Case Summary and Outcome

On December 5, 2007, the United Kingdom’s High Court of Justice held that the production of a play containing highly offensive depictions of Christian religious figures did not constitute blasphemous libel.  Claimant Stephen Green had requested that the City of Westminster Magistrates’ Court institute private prosecutions against the producer and broadcaster of the comedy musical Jerry Springer: The Opera, on the ground that the work’s treatment of Christianity violated ancient English blasphemy laws.  The application was rejected, and Mr. Green appealed to the High Court of Justice.  In refusing the application for judicial review, the High Court affirmed the District Judge’s determination that the production did not constitute blasphemous libel.  The Court tracked the development of the offense over time, explaining that it was more easily prosecuted when Christianity and the state were interchangeable because blasphemous libel must endanger society as a whole.  Additionally, prosecutions under the law in question were almost unheard of by the twentieth century, and intervening changes in law—especially the Theatres Act 1968—had instituted special protections to prevent censorship of performative works.  Ultimately, the Court approved of the District Judge’s two major holdings:  First, that the prosecution was barred by the Theatres Act 1968 (and the Broadcasting Act 1990).  Second, that on first impression, Mr. Green had not alleged a case of blasphemous libel, because the work was fundamentally a criticism of the popular television talk show fronted by Jerry Springer, not of Christianity.

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Facts

Between 2003 and 2006, Jonathan Murray Thoday produced the comedy musical Jerry Springer: The Opera on the London stage.  The work lampoons Mr. Springer and his talk show, a U.S.-based program highlighting its guests’ dysfunctional lives and relationships.  In the first act, a series of outrageous and objectionable guests parody the talk show’s normal format (until, at the act break, one of the guests shoots Mr. Springer); in the second act, Mr. Springer imagines his afterlife in hell, where he meets new versions of the first act’s characters who now portray Satan, Jesus Christ, God, Mary, and Adam and Eve.  The second act is rife with crude jokes accusing these figures of many of the same dysfunctions typical of Mr. Springer’s talk show guests.  On January 8, 2005, the British Broadcasting Corporation (BBC) broadcast a televised performance of the work.  

Stephen Green was part of an organization called Christian Voice, which claimed that its members were offended by the musical’s depictions of Christian religious figures.  On January 8, 2007, Mr. Green applied to the City of Westminster Magistrates’ Court for a private prosecution (accomplished through the issuance of summonses) against Mr. Thoday and BBC Director General Mark Thompson for the production and subsequent broadcast of the musical.  

The crime alleged was blasphemous libel, an “ancient offence” under English common law that prohibits “contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the bible or the formularies of the Church of England” that “tends to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife” [para. 11].  

The District Judge refused to issue the summonses on two independent grounds.  First, she found that the Theatres Act of 1968 precluded prosecution related to the work’s production.  Section 2(4) of the Act, intended to prevent censorship, bars common law proceedings against theater performances for content that is “obscene, indecent, offensive, disgusting or injurious to morality” [para. 18].  Second, Mr. Greene had not stated a case for blasphemous libel, because he had not shown that the play as a whole constituted an attack on the Christian religion.

Mr. Green then appealed to the High Court of Justice, Queen’s Bench Division, Administrative Court, for an order mandating that the Magistrates’ Court issue the summonses.

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Decision Overview

Lord Justice Anthony Hughes wrote the decision of the High Court of Justice, to which Justice Andrew Collins contributed. The central issue that the Court analyzed was whether the production and broadcast of Jerry Springer: The Opera constituted blasphemous libel or whether the work was instead protected by the Theatres Act 1968, the Broadcasting Act 1990, and principles of freedom of expression.

Mr. Green argued that he and his organization had been deeply offended by the production and that the work had harmed the fabric of society, as indicated by demonstrations that took place outside the BBC Television Centre prior to and during the January 8, 2005, broadcast.  He challenged the District Judge’s determination that he had not stated a case of blasphemous libel on the grounds that the District Judge accorded too much weight to two prior determinations that the play was lawful.  Mr. Green also argued that the District Judge improperly accused him of attempting to reinstitute censorship of theaters and that blasphemous libel could attach even when expressed in a work of fiction by a “disreputable character.”

The Court stated that to establish blasphemous libel, (1) “there must be contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the bible or the formularies of the Church of England,” and (2) “the publication must be such as tends to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife” [para. 11].  

The Court carefully traced the development of blasphemous libel in English common law over four and a half centuries to explain how these elements have evolved.  The offense was first prosecuted at common law after the English Restoration of 1660.  Originally, the close relationship between Christianity—specifically, the Church of England—and the state meant that the second element (endangering society) followed naturally from the first element (offending Christianity).  According to Taylor’s Case (1676) 3 Keb 607, as the Court noted, the original understanding of the offense was that “to reproach Christianity is to speak in subversion of the law.” 

