BYU Law Review


This article explains the weakness of the argument that religious vilification laws promote harmony and tolerance among religious groups. Rather, they are based on a form of postmodern theory that denies the existence of truth and could be used as a weapon by certain individuals to silence any criticism of their beliefs. These laws have become an invitation to people with extreme views to avoid debate by claiming that they, rather than their beliefs, have been attacked. The author then explains the philosophical underpinnings of religious vilification laws and argues that there is no a priori reason why religious speech could not at the same time be characterized as political communication for the purposes of the implied freedom in the Australian Constitution. Rather, the text and structure of the Constitution gives full rise to the proposition that there is an implied freedom to discuss religious matters, particularly when these matters involve serious public interest. This freedom is a right of the citizen that works as a form of constitutional immunity from public and/or political restrictions that are not adapted to the ultimate goal of preserving freedom of speech, which is an essential element of every (democratic) system of representative government.


© 2013 Brigham Young University Law Review