Eugene Volokh's Blog, page 2643
December 29, 2011
State Regulation of Traditional Payday Lending Spurring Growth in Online Payday Lending
So it turns out that simply eliminating the supply of payday lending doesn't actually eliminate demand. Who would've thought it? According to this story (which simply reports what has already been known to be the case), whenever state laws eliminate bricks-and-mortar payday lending many of those consumers simply substitute to online payday lending. Indian Tribes are becoming an especially attractive base for online payday lending operations.
In general, of course, more competition is better than less, and so I fully support the right of online payday lenders to compete with traditional bricks-and-mortar operations. On the other hand, as noted in the article, online payday lending raises several novel regulatory concerns. For example, as I understand it, rather than writing a post-dated check, online payday lending often works through a borrower giving the lender direct access to his bank account to make an EFT, which can raise heightened concerns about privacy and security. Moreover, despite their lower operating costs, to date online payday lenders do not appear to offer rates noticeably lower than bricks-and-mortar businesses. This could be for several reasons: adverse selection, heightened default risk (because of lack of legal enforceability), or reduced competition because of the fact that many online borrowers lack easily-accessible offline options. In the medium to long run, however, I suspect that online payday lending is a useful pro-consumer innovation and would grow over time, even without the subsidy provided by legislators regulating out of existence their leading source of competition.
More generally, the point here is obvious: while competition and free choice is good, enacting well-intentioned but misguided regulations that eliminate consumers' preferred options and push them to less-preferred options is not a strategy well-designed to increase their welfare. You simply cannot wish away consumer need for credit, even short-term high-cost credit. And while state regulations enacted on the misguided premise that we can wish away that need has proved a boon for Indian Tribes and online lenders I fail to see how payday loan customers are better off as a result of this substitution.
Update:
I received a few useful comments from a lawyer who expert in all types of payday lending. He offers a few corrections and elaborations to some of my observations:
1. Regarding "heightened concerns about privacy for ACH debits, the information necessary to initiate an ACH debit entry to a person's checking account is the same information that is encoded on the bottom of his check–the routing number and account number, nothing more, and has no more "private" information than the possessor of an unsigned black check from the borrower's account. The ACH process is also extensively used by brick-and-mortar payday lenders to collect past-due loans for reasons for speed and simplicity. The cost of doing so is also lower than the cost of presenting the physical check; bank charges for a returned ACH debit are generally a small fraction of such charges for a returned check–this despite the current practice of banks under the Check 21 Act to present nearly all checks electronically.
2. There is a huge, and rapidly-growing, Internet-based lending business, both for payday and auto title. Indian tribal sovereign immunity is only one of the models.
3. In general, the price of an Internet payday loan is, as you point out, higher than the price of a comparable brick-and-mortar loan. There are several reasons for this. First, with immaterial exceptions, every state that permits payday lending has a regulated price ceiling. As a general matter, the regulated ceiling is below the equilibrium price. The Internet is generally free of these strictures, price discovery is simple, and the equilibrium price unsurprisingly winds up as the market rate. Second, the lender's highest costs on the Internet are not credit losses but rather the costs of borrower acquisition that involve payments to third parties.... Lead generation is itself a huge and profitable industry. Third, credit losses are indeed somewhat higher with Internet loans but insufficiently higher to explain the price differential.
This is all very helpful. I find point 3 especially interesting in that it reminds me that payday loan storefronts are themselves a type of advertising, much like the ubiquity of Starbucks stores not only enables them to sell a lot of coffee but also serves as a type of advertising for the chain more generally. At the same time, this advertising function is embedded in the overhead. Online payday lending, of course, lacks that attribute so it follows that they would have to use alternative marketing devices. I'm intrigued by the "lead" business for Internet payday loans if anyone knows more about that.
Also, it sounds like there is indeed some adverse selection with respect to Internet lenders as at least some of those who borrow have been rationed out of traditional bricks-and-mortar price controls. Adverse selection might also contribute to the higher default rate online if collection is more difficult because of legal restrictions and difficult in enforcement.
December 28, 2011
Does Presence of a Concealed Weapon Create Reasonable Suspicion of a Crime?
