That Man Terry Jones Who Wants to Burn Qur’ans

Can you say nut job? The decision of Florida “Pastor” Terry Jones to hold a “Burn the Qur’an Day” in “memory” of the attacks on the U.S. on September 11, 2010 has set off a furor around the world.  When I first read an article about this man and his intentions I was incredulous.  Really? An ordained pastor thinks like this and encourages this??? I find his plan abhorrent and despicable; there is absolutely no justification for this brand of hatred and display of ignorance.

But the conversation soon turned (specifically between myself, @sean_spence and @mamachell on twitter) to whether or not Mr. Jones (listen, I refuse to call this man a pastor because nothing about what he’s doing and preaching says “man of God”!) should be allowed to proceed with his actions.  Unfortunately I think the answer is yes because as things now stand, he cannot be barred from his planned actions.   The man’s actions are protected by the First Amendment (and also the Fourteenth Amendment) to the U.S. Constitution.  So far he has done nothing so there is no conduct that the State of Florida can legally proscribe or prohibit.  I think – and hope really – that on the day of the county sheriff will be able to shut him down under some breach of the peace statute or ordinance since they have not granted a permit for “the burning” (see Feiner v New York, 340 U.S. 15 (1951)).  However, we’re not there yet.  We’re at the stage where this man is expressing his opinion of Islam and explaining what he’s going to do about those opinions.  This speech is protected under the First Amendment, and I don’t think it falls into the exception about incitement of violence carved out by Brandenburg v Ohio, 395 U.S. 444 (1969). (There are other restrictions of sorts on free speech such as libel, defamation, and slander but I think people are talking about criminal not civil repercussions for Mr. Jones.)

The First Amendment provides that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It appears in the Bill of Rights (the first 10 amendments to the U.S. Constitution), which was a compromise document when the U.S. Constitution was drafted and to be ratified by the first States.  All of the Bill of Rights addresses individual freedoms, and this one about religion, speech, press, and peaceful assembly is the first of them.  It also directly addresses the reasons that the Pilgrims left Britain for The New World.  That should clue you in on how important it is to the formation of this country and to the system of governance that it continues to use 200-plus years later.   My Constitutional Law professor notes to me (in an email response to my query on cases or analysis helpful for understanding why Mr. Jones’ actions are not illegal) that

US law is very protective of speech, including speech that is intolerant of others and that angers many other people or would be called hate speech by many people.  This is quite different to the approach of many other countries.

The Supreme Court in rulings on the Freedom of Speech Clause has consistently upheld an individual’s right to freely exercise his speech free from government interference, even hateful and otherwise morally reprehensible speech. But the Court has also recognized that there are boundaries beyond which one cannot be expected to be allowed to speak to freely.   Not surprisingly the boundaries are few and narrowly defined.  One cannot falsely yell “fire!” in a crowded theater without being held responsible; so the state can place some limits on one’s speech.  The decision in which the “fire!” example is written was eventually overturned by Brandenburg, which now sets the standard for government limitations on an individual’s speech.

Brief facts about Brandenburg: a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism (444-445).

The Court found the statute unconstitutional because it “fails to draw [the] distinction [i.e. that the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action] [and therefore] impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control” (448).

More importantly, though, Brandenburg created a standard for when speech is no longer free and can be prohibited by the government.  One’s speech can be legally prohibited when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (447; all emphasis mine).  That’s the standard by which Mr. Jones words must be measured before any level of government can step in to put a stop to his madness.  Mr. Jones hasn’t yet (and he won’t – in this instance – since as I’m writing this he’s issued a statement that “the burning” is cancelled) caused incitement of violence because his protest was not directed at inciting or producing imminent lawless action; it was aimed at attacking Islam, which he sees as the devil. *blank stare*  He was not holding a rally for followers to go out and commit crimes against Muslims or desecrate mosques.  Yes, the planned burning was angering and, frankly, hurtful (it really hurt and unsettled my spirit), but it wasn’t directed at inciting what we expect, i.e. Muslims to pillage and burn and kill (and that’s a whole other issue, and isn’t it Christians who have the franchise on burning and pillaging?) to happen.  My professor notes also that

Most commentators seem to agree that US law is highly tolerant of intolerance, and even though there does seem to be a great likelihood of violence and protests in many areas of the world if the burning goes ahead (certainly the Obama Administration is deeply concerned about it), it is unlikely to be restrainable under the Brandenburg test [and also in light of] the tolerant attitude of US courts to flag burning.

