I blogged about the law, and the litigation, here; yesterday, a federal district judge held (Kalman v. Cortes) that the statute violates the Establishment Clause and the Free Speech Clause. Thanks to Adam Bonin for the pointer.
I blogged about the law, and the litigation, here; yesterday, a federal district judge held (Kalman v. Cortes) that the statute violates the Establishment Clause and the Free Speech Clause. Thanks to Adam Bonin for the pointer.
Dr. Patent says:
I suppose this further calls into question the constitutionality of 15 USC 1052(a) to the extent that it forbids registration of trademarks
July 1, 2010, 10:59 amcomprising scandalous or immoral material.
Barb says:
Isn’t that precious! A more wholesome culture! Nothing like protecting good ol’ blasphemy, is there?
July 1, 2010, 11:24 amzuch says:
It is good (IMNSHO) that the court considered carefully the history of the enactment of the Blasphemy Statute and the motivations of those that had pressed for such a law (it was local churches who had complained loudly when a business had taken the name “The God-Damned Gun Shop”).
This type of inquiry, I think, ought to be more common, rather than simply ruling on the supposed neutrality of challenged legislation by reference to the text solely. Such inquiry in many cases explains a lot more about what’s really going on (e.g., the Wallace v. Jafree, Edwards v. Aguillard and Kitzmiller v. Dover decisions), and helps reach the right decision. If that approach was used in more cases, we might have differing results in such as Van Orden, cross cases, and Newdow’s challenges to the Pledge of Allegiance.
Cheers,
July 1, 2010, 11:31 amzuch says:
If the Constitution can protect your religious freedom, it can sure as sh*te protect my blasphemy. So there!
Cheers,
July 1, 2010, 11:33 amRedman says:
There is no separation of church and state. The state always makes the decision, and the church can like it or lump it.
The state ‘wins’ every time.
Where is the separation?
July 1, 2010, 12:39 pmRob Berra says:
Yeah, I’m sure you’d have been equally against things like “Chivas de Danu” or “Zeus Chips” (both real products)? Or do you object only when your ox is gored?
July 1, 2010, 12:46 pmRob Berra says:
Exactamente! Popular speech, as we know, needs little or no protection. It’s the unpopular or offensive speech that needs the bulwark of the First Amendment.
July 1, 2010, 12:53 pmDunstan says:
I say, that decision was good enough for Jehovah!
July 1, 2010, 1:29 pmgeokstr says:
Yeah, right.
Wait until someone has a company that makes a Sharia compliant vacuum cleaner and calls itself “Allah Sucks”.
But we all know that it’s not OK to insult or offend anyone belonging to the left’s approved victim groups, which includes pretty much everybody except white males, observant Christians of any gender or color, and increasingly, Jews, especially the ones in Israel.
Now I’m all for free speech, but it’s quite selectively being applied in this and other countries. Let’s get rid of campus speech codes, hate crimes, kangaroo human rights commissions, net neutrality, all those things that aren’t called the “Fairness Doctrine” but really are, etc, while we’re at it.
July 1, 2010, 1:40 pmDilan Esper says:
I would remind any of our Christian commenters who might be sympathetic with blasphemy laws to remember the offense that Jesus was convicted of and executed for.
July 1, 2010, 1:42 pmOrenWithAnE says:
It would be tragic justice if Barb ended up with a Constitution that protected neither.
July 1, 2010, 1:46 pmJoe Hooker says:
They’re doing it wrong. They should have just prohibited “defamation of religion”, then the UN would have sent a Special Rapporteur to support them, arguing that International “Norms” take precedent over benighted local constitutions.
July 1, 2010, 2:40 pmJoe Hooker says:
They’re doing it wrong. They should have just prohibited “defamation of religion”, then the UN would have sent a Special Rapporteur to support them, arguing that International “Norms” take precedence over benighted local constitutions.
July 1, 2010, 2:54 pmInsomniac says:
That only applies to Islam.