A recent decision of the District of New Mexico, United States v. Rodriguez, 2011 WL 6739498 (D.N.M. Dec. 8, 2011) (Browning, J.) , addresses an issue of Fourth Amendment law that touches on Second Amendment concerns: In a concealed carry state, does police observation that a person is in possession of a concealed weapon create "reasonable suspicion" justifying a stop and frisk for a potential violation of the state's concealed carry law? The court concludes that it does, although that conclusion strikes me as incorrect.
The facts of the case are complicated, but here are the basics. A local 911 dispatcher received a call from a woman who reported that she had just seen two employees of a convenience store show their handguns to each other while inside the store. The caller indicated that both of the employees were carrying the guns on their persons. Officer Munoz was dispatched to the convenience store, which was located in a high-crime neighborhood and which Munoz had visited in response to police calls many times before. Munoz entered the store and saw an employee restocking some products. When the employee bent over one of the shelves, the officer could see a handgun tucked in the waistband of the back of his pants. The officer asked the employee to step outside, and he grabbed the gun from the employee's waistband for officer safety purposes. Once outside, the officer asked the employee if he had a permit to carry the gun. The employee, Rodriguez, said he did not. The gun turned out to be a loaded Smith and Wesson .357 magnum revolver. The officer arrested the employee for violating New Mexico law on carrying a concealed loaded firearm, which states in relevant part:
30–7-2. Unlawful carrying of a deadly weapon.
A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases: . . . by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [29–19-1 NMSA 1978].
B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.
C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.
It turned out that the employee had a felony record, and he was therefore charged in federal court with being a felon in possession. He has here challenged the "stop and frisk" which lead to the exchange in which Rodriguez acknowledged that he had no permit, thus leading to his arrest. Whether the "stop" was lawful depends on whether the officers had "reasonable suspicion," based on specific and articulable facts, that the employee was engaged in illegal activity. Whether the frisk that retrieved the gun was lawful depends on whether the officers had specific and articulable facts that the suspect was armed and dangerous.
The District Court, per Judge James O. Browning, concludes that seeing the gun on Rodriguez created reasonable suspicion justifying the stop:
When the officers arrived at the convenience store, through their own observations, they saw the gun concealed under Rodriguez' shirt and tucked into his waistband. While it is true, as Rodriguez has argued, that he may have been able to possess the handgun under N.M.S.A.1978, § 30–7–2(A)(1), the Tenth Circuit and the Supreme Court have recognized that, even when conduct may have been legal under state law, such possibility does not automatically preclude reasonable suspicion to conduct an investigatory stop. See United States v. King, 990 F.2d at 1556 ("[W]holly lawful conduct might justify the suspicion that criminal activity was afoot." (alteration in original)(quoting Reid v. Georgia, 448 U.S. at 442)). More specifically, the Tenth Circuit has recognized this principle in the context of New Mexico laws on carrying concealed weapons. See United States v. King, 990 F.2d at 1556.
The officers could have concluded, based on their observations, that Rodriguez would require a license to lawfully carry a concealed firearm. See N.M.S.A.1978, § 30–7–2(A)(5) (providing as an exception to the law that "carrying of a deadly weapon" is an offense when the person is "in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act"). Additionally, New Mexico law expressly permits officers to inquire of persons carrying a concealed handgun whether they have a license to do so. See N.M.Code R. § 10.8.2.16 ("A licensee carrying a concealed handgun on or about his person in public shall, upon demand by a peace officer, display his license to carry a concealed handgun."). The officers observed Rodriguez' concealed firearm before interacting with him or communicating with him. . . . Other facts that support the existence of reasonable suspicion are that Munoz was aware that the convenience store was in a high crime area in town, and he had been to this particular gas station in the past numerous times to investigate reports of criminal conduct. See United States v. Arvizu, 534 U.S. 266 (2002)(recognizing that officers are "entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area's inhabitants."); Ornelas v. United States, 517 U.S. 690, 699 (1996)("[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference."). Under these facts, the most important fact being the officers' firsthand observation of the firearm, the officers had reasonable suspicion that Rodriguez was carrying a firearm in violation of New Mexico law.