Check out the following Supreme Court decisions – Texas v Johnson, 491 U.S. 397 (1989) (it is not illegal to burn the American flag) and Virginia v Black, 538 U.S. 343 (2003) (it is not illegal to burn crosses unless it’s with the intent to intimidate, and while a statute banning cross burning with the intent to intimidate was not unconstitutional because it banned conduct rather than expression, the VA statute which claimed prima facie intent to intimidate with no other evidentiary requirements was unconstitutional because it placed an unconstitutional restraint on speech).  There’s also Cohen v California, 403 U.S. 15 (1971) (surrounding the wearing of a “Fuck the Draft” T-Shirt on the courthouse steps held that the state must have a particularized and compelling reason to place limits on an individual’s freedom of speech). Virginia would seem to require that Mr. Jones’ actions be done with the intent to intimidate for Florida to be able to ban him (and then, only if they had a statute directed at Qur’an burning).   Note the very high burden that the state/government must meet to be able to limit free speech.  Very high.  I don’t think that this standard could be met under the facts surrounding Mr. Jones.  So Mr. Jones’ speech and expressive conduct are, in my opinion, legal.

Another thing is that the Brandenburg test is 2-part: there must also be the likelihood that one’s actions will produce the “imminent lawless action.”  What is imminent? We’ve seen the State Department issue a worldwide travel advisory for Americans because of Mr. Jones’ plans.  But the advisory talks about “the potential for anti-U.S. demonstrations in many countries” even as it cites protests already happening in Afghanistan and Indonesia.  In legal land, potential is not imminent.  President Obama has rejected Mr. Jones‘ actions as a “stunt” and in his capacity as Commander in Chief of the armed forces has warned that it could be a useful tool for al-Qaeda recruitment.  Could? Where’s the imminent lawless action?  Moreover, where’s the imminent lawless action that would happen on American soil?  So far things have been identified in Afghanistan and Indonesia, and I think in England with another brainless Muslim “leader.”  The facts in this instance do not meet the Brandenburg test for legally proscribing Mr. Jones’ actions.

O how I wish we could make being ignorant and hateful illegal but in this country, that’s not the case and likely will not be.  Well, actually no, I’m not sure I’d like to legislate away stupidity.  Legally Mr. Jones seems to be on solid ground and I think he knew that either at the outset or learned as things unfolded.  As a lawyer, had I been required to defend this man’s First Amendment rights I would have done so as zealously as I’m required.  Why? Because the First Amendment doesn’t pick and choose who should be protected.  Not when the First Amendment was crafted by men who fled persecution and founded and fought for their own country.  Otherwise, it would be censorship, which I (generally) do not agree with.  I would be protecting his rights as much as mine.    As much as I abhor Mr. Jones’ ideas and expressions, they are protected and that is what I’d be willing to help him defend.  But I also think that the freedoms we enjoy come with a heavy heavy dose of responsibility.  Too many don’t realize this and abuse their rights and freedoms; Mr. Jones is one of those people.

Thankfully he’s postponed the burning of Qur’ans as I noted above.  But I don’t think it’s because he had a epiphany about how hateful and ignorant he is.  His bigoted attitude is probably still firmly intact, and perhaps even more cemented.  And he’s not alone, I’m sure.   You see, sometimes I prefer for these people to be bold with their ideas so that I and others can confront it and expose them as frauds and as harmful to our local and global society as terrorist who claim Islam as an excuse to murder.  That way we can air it all out and hopefully educate.  When it goes underground we’re left to sniffing out hints of hate and becoming hypersensitive about our fellow citizens, which I think helps to breed mistrust and fear instead of understanding, tolerance, and community.  Consider racism as an example.

Time will tell what happens of the Mr. Joneses of the world.  But let him speak freely so we know what he’s about and how to handle him and his ilk.  He’s allowed.  The same protection he enjoys allows me to write and post this blog or engage in twitter exchanges about this and multitude of other topics.

One Response to “That Man Terry Jones Who Wants to Burn Qur’ans”
  1. shumpynella says:

    I agree that Mr Jones is free to do and say as he likes within the law. Well at the moment the Islamic Center is also legally able to be built near Ground Zero. However, I wish people would examine motives, repercussions, and the real value of their actions and intent.

    May I pass some blame to the media? They have a right and responsibility to report information, yes. However, they have sensationalized the story and it has not become a Christian vs Muslin issue instead of what it really is – a lunatic denigrating a somber day and probably inciting violence. This isn’t the first time the holy book has been burnt in the US and it probably won’t be the last but no credence needs to be given to Mr Jones’ crap. He is disrespectful, stupid, and dangerous.

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