Geoffrey Stone on Charlie Hebdo and the First Amendment

Charlie Hebdo and the First Amendment

After the murderous attacks in Paris and Copenhagen, one might wonder whether a newspaper that published the Charlie Hebdo cartoons of the Prophet Mohammad in the United States would be protected by the First Amendment. The government might make two primary arguments in support of a law prohibiting the publication of the cartoons.

First, the government might argue that the cartoons are not protected by the First Amendment because they are blasphemous. Blasphemy is defined as the act of insulting or showing contempt or lack of reverence for God or to holy persons. There is no doubt that the Charlie Hebdo cartoons of the Prophet Mohammad constitute blasphemy. (If you haven't seen them, you can find them on Google.)

During the Middle Ages, the penalty for blasphemy included death, cutting off the lips, and burning or tearing out the tongue. Thomas Aquinas argued that blasphemy was a worse sin than murder, for blasphemy "is a sin committed directly against God," whereas murder is merely "a sin against one's neighbor." In the American colonies, the Puritans punished blasphemy severely. Although the Puritans never executed anyone for the offense, they whipped, pilloried, or mutilated those found guilty of the offense.

By the time of the American Revolution, though, the idea that the government could legitimately punish an individual for disparaging religion had fallen into disrepute. The very concept was seen as incompatible with the core aspirations of a society committed to religious toleration, the disestablishment of religion, and the principle of free expression. By 1776 the law of blasphemy had come to be regarded as a "relic of a dead age."

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