These facts make this case similar to the Fourth Circuit's United States v. Black decision. The Fourth Circuit in that case found that reasonable suspicion existed to detain a defendant for carrying a concealed firearm in violation of state law based on the following facts: (i) the officer knew that the area was a high crime area in which the officer had made numerous arrests; (ii) while the officers were talking to the defendant, he had his "right hand awkwardly inserted halfway in his right-hand pocket, 'cupped' as if 'grasping an object' "; (iii) the defendant hesitated to remove his hand from his pocket when requested to do so; (iv) after the defendant removed his hand, the officer observed a bulge in the defendant's pocket; (v) the defendant lied about what was in his pocket, saying he had nothing in there other than his money and his identification; and (vi) after the defendant realized that the officers thought he was lying, he put his hand back in his pocket. See United States v. Black, 525 F.3d at 361–62. Notably, the officers in United States v. Black had reasonable suspicion even though they never observed the firearm before the investigatory detention began. In this case, the officers observed Rodriguez' firearm tucked into his waistband. . . .
Rodriguez may object that the practical end result of the Court's decision is that, in New Mexico, a police officer's observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.
According to the Court, the same facts justified taking away the gun for officer safety purposes:
While the gun was tucked into his waistband, it was immediately within Rodriguez' reach. Munoz testified that he removed the weapon because he was concerned for officer safety. Given that the officers actually observed the firearm and that it was immediately within Rodriguez' reach, "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. at 27. As the Tenth Circuit has likewise explained: "The presence of one firearm ... certainly provides a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons." United States v. Henning, 906 F.2d 1392 (citations omitted). Thus, under these circumstances, the officers properly obtained Rodriguez' weapon from him to protect their safety.
The court's analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn't inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it. And the fact that this occurred in a high-crime neighborhood doesn't make a difference: The suspect was an employee of a convenience store who was working in the store at the time, so it's not like the nature of the neighborhood suggests he was more likely to be involved in crime himself.
The Fourth Circuit's decision in Black seems clearly inapposite. In Black, the suspect acted suspiciously, hesitated to comply with officer's demands, and outright lied to the officers, creating the suspicion that he was hiding something in his pocket. It was the appearance of deceitfulness that created the reasonable suspicion. In this case, by contrast, the employee did not act deceitfully. The officers decided to initiate the stop before the employee was asked a question or even knew the officers were there.
The Court's frisk analysis also seems suspect. A frisk requires specific and articulable facts that the suspect is armed and dangerous. Obviously Rodriguez was armed. But in a state that allows concealed carry with a permit, it's not clear that mere possession suggests danger to the officer. It may be argued that taking away the gun wasn't so much a frisk as it was a seizure of the gun, but then I don't see the probable cause that the gun was evidence of a crime needed to satisfy the plain view exception.
I would think the best argument for reasonable suspicion would be based on the fact that the gun was just tucked in the waistband of the guy's pants rather than safely holstered, but the court does not address this possibility; I'll leave to others whether the argument has any merit. Finally, I should note that even if the court's analysis is wrong, which I think it is, that doesn't mean the motion to suppress should have been granted. The court did not reach the government's argument that the "inevitable discovery" exception to the exclusionary rule applied, and it sounds like it would fit neatly here: If the officers had not conducted a Terry stop, they would have asked the same questions and presumably received the same answers. (Hat tip: FourthAmendment.com)
Lawsuit Claiming University of Iowa College of Law Discriminated Against Republican Teaching Applicant
Ilya blogged about this lawsuit when it was filed, so I thought I'd note that today the Eighth Circuit allowed the lawsuit to go forward, "revers[ing] the district court's grant of summary judgment based on qualified immunity." Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. "Dean Jones's conduct confirmed the faculty's recommendations, which a jury ultimately could conclude violated the First Amendment."
Thanks to How Appealing for the pointer. On Brief, Iowa's Appellate Blog has more.
Are people with concealed handgun carry permits a menace to society?
According to the New York Times, the answer seems to be "yes." An article in yesterday's Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is "nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence."
"Drunk driving" (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn't make her some "potentially volatile" person who is going to murder somebody in an inebriated rage.
In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.
In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in public place) is less than one in one thousand.
Instapundit collects some other responses to the Times' effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.
[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]
The Latest Signing Statement
On December 23, the President signed an omnibus spending bill and issued a signing statement detailing his objections to various provisions and limitations contained in the bill. Here is coverage from The Hill and the NYT. Several of the bill's provisions "raise constitutional concerns." Accordingly, the President announced these provisions would be interpreted in a manner that would minimize potential constitutional conflicts and applied " in a manner consistent with my constitutional authority as Commander in Chief." Furthermore, the President explained, he would "not treat these provisions as limiting my constitutional authorities in the area of foreign relations."
