THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume XII, Issue # 197, September 20, 2010
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
IS KORAN BURNING PROTECTED BY FREE SPEECH?
By Daniel Huff
FREE SPEECH RIGHTS & HOSTILE AUDIENCES: AMERICA'S NATIONAL COMMITMENT TO PRESERVING FREE SPEECH IN
THE FACE OF HOSTILE AUDIENCES -- THE KORAN BURNING CONTROVERSY & DISSOLUTION OF THE RESOLVE TO PRESERVE
FREE SPEECH -- THE EMERGING LEGAL DOCTRINE HOLDING THAT AVOIDING OFFENSE TO MUSLIMS IS ESSENTIAL TO THE
U.S. NATIONAL INTEREST & THEREFORE TRUMPS THE FIRST AMENDMENT RIGHTS OF INDIVIDUAL AMERICANS -- OPENING
THE DOOR FOR U.S. COURT INJUNCTIONS AGAINST SPEECH THAT INFLAMES MUSLIM SENTIMENT IN STRATEGICALLY
IMPORTANT LOCATIONS -- LAYING THE LEGAL FOUNDATION FOR GOVERNMENT EXERCISE OF THE POWER OF CENSORSHIP
OVER A CITIZEN'S EXPRESSION OF PERSONAL VIEWS ON A MATTER OF PUBLIC CONCERN
FULL STORY:
The struggle for civil rights in the U.S.A. forged a national commitment to preserving free speech in the face of hostile
audiences. It is alarming how quickly the Koran burning 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 General David Petraeus got involved, followed by the FBI, and now U.S. 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 U.S. 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 U.S. 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 435 F. Supp. 1295 (N.D.III.1977) illustrates the extent of this principle. Officials had denied
pro-Martin Luther King 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 U.S. 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 Obama 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 Obama 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 U.S. 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-Qa'ida." 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 nine 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 Obama administration is so fearful of
retaliation it jettisoned its inaugural promise to reject the "false …choice between our safety and our ideals."
LINKS TO RELATED TOPICS:
Political Correctness, Censorship, Thought Control:
Supression of Unacceptable Views & Opinions
Legal Issues, Lawyers, & America's Judiciary
U.S. Constitutional Law & Political Philosophy
The Constitution of the United States of America
Lawfare -- The Use of Law as a Weapon in War & Politics:
Islamist Lawfare & the "Legal" Jihad Against America & the West
Islamism & Jihadism -- The Threat of Radical Islam
Page Three
Page Two
Page One
Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as Counsel to the U.S.
Senate Judiciary Committee, handling a number of matters related to American national security and to civil and
criminal law. As a member of the staff of the Judiciary Committee, one of his priorities was the Free Speech Protection
Act, which was designed to combat "libel tourism," the practice of intimidating American authors by suing them for
libel in foreign jurisdictions less protective of freedom of speech and expression than is the U.S.A.
Prior to his service in Washington, D.C., Huff was an associate at McKinsey & Company in New York, N.Y. A
member of the New York Bar, Huff is a graduate of Columbia University Law School, where he was a Harlan Fiske
Stone Scholar.
The foregoing article by Daniel Huff was originally published in Fox News, September 20, 2010, and
can be found on the Internet website maintained by the Middle East Forum, a foreign policy think tank which seeks to
define and promote American interests in the Middle East, defining U.S. interests to include fighting radical Islam,
working for Palestinian Arab acceptance of the State of Israel, improving the management of U.S. efforts to promote
constitutional democracy in the Middle East, reducing America's energy dependence on the Middle East, more robustly
asserting U.S. interests vis-à-vis Saudi Arabia, and countering the Iranian threat.
(URL: http://www.meforum.org/2749/koran-burning-free-speech)
Republished with Permission of the Middle East Forum
Reprinted from the Middle East Forum News
mefnews@meforum.org (MEF NEWS)
September 20, 2010
Return to Top of Page
Go to the WEBSITE INDEX
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Public Issues & Political Controversies
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA
Most Recent Articles
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Volume XII, 2010
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Subject Matter Highlights
Return to POLITICAL EDUCATION Homepage
CONTACT & ACCESS INFORMATION
This is not a commercial website. The sole purpose of the website is to share with interested persons information regarding civics,
civic and social education, political science, government, politics, law, constitutional law and history, public policy and political
philosophy and history, as well as current and recent political developments, public issues, and political controversies.
POLITICAL EDUCATION, CONSERVATIVE ANALYSIS
POLITICS, SOCIETY, & THE SOVEREIGN STATE
Website of Dr. Almon Leroy Way, Jr.
Government, Politics, Public Policy, Legal Issues, Constitutional Law, Government & the Economy, Cultural Values, Foreign Affairs,
International Relations, Military Defense & National Security, Geopolitics, Terrorism & Homeland Security, American National Interests,
Political Systems & Processes, Political Institutions, Political Ideologies, & Political Philosophy
INDEX FOR THE ENTIRE WEBSITE
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z
THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Dr. Almon Leroy Way, Jr., Editor
Conservative & Free-Market Analysis of Government, Politics & Public Policy, Covering Political, Legal, Constitutional, Economic,
Cultural, Military, International, Strategic, & Geopolitical Issues
Conservative Government Ensures a Nation's Strength, Progress, & Prosperity