Is Koran Burning Protected by Free Speech?

by Daniel Huff


The struggle for civil rights forged a national commitment to preserving free speech in the face of hostile audiences. It is alarming how quickly the Koran controversy has melted that resolve.

Initially, everyone from Mayor Bloomberg to the White House affirmed a right to burn the book even as they condemned the act. Then Gen. David Petraeus got involved, followed by the FBI, and now Supreme Court Justice Stephen Breyer says Koran burning may not be protected speech after all.

The key to this rapid reversal was General Petraeus' warning that Koran burning "could endanger troops" and the war effort. Although styled as a request not a demand, his comments laid the legal foundation for compelled government censorship. The reason is that First Amendment rights are not absolute. The Constitution permits the government to censor speech if necessary to achieve a compelling government interest. This is a very high standard, but the fact that the nation's top commander made a rare public appeal for restraint will be cited as strong evidence that avoiding offense to Muslims is essential to the national interest.

Once this dangerous premise is accepted, the door is open to court injunctions against speech that inflames Muslim sentiment in strategically important locations.

It has already started.

Last week, the New Jersey Transit Authority fired an 11-year veteran employee for burning the Koran at a 9/11 rally. Ordinarily, a government employee cannot be dismissed for expressing personal views on a matter of public concern unless it interferes with the orderly functioning of the workplace. Should he sue, the government may try the "Petraeus defense."

Hopefully it will fail.

In a series of cases arising out of civil rights demonstrations, the Supreme Court explicitly held that free expression cannot be limited "simply because it might offend a hostile mob."

An alternative rule, would reward bad behavior creating what First Amendment experts call a "heckler's veto." Dunlap v. City of Chicago illustrates the extent of this principle. Officials had denied demonstrators a permit to march in a predominantly white area because every prior similar protest in the vicinity had resulted in violence. When they sued, the district court not only ordered the city to permit the parade, it also demanded officials provide policemen "in such numbers as … are required to afford adequate protection" to the marchers. When the violence officials feared materialized, the court allowed a suit against the city for providing insufficient police protection.

The argument that speech should be censored to prevent violence was rejected in the civil rights context and it should not be accepted now.

That is what made it so frustrating to hear the president, in the very same appearance, denounce Koran burning for fear of offending Muslims, but insist the First Amendment rights of the Ground Zero Mosque planners trump the "extraordinary sensitivities around 9/11." In essence, opponents of the GZM project are being punished for not being violent.

The perverseness of this approach is even starker considering there is no genuine First Amendment issue in the Ground Zero context. That provision places constraints on the government; not on the general public's right to pressure a religious group. By contrast, the Administration's pressure on the Florida pastor, which included dispatching the FBI to impress upon him that his life would be in danger, carries the distinct flavor of prohibited government interference.

Legal wrangling aside, the Administration has it backwards from a strategic standpoint. Insisting Americans curb their First Amendment rights in deference to Muslims, but not asking Muslims to do the same when Americans are offended creates a privileged status for Islam which is exactly what the extremists want. Their goal is to impose a radical brand of Islamic law on society at large. Censoring speech that insults or critiques Islam is the first step in this process and the US government should not be doing it for them.

Even at the tactical level it doesn't make sense. The Obama administration argued Koran burnings could function as a "recruitment tool for Al Qaeda." But anyone who could actually be driven to terrorism by a stunt from a handful of individuals thousands of miles away is no moderate. He was going to be set off eventually anyway. Better to flush him into the open now.

Senior military officials also worried it would hurt our efforts to "win hearts and minds." Afghans "do not understand either the U.S. Constitution's First Amendment or the fact that President Barack Obama can't simply issue a decree to stop" Koran burning.

It would be one thing if Afghan operations were just beginning and America's good faith needed to be established. But U.S. forces have been there 9 years. If the billions spent and thousands lost are not proof enough of America's commitment, nothing ever will be.

As such, curbing free speech rights buys only temporary appeasement and it comes at a high cost. Not only do we compromise our principles, but it emboldens extremists who will conclude the Administration is so fearful of retaliation it jettisoned its inaugural promise to reject the "false …choice between our safety and our ideals."

Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as counsel to the Senate Judiciary Committee and as an associate at McKinsey & Company.

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