Following Minister for Justice, Dermot Ahern‘s public statement, it is pretty clear now that the Irish Government is introducing the new legislation to appease the constitution, and that a referendum will eventually amend it subject to overwhelming public opposition to the curtailment. However, what follows is (purely hypothetical) consideration of the best way of protecting society from blasphemy.
First of all, imposing an externality charge on an individual when an act has negative repercussion for another individual in society makes no value judgement. It doesn’t indicate any hierarchy of rights, or preference for one over the other. Rather, it’s just a recognition that there is harm caused. In this case, religious groups have been offended.
The best and most efficient way to protect society from this harm (if society democratically deemed it to be as much), would be to create a “right not to have sacred elements of your religion intentionally and outrageously assaulted” which could be enforced through civil law. Inclusion of intent prevents the otherwise chilling effect on free speech, where individuals censor themselves unnecessarily our of fear. However, it may create incentives for irresponsible behaviour.
Provided that the damages could be estimated, this would allow settlement and compensation transferred to the injured party (probably a class of religious individuals, with the money going to a charity). Thus, all costs and benefits are taken into account when the decision of whether or not to blaspheme is made.
If they censor themselves, the damage in free speech is clearly worth less than the harm that would have accrued to the religious group. If they are punished, we’re just ensuring the optimal production of outrageously blasphemous material.
If it seems like freedom of speech is being infringed upon, it’s probably because blasphemous material would (if brought before a court) be insulting many people. Meanwhile, there are few benefits of the material except to the individual. However, this observation has a sinister corollary.
If there wasn’t quite a low cap on the possible damages that could be paid in any single case, the lingering threat from religious groups of legal action could have a chilling effect on free speech. The cost in defense, and general imposition, might be enough to deter publication. It could be suspected that blasphemers would exhibit risk-aversion in any case, if they could be liable to pay large damages.
Of course, this is assuming there are limited positive externalities from exercising free speech. Perhaps the benefits to society from having unmitigated free speech are greater than the sum of marginal benefits?
© The Free Marketeer 2009