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.