The Federal Communications Commission regulates the use of profane content which “includes ‘grossly offensive’ language that is considered a public nuisance.” Public perception has changed a lot since 1964 when the landmark Supreme Court Case, Miller v. California (413 U.S. 15) found that “[t]he jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community and need not employ a ‘national standard.'”
The original public intent of the First Amendment, whether in 1791 or in 1868, allowed for criminalizing blasphemy.
According to the Harvard Law Review (HRL), “At the Founding, anti-blasphemy laws coexisted with constitutional guarantees of free speech and free press — a fact the modern Supreme Court has emphasized in cases on unprotected speech.” 1
HRL concludes that “[I]n proscribing blasphemy, nineteenth-century Americans did not flout constitutional guarantees of free speech, free exercise, and non-establishment. Rather, they conceptualized those guarantees in a way that permitted anti-blasphemy laws” 2 and that for “originalists, the path forward may lie in emphasizing this precedent, which recognizes blasphemy for what it has traditionally been: speech beyond the protection of the First Amendment.”
Let’s hope so.
1. New York v. Ferber, 458 U.S. 747, 754 (1982); Roth v. United States, 354 U.S. 476, 482 & nn.10–12 (1957). For the Court in Roth v. United States, 354 U.S. 476, this history was important evidence that the “unconditional phrasing of the First Amendment was not intended to protect every utterance.” Id. at 483.
2. Originalists have advocated looking to the original conceptions of “freedom of speech” and other open-textured constitutional terms. See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 NOTRE DAME L. REV. 1, 50–55 (2015).