From the White House to top military commanders in Afghanistan, U.S. officials have condemned plans by a Christian pastor in Florida to burn copies of the Holy Koran on the anniversary of the September 11, 2001, terrorist attacks.
The U.S. State Department has called Terry Jones's threatened protest "provocative, disrespectful, intolerant, and divisive."
U.S. General David Petraeus, the commander of international forces in Afghanistan, has said Jones's remarks are inflammatory. He warns about an anticipated backlash that could endanger U.S. troops in the region.
President Barack Obama has called the plan a "destructive" and dangerous "stunt" and "a recruitment bonanza for Al-Qaeda."
Nevertheless, the U.S. government appears to have few legal tools to stop Jones from carrying out his threat.
First Amendment
It all goes back to the First Amendment to the U.S. Constitution, which states that the U.S. 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."
The 14th Amendment, adopted in 1868 after the American Civil War, extends those protections so that state and local governments also cannot violate the constitutional rights of individuals.
Thus, there are no federal laws in the United States that forbid "religious vilification," "religious insult," or "hate speech." Some states retain local blasphemy statutes on the books. Most are from the 19th century.
But in a precedent-setting ruling in 1952, in the case of "Joseph Burstyn vs. Wilson," the U.S. Supreme Court struck down a state blasphemy law in New York as an unconstitutional restraint on freedom of speech.
That Supreme Court ruling says, "It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures."
David Nash, a professor at Oxford Brookes University who specializes in the history of blasphemy, says that the 1952 ruling has forced U.S. authorities to alter their legal strategies in cases of offensive speech against a religion or religious beliefs.
"In the United States, [prosecution of] blasphemy became unconstitutional after the early 1950s when there was a famous case called the Burstyn case against an Italian filmmaker -- a film called "The Miracle." The judgment in this case decided that prosecutions of blasphemy were unconstitutional," Nash says.
"This hasn't stopped attempts to prosecute blasphemy in America. The thing that isn't [protected] by the First Amendment is obscenity. So where something has been considered to be blasphemous -- paintings or films or writings -- there has been an attempt to find something obscene in them."
Threat To Public Order
Another possibility for the authorities is to cite national security. Again, the options here are very limited and it's a tough legal argument to make.
In the 1931 case of "Near vs. Minnesota," the Supreme Court held prior restraint could be used by the government -- in a time of war -- in order to prevent the obstruction of military recruiters, the publication of strategic information about troop movements, or other utterances that threaten national interests. The ruling also says, "The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government."
Nash says the Obama administration may not have attempted to get a court injunction blocking Jones's Koran-burning protest because it is "difficult to present absolute proof" that the actions of the pastor present a clear and present danger to individuals. But he says the threat of public disorder over the protests may be the best legal strategy for authorities to try to block the burning of copies of the Koran.
"There are also is public-order issues at stake here, which tends to be the thing that government is most comfortable at dealing with," Nash says. "If it can decide blasphemy is a public-order issue, it will much more readily intervene than if something is considered to be a form of private offense merely to a group of believers."
There also is a 1942 Supreme Court ruling that describes a "fighting-words doctrine" that can be used by the government to limit free speech. In that case, "Chaplinsky vs. New Hampshire," the court ruled unanimously that "insulting or 'fighting words,' those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" were among the "well defined and narrowly limited classes of speech [which] the prevention and punishment of...have never been thought to raise any constitutional problem."
But over the years, later decisions have steadily narrowed the grounds on which the "fighting-words doctrine" can be applied.
Nash concludes that Jones's protest should open a public debate in the United States about the nature of hate crime and of religious incitement. He notes that in Britain, the law against blasphemy has been replaced by a law against religious incitement.
As a recognized expert in constitutional law and freedom of speech, I bring forth a depth of knowledge to shed light on the complex issues discussed in the provided article. My expertise in legal history, particularly the First Amendment to the U.S. Constitution, enables me to offer valuable insights into the limitations and protections associated with freedom of expression.
The article revolves around the controversial plans of a Christian pastor in Florida, Terry Jones, to burn copies of the Holy Koran on the anniversary of the September 11, 2001, terrorist attacks. Despite condemnations from various U.S. officials, the government appears to have limited legal tools to prevent Jones from carrying out his threat due to the protections granted by the First Amendment.
The First Amendment, a cornerstone of American constitutional law, prohibits Congress from making laws that abridge the freedom of speech. The 14th Amendment extends these protections to state and local governments, ensuring that they cannot violate the constitutional rights of individuals. This constitutional framework establishes a robust shield for the right to express oneself, even in ways that may be considered provocative or offensive.
The article references the 1952 Supreme Court ruling in the case of "Joseph Burstyn vs. Wilson," which struck down a state blasphemy law in New York as an unconstitutional restraint on freedom of speech. This precedent-setting decision emphasized that the government should not suppress attacks on religious doctrines, whether in publications, speeches, or motion pictures.
While blasphemy prosecutions became unconstitutional after the Burstyn case, attempts to prosecute offensive speech have persisted. Obscenity, not protected by the First Amendment, has sometimes been invoked in cases involving blasphemous content.
The article suggests that another avenue authorities could explore is citing national security concerns, referencing the 1931 case of "Near vs. Minnesota." This case allowed prior restraint by the government during times of war to prevent the obstruction of military recruitment and the publication of strategic information that threatens national interests.
However, the legal argument based on national security is challenging to make, and the threat to public order emerges as a more viable strategy. Public disorder resulting from the protests could be presented as a clear and present danger, potentially justifying government intervention.
The discussion also touches upon the 1942 Supreme Court ruling in "Chaplinsky vs. New Hampshire," which introduced the "fighting-words doctrine." This doctrine allowed the government to limit free speech in cases where certain words inflict injury or incite an immediate breach of the peace. Over the years, subsequent decisions have narrowed the application of this doctrine.
In conclusion, the article prompts a call for public debate in the United States about hate crime and religious incitement. Comparisons are drawn with the United Kingdom, where blasphemy laws have been replaced by laws against religious incitement. This shift reflects evolving perspectives on the balance between freedom of expression and the prevention of harm or incitement.
