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through the use of public reason to establish the rights persons have: only a
partisan conception of public reason could deliver the special protection
accorded to Christians by UK blasphemy law. And an extension of the law in
this way would justify banning SV, just as the law was used to justify the 1977
prosecution of the periodical Gay News for the publication of a poem which
included fantasies about homosexual sex with the crucified Christ (this was the
last successful prosecution brought under this law).
There are four responses to the  profound offence interpretation. First, if
blasphemy law were extended so as to cover Islam then the logic of the argu-
ment would require that it be extended to cover all religions. In order for this to
ARTISTIC EXPRESSION 131
occur the state would have to grant to certain groups the official status of  reli-
gion . But what criteria could be used to make such distinctions? And, more
importantly, would we want to trust the state to devise these criteria and then
apply them correctly? Given the worries aired by Schauer, serious doubts are in
order here.
Second, even if the state could formulate such criteria and be trusted to
apply them correctly, why should religious people be singled out as deserving of
special protection in criminal law? Profound offence is not exclusive to such
people: patriots, atheists, vegetarians, feminists  in fact, anyone possessed of
any deep and heartfelt convictions (indeed, and contra the often repeated quip
that a liberal is someone who can t take their own side in an argument, liberals
included)  is in a position to suffer profound offence. A non-partisan account
of public reason used to set the limits of toleration ought not to discriminate
between religious and non-religious people, in which case the blasphemy legis-
lation should be extended to cover all people of conviction (which, at least on
some issues, is most of us).55 This would make the law seriously unwieldy, and
hugely increase the possibilities for criminal prosecution.
Third, even if these problems are tractable, it is not clear that an extension
of the blasphemy law would provide Muslims with protection from the form of
harm caused to them by SV, on this interpretation. Blasphemy law addresses the
manner not the matter of an act of expression: it renders criminal any
 contemptuous, reviling, scurrilous or ludicrous treatment of Christian belief
and practice. But the profound offence (if such it was) taken by Muslims at SV
related not only  and perhaps in some cases, not at all  to the manner of
Rushdie s expression, but rather to its matter.56 What many Muslims objected to
in SV was the presentation of Muhammad as a lecherous, money-grabbing
power-seeker, not Rushdie s mocking tone or the satirical tenor of his treatment
of Islam: their objections would not have been mitigated had Rushdie used
 decent and temperate language in presenting Muhammad as a lecherous,
money-grabbing power-seeker. In that case, calls for the extension of blasphemy
law miss the point of the harm caused to Muslims by SV.
Fourth, and finally, ignoring these problems it remains the case that
profound offence, as painful and unpleasant as it is, is not a form of harm to be
addressed through the criminal law on the liberal paradigm. As we saw in
chapter 6, although this paradigm registers profound offence as a serious cate-
gory of harm, such offence is nevertheless not sufficient to justify legislation to
restrict material that causes it, under this paradigm, because profound offence is
not something that persons have a right to be protected against, given an
account of rights justified by appeal to public reason: rights do not extend to a
person protection from her own unpleasant mental states.57 On this account,
rather than extending the law on blasphemy, it ought to be abolished alto-
gether.58
For many liberals, that is the end of the matter with respect to the Muslim
complaints: the profound offence they experienced in response to SV was
undoubtedly real, and regrettable, but a just society cannot legislate to protect
132 TOLERATION
its members from this harm.59 However, it is not the end of the matter, for there
is another way in which to interpret the Muslim objections which makes no
reference to the profound offence SV may (or may not) have caused, and which
is clearly not as easy to dismiss from within the liberal paradigm as a whole, and
given details of some of the classic defences of freedom of expression discussed
in the previous section. In the remainder of this chapter I shall consider the
argument that SV constitutes group libel or defamation and thereby impacts on
race relations in a way damaging to the ideal of democratic community.
Doubts about the adequacy of blasphemy law as a tool for addressing the harm
caused to Muslims by SV on the  profound offence interpretation arose because
such offence was taken not only  and not primarily  at the manner of expression
in the book, but at its matter; that is, at its treatment of Islam and its portrayal of
Muhammad. However, there are further problems related to the  profound
offence interpretation per se. Offence is something suffered by an individual
person; it is constituted by a set of judgements (actual, or implied by the experi-
ence of the offence) which only an individual can make. However, an important
dimension of the putative harm caused by SV is that it was suffered by Muslims as
a group. When many Muslims objected to SV they did so not (or at least, not
primarily) on the grounds that they as individuals had been harmed, but rather on
the grounds that the book damaged the community of Muslims  and their shared
faith  as a whole. Characterising Muslim complaints simply in terms of profound
offence fails to register this significant aspect of the debate. One way to encom-
pass this strand is to interpret the harm Muslims suffered in terms of group libel or
defamation. Bhikhu Parekh describes libel per se as follows,
[L]ibel . . . consists in making public, untruthful and damaging remarks
about an individual that go beyond fair comment. Libel is an offence not so
much because it causes pain to, or offends the feelings of, the individual
concerned, for the damaging and untruthful remarks made in private do not
constitute libel, as because they lower him in the eyes of others, damage his
social standing, and harm his reputation.60
Libel relates to the content of what is said, and damages the status of the person
who suffers it. This is reasonably intuitive: if another person publicly declares me to
be a thief and liar when I am not, then my career may be damaged and my friends
(actual and potential) may shun me. It is not so clear, however, how the concept of
libel might apply to groups. What is the harm done to Muslims as a group by
Rushdie s portrayal of Muhammad as a conniving and lustful opportunist?
Tariq Modood suggests that the aggressive expressive attacks in SV on the
beliefs and practices of Muslims might be seen as a continuation of the histor-
ical persecution of Muslims by Christians in Western societies. When power
relations in a society are unequal, and there is a history of persecution of the less
powerful group by the more powerful group, then expressive attacks on the less
powerful group will entrench prejudices and thereby continue a cold war of
persecution. With respect to Muslims, Modood claims,
ARTISTIC EXPRESSION 133
[historical] vilification of the Prophet [as a lewd, dishonest, dissembling
power seeker] and of [Islam] is central to how the West has expressed
hatred for [Muslims] and . . . has led to violence and expulsion on a large
scale.61 [ Pobierz całość w formacie PDF ]