Blasphemy Laws

Tue Jul 3 16:26:53 PDT 2007

  In defense of my newly adopted state, let the record show that
Leonard v. Robinson is not a criminal prosecution for blasphemy (or a
habeas petition from a conviction.)  The cop arrested the speaker; he
was released an hour later and the charges were dropped. The speaker
then sued the arresting officer for damages, and the case was up on a
qualified immunity issue.  The standard for immunity is whether the
law was clearly settled at the time defendant acted. 

  The defendant officer dug up four Michigan statutes, including the
blasphemy statute; only one of them had expressly been held
constitutional.  He said he was supposed to enforce the law, and not
to second guess statutes that had never been held unconstitutional. 
The Sixth Circuit, per Danny Boggs, said that these were so clearly
unconstitutional that any police officer should have known they were
unconstitutional.  That is, it was clearly settled that these laws
were unconstitutional, so no qualified immunity.  Jeff Sutton
dissented.  Not a final judgment; case sent back for trial. No cert
petition filed, according to Westlaw.  Boggs and Sutton are both
quite conservative judges.

  Quoting Religion Case Reporter <reporter at paradigmpub.com>:

> 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/[1]>
>
> 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[2]
> 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[3]
>
>
>
> 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[4]
>
>
>
>
>
>
>   _____
>
>
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>

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

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