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Kalman v. Cortes

June 30, 2010

GEORGE KALMAN
v.
PEDRO A. CORTES, ET AL.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

Table of Contents

I. Introduction...........................................................................................................................2

II. Background............................................................................................................................3

A. Procedural History.....................................................................................................3

B. Parties' Contentions..................................................................................................4

III. Legal Standard.......................................................................................................................5

IV. The Blasphemy Statute.........................................................................................................7

A. Brief History of Blasphemy Jurisprudence...............................................................7

1. Blasphemy Laws in Britain...........................................................................7

2. Blasphemy Laws in America........................................................................8

a. Early Blasphemy Convictions Pre-1st Amend..................................8

b. Blasphemy Cases Post-1st Amend..................................................11

B. The Blasphemy Statute's Origins...........................................................................13

C. Application of the Blasphemy Statute....................................................................16

D. Plaintiff Kalman's Application...............................................................................19

E. The Bureau Amends the "Revised List" of Suspect Words....................................22

V. Discussion...........................................................................................................................23

A. The Establishment Clause.......................................................................................23

1. The Lemon Test..........................................................................................26

a. Purpose............................................................................................27

b. Effect...............................................................................................34

c. Entanglement..................................................................................35

B. Freedom of Speech..................................................................................................40

1. Commercial Speech....................................................................................41

a. Central Hudson Test.......................................................................46

i. Prong One...........................................................................47

ii. Prong Two...........................................................................47

iii. Prong Three.........................................................................47

iv. Prong Four..........................................................................49

2. Non-Commercial Speech............................................................................51

a. Expressive Speech..........................................................................51

b. Viewpoint-Based Regulation..........................................................54

c. Speech Forum Doctrine..................................................................62

VI. Conclusion...........................................................................................................................66

I. Introduction

Blasphemy, which is generally defined as the act of insulting or showing contempt or a lack of reverence for God or something considered sacred, is a religious concept which has existed for thousands of years. As an example, in the Judeo-Christian tradition, blasphemy appears in the Bible in Leviticus 24, where the unnamed son of an Israelite mother and Egyptian father who blasphemed the Lord was brought before Moses, and whose punishment was stoning and death. Other books of the Bible describe the ruthless Babylonian king, Nebuchadnezzar, as a serial blasphemer.Continuing as a religious concept in music and literature, the very same Nebuchadnezzar, with the Italian name "Nabucco" in Verdi's opera, not only denounces God, but declares himself a deity. See Theodore L. Gentry, Nabucco 1842, in Encyclopedia of the Romantic Era, 1760-1850 781, 781 (Christopher John Murray ed., 2003) ("Nabucco appears, places the Crown on his own head, and declares that he is a God. The Hebrews are shocked by the blasphemous act . . . ."). Decades later, the Nobel Prize-winning Irish playwright George Bernard Shaw irreverently wrote: "All great truths begin as blasphemies." Annajanska, The Bolshevik Express (1918).

In the present case, Plaintiff George Kalman commenced this action challenging the constitutionality of Section 1303(c)(2)(ii) of Title 15 of the Pennsylvania Consolidated Statutes (the "Blasphemy Statute"), which prohibits corporate names containing "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." Plaintiff asserts that the Blasphemy Statute violates the Establishment Clause and Free Speech Clause of the First Amendment to the United States Constitution. Plaintiff, who sought to name his film company "I Choose Hell Productions LLC," challenges the statute both on its face and as applied, seeking a declaratory judgment that it violates his constitutional rights, a permanent injunction prohibiting Defendant from enforcing it against Plaintiff or anyone else, and an award of actual damages and attorney's fees. Presently before the Court are the parties' Cross Motions for Summary Judgment, and no material facts are disputed by the parties. For the reasons discussed below, Plaintiff's motion will be granted, and Defendant's motion will be denied.

II. Background

A. Procedural History

On February 18, 2009, Plaintiff Kalman filed his Complaint (Doc. No. 1) against Defendant Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania, in his official capacity, seeking a declaratory judgment that the Blasphemy Statute violates the First and Fourteenth Amendment to the United States Constitution, a permanent injunction prohibiting enforcement of the Blasphemy Statute, and an award of actual damages and attorney's fees.*fn1 On April 16, 2009, Defendant Cortes filed a Motion to Dismiss for Improper Venue (Doc. No. 4), to which Plaintiff responded on May 13, 2009 (Doc. No. 6). On July 23, 2009, the Court held Oral Argument on Defendant's Motion to Dismiss, and on July 28, 2009, issued an Opinion and Order denying the motion. (Kalman v. Cortes, 646 F. Supp. 2d 738 (E.D. Pa. 2009) (Baylson, J.).) On August 10, 2009, Defendant Cortes filed his Answer (Doc. No. 13) to Plaintiff's Complaint. The parties then engaged in and completed extensive discovery.