July 1, 2010, 2:58 pmHouston Lawyer says:
Yes, and all Christians are thankful for that.
This case is just like the tradenames case. The state was not saying that you couldn’t do business under that name, only that you couldn’t get protection from the state so that you were the only one who could use the name.
I rate this up there with profanity on license plates.
July 1, 2010, 4:08 pmPatent Lawyer says:
Compare to In re Lebanese Arak Corp., discussed here, in which the TTAB rejected the mark “Khoran” for wines as blasphemous/offensive to Muslims. Though obviously there’s a Constitutitional difference between “You can’t name your corporation X” and “You can name your product X, but it won’t get any legal protection from infringement.”
July 1, 2010, 4:38 pmShelbyC says:
Why sh*te? Isn’t shite non-offensive?
July 1, 2010, 5:09 pm~aardvark says:
Oh, good! We can finally put out the Oh, Jesus! brand condoms. Perhaps Barb will be a customer… then, again, perhaps not ;-)
July 1, 2010, 6:48 pmLaser Haas says:
geokstr
You cracked me up.
July 1, 2010, 7:39 pmJ.K. says:
Obviously this ruling is consistent with Citizens United, groups of citizens do not give up their First Amendment right to speak freely when they choose to form in a manner to do business as a corporation.
I’m a little surprised to see a few liberal commentators refusing to berate the court for continuing the ‘myth of corporate personhood’ and this being an activist Conservative decision. Isn’t it the liberal consensus that states can restrict the rights of corporations in granting them the protections of the corporate structure?
July 1, 2010, 8:51 pmReaderY says:
I don’t see how this is the case. Like the creation of a municipality, a state charter is a state act, not a purely private one. Why shouldn’t states accommodate religion by refraining from official acts that offend it? The decision assumes that the charter is the private property of the corporation.
Once upon a time, the only way corporations came into existence was by individual legislative act. Surely legislators would be within their rights to withold their votes from legislation they thought would cause public offense. And surely since legislation is a public act, legislation creating a corporate charter is an act of the state, not a purely private act.
Peensylvania could go back to incorporation-by-legislation any time it wants. It’s decided to delegate the matter to administrators with rules for the convenience of incorporators. But why should this convenience change the fundamental legislative character of a corporate charter?
July 2, 2010, 3:12 amSnaphappy says:
So much discussion about religion and none about profanity? I’m headed to Pennsylvania to incorporate Fuck, Inc., just because I can now. It’s like the domain name gold rush all over again.
July 2, 2010, 9:42 amDavid M. Nieporent says:
Disagree. It’s a purely private act, which the state is merely recording. The state does the same for birth certificates, but that doesn’t make naming one’s child a state act which gives the government veto power.
Because determining whether an act “offends religion” – and by that you mean offends religious people – requires a theological inquiry, which the government is not permitted to engage in.
July 2, 2010, 9:58 amNon says:
It’s not equality of church and state, but separation of church and state. As in, get your god-damned religion out of my government. Any time you try to impose your religious beliefs on others through government action, you lose.
July 2, 2010, 11:04 amAlpheus says:
Isn’t the allowing the name of an offensive business an attempt “to impose your religious beliefs on others through government action”?
The government is saying that “my religious belief that such a name should be allowed for a business”; thus, this judgement is an attempt to impose one’s religious beliefs on others.
Thus, I wouldn’t say that you will always lose when you attempt to push your religious beliefs on others through government: you win, if they are the “right” ones.
July 2, 2010, 12:13 pmRob Berra says:
Well, I’ll be the Token Liberal hereabouts if it’ll help anything. Sadly, there’s little practical point in saying much of anything about the concept of “corporate personhood.” However heinous it may be, I can’t think of any way to overcome all these decades of decisions based on the original misinterpretation that led to the notion becoming part of our legal and economic system. So why bother?
July 2, 2010, 12:48 pmRob Berra says:
Um, Establishment Clause? If the State accommodates religion by bowing to that religion’s “offense,” then it’ll have to start doing so for every religion and, eventually, for everyone. Instead, the State (rightly) remains neutral on the subject, refusing to worry about who might be offended.