Football Over Soccer
An Englishman makes a confession: He prefers American football to soccer.
In its energy and complexity, football captures the spirit of America better than any other cultural creation on this continent, and I don't mean because it features long breaks in which advertisers get to sell beer and treatments for erectile dysfunction. It sits at the intersection of pioneering aggression and impossibly complex strategic planning. It is a collision of Hobbes and Locke; violent, primal force tempered by the most complex set of rules, regulations, procedures and systems ever conceived in an athletic framework.
Soccer is called the beautiful game. But football is chess, played with real pieces that try to knock each other's brains out. It doesn't get any more beautiful than that.
December 27, 2011
My Politico Commentary on Ron Paul and his Racist Newsletters
The Politico website recently asked its contributors for commentary on the controversy over Ron Paul's racist newsletters. Here is an excerpt from my response:
Ron Paul clearly deserves substantial blame for publishing racist and anti-Semitic material in his newsletters in the early 1990s. Although he almost certainly did not write those articles himself, it is difficult to believe that he was completely unaware of their contents. Moreover, there is no disputing the fact that, in the early 1990s, Paul was part of a small group of libertarians led by Lew Rockwell and Murray Rothbard who sought to forge an alliance with "paleoconservative" elements by adopting a political strategy of appealing to white racial resentment.....
Paul is not a racist himself. But at least for a time, he was clearly willing to get into bed with political allies who sought to exploit racist sentiments. In some ways, Paul's situation is similar to that of other politicians with dubious past associations. Indeed, there are parallels between Paul today and Barack Obama in 2008, when he was attacked for his past relationships with anti-American and anti-Semitic minister Jeremiah Wright and ex-terrorist and self-described communist Bill Ayers....
Despite their respective efforts at damage control, it is entirely legitimate to hold these past associations against Obama and Paul. While they were not bigots or terrorists themselves, they clearly were willing to ally themselves with people who are.....
I am not a Paul supporter myself – both because of the newsletter issue, and because I think he is badly misguided on some other issues. But I can understand why a reasonable person might reach the conclusion that Paul's strong libertarian stance on a number of issues today outweighs his earlier sins.
One of my concerns about Paul's candidacy is that it could end up tarring libertarianism by association with his past misdeeds. It is important to recognize that the Rothbard-Rockwell strategy was opposed by most libertarian intellectuals and movement organizations when they and Paul pursued it in the early 1990s.....
[N]umerous libertarian commentators have denounced Paul's equivocations about the newsletters during the 2008 campaign and this year. We have neither excused nor ignored his very real flaws. Rothbard and Rockwell's "paleo" strategy was widely opposed in libertarian circles long before it became a major public controversy during Paul's most recent presidential campaigns.
Paul's relative success this year shows that the libertarian message has considerable appeal even when the messenger is deeply flawed. It remains to be seen how much the messenger's sins will tarnish the libertarian cause in the long run.
For my earlier commentary on Paul, see here and here, and this series of posts written during the 2008 campaign.
Nice Ink for the Goldwater Institute
I wanted to recognize a nice story published on Christmas Day in the New York Times about my friends at the Goldwater Institute where I (and Randy) are Senior Fellows. In addition to Clint Bolick, who is featured in the article, I want to recognize the great work of Nick Dranias, with whom I've done most of my work with the Institute.
If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home?
SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a "search" and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.
This may seem like the kind of minutiae that only a law nerd could love, but I think it rests on some very interesting puzzles of Fourth Amendment law. There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a "technique." At the sae time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can't themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home). In the case of sniffs around a car, reasonable people can disagree for a number of reasons on how dog sniffs should fit in this framework. But once the Court announces the rule for the common case of the sniff around a car, as it did in Caballes, some officer is going to try to use the rule to see if it applies elsewhere, as in a search around a home. Use of the technique at a home changes its practical significance, however, creating a possible conflict between the kinds of pragmatic assessments that may have guided the rule-choice in the car setting and the need to explain how a practice can be a search at the front door of a home but not around a car.
So you could end up with judges going all sorts of different ways: some would say neither should be a search, others would say both should be, and some would say the home sniff is and the car sniff isn't. To top it off, many people have extremely strong beliefs about what the correct answer is, so much that they think any other answer must reveal some sort of bad faith or idiocy. Fun stuff for Fourth Amendment nerds, anyway.
