Opinion: 1st Amendment: How to fail the ‘free speech’ test
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Tim Rutten takes on the anti-Muslim, Koran-burning Florida pastor Terry Jones in his Wednesday column; in it, Rutten questions the limits of free speech in a digital (and therefore global) world.
Obviously, there have been necessary wartime restraints on speech, but they’ve always involved restrictions on transmitting information, such as troop movements. What Jones did is luridly offensive, but it amounts to an expression of opinion. Blasphemy is protected by the 1st Amendment, and any attempt to make it otherwise -- however well-intended -- is a prescription for disaster. Still others have wondered whether it might be possible to apply the ‘fighting words’ exception to the 1st Amendment to cases such as Jones’ stunt, which seemed almost certain to provoke a deadly response half a world away.
Rutten concludes:
The issues raised by these events are not a challenge to our conception of free speech, but to our collective conscience. The question that ought to be asked isn’t whether the wretched Jones’ repellent theater is protected speech, but why the United States continues to produce as many people who speak and act as he does about Muslims?
Pastor Gross isn’t the only person to remind us of the uncomfortable side of free speech. In a recent editorial, the board wrote that Pastor Fred Phelps and his Westboro Baptist Church, who protested a U.S. soldiers’ funeral, had ‘the right to be vile.’
Although this case was described as a difficult one for the [Supreme Court], in fact the outcome was based on well-established principles. That explains why eight justices -- liberals and conservatives -- voted to affirm the church’s right to free speech. That will be little consolation to [the father of Lance Cpl. Matthew A. Snyder, a Marine killed in Iraq] or others who thought that the Westboro Baptist Church crossed a legal as well as a moral line. But it’s the right decision.
Xavier Alvarez, who bragged about a military honor he didn’t receive, also passed the free-speech test recently. As Chief Judge Alex Kozinski said:
‘If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.’
Ultimately, the editorial board broke it down as such:
Misrepresentation for financial gain is not protected speech any more than a deceptive advertisement is. But when the purpose of a lie is ego gratification, the proper response is scorn, not a jail sentence.
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-- Alexandra Le Tellier
Top photo: Anti-Islamic pastor Terry Jones of Dove World Outreach Center, a fundamentalist church in Gainesville, Fla. Credit: Scott Audette / Reuters