July 2, 2010, 12:53 pmRob Berra says:
Nope. It would allow you to incorporate a business name equally offensive to, say, me. No one’s telling you that you must do business with the company, or that you must change your beliefs. If you don’t like the name God Is Not Great Inc., then don’t do business with them. If you don’t like the name God Is Great Inc., don’t do business with them. But by allowing either of these, no one is asking you to change your beliefs.
That would only apply if the government was restricting certain “offensive” business names and not others. To use examples from above (in the thread, not from the Heavens), if it rejected “Oh God Condoms” but allowed “Allah Sucks,” then it would be engaging in impermissible religious discrimination. By allowing both, the government is neutral, as it should be.
Well, you should always lose when you attempt to push your religious beliefs on others, but that’s another animal entirely. You’re right that sometimes people with the “right” religious beliefs get improper preferences; we can but hope this is an ephemeral state of affairs.
July 2, 2010, 1:01 pmBarb says:
Doesn’t “pushing one’s religion” have defense in “freedom of speech?” as well as “free exercise of one’s religion?” It certainly should if blasphemy does. What a wonderful world when the street signs, business names, the teachers, the parents, the kids are all saying, “F U!” and “GD it.” Who cares if the liberty to say absolutely anything we please –even lies like Larry Flynt’s libelous accusation of Jerry Falwell having sex with his mother — will coarsen our culture?
Our judges are nuts if they can’t find some excuse in the law for public decency and respect of religions in speech, etc. Can’t we make a distinction between vulgar expletives everywhere –and freedom of religion and speech? If religions consider it blasphemous to use either God’s name or Allah’s or Buddha’s in a vulgar manner, then why do we have to allow it in the law as free speech? There ARE limits to speech –and we must be careful not to overextend those limits –but naming your business the “god-damn gun shop” is certainly unnecessary to this owner’s religious freedom -or his freedom from religion.
July 3, 2010, 12:08 pmAdam C says:
It’s unlikely that all Buddhists would agree about “vulgar” references to the Buddha. I recall the Buddha being compared to “a dried shit stick” and other decidedly “vulgar” things. And I expect that many people have heard some form of the Buddhist advice: “If you meet the Buddha on the road, kill him.” Is this offensive? (I guess you’d have to be a Buddhist of one stripe or another to know for sure.)
Case in point: deciding what counts as “offensive” is harder than it looks. E.g., you can’t just list religions and expect that they agree on what is or isn’t offensive. In another instance: if you draw a picture of a person that happens to look suspiciously like Muhammad, is this “offensive” or is this “art”?
July 3, 2010, 1:47 pmRob Berra says:
Of course it does. I wasn’t saying you shouldn’t be legally able to present your views and encourage others to share them. I am simply tired of people who will not take “no thank you” for an answer, whether they be Baptists, Jehovah’s Witnesses, atheists, or whathaveyou. My comment about “Well, you should always lose when you attempt to push your religious beliefs on others” is my personal opinion, and not something I suggested should be a law. My other comment was expressing my hope that someday all religions will be treated equally before the law (as I’m sure you would want them to, right?).
Well, the notion of “blasphemy” is a pretty religion-specific one. What one religion considers “blasphemy” another would consider completely unremarkable, I’m sure, don’t you agree? Or do you think that the Chivas de Danu and Zeus Chips products I mentioned earlier were blasphemous?
Oh, I don’t think it’s “wonderful,” but I do think it’s protected under the First Amendment.
Um, if you’ll recall, the courts ruled that was not libelous, it was an obvious parody.
I don’t like the idea of “coarsening our culture” either, but I am much less enamored of restricting freedom of speech. In fact, by comparison, the “coarsening” shrinks to invisibility compared to freedom of speech. YMMV.