On December 21, 2009, both parties filed Cross Motions for Summary Judgment (Doc. Nos. 17, 21). On December 24, 2009, an amici curiae brief was filed in support of Plaintiff by the Jewish Social Policy Action Network, the Unitarian Universalist Association, the Rev. Larry W. Smith, and the Rev. Nathan Walker (Doc. No. 23.) Regarding Plaintiff's summary judgment motion (Doc. No. 21), Defendant Cortes responded on January 19, 2010 (Doc. No. 25), and Plaintiff replied on February 8, 2010 (Doc. No. 30). Regarding Defendant's summary judgment motion (Doc. No. 17), Plaintiff responded on January 19, 2010 (Doc. No. 26), and Defendant replied on February 8, 2010 (Doc. No. 29). Oral Argument was held on the cross motions for summary judgment on April 1, 2010. Having been fully briefed and argued, the motions are now ripe for disposition.

B. Parties' Contentions

Plaintiff Kalman argues that the Blasphemy Statute is unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and asks the Court to permanently enjoin both Defendant and Pennsylvania's Department of State from enforcing it.Plaintiff argues that the Blasphemy Statute violates the Establishment Clause because it has a non-secular purpose, its principal or primary effect advances religion, and it fosters an excessive government entanglement with religion. Plaintiff also argues that the Blasphemy Statute violates the Free Speech Clause because it discriminates on the basis of viewpoint, constitutes an unconstitutional prior restraint on speech, and is unconstitutionally vague.

Defendant Cortes argues that the Blasphemy Statute does not violate the Establishment Clause because its purpose and effect is to protect the public from offensive, indecent, and profane expression, and because there is no excessive government entanglement with religion. Defendant also argues that the Blasphemy Statute is constitutional because it is appropriately tailored to serve the legitimate end of regulating commercial speech. In the alternative, Defendant argues that the Blasphemy Statute is constitutional under the Free Speech Clause because it governs speech in a non-public forum and is both reasonable and viewpoint neutral, because it addresses unprotected classes of speech, namely, obscenity and profanity, and because it is not unconstitutionally overbroad or vague.

III. Legal Standard

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This same standard applies when there are cross motions for summary judgment. See Princeton Ins. Co. v. Converium Reinsurance (N. Am.) Inc., 344 Fed. Appx. 759, 761 (3d Cir. 2009); see also Se. Pa. Transit Auth. v. Pa. Pub. Util. Comm'n, 826 F. Supp. 1506, 1512 (E.D. Pa. 1993) ("The standards for granting or denying summary judgment do not change by virtue of cross-motions being presented.").

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). After the moving party has met its initial burden, the adverse party's response must "by affidavits or as otherwise provided in this rule [ ] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.

"When confronted with cross-motions for summary judgment, the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard." Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed. Appx. 266, 270 (3d Cir. 2006). If review of the cross motions reveals no genuine issue of material fact, then judgment may be "entered in favor of the party deserving judgment in light of the law and undisputed facts." Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).

IV. The Blasphemy Statute

The information set forth below and throughout the remainder of this opinion comes from publicly available sources and from the discovery taken in this case and supplied to the Court by the parties. See Fed. R. Civ. P. 56.

A. Brief History of Blasphemy Jurisprudence

1. Blasphemy Laws in Britain

Prohibitions on blasphemy predate the American Revolution, existing in Britain as early as 1648, when the British Parliament passed an ordinance providing that an individual convicted of one of several acts of blasphemy "shall suffer the pains of death." An Ordinance for the Punishing of Blasphemies and Heresies, 1648 (Eng.), Acts and Ordinances of the Interregnum, 1642--1660 (C.H. Firth & R.S. Rait eds., 1911), available at http://www.british-history.ac.uk/report.aspx?compid=56264 (last visited May 18, 2010). The "Blasphemies and Heresies" described in this ordinance were limited to profaning the Christian God; for example, the ordinance prohibited "Preaching, Teaching, Printing or Writing, Maintain[ing] or publish[ing]" that the Holy Trinity*fn2 "are not one Eternal God," or that "Jesus Christ is not the Son of God." Id. The law was enforced against numerous individuals, including George Fox, founder of the Society of Friends,*fn3 James Nayler, a prominent Quaker leader, and William Penn, founder of Pennsylvania.*fn4