Austrian Court Upholds Conviction for "Denigrating Religious Beliefs"
Soeren Kern (Hudson New York) reports:
An Austrian appellate court has upheld the conviction of Elisabeth Sabaditsch-Wolff, a Viennese housewife and anti-Jihad activist, for "denigrating religious beliefs" after giving a series of seminars about the dangers of radical Islam.
The December 20 ruling shows that while Judaism and Christianity can be disparaged with impunity in postmodern multicultural Austria, speaking the truth about Islam is subject to swift and hefty legal penalties.
Although the case has major implications for freedom of speech in Austria, as well as in Europe as a whole, it has received virtually no press coverage in the American mainstream media.
Sabaditsch-Wolff's Kafkaesque legal problems began in November 2009, when she presented a three-part seminar about Islam to the Freedom Education Institute, a political academy linked to the Austrian Freedom Party.
A glossy socialist weekly magazine, NEWS — all in capital letters — planted a journalist in the audience to secretly record the first two lectures. Lawyers for the leftwing publication then handed the transcripts over to the Viennese public prosecutor's office as evidence of hate speech against Islam, according to Section 283 of the Austrian Criminal Code (Strafgesetzbuch, StGB). Formal charges against Sabaditsch-Wolff were filed in September 2010; and her bench trial, presided on by one multicultural judge and no jury, began November 23, 2010....
[At trial,] Sabaditsch-Wolff was convicted of ... "denigration of religious beliefs of a legally recognized religion," according to Section 188 of the Austrian Criminal Code.
The judge ruled that Sabaditsch-Wolff committed a crime by stating in her seminars about Islam that the Islamic prophet Mohammed was a pedophile (Sabaditsch-Wolff's actual words were "Mohammed had a thing for little girls.")
The judge rationalized that Mohammed's sexual contact with nine-year-old Aisha could not be considered pedophilia because Mohammed continued his marriage to Aisha until his death. According to this line of thinking, Mohammed had no exclusive desire for underage girls; he was also attracted to older females because Aisha was 18 years old when Mohammed died....
Sabaditsch-Wolff appealed the conviction to the Provincial Appellate Court (Oberlandesgericht Wien) in Vienna, but that appeal was rejected on December 20....
In January 2009, Susanne Winter, an Austrian politician and Member of Parliament, was convicted for the "crime" of saying that "in today's system" the Mohammed would be considered a "child molester," referring to his marriage to Aisha. Winter was also convicted of "incitement" for saying that Austria faces an "Islamic immigration tsunami."
If anyone can point me to an English translation of the opinion, or an English-language news story on the subject that adds more details, or even to the German-language original of the appellate decision, I'd love to see it. The court says she will go to prison if the fine is not paid within the next six months. She says she will take the case to the Strasbourg-based European Court for Human Rights.
I should note that Austria has indeed tried to restrict blasphemy of Christianity at least as recently as 1985, and continued to defend such a restriction until 1993 — see this post, which links to Otto-Preminger-Institut v. Austria, the European Court of Human Rights case upholding the restriction. Elsewhere in Europe (though I realize that none of this reflects on Austria as such), a Greek court convicted a cartoonist of blasphemy in 2005 for a comic book related to Jesus, but that conviction was reversed on appeal; a Polish singer was prosecuted for insulting Christianity in 2010, but that prosecution was likewise rejected on appeal; and just this year, a Russian court banned the exhibition of a painting that alleged blasphemed Christianity.
By way of perspective, several early 1800s American cases (I know of four published opinions, Ruggles, Updegraph, Kneeland, and Murray) upheld convictions for blasphemy of Christianity, sometimes based on similar facts: People v. Ruggles (N.Y. 1811), for instance, involved a defendant who had said "Jesus Christ was a bastard and his mother must be a whore," reasoning thus:
We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, "profane scoffing doth by little and little deface the reverence for religion;" and who adds, in another place, "two principal causes have I ever known of atheism — curious controversies and profane scoffing." Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers, embraced the religion of the country....
The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.
But fortunately American free speech law has changed since then, and I'm disappointed that a European democracy such as Austria is, in the early 2000s, as intolerant of condemnation of religion — even harsh condemnation of religion — as was America in the early 1800s.
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