Even Bigots Have First Amendment Rights
Christian Evangelical preacher Terry Jones is no stranger to controversy, and his latest campaign to burn Qurans on 9/11 is also not his first foray into professional provocation. His fear of a Muslim takeover was a central theme of a sister church he ran in Cologne, Germany. As the community’s demographics changed due to an influx of Turkish, predominately Muslim, immigrants his hateful message condemning Islam was not so well received and Jones left Germany under a cloud of controversy.
And that’s how Jones landed in Florida and the genesis of the plan by the Dove World Outreach Church to hold a Quran burning as a “warning to the radical element of Islam” came to be. Not surprisingly, the actions have been largely condemned by everyone from General David Petraeus to Attorney General Eric Holder (though, Republican leadership remains disturbingly mum on the controversy).
But as offensive as the event is, there is little question that Jones and his congregation have the right to hold it.
Freedom of speech is one of this country’s most fundamental and crucial (though albeit at times divisive) freedoms enshrined in our Constitution. But free speech, even in the form of protest or political speech, is not the same thing as unfettered speech. In fact, there are all kinds of speech that are easily regulated, including hate speech (and given the circumstances surrounding the protest, burning Qurans falls into the category of hate speech).
A good comparison, from a jurisprudence standpoint, are cases that involve cross burning. The cross burning cases are illustrative because, as symbolic speech acts, cross burning carries with it a specific, historical campaign of terror that continues today as a symbol of hate. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. So ordinances that are specifically targeted to get to that kind of expression, so long as that link between the specific expression and specific intent can be maintained.
Specifically, in both R.A.V. v. City of St. Paul and Virginia v. Black the Supreme Court addressed city ordinances that prohibited cross burning because, while they may be offensive, as messages of shared ideology they start with a presumption that they are protected and efforts to stifle that speech fall under traditional strict scrutiny constitutional analysis. In these cases one ordinance survived, and one did not, and the difference hung on the level of specificity of the speech act. The test is whether or not that speech act crosses the line into true threats–forms of intimidation that are tangible and specific enough to incite specific action. In the case of Dove Congregation we have offensive, but are we confident we have enough to show an intent to create a “pervasive fear” in Muslims of “bodily harm or death”? More likely we just have reckless and stupid.
It would appear that Jones is on pretty solid First Amendment ground here. But as Robin Marty discusses, so what. Just because he can do it doesn’t mean he should, and it doesn’t mean that others shouldn’t stand up and criticize him in the meantime.
photo courtesy of pcorreia via Flickr