As early as 1675, British courts expressly recognized Christianity as comprising English law. That year, John Taylor was convicted of uttering various "blasphemous expressions," including that he was Christ's younger brother, that "Christ is a whoremaster," and that "religion is a cheat." Taylor's Case, 1 Ventis 293, 86 Eng. Rep. 189, 189 (1676). Justice Matthew Hale, writing for the Court of King's Bench in Taylor's Case, explained that "wicked blasphemous words were not only an offense to God and religion, but a crime against the Laws, State and Government, and therefore punishable in this Court," because "Christianity is a parcel of the laws of England; and therefore to reproach the Christian Religion is to speak in subversion of the law." Id. British courts, however, clarified that the blasphemy prohibition only extended to "Christianity," which is the "established law of the country," and did not protect Judaism, Islam, or "any sect of the Christian religion, except the [Anglican] form established by law," including the Catholic Church. Regina v. Gathercole, 2 Lewin 237, 168 Eng. Rep. 1140, 1146 (1838).

2. Blasphemy Laws in America

a. Early Blasphemy Convictions Prior to the Incorporation of the First Amendment*fn5

Britain's prohibition on blasphemy was also enforced on American soil. The Massachusetts Bay Colony hanged four Quakers for blasphemy in 1659-1660, and prosecuted numerous individuals accused of blasphemy in the infamous Salem witch trials of the 1690s. See Rufus M. Jones, The Quakers in the American Colonies 76-80 (MacMillan & Co., 1923). Even after the American Revolution and the drafting of the Bill of Rights, which asserted freedom of religion, blasphemy prohibitions remained. As the Supreme Court has explained,

[m]ost of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the "Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship." Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711-1712, c. 1, p. 218.

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 104 (1973); see also Roth v. United States, 354 U.S. 476, 482-483 (1957) ("Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes." (internal footnote omitted)).The First Amendment, including its provisions concerning religion, had not yet been incorporated to apply to the States.

In People v. Ruggles, 8 Johns. 290 (N.Y. Sup. Ct. 1811), one of the most famous blasphemy cases in the United States, the New York State Supreme Court affirmed the blasphemy conviction of John Ruggles, a man who had shouted "Jesus Christ was a bastard, and his mother must be a whore" while at the door of a tavern after drinking heavily. Id. at 291. Ruggles' attorney argued that unlike English law, New York common-law did not prohibit Ruggles from making blasphemous statements because the Constitution "allows a free toleration to all religions and all kinds of worship," and that Christianity had not been made part of the law of New York. Id. Chief Judge Kent rejected these arguments, instead determining that "[t]he people of this State, in common with the people of this country, profess the general doctrines of Christianity," and "the case assumes we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity and not upon the doctrines or worship of . . . imposters." Id. Notwithstanding the "expressions in the constitution," Chief Judge Kent concluded that Ruggles' blasphemous statement, which had been made "with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion," constituted an "abuse" of the right to "free and decent discussion on any religious subject." Id. at 293. The Ruggles Court, therefore, affirmed that "'Christianity in general' described the boundaries of religious liberty in the new American republic," just as it had been embodied in British common-law. Sarah B. Gordon, Blasphemy and the Law of Religious Liberty in Nineteenth--Century America, 52 Am. Q. 682, 684 (2000).

The Ruggles decision was by no means an outlier. Various other state courts joined the New York Supreme Court in finding Christianity to be part of state common-law. Over a decade after Ruggles, the Pennsylvania Supreme Court affirmed that blasphemy remained a common-law crime under Pennsylvania law in Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824). In that case, during a debating society's debate about religion, the defendant, Updegraph, stated that "the Holy Scriptures were a mere fable, that they were a contradiction, and that, although they contained a number of good things, yet they contained a great many lies." Although the Pennsylvania Supreme Court reversed Updegraph's conviction on other grounds, the Court noted that "Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania," and that finding to the contrary would carry away "restraints upon civil liberty." Id. at 399. In ...


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