John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g ddamned milk packaging law is stupid," and that "I will strangle every one of those g ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about 15 minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway during the hours of 7:45 a.m. 8:15 a.m., 11:45 a.m. 12:15 p.m., 12:45 p.m. 1:15 p.m., and 4:45 p.m. 5:15 p.m. on Capitol working days.""A third state statute, enacted in 1880, makes criminal "the utterance in any public place of any blasphemy or sacrilege." Assume that there have been only a few recorded prosecutions under the 1880 statute. Doe is charged with violating its proscriptions. The charge is based wholly on the speech he delivered on the steps of the Clinton State Capitol. Which of the following constitutional defenses to this prosecution under the 1880 statute would be the LEAST likely to succeed?
This statute is vague and therefore violates the due process clause of the Fourteenth Amendment. This statute is an establishment of religion and therefore violates the due process clause of the Fourteenth Amendment. Application of this statute to Doe denies him equal protection of the laws in violation of the Fourteenth Amendment. Application of this statute to Doe denies him freedom of speech in violation of the Fourteenth Amendment