Is there a trend afoot to enforce archaic anti-free speech laws and to ignore a century’s worth of court decisions expanding the meaning of the First Amendment?
You’ve got to wonder. First we have last week’s ruling by a three-judge panel of the federal appeals court in Boston undermining truth as an absolute defense in a libel suit. The ruling was based on a 1902 Massachusetts law that one would have thought would be ruled unconstitutional on its face.
Now, in Pennsylvania, state authorities have told a filmmaker that he can’t call his business I Choose Hell Productions because of a state law banning names that “constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.” The filmmaker, with the help of the ACLU, has filed suit in federal district court.
It is well-established constitutional law that the 14th Amendment bars states from restricting rights more severely than the U.S. Constitution allows. I tell my students that Massachusetts laws against blasphemy were rendered unenforceable after the U.S. Supreme Court, in Gitlow v. New York (1925), made it clear that the First Amendment applied to the states. (All hail Wikipedia, which nicely explains the significance of Gitlow.)
We’ll see if the federal court in Pennsylvania agrees.
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Oh, you’re going to hell for this one, Dan! :-)Please tell me that this is one of those archaic 19th century laws that are seldom enforced, like the Newton law that said the mayor has to buy everyone a goat or something.Doesn’t anyone respect the first amendment any more?
Even if the statute were constitutionally valid, I don’t see how the name “I Choose Hell Productions” actually falls under it. He didn’t propose to name his company “Fuck Jesus Productions”, after all.
Excellent Guardian article there Dan. It would appear that judge Juan Toruella was a Reagan appointee which surprises me a bit. Based on what was written in your article I at least half expected him to be an ever so PC “liberal”. 😉 God knows that no shortage of “liberals” are of pretty much the same mind-set regarding “libel”, at least when someone tells some “less than flattering” truths about them, as judge Juan Toruella is. . .
Mr. Edgar – the appointing authority is of far less relevance to a judge’s eventual conduct than is assumed.Just ask Eisenhower about Earl Warren.
Well if you are suggesting that judge Juan Toruella is actually a “liberal” judge these days I certainly won’t argue with that! 😉
Has the question “carefully left open” in Cox Broadcasting v. Cohn in 1975 (of “whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamation action brought by a private person, as distinguished from a public official or public figure” 420 U.S. 469, 490 or so — I can’t tell from the pagination in the online text) ever been decided? Footnote 18 in that case, about truth as a defense to civil defamation actions under common law, is also interesting.
And this is different from the New York Post cartoon story why??