PrintApril 30, 2011
First Amendment Headed for the Breyer Patch?
A few days ago, Pastors Terry Jones and Wayne Sapp were thrown in jail for refusing to pay a $1.00 bond ordered by a Michigan judge who upheld a jury verdict that they would "likely breach the peace" if they were allowed to carry out a planned protest at a mosque. The judge appeared unfazed by the fact that the ruling was both a violation of the Court's Brandenburg test (which prohibits political advocacy only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"), and that it amounted to a prior restraint to boot. The case will likely be overturned on appeal because the ruling is so patently unconstitutional. Nevertheless, the case is troubling for what it seems to portend about the future of free speech in America.
A week after Jones threatened to burn the Quran last September SCOTUS Justice Steven Breyer commented that "he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning." Alluding to Holmes's famous "fire" metaphor he added: "You can't shout fire in a crowded theater. Holmes said [the First Amendment] doesn't mean you can shout ‘fire' in a crowded theater." Of course, Holmes said no such thing. He added that all-important little adverb "falsely" before the verb "shout," which makes all the legal difference. Indeed, for its thunder, the metaphor even relies on the certainty of our knowledge that the shout is both false and deceitful in order to give it its bite. For what would be the point of punishing someone who was simply warning us of something we should want to know?
At the time I assumed that Breyer simply misspoke; that inadvertently omitting the criminalizing predicate was simply a slip of the tongue. Later I came across an article in these pages by John T. Bennett who seemed to suggest that Breyer may not have misspoken at all. By omitting the word "falsely," Bennett said, Breyer not only misquoted Holmes "but he did so in a way that indicates his willingness to weaken the First Amendment in favor of appeasing radical Islam." Of course, if Breyer had meant to drop the predicate, he also would have eliminated the criminality element. In the event, the mere burning of the Quran in a globally charged environment might well be sufficient to criminalize the expressive act.
Later, in response to criticism, Breyer doubled back and allowed that by today's constitutional standards Jones has a right to burn the Quran. Nevertheless, it remains puzzling why he didn't say this in the first place, and it is doubly puzzling why he even referenced the metaphor since he surely knows that Holmes's clear and present danger test has been superseded by Brandenburg's incitement test. Be this as it may, that he did refer to it in the context of the violent overseas reaction to the burning leads me to conclude that Breyer not only misstated the terms of the metaphor but that he misapplied it as well.
Consider: burning a Quran has nothing whatever to do with the truth or falsity of any claim. By burning the book Jones was not lying, deceiving, or misleading anyone; whatever his motives, his act was not akin to a false shout of fire. Also, unless we think them sub-human, Muslims in Afghanistan bear no resemblance to Holmes's panicky patrons forced by a supposed emergency to react with but their survival in mind. Distant reports of a Quran aflame do not pass metaphorical muster. Nor, contrary to the conditions stipulated in the metaphor, would anyone be in danger if he remained ignorant of Jones's action. Thus, all that really remains if, like Breyer, we drop the "falsity" requirement and ignore the stipulations of the metaphor, is the violence falsely imputed to the act of Quran burning; violence, to be sure, caused not by the act itself but only by the Muslim perpetrators becoming aware of it.
But this also means that though he referenced it, Breyer's concern was really not with Holmes's metaphor as much as it was with the harm it portrays. In this, Breyer was as worldly as he was au courant. Just as in many countries truth is no defense to libel, so in many jurisdictions free expression "guarantees" are no protection against speech deemed offensive. In Canada, for example, despite a Charter of Rights and Freedoms which "guarantees" everyone freedom of expression, a British Columbia Human Rights Tribunal recently ordered a stand-up comic to pay $15,000.00 to a lesbian who took offense at remarks he leveled at her in response to her heckling, and the establishment's owners were put on the hook for an additional $7,000.00. Woe betides the miscreant jokester and anyone who offers him space. In Canada, heckling not only can veto, it can pay-off as well.
Also in Canada, well-known author and media person, Mark Steyn, was hauled before three such Commissions in part for accurately quoting Norwegian Mullah Krekar's claim that Muslims in Europe are "expanding like mosquitoes." Writer and Publisher Ezra Levant was forced before the Alberta Human Rights Commission for publishing the cartoons depicting Mohammed that "caused" the selectively outraged in 2005-06 to burn, destroy, and murder in retaliation. The complaints against Steyn and Levant were dismissed but likely only because they had both notoriety and deep-pockets. Mr. Earle, the comic, wasn't so lucky as also were many before him.
Canada also has a law (Section 319 (2) of the Criminal Code) which makes it an offense willfully to promote hatred against an identifiable group. This law was used in 1998 to convict a Christian evangelist who was calling attention to Muslim terrorist misdeeds across the world and warning against the possibility in Canada.
Nor is Canada alone in offering such worthless "guarantees." Neither the E.U. nor any other international entity seems bent on upholding free speech in the face of Islamic outrage. Indeed, E.U. member states have an array of anti-hate speech statutes that have been used to punish anti-Islamic expression as have countless other countries. Moreover, international organizations such as The Organization of the Islamic Conference (OIC) have been campaigning for years to get international anti-blasphemy treaties passed which would punish any attempt to defame Islam. Resolutions calling for criminal penalties for defaming religions "had passed every year for more than a decade" in the U.N.'s Human Rights Commission (now Council). Last month, for the first time, the OIC dropped a similar resolution after it realized it wouldn't pass.
Thus, there is plenty of support in the so-called "international community" for sacrificing individual free speech rights on the altar of communal harmony. Breyer and some others on the Court have indicated they are open to legal arguments and results common in other parts of the world. If this openness begins to make itself felt in free speech litigation -- and it will if the internationalists and the "politically correct" among us have their way -- First Amendment exceptionalism might very well give way to an exception for the protection of Islam. In the event, what we can say and do will be determined not by current First Amendment doctrine but by what the offended among us will permit.
