Prosecution for Offending Religion Allowed to Go Forward reports:

“The crime of offending religious sensibilities is committed not only by he who intends to carry it out, but also by he who is aware that his actions may lead to offence being taken,” [Poland's Supreme Court concluded on Monday].

Prof. Howard Friedman (Religion Clause) points to the court decision, and my father knows Polish and helpfully translated some passages for me. Here’s the scoop:

1. This all started in 2007, when defendant Adam Darski — lead singer for the Polish death metal band Behemoth, and apparently quite a celebrity in Poland — tore up a copy of the Bible at a concert, threw the pieces in the direction of the audience, while saying, “This is a book of lies. Fuck this shit. Fuck this hypocrisy. Eat that shit.”

2. A lower court had acquitted Darski, on the grounds that he did not specifically intend to offend religious sensibilities, and that his speech was “‘a form of art” consistent with the style of his band” (Guardian (UK)).

3. The Supreme Court has now reversed that decision, and ordered that Darski be retried; he faces up to two years in prison if convicted.

4. The court concluded, as noted above, that the statute applied not just to people who have the purpose of offending religion, but also those who know that their actions may lead to such offense. And the criminal statute, the court argued, actually advanced the “freedom of conscience and religion” secured by the Polish Constitution and European human rights law, because the right to protection of religious sensibilities was itself a part of the listeners’ freedom of conscience and religion.

Moreover, the court reasoned, the provision did not violate the freedom of speech and artistic freedom, because those rights could be restricted in order to protect (quoting the Polish Constitution) “the freedoms and rights of other persons.” The court extensively cited interpretations of European human rights law that, the court said, supported its conclusions. And it favorably cited the view of a Polish commentator (W. Wróbel) that,

The nature of the speech, behavior, or artistic work should be assessed objectively, by referring to the cultural norms of the community. The person’s artistic or scientific purpose is not sufficient to counteract the insulting nature of the actions based on their form.

5. Just stepping back a bit: There seem to be not two general approaches to blasphemy and to hostility towards religious groups throughout the world (treat it as protected speech, as in the U.S., or view it as an extremely serious, even capital, crime, as in some Muslim countries), but at least four.

(A) In the U.S., blasphemy and the expression of religious hostility is viewed as constitutionally protected.

(B) In many Western European and Western-European-settled countries, blasphemy as such is generally not criminal (or at least hasn’t been punished in decades) but expression that it seen as intended or likely to incite religious hostility is punishable, through legal processes and with significant but not extremely serious punishments. (Ireland retains a blasphemy ban, and there was a blasphemy conviction in Austria in 1985, but I don’t know of any more recent incidents in Western Europe and in what was called Central Europe before the fall of the Berlin Wall.)

(C) In some European countries — in recent years, we’ve seen this in Poland, Russia, and Greece — blasphemy is criminal (and expression of religious hostility might be, too), and again is punished through legal processes and with significant but not extremely serious punishments. This is not vastly different from category B, but the rationale (offense to religious sensibilities vs. tendency to incite religious hostility towards the criticized group) is different, and the potential scope of punishment is different. Among other things, such blasphemy prosecutions tend to be more focused on speech that offends majority or plurality religious groups, while inciting religious hostility prosecutions tend to be focused on speech that offends minority religious groups.

(D) In many Islamic countries, blasphemy is viewed as an extremely serious offense, and can be punished by severe punishments and extralegal violence, whether by mobs or by individual actors (the latter leaking over sometimes into Western countries).