"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Monday, September 17, 2012

Just In Case There Is Any Confusion Regarding "Blasphemy" Laws

The Obama administration's Deputy Attorney General for Civil Rights appeared today to be confused about whether criminalizing speech against a religion, i.e., "blasphemy," would be unconstitutional:

Weird.   He's a key federal government lawyer on civil rights, and he doesn't know the straight answer to the question, or doesn't think the straight answer should be the answer.   For his edification, here is the key language from a sixty year-old Supreme Court decision invalidating a New York statute that purported to prohibit "sacrilegious" films:

New York's highest court says there is "nothing mysterious" about the statutory provision applied in this case:
It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule. . . .
This is far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society.  In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor. Cf. Kunz v. New York, 340 U.S. 290 (1951).  Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the "sacrilegious" test, in these or other respects, might raise substantial questions under the First Amendment's guaranty of separate church and state with freedom of worship for all.  However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

Obama as President, and the officers in his administration, took an oath to uphold the Constitution.   To the extent that they are lurching close to criminalizing "blasphemy" against Islam, they are violating their oaths.  

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