193, with The Australian's Albrechtsen commenting "it is not enough that illiberal countries such as Pakistan long have used these abhorrent laws to persecute minorities. Radical Muslims...want global blasphemy laws available to Muslim minorities in the West, to suppress criticism of Islam in their new countries."194 Thus here we see two sides of an ideological divide as regards the regulation of blasphemy. Between those that see freedom of speech as an inalienable right195 that can be used to defend views that go against the established norms of a majority, and others who believe that that those same established norms should be protected and respected, even if that comes at the cost of human rights. Responses to the debate will invariable depend on the social and cultural context in which the author operates196 and thus, with such a firm ideological divide, it seems as if this topic will undoubtedly remain to be debated in the years to come. http://www.huffingtonpost.co.uk/2012/09/25/muslims-blasphemy-law-uk-un-mohammedyoutube_n_1912004.html 190 See Richter, Paul (2012) "Blasphemy Campaign Threatens to Derail UN" The Sydney Morning Herald September 26 located at http://www.smh.com.au/world/blasphemy-campaign-threatens-to-derail-un-2012092526jh5.html 191 "Press Conference by Secretary-General Ban Ki-Moon At United Nations Headquarters" United Nations 19 September 2012 located at http://www.un.org/News/Press/docs/2012/sgsm14518.doc.htm 192 Ibid 193 Including those at the U.N. See Evans, Robert (2013) "End Blasphemy Laws Threatening Minorities: U.N. Faith Expert" Reuters March 6 located at http://www.reuters.com/article/2013/03/06/us-un-religion-rightsidUSBRE9251LV20130306 194 Albrechtsen, J. (2012) "Say It While You Can, Global Blasphemy Laws Would Be An Abomination" The Australian September 26 2012 located at http://www.theaustralian.com.au/opinion/columnists/say-it-while-youcan-global-blasphemy-laws-would-be-an-abomination/story-e6frg7bo-1226481355256# 195 For an in-depth discussion of the human rights issues at play see Freedom House "Policing Belief: The Impact of Blasphemy Laws on Human Rights" located at http://www.freedomhouse.org/report/specialreports/policing-belief-impact-blasphemy-laws-human-rights 196 Note the interesting discussion on "legal relativism" put forth by Unsworth, C. (1995) "Blasphemy, Cultural Divergence and Legal Relativism" Modern Law Review Vol 58 p658 32
  33. 33. Conclusion The preceding analysis paints a multifarious, malleable picture in which approaches to blasphemy vary considerably based on surrounding legal and social contexts. In many Western States the law has developed considerably over time to a point of disuse, and eventual repeal. In other Western, Eastern and Islamic States blasphemy laws remain, with some States incorporating blasphemy as a law with criminal repercussions, and in others where the penalty is of a more civil and pecuniary nature. Heavy metal serves as a useful case study comparing these approaches, and further as a means of exploring the tensions that often arise between the protection of religious sensibilities and the promotion of free speech. Fundamentally however, this commentary seeks to illustrate a law that is at a crossroads, and a debate that will likely remain front of mind for the foreseeable future. 33
  34. 34. Bibliography Academic Articles Ahdar, R.T. (2008) "The Right to Protection of Religious Feelings" Otago Law Review Vol 11 No 4 pp629-656 Bennett, Andy (2001) "Cultures of Popular Music" Open University Press 1st Edition Berkshire United Kingdom p56 Brown, H. H. (1918). Old Scots Law of Blasphemy. Juridical Review, Vol 30 p56 Clarke, Jennifer; Keyzer, Patrick; Stellios, James (2009). Hanks' Australian Constitutional Law: Materials and Commentary (8th ed.). Chatswood, NSW: LexisNexis Butterworths. Cope, A. L. (2010). Black Sabbath and the rise of heavy metal music. Ashgate Publishing, Ltd.. Cordero, Jonathan (2009) "Unveiling Satan's Wrath: Aesthetics and Ideology in Anti-Christian Heavy Metal" Journal of Religion