Blasphemy, the First Amendment and the Concept of Intrinsic Harm

Abstract

The question of intrinsic harm appears in many of the traditionally most problematic areas of First Amendment jurisprudence. For example, the question underlies the justification for proposed regulations of obscenity, defamation, "offensive" speech, speech impinging on privacy, and so-called "pornographic" speech, which has been defined as sexually explicit speech inherently demeaning to women. Issues of intrinsic harm have proved to be extraordinarily difficult to conceptualize in any way that seems compatible with basic First Amendment principles. To prohibit speech because it seems inherently harmful appears equivalent to prohibiting it simply because we find it undesirable, and nothing could be more inconsistent with the fundamental thrust of the Constitution. In this paper I shall examine the concept of intrinsic harm as it has appeared in the history of the common law crime of blasphemy in England and America. For centuries the crime was used to censor speech felt to be inherently repugnant to the sensibilities of Christians. By closely examining the history of the crime, I hope to be able to offer some general hypotheses about the relationship between intrinsic harm and the legal protection of speech.