Rereading David Rabban's Free Speech in Its Forgotten Years, I ran across a quote from Anthony Comstock -- the architect of the late 1800s prosecutions of "obscenity," including advocacy of free love, distribution of material about contraception, and (most relevant here) blasphemy. Here it is, from Google Books (if the link doesn't work, search Google Books for comstock traps for the young "honest infidels"):
There is a vast difference between [a "respectable infidel" who simply expresses his disagreement on religious matters] and the one who seeks by scoffs and sneers to wound the feelings of those who differ from him, or who makes a living by blaspheming the name of God, and discusses those subjects that most closely concern the interests of the soul so as to provoke laughter and applause from thoughtless ones.And this scoffing, sneering feeling-wounder was to be the target of criminal prosecution.
Seeing this, I was struck by how similar it is to some of the arguments I've heard in favor of what I've called the "new anti-blasphemy laws," in America and elsewhere -- arguments that likewise often deploy the same distinction between "respectable" criticism of religion, which would supposedly remain protected, and "scoff[ing] and sneer[ing that] wounds the feelings." The distinction was unadministrable and unjustifiable then (as the U.S. Supreme Court ultimately realized in Joseph Burstyn, Inc. v. Wilson (1952)), and it remains so today. But it's worth remembering how it was deployed in the past, and how much speech has been restricted in its name.
Carry on with any and all criticism of Western religions, especially Jews. The UN
doesn't mindapproves."The distinction was unadministrable and unjustifiable then (as the U.S. Supreme Court ultimately realized in Joseph Burstyn, Inc. v. Wilson (1952)),"
You believe a law (from the late 1800's)was established to be unadministrable and unjustifiable, because it was overthrown 50-60 years (ie. three generations) later? Wouldn't it be accurate to suggest the opposite? That the law was administrable and justifiable for over 50 years, until it was overthrown in a new political and intellectual climate?
Furthermore, wouldn't such a view suggest that such an interpretation of the 1st amendment isn't 'right' or self-evident, but simply an expression of the political views at the time? After all, if the 1st amendment was interpreted to not protect blasphemy for 50+ years, and interpreted to protect blasphemy for the 50+ years after that, is either interpretation necessarily 'right' (either from an ethical, historical, or constitutional perspective)?
Sk
Nevertheless, the freedom to offend does not imply the necessity to do so. Yet, the proper rebuke is censure, not censor, trial, or punishment.
What makes this so complicated?
... and there's the liberal argument for the reinstatement of the Fairness Doctrine in a nutshell.
My nominee is Monty Python - "I Fart in Your General Direction"
Comstock endured long past his sell-by date. It was over a hundred years ago than Mencken observed that it was becoming difficult to find anyone willing to condemn a man over the question of infant damnation.
And it would certainly put a crimp in a lot of comedians' repertoires. George Carlin sans religious commentary would be depressing.
George Carlin, with or without religious commentary, has, to borrow Harry Eager's term, "endured long past his sell-by date."
Eventually, Garrison became the anti-slavery firebrand that we all know of. The churches welcomed him back.
Kneeland was prosecuted for blasphemy. Kneeland argued that he did not violate the statute because he had offered his anti-religious views respectfully (the statute only punished "contumeliously" reproaching God). He was convicted in 1838 and served two months in prison.
I don't know. We've had marijuana prohibition for longer than that. Doesn't look like it was ever administrable or justifiable. Same thing with sodomy laws (before they were struck down).
I wouldn't confuse the time that a law has been on the books with its administrability.
It was possible to administer antiblasphemy laws, up to the death penalty, for millenia, but that concept has not survived modernity. Not even in today's not-very-modern Islamic states, where death for blasphemy is not quite unknown but getting rarer. (At least, through sanctioned, legal methods.)
The book "Girls Lean Back Everywhere" is a nice overview of censorship across the years. Comstock won his suit to have the following passage banned:
She leaned back far to look up where the fireworks were and she caught her knee in her hands so as not to fall back looking up and there was no one to see only him and her when she revealed all her graceful beautifully shaped legs like that, supply soft and delicately rounded, and she seemed to hear the panting of his heart his hoarse breathing, because she knew about the passion of men like that, hotblooded, because Bertha Supple told her once in secret about the gentleman lodger that was staying with them out of the record office that had pictures cut out of papers of those skirtdancers and she said he used to do something not very nice that you could imagine sometimes in the bed. But this was different from a thing like that because there was all the difference because she could almost feel him draw her face to his and the first quick hot touch of his handsome lips. Beside there was absolution so long as you didn’t do the other thing before being married and there ought to be women priests that would understand without telling out and Cissy Caffrey too sometimes had that dreamy kind of dreamy look in he eyes so that she too, my dear, and besides it was on account of that other thing coming on the way it did.
And Jacky Caffrey shouted to look, there was another and she leaned back and the garters were blue to match on account of the transparent and they all saw it and shouted to look, look there it was and she leaned back ever so far to see the fireworks and something queer was flying about through the air, a soft thing to and fro, dark. And she saw a long Roman candle going up over the trees up, up, and they were all breathless with excitement as it went higher and higher and she had to lean back more and more to look up after it, high, high, almost out of sight, and her face was suffused with a divine, an entrancing blush from straining back and he could see her other things too, nainsook knickers, four and eleven, on account of being white and she let him and she saw that he saw and then it went so high it went out of sight a moment and she was trembling in every limb from being bent so far back that he could see high up above her knee where no-one ever and she wasn’t ashamed and he wasn’t either to look in that immodest way like that because he couldn’t resist the sight like those skirtdancers behaving so immodest before gentlemen looking and he kept on looking, looking. She would fain have cried to him chokingly, held out her snowy slender arms to him to come, to feel his lips laid on her white brow, the cry of a young girl’s love, a little strangled cry, wrung from her, that cry that has rung through the ages. And then a rocket sprang and bang shot blind blank and O! then the Roman candle burst and it was like a sigh of O! and everyone cried O! O! in raptures and it gushed out of it a stream of rain gold hair threads and they shed and ah! they were all greeny dewy stars falling with golden, O so lovely, O, soft, sweet, soft!
Then all melted away dewily in the grey air: all was silent. Ah! she glanced at him as she bent forward quickly, a pathetic little glance of piteous protest, of shy reproach under which he coloured like a girl.
I think courts didn't overrule the laws for 2 reasons. 1, they didn't really do much of that at the time (for state laws, anyway), and 2, the Court often overrules censoring laws because they have "chilling effects" on speech. However, that rational doesn't make much sense as long as you are still going to have some things that are obscene.
Good for him. I have a hard time explaining this to my business law students in our one chapter we do on con law though. I have to explain that technically obscenity is not protected but in Miller v. California that makes it really hard for federal, state and local laws to pass anti-obscenity statutes. Miller almost gives obscenity some kind of illusory, intermediate or even higher than intermediate level of protection. But then again, if it flunks the Miller test, then the work is not legally obscene. Hence obscenity, whatever it is, is not protected.
It's at this point I try to keep it simple and refrain from babbling.