and Popular Culture Vol 21(1) Spring Cumper, P. (2007) "The United Kingdom and the U.N. Declaration on The Elimination of Intolerance and Discrimination Based on Religious Belief" Emory International Law Review Vol 21 pp13-42 Edward Royle (1980) Radicals, Secularists, and Republicans: Popular Freethought in Britain, 1866-1915, Manchester University Press p282 Elliott, D. W. (1993). Blasphemy and other Expressions of Offensive Opinion. Ecclesiastical Law Journal, Vol 3 (313) p70 Fernandes, D. A. (2003). Protection of Religious Communities by Blasphemy and Religious Hatred Laws: A Comparison of English and Indian Laws. Journal of Church & State. Vol 45 pp669 Goodie, J., & Wickham, G. (2002). Calculating ‘Public Interest’: Common Law and the Legal Governance of the Environment Social & Legal Studies, Vol 11 No 1, 37-60. Granholm, Kennet (2011) ""Sons of Northern Darkness": Heathen Influences in Black Metal and Neofolk Music" Numen No 58 pp514-544 Gregg, Lindsay D. (2002) "Freedom of Expression and Music Contracts: Is There a Place for Blasphemy Anymore?" Entertainment Law Vol 1 No 3 Autumn pp53-71 Hamburger, P. (1985). The Development of the Law of Seditious Libel and the Control of the Press. Stanford Law Review, 661-765 Harris, B. (1998). Pell v. Council of Trustees of the National Gallery of Victoria-Should Blasphemy Be a Crime-The Piss Christ Case and Freedom of Expression. Melbourne University Law Review Vol 22 p217 Hassan, R. (2006) ‘Expressions of Religiosity and Blasphemy in Modern Societies’, in E.B. Coleman and K. White (eds) Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, pp. 119–30. Canberra: ANU E Press. Hjelm T., Kahn-Harris, K. and LeVine, M. (2012) "Heavy Metal as Controversy and Counterculture" Popular Music History Equinox Publishing pp1-14 Holdsworth, W. S. (1920). State and Religious Nonconformity: An Historical Retrospect. Law Quarterly Review Vol 36, p339. Hole, Robert (1989) "Pulpits, politics and public order in England, 1760–1832." Cambridge: Cambridge University Press 34
  35. 35. Jeremy, A. (2003). Religious Offences. European Journal of Crime, Criminal Law and Criminal Justice Vol 7, pp127-127 Jones, P. (1980). Blasphemy, Offensiveness and Law. British Journal of Political Science, Vol 10 No 2, 129-48 Law Reform Commission New South Wales, Discussion Paper 24(1992) – Blasphemy Levy, L.W. (1995) "Blasphemy: Verbal Offense against the Sacred from Moses to Salman Rushdie" Chapel Hill: University of North Carolina Press Marsh, Joss. (1998) "Word Crimes: Blasphemy, Culture, and Literature in Nineteenth-Century England" Chicago: University of Chicago Press Mishrell, Kirk W. (2012) "Rockin' The Tritone: Gender, Race & The Aesthetics of Aggressive Heavy Metal Subcultures" George State University History Thesis located at http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1053&context=history_theses Nash, D. (1999) "Blasphemy in Modern Britain: 1789 to the Present" Ashgate Publishing London pp1-300 Nash, D. (2003). Legal Definitions of Religion in Historical Context: Toleration versus Freedom-Some Lessons from Blasphemy. JCL, No 8 p131. Nash, D. (2008) "To Prostitute Morality, Libel Religion and Undermined Government": Blasphemy and the Strange Persistence of Providence in Britain since the Seventeenth Century" Journal of Religious History Vol 32 No 4 pp439-456 O'Brien, K.A. (2002-2003) "Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law" University of Connecticut Journal of International Law p395 Patrick, J. (2010) "Canadian Blasphemy Law in Context: Press, Legislative and Public Reactions" Annual Survey of International and Comparative Law Vol 16 Issue 1 pp129-163 Patrick, J. (2011). Curious Persistence of Blasphemy, The Florida Journal of International Law, Vol 23 p187. Post, RC (1988) "Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment" California Law Review Vol 76 no 297 pp305-324 Post, R. C. (1988). Blasphemy, The First Amendment and the Concept of Intrinsic Harm. Tel Aviv University. Stud. Law., Vol 8 p293 Pringle, Helen (2006) ‘Are we capable of