The Long Fight for the Freedom to Blaspheme Has Lessons for Today

Robyn E. Blumner

Blasphemy is the act of profaning the sacred. It is a crime as ancient as civilization itself. The gods apparently have always needed the protection of law to remain free from offense. I guess that makes them the beneficiaries of the first “safe spaces.”

These days, the Center for Inquiry (CFI) fights blasphemy laws primarily at the United Nations Human Rights Council, where we speak out against their use to persecute nonbelievers around the world. But the history of blasphemy laws and prosecutions under them is a long and ugly story—a sordid tale from which Western democracies have not been immune.

The first freethinker to be prosecuted was probably Anaxagoras, Athens’s first resident philosopher. He had an interest in scientific inquiry and a willingness to spout theories about how the gods were mythical creations. This was not well received and led to his consignment in a dungeon around 450 BCE for impiety. Athens might have been known for its revolutionary freedom to challenge ideas and debate the proper role of government, but that tolerance did not extend to questioning the gods.

Today, about a quarter of the world’s countries, including some Western democracies, have anti-blasphemy laws or policies, according to the Pew Research Center*. Just last year Canada finally excised the crime of blasphemy from its law books, as did Ireland through popular referendum.

In the United States, despite our constitutional guarantees of freedom of speech and religion and the separation of government and religion, some states, including Massachusetts and Michigan, still retain laws against blasphemy on the books. They lie fallow, hopefully never to rise again, but the last time a person was prosecuted for blasphemy was in 1971, a time likely within living memory of most people reading this.

That prosecution was provoked by Jesus in a shop window.

Two shopkeepers in Pittsburgh put up a Jesus Christ “wanted” poster in their windows. The poster showed Jesus as a hippie with long hair. It said “Wanted for sedition, criminal anarchy, vagrancy and conspiracy to overthrow the established government. Dresses poorly; said to be a carpenter by trade; ill-nourished; associates with common working people, unemployed, and bums. Alien; said to be a Jew.”

When the American Civil Liberties Union sought to defend the shopkeepers by challenging the constitutionality of the 1794 blasphemy statute under which they had been charged, the prosecutor asked that the charges be dropped.

The prosecutor had every reason to worry whether the statute would survive the legal challenge. While the U.S. Supreme Court never actually ruled on a case involving blasphemy, it had unanimously rejected the idea that the government could ban “sacrilege” in a case from 1952 involving a mildly risqué foreign film.

The Italian movie, The Miracle, portrayed the story of a young slow-witted peasant girl who thinks the stranger who seduced her is Saint Joseph. She is then ostracized by society due to her out-of-wedlock pregnancy.

New York State’s film censorship board responded to an outcry by Catholic officials by finding the movie “sacrilegious” and revoking the license of the film’s distributor, Joseph Burstyn, to exhibit it further. Burstyn fought back in court, resulting in the U.S. Supreme Court case Burstyn v. Wilson. It established far-reaching precedent that seemed to foreclose the possibility that anything insulting to religious sensibilities could be banned.

Justice Tom Clark, writing for a unanimous court, said the state “has no legitimate interest in protecting any or all religions from views which are distasteful to them.”

This mid-twentieth–century ruling was among a handful of cases that gave some relief from the unrelenting, censorious scourge of Comstockery that had up until that time dominated the legal landscape.

“Comstockery” comes from the name of the tireless, puritanical, crusading censor Anthony Comstock, who spent from 1873 to 1915 as Secretary of the New York Society for the Suppression of Vice. Comstock helped get a set of vague immorality laws passed at the federal and state levels that then allowed him to work relentlessly to rid the country of anything offensive—which meant anything that offended Christian piety. People went to prison for years, suffered hard labor, and lost their livelihoods because this moralist sought to purify the country in line with his suffocating brand of Christianity. He was a self-proclaimed “weeder in the garden of the Lord.”

Comstock’s target was not just pornography, though he confiscated tons of that (much of it incredibly benign by today’s standards). He also went after fine art and any depiction of sexual organs or reproduction, even in medical books—undoubtedly setting back the advance of medicine. He prosecuted distributors of birth control information including, notoriously, Margaret Sanger’s husband, William Sanger. He targeted her husband after Margaret had fled the country to escape arrest.

Comstock also went after freethinkers: people who were calling religion and its rules for private behavior into question. He thought freethinkers, who often held the view that women should be free to control their sexual reproduction in bold defiance of church doctrine, equally immoral as those producing smut. Freethinkers were prosecuted under obscenity law, but the crime was essentially that of impinging on Comstock’s religious sensibilities. And at that time, the crime of obscenity subsumed blasphemy within its ambit.

In 1878, Comstock famously targeted freethinker and publisher D. M. Bennett for prosecution for sending Cupid’s Yokes through the mail. That booklet, authored by Ezra Heywood, was a polemic promoting sexual relations outside of marriage. Heywood argued that society and women especially would be better off if they didn’t have to choose between an imprisoning institution (marriage) and celibacy. It was not in the least obscene except for its unconventional ideas. Yet selling it earned Bennett thirteen months of hard labor.

The repressions of Comstock’s tyrannical reign are given a full treatment in Amy Werbel’s excellent book Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock. Werbel is an associate professor of the history of art at the Fashion Institute of Technology in New York.

But what she says about the rising opposition to Comstock has relevance for today. Werbel credits him with provoking a sophisticated and organized backlash consisting of leaders in media, the arts, law, and science. Because Comstock so overreached, he gave rise to the Free Speech League and the National Civil Liberties Bureau, the precursor organizations to the American Civil Liberties Union. A highly professional First Amendment defense bar emerged to represent defendants charged under the Comstock Laws. And freethinkers such as Robert Green Ingersoll played a key role.

Comstock’s zeal planted the seeds for his campaign’s undoing. Eventually, haltingly, the legal edifice he had built was torn down by courts substituting a much more robust freedom of expression. Today, blasphemy is no longer a prosecutable offense in America, and even obscenity is rarely prosecuted. (Now that everyone carries a porn shop in his or her phone, what can be said to violate contemporary community standards?)

This long-view perspective might help those of us in the modern freethought community during the tough days ahead. They will be akin to Comstockian days, since religious dogma will again become a legal touchstone for repression of nonbelievers. We know the U.S. Supreme Court will soon serve up new, serious retrenchments in church-state separation, and it will likely give Christians exemptions from laws that the rest of us must follow. But that overreach will inspire a resistance. And who knows, it may finally shake the complacency from America’s expanding secular masses and get more casual nonbelievers to join groups such as CFI. If so, that would be the only silver lining in an otherwise bleak road ahead.


Which countries still outlaw apostasy and blasphemy?

Robyn E. Blumner

Robyn E. Blumner is the CEO of the Center for Inquiry and the executive director of the Richard Dawkins Foundation for Reason &, Science. She was a nationally syndicated columnist and editorial writer for the Tampa Bay Times (formerly the St. Petersburg Times) for sixteen years.