Blasphemy Laws

Tue Jul 3 14:47:50 PDT 2007

Mich. Comp. Laws § 750.103 appears to still be on the books. It provides
that “Any person who has arrived at the age of discretion, who shall
profanely curse or damn or swear by the name of God, Jesus Christ or the
Holy Ghost, shall be guilty of a misdemeanor. No such prosecution shall be
sustained unless it shall be commenced within 5 days after the commission of
such offense.” Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007), held,
inter alia, that plaintiff’s arrest for coupling the expletive “God damn”
with political speech at a City Council meeting after being recognized by
the Chair was clearly unconstitutional. 

Also of interest is a State of Washington case, holding that the word
“profane” could not be judicially interpreted as having a nonreligious
connotation so as to render it constitutionally sound. City of Bellevue v.
Lorang, 140 Wash..2d 19, 992 P.2d 496 (Wash. 2000), concerned a city
ordinance that defined telephone harassment as making a telephone call to
another 

“with intent to disturb, embarrass, harass, intimidate, threaten or torment”
such person: (1) Using any lewd, lascivious, profane, indecent or obscene
words or language, or suggesting any lewd or lascivious act; or . . . (4)
Without purpose of legitimate communication.” 

The intermediate appellate court, although recognizing that the word
“profane” could signify contempt or irreverence toward God or sacred things,
held that the term “profane” was to be construed in context with the other
terms in the ordinance and was to be read as having the secular meaning of
vulgar, crude, insulting language. The Washington State Supreme Court
disagreed. It observed that while anti-harassment ordinances are
constitutional, they must be carefully drawn not to burden protected speech.
Here, the term “profane” was not defined in the ordinance and, absent
contrary legislative intent, words are to be given their ordinary,
dictionary meaning. The general dictionary definition of “profane” has a
religious denotation and, consequently, “profane” speech is entitled to
strong First Amendment protection. Statutes should be construed so that all
of the language used is given effect, and no part is rendered meaningless or
superfluous. By giving the word “profane” a secular connotation, the
intermediate appellate court rendered it redundant, the ordinance already
having referred to “indecent” and “obscene” words. Applying strict scrutiny
review, the Supreme Court proceeded to hold, inter alia, that the City’s
telephone harassment ordinance was unconstitutional insofar as it forbade
speech that was “profane.”

Martin J. Fisch

Publisher

The Religion Case Reporter

www.paradigmpub.com <http://www.paradigmpub.com/> 

reporter at paradigmpu.com 

718-951-8206

-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net] 
Sent: Tuesday, July 03, 2007 3:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Blasphemy Laws

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_MediaLawDa
ily/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 <mailto:laycockd at umich.edu>  

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

  _____  

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