offending God? Taking blasphemy seriously’, in Elizabeth Burns Coleman and Kevin White (eds.), Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, Canberra: ANU E Press, pp. 31-43, at p. 32. Pringle, Helen (2011) "Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws" UNSW Law Journal Vol 34 (1) p318 Routledge, G. (1989) "Blasphemy: The Report of the Archbishop of Canterbury's Working Group on Offences Against Religion and Public Worship" Ecclesiastical Law Journal Vol 1 No 4 pp27-32 Stephen, J. F. (1887) "A Digest of the Criminal Law (Crimes and Punishments)" Macmillan Publishing London Unsworth, C. (1995) "Blasphemy, Cultural Divergence and Legal Relativism" Modern Law Review Vol 58 p658 Weinstein, D. (2009). Heavy Metal: The Music and its Culture. Da Capo Press. Cambridge Williams, Thomas J.T. (2012) "A Blaze in the Northern Sky: Black Metal and Crimes Against Culture" Public Archaeology Vol 11 No 2 pp59-72 35
  36. 36. Wintemute, R. (1995). Blasphemy and Incitement to Hatred Under the European Convention. Kings College Law Journal Vol 6 p143 Wright R. (2000) "I'd Sell You Suicide: Pop Music and Moral Panic in the Age of Marilyn Manson" Popular Music Vol 19 No 3 pp365-385 Newspaper Articles and Other Media "About Lamb of God" MTV Artists located at http://www.mtv.com/artists/lamb-of-god/biography/ Aeneas (2013) "Shi'a Cleric Sentenced to Death for Blasphemy in Saudi Arabia" International Civil Liberties Alliance April 21 located at http://www.libertiesalliance.org/2013/04/21/shia-cleric-sentenced-to-death-forblasphemy-in-saudi-arabia-sign-the-petition-calling-for-the-immediate-release-of-ayatollah-nimr-baqr-al-nimr/ Aktualizacja, O. (2012) "Doda Skazana Za Obraze Uczuc Religijnych" Rzeczpospolita 18 June located at http://www.rp.pl/artykul/21,894222-Doda-skazana-za-obraze-uczuc-religijnych.html [translated using Google Translate online software]. Albrechtsen, J. (2012) "Say It While You Can, Global Blasphemy Laws Would Be An Abomination" The Australian September 26 2012 located at http://www.theaustralian.com.au/opinion/columnists/say-it-while-youcan-global-blasphemy-laws-would-be-an-abomination/story-e6frg7bo-1226481355256# "Andre Krenkelser" located at http://www.nored.no/Juss/Andre-krenkelser [Translated using Google Translate online software] "Ban Lamb of God Show as its Songs are mix of Metal, Quaranic Verses, Says Jakim - Bernama" The Malaysian Insider August 31 2013 located at http://www.themalaysianinsider.com/malaysia/article/jakimobjects-to-lamb-of-gods-performance-bernama BBC (2008) "On this Day: 1989 - Ayatollah Sentences Author to Death" British Broadcasting Corporation located at http://news.bbc.co.uk/onthisday/hi/dates/stories/february/14/newsid_2541000/2541149.stm Beckford, M. (2008) "Blasphemy Laws are Lifted" The Telegraph 10 May located at http://www.telegraph.co.uk/news/1942668/Blasphemy-laws-are-lifted.html Bentley, A. (2010) "Heavy Metal Fan Charged Over T-Shirt" Brisbane Times October 7 located at http://www.brisbanetimes.com.au/queensland/heavy-metal-fan-charged-over-tshirt-20101007-168u8.html Bettina Giardina, (2001) 'How Dare She: Woman Wore Offensive Shirt in Shopping Mall" Townsville Bulletin 4 May Bezhan, F., "Dutch Parliament To Revoke Blasphemy Law" Radio Free Europe Radio Liberty November 5 2013 located at http://www.rferl.org/content/dutch-parliament-revokes-blasphemy-law/24785198.html "Bishop Calls for Blasphemy Laws" The Local 2 August 2012 located at http://www.thelocal.de/society/20120802-44127.html "Blasphemy Law Outdated, Says Dobson" British Broadcasting Corporation 21 November 2001 located at http://news.bbc.co.uk/2/hi/uk_news/politics/1668192.stm "Bloodsongs Interview" MkCof 1997 located at http://mkcof.tripod.com/i2.htm Bowden, Anna (2006) "Offensive Religious T-Shirt Angers" Bay of Plenty Times 28 February p3 BNR Metal Pages "Burzum" located at http://www.bnrmetal.com/v3/band/band/Burz Burton, P. (1994) "Obituary: Denis Lemon" The Independent 23 July located at http://www.independent.co.uk/news/people/obituary-denis-lemon-1415565.html 36

×