But which religions? All of them? And at what level? Would you prohibit any parody of a religion? What penalties would you impose for “blasphemy?” For me, if my religion is “blasphemed,” I simply suck it up and accept that some people are jerks: I don’t want the State to step in and restrict freedom of speech just because I’m offended.
No. Freedom of speech includes the right to say things that others consider offensive. Placing a religion’s desire to not be offended above that is antithetical to the basic principles on which this nation was founded.
Because it is not the place of the State to censor speech because some religion or group of religions is offended by the speech. As has been pointed out before, it’s not the speech we like that needs protecting, it’s the speech we hate, the speech we find offensive or even downright wrong. If Jerry Falwell is allowed to present his position freely, then Bill Maher must be allowed to do likewise: that’s where the government must be neutral.
True, but it is an exercise of his freedom of speech, which trumps your wish to not be offended.
July 4, 2010, 8:16 amManju says:
Only if you say it with a sunni disposition.
July 6, 2010, 1:12 amBarb says:
And so –where do YOU stand on the graduate valedictorian’s right to allegedly “offend” by sharing how her faith has helped her in life? even though a few people of other or no religion might be in the audience??? (and don’t hide behind the separation of church/state clause –because the school clearly didn’t support her speech and really could not have been indicted for endorsing her religion by letting her have her freedom of speech and religious expression.)
July 6, 2010, 11:43 amBarb says:
Regarding the Jerry Falwell incest “parody”:
And the courts were wrong, IMHO. It was egregious slander and not funny in the least. That magazine should have been successfully sued. Why is it our gov’t gives brats every right to be outrageous in the name of freedom” And why is it that the only speech limits threatened to come to our nation as in others have to do with advocacy of Biblical morality and proselytizing? AS prophesied, “They call evil good and good, evil.”
July 6, 2010, 11:49 amBarb says:
In our town, a gun shop just blew up –we passed by the burned out shell and a line of police cars there on our way home from the 4th.
I guess it was a damned gun shop, by somebody’s will.
July 6, 2010, 11:53 amBarb says:
Exactly.
July 6, 2010, 11:56 amRob Berra says:
Offhand, and without knowing the case to which you refer, I’d say that depends on whether she says her faith helped her or her deity/ies helped her. Her faith is part of her personal identity, and a valid subject for discussion: a deity or deities who may not even exist are a different matter entirely.
It’s not “hiding behind” anything, Barb: IANAL, but I believe any number of such cases have been decided on exactly that basis: expressions of religious belief are not appropriate at school-sponsored functions where not attending would mean missing an important milestone. This is different from you not liking a business’ name: you can decline to patronize that business, but a student should not have to skip graduation in order not to be proselytized at. You do see the difference, right? The students and family members are a somewhat “captive” audience, whereas a business’ name does not render you “captive” at all.
BTW, what’s your take on blasphemous product names like Chivas de Danu and Zeus Chips?
July 6, 2010, 1:54 pmRob Berra says:
Its very egregiousness was caused the Court to rule as it did: no rational, thinking person could have thought it was actual reporting. As to “funny,” that’s a matter of taste, and beyond the Court’s jurisdiction or consideration.
Our Constitution guarantees everyone, including you and me, the right to be “outrageous.” That’s what freedom is about: as I’ve said before, it’s not the speech we *like* that needs protection, it’s the speech we *hate.*
That’s called a “planted axiom fallacy,” Barb, unless you can back up that claim. If the legislation is only against one particular religion, group of religions, or non-religions, I agree that’s completely inappropriate, but you’d have to demonstrate that it’s actually the case. Given that the Congress and USSC both start with an invocation to the god of Abraham, and the currency, Pledge, and national motto refer to same, I hardly think you’re in a position to complain about discrimination. Try seeing things from a Rastafarian or Asatru point of view if you think *you* are marginalized.
When has that not been the case??
July 6, 2010, 2:32 pmBesides, given the opposition to fairness, equality, and justice you espoused in another thread, I don’t see myself looking to you for guidance on what to call “good” or “evil.”