Blasphemy Laws

[Marty Lederman]

Well, to this day, the federal broadcast indecency law 18 U.S.C. § 1464, provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."  My understanding is that until recently, the FCC construed "profane" to mean, in essence, "blasphemous," but they had not enforced that prohibition in decades.  Compare, e.g., Duncan v. U.S., 48 F.2d 128, 133-134 (9th Cir. 1931) (use of "damn" and of the words "By God" in an irreverent sense, coupled with a threat to "put on the mantle of the Lord and call down the curse of God" on certain persons, was unlawful profane language; citing slews of state cases), with, e.g., Raycom, Inc., 18 FCC Rcd 4186 (2003) (referring to God as a "sonofabitch" not profane); Gagliardo v. U.S., 366 F.2d 720, 725 (9th Cir. 1966) ("God damn it" not profane).  The agency even suggested that it is unconstitutional.  See below.

But the FCC recently dusted off the prohibition on "profane" speech and decided that it is not limited to religious blasphemy in the Golden Globes case, where it held that broadcast of Bono's "This is really, really, fucking brilliant" acceptance speech was profane and indecent.  

The Second Circuit recently reversed, holding that the FCC's new rules were arbitrary and capricious:  http://www.medialaw.org/Content/NavigationMenu/Publications1/MLRC_MediaLawDaily/Attachments/FCCIndecencyDecision.pdf

The court's short discussion of the "profane" question provides some cites that you might want to look at, Doug:
  Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Prior to 2004, the Commission never attempted to regulate "profane" speech. In fact, the Commission took the view that a separate ban on profane speech was unconstitutional. See 122 Cong. Rec. 33359, 33359, 33364-65 (1976) (recommending Congress delete "profane" from Section 1464 "[b]ecause of the serious constitutional problems involved"); FCC, The Public and Broadcasting, 1999 WL 391297 (June 1999) ("Profanity that does not fall under one of the above two categories [indecent or obscene] is fully protected by the First Amendment and cannot be regulated."). The Commission again has not provided this court with a reasoned analysis of why it has undertaken this separate regulation of speech.  


  ----- Original Message ----- 
  From: Douglas Laycock 
  To: religionlaw at lists.ucla.edu 
  Sent: Tuesday, July 03, 2007 1:30 PM
  Subject: Blasphemy Laws


  A colleague sent me this link to the Massachusetts blasphemy law.  It is still on the books, although a quick Westlaw check shows no cases interpreting it -- ever.  How many laws like this have survived?  Is anybody aware of others?

  http://www.mass.gov/legis/laws/mgl/272-36.htm



  Douglas Laycock
  Yale Kamisar Collegiate Professor of Law
  University of Michigan Law School
  625 S. State St.
  Ann Arbor, MI  48109-1215
    734-647-9713



------------------------------------------------------------------------------


  what a curious set of laws we have in the commonwealth...


  and why am i not more apt to use the word contumeliously?  http://www.mass.gov/legis/laws/mgl/272-36.htm






------------------------------------------------------------------------------


  _______________________________________________
  To post, send message to Religionlaw at lists.ucla.edu
  To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

  Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20070703/e925b7ef/attachment.htm