Why is Pastor Terry Jones a name that we even recognize? Unfortunately, it is for the same reason we know the name Pastor Fred Phelps. I guess I will never understand people like these two. They are supposed to be holy men, preaching God’s word, instead they spread the message of hate.
This time in Pastor Jones’ case, the consequences meant life. Late last month the Florida pastor and roughly 30 of his followers carried out their threats made last year to burn the Koran. And since then, over 20 people have been killed and many more injured in Afghanistan and Pakistan during riots protesting Jones’ actions.
You may not have heard much about the incident because American news outlets chose not to cover the burning. Many felt it was unnecessary to give Jones the satisfaction of the publicity, but then shortly after news spread around the world and now we are left with one question—should burning the Koran be illegal?
Senator Lindsey Graham suggests something of the sorts:
“You know I wish we could find some way to hold people accountable. Free speech is a great idea but we’re in a war. During World War II, you had limits on what you could say if it would inspire the enemy. So burning a Koran is a terrible thing. But it doesn’t justify killing someone. Burning a bible would be a terrible thing but it doesn’t justify murder. But having said that, any time we can push back here in America against actions like this that put our troops at risk we ought to do it.”
Senator Graham goes on to say that he looks forward to working with the other Senators to condemn this violence. What if legislators were to create a law banning the burning of the Koran?
This brings up the issue of free speech and the First Amendment. As we know content-based restrictions on First Amendment rights have to pass strict scrutiny. So let’s test it.
1. Compelling governmental interest?
2. Narrowly tailored?
3. Least restrictive means?
1. Clearly there is a compelling governmental interest here. President Obama, General Petraeus, and numerous other public figures have already spoken out against the Koran burning. People believe that the incident could cause harm to American troops and others around the world. They were correct that the incident would have some backlash. Members of the UN were killed, however, to my knowledge, no American deaths have been reported yet, thankfully. Still, there has been an anti-Western/anti-American response and so it seems that the government would have compelling interest to ban the Koran burning.
2. It appears here that the issue that has outraged the Muslim people was the March 20th Koran burning. If that specifically is the “speech” causing the violence than it seems reasonable to ban it, leaving the ban to seem to be narrowly tailored. But this is where problems arise…
If we look closer at the events that have occurred and analyze them, we find an issue. I’ve created a diagram:
| Koran Burning | --> | Violence | --> | Ban Burning? |
This just doesn’t make sense here. An American burns the Koran, then Muslims murder people in response. I see a correlation here but there is no causation. The violence and rioting was an indirect response to what happened in Florida. I don’t think lawmakers can restrict free speech for an indirect response. What if we banned everything that caused unrest amongst Muslims? It is not reasonable to do. The logic behind the ban would open a door that Americans and any proponents of free speech do not want to open. Therefore, I don’t believe the ban would be narrowly tailored.
Others have brought up the argument that it is similar to shouting fire in a crowded theater. For arguments sake, we’ll look at the similarities and differences.
First some background… This famous saying came from a decision that Justice Oliver Wendell Holmes Jr. wrote in the Schenck v. United States case. He wrote the unanimous decision that states:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
The saying “clear and present danger” also came from the decision. But as we learned in JOUR 411, in order for there to be a clear and present danger there needs to be causation, imminence, and seriousness. We just saw how there is no causation between the burning and the danger, so that argument can be put to rest.
I think we all would like to see people like Terry Jones go away and never make the evening news again, but the fact of the matter is, no matter how terrible the speech is, it is still protected under the First Amendment. Just like the desecration of the American flag, the “symbolic speech” made in both actions is not right, but it is legal, and it should stay that way. We can’t compromise our fundamental freedoms because of the way people choose to react to something. The Muslim people were provoked, it is true, but they were not forced to behave that way in their response. So once again, we see a win for free speech—it’s just too bad it has to come at the expense of others.
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