In the nineteenth century, courts began to recognize that differences of opinion in matters of theology did not constitute blasphemy —in cases such as R. v. Hetherington (1841) 4 St Tr NS 563 and R. v. Ramsay and Foote (1883) 15 Cox CC 231.  Importantly, in 1917 the House of Lords clarified that the requirement of endangering society may “differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault.”  Such was the precedent laid out in Bowman v. Secular Society [1917] AC 406 at 466-67.

By 1979 —the Court said, referring to Whitehouse v. Lemon [1979] 1 QB 10 a 18G—, it was clearly stated that “the actions of the alleged offender” must affect “the safety of the state” to justify prosecution.  That case was the only accusation of blasphemous libel in the United Kingdom between 1919 and Mr. Green’s 2007 application.  To summarize the current state of the law, the Court stated that “blasphemous libel is material relating to the Christian religion, or its figures or formularies, so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife,” and is not established “merely because some people of particular sensibility are, because deeply offended, moved to protest” [para. 16].

The common law offense of blasphemous libel is not the only relevant standard.  The Court also examined the Theatres Act 1968, section 2(4) —which prohibits any proceeding at common law for offensive content instituted against a live performance.  Schedule 15 paragraph 6 of the Broadcasting Act 1990 contains identical protections for television broadcasts.

The Court first held that the above-listed provisions of the Theatres Act 1968 and the Broadcasting Act 1990 prevented the issuance of the summonses, and that the District Judge had been correct to deny Mr. Green’s application.  Blasphemous libel was a crime at common law, and by its plain terms, the Acts prohibit any proceeding at common law for a production’s perceived offensiveness.  The Court struck a balance between the parties’ positions in interpreting section 2(4) of the Theatres Act 1968:  It declined to exempt blasphemous libel from the statute’s prosecution bar, as Mr. Green had argued, because the Theatres Act plainly covered all proceedings at common law.  But the Court also rejected the suggestion of Mr. Thoday (the play’s producer) that the consent of the Attorney General was required to prosecute blasphemous libel in all cases, explaining that such consent is required only for specific common law offenses not including blasphemous libel.  

Taking a middle ground, the Court held simply that blasphemous libel cannot be prosecuted against an allegedly offensive play.  And while the Theatres Act does allow for prosecution of criminal defamatory libel, the Court held that there could be no defamation against “an idea or a faith” like Christianity, only against “a living human being” (and not against, as Christians considered, a resurrected Christ) [para. 25].

While the Court regarded this first holding as sufficient to dispose of the case (because any prosecution related to the work was barred), it also addressed whether the District Judge was correct that Mr. Green had not properly alleged blasphemous libel.

As to Mr. Green’s first challenge—that the District Judge accorded too much weight to two prior determinations that the play was lawful—the Court held that the District Judge had properly exercised her discretion, referencing other decisions “only as support for her own conclusion” [para. 28].  The other determinations, one of which involved an accusation of blasphemy and both of which dealt with the same subject matter, were clearly relevant.  The Court also quickly disposed of Mr. Green’s contention that the Court had acted improperly by accusing him of attempting to reinstitute censorship, pointing out that the purpose of the Theatres Act 1968 had in fact been to prevent censorship.

Turning to Mr. Green’s second challenge in which he argued —following R. v. Metropolitan Magistrate ex. P. Choudhury [1991] 1 QB 429 at 437—that “a statement will not necessarily be prevented from being a blasphemous libel simply because the statement is put into the mouth of a character, even a disreputable character,” the Court said that while the sentiment expressed in Choudhury is accurate, “the word ‘necessarily’ is a vital part of the proposition” [para. 32].  Context is key, and “[i]f a blasphemer be shown in a dramatic production or novel to be roundly condemned by right-thinking people, that must at least lessen and may eliminate both offence and any danger to the public well being caused by the work” [para. 32].  Here, the Court held that while the play “might cause deep offence to some (though not most) practicing Christians,” and is “not merely tasteless but lurid and arguably contemptuous or reviling,” it does not constitute blasphemous libel where “the play as a whole was not and could not reasonably be regarded as aimed at, or an attack on Christianity or what Christians held sacred” [para. 32].

Separately, the Court held that there was no evidence of blasphemous libel’s second element of endangering society as a whole.  As to the play’s performance, the factual record indicated a “complete absence of public reaction to the stage play over many months” [para. 33].  For the first two years during which the play was performed, “there had been no violence (or even demonstrations),” with the only evidence of unrest being the protests of “approximately 75” people the day before the BBC broadcast and “500 people” on the day of, which the Court described as “small, if vociferous and no doubt committed” [para. 33].  This was not enough, the Court argued, to constitute “damage to society or […] risk of civil strife,” as required under the law [para. 33].  Moreover, the District Judge was entitled to considerable discretion in making her determination of blasphemous libel, and it was clear to the Court that the result she had reached was “within the range of decisions properly open to her” [para. 33].  The Court held that this was an independent and adequate ground for denying Mr. Green’s application.

Therefore, the Court rejected Mr. Green’s request for judicial review, holding that the District Judge’s two reasons for refusing to issue the summonses—the Theatres Act 1968’s bar of prosecution and Mr. Green’s failure to state a claim of blasphemous libel—had been correct.

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