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Westboro Baptist Church and Innocence of Muslims: Why Even Offensive Speech Must Be Protected

Last month’s violent reactions to the internet video Innocence of Muslims, created in the United States, should remind all Americans why we stand so firmly for free speech. The First Amendment to the United States Constitution states, “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.” While we have certainly transgressed from our ideals, we must strive to remain faithful to the Constitution in times of national stress. We are a diverse people who only have our founding documents — documents of laws and ideals — bind us together.

This legal tradition is best understood through some exemplar U.S. Supreme Court cases:

In the 1964 case New York Times v. Sullivan, the Court heard a defamation claim of a public individual regarding a public matter. Though the facts in question were indeed found to be false, Justice Brennan wrote, “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The plaintiff lost.

In the 1969 case Brandenburg v. Ohio, the Court was presented with a KKK member who, at a KKK rally, vowed that the organization would march on Congress and several cities in Florida and Mississippi. The Court held that the state cannot proscribe mere “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Legally, ‘imminent’ means ‘right here, right now.'

In1992 (R.A.V. v. St. Paul) and 2003 (Virginia v. Black), the Court struck down statutes banning cross burning as a form of speech or expression.

Lastly, in 2011 the Court decided Snyder v. Phelps. Here, tort damages were sought against the Westboro Baptist Church for protesting at a soldier's funeral, spouting hate speech at the burial itself as well as on the Internet. The religious extremists stood across the street from the cemetery, holding signs which accused the fallen soldier of supporting homosexuals and claiming that he was going to hell for his acts. 

In an 8-1 decision, the majority held that the First Amendment protects those who stage peaceful protests near the funeral of a military service member from tort liability. The Court stated, “speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

It is this legal tradition which clearly states that our government is not allowed to make judgments on religious truth or falsity. That belongs to individuals to decide. ‘The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same’ is how American law understands freedom. An insulting and hateful video made in Florida does not impede individuals in London, Benghazi, Mogadishu, or Tokyo from practicing their religion; nor does it stop them from peacefully showing their displeasure.

Despite this, Jacqueline O’Rourke in "Innocence of America: orientalism, hooligans and radicals" on OpenDemocracy.net implies that the video Innocence of Muslims constitutes hate speech, is indicative of a larger Islamophobia in the West, and as such should be regulated.

However, R.A.V. v. St. Paul and Virginia v. Black show that our lack of hate speech protection regarding the controversial video has nothing to do with Islam — it has to do with liberty. It is true that Islam is disproportionately a target of criticism in the U.S, and this must be combated with education and cultural and public diplomacy efforts. However, it is not true that Islam should be immune from the most “vehement, caustic, and sometimes unpleasantly sharp” criticisms. All ideas should equally be subject to that treatment. This is how thoughts are to be tested, in the hot crucible of the marketplace of ideas.

Ms. O’Rourke speaks of an international social contract. I do agree that the international community is becoming increasingly interconnected, and that no nation (nor person) is an island. And I agree that when the idea of a Chinese scientist or inventor is suppressed in China, those in Italy have been precluded from the benefit of those ideas or discoveries. As such, this only supports the need for a vibrant free speech paradigm: there are so many ideas, and all publics must debate which ones are good, which ones are bad, and why. This may offend many people, but violence is not an acceptable reaction.

Erik Bleich's article, "How much free speech do we need?" on Al Jazeera English asks the reader to reconsider America’s outlying protection of free speech. Mr. Bleich cites Beauharnais v. Illinois (1952, wherein the Court upheld a statute which criminalized racially hateful publication, as an example of American speech restraint. While never explicitly overturned, this case has been rendered completely marginalized by all the cases I mention above.

Mr. Bleich points out that even Europe has more moderate speech regulations, and that a majority of Americans in fact support less extreme speech protections than American law presently upholds. It is a nuance of American democracy, however, that allows for the protection of the minority, even if that minority is a hateful, fundamentalist religious group which protests the funerals of those who bravely served our own country. This is where populism must give way to human rights. Otherwise, I certainly would be fearful in a legal system in which public opinion was used to determine fundamental rights.

People are perfectly free to feel hurt and disrespected. But such emotions don’t validate violent reaction. The power to violently censor people is the exact power that people like Qaddafi or Mubarak had. So we must first think of how our actions might prohibit truthful or helpful speech in the future. Even if a majority of us don’t like it, we must recognize that religious and political speech is of the utmost importance to our national and international discussions on these issues. Countless court cases have held that even when Americans are deeply offended and disrespected, our laws protect the speaker. If for no other reason, how is the government to know what is ‘right’ or ‘wrong’ on in political or religious arguments? Government is not in the business of determining truth or falsity — and it would do poor a job it if was.

We must continue to allow uninhibited, robust, and wide-open public debate on important issues. At times such debate may include vehement, caustic, and sometimes unpleasantly sharp criticisms of ideas or people. It may stir people to action, move them to tears, or inflict great pain. Public criticisms may be true or may be false, but that is not for our law or government to decide. Free speech is not a negative right: the government should protect the speaker against the heckler’s veto.

For in each of us lies the capacity to discuss and debate publicly and peacefully to help answer the great questions of our time.

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