Koran-burning and the 1st Amendment
Let us stipulate from the outset that the Reverend Terry Jones – would-be Koran-burner – is a knuckle-head of the first order. Ideas cannot be destroyed by fire, and the resort to destruction instead of engagement suggests a fear of confronting offensive thoughts with reason, as if the words of the Koran are too strong to survive intellectual challenge.
Still, despite universal agreement on the senselessness of book-burning, no one of note has seriously questioned the right of Jones to perform this stupid act. Until now.
Enter Supreme Court Justice Stephen Breyer. Recently in an interview, Breyer caused a small splash when he raised the possibility that burning a Koran would not be protected speech under the First Amendment.
In Schenk v. United States, Oliver Wendell Holmes famously wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” Relying on this time-honored understanding of constitutional law, Breyer wondered whether the danger thought to be created by Koran-burning was enough to justify its suppression. “What,” he asked, “is the crowded theater today?”
Breyer’s question merits a response. Allowing the government to curb offensive speech because others may react violently to it places a speaker’s free speech rights in the hostile hands of those the speaker seeks to criticize.
When this happens, free speech transforms from a sacrosanct right to a mere privilege, subject to being taken away if the government – which is rarely a neutral party – decides particular speech is too offensive for tender years. The result: liberty suffers.
Moreover, the analogy between shouting fire in a theater and burning a Koran is not a strong one. Shouting “fire” in a crowded area has nothing to do with free expression; it is a false assertion of fact designed to immediately cause a riot. It is mayhem for the sake of mayhem.
Koran-burning, on the other hand, is something much different. This act, however distasteful, expresses a particular viewpoint: the Koran is bad.
Protecting a person’s right to make this type of political and religious statement goes to the heart of the First Amendment. That some may find this idea offensive and even react violently in response does not matter. Free speech cannot be at the mercy of hurt feelings. Freedom to speak is freedom to offend.
These are dangerous times for free speech. Dutch filmmaker Theo van Gogh was brutally assassinated after making a film critical of Islam’s treatment of women. After a series of death threats, Comedy Central edited a controversial episode of its show “South Park” satirizing Muhammad. The FBI advised Molly Norris – who originated Everybody Draw Muhammad Day – to change her name and go into hiding lest she meet a similar fate as van Gogh. She followed the advice.
The common link of these examples is the violent resistance of Islamic fundamentalists to the open and passionate discourse we take for granted in this country.
For Americans, the response to offensive speech is counter-speech. For the terrorists, the response is murder.
The clash between these two competing systems of values will define the history of this century, much like the battle between democracy and communism framed the narrative of the last one.
No doubt such incidents as the killing of Theo van Gogh influenced Breyer’s speculation that the government might possess the power to ban Koran-burning. But here the cure is worse than the disease.
Should the government use law to chill the very speech the terrorists seek to silence through violence? To ask the question is to answer it.
Giving terrorists a veto power over what we can and cannot say is a sign of weakness and invites more terror. Free governments cannot be held hostage by violence and still retain their free character. Liberty must never succumb to fear.
[Lance McMillian, a Fayette County resident, is a law professor at Atlanta’s John Marshall Law School, where he teaches constitutional law.]