Washington Lawyer

When Not to Shout ‘Fire!’

From Washington Lawyer, February 2011

By Anna Stolley Persky

activistsIt all started with a pastor on a mission, one that horrified the majority of Americans. As the anniversary of the September 11 attacks approached, the Rev. Terry Jones of the Dove World Outreach Center announced plans to burn copies of the Koran to protest the religion of Islam.

His words caused a furor that swept the entire country, and arguably the world. Across the Internet, in coffee shops, and on the unemployment line, people in this country and abroad began to debate. Was burning the Koran, Islam’s holy text, considered protected expression in the United States?

It’s nothing new, this debate. Sometimes it’s a cross being burned. Sometimes it’s neo–Nazis marching into a town square. And sometimes it is a young man burning a draft card or a flag. Yet a heated discussion over the perimeters of permissible expression is always relevant as we, as a society, redefine ourselves each decade.

Even the U.S. Supreme Court’s position changes with time. In fact, in September 2010, Supreme Court Justice Stephen Breyer first told ABC News that he was not prepared to conclude that the First Amendment condones Koran burning. He pointed out that you “can’t shout ‘fire’ in a crowded theater.” Within days, however, Breyer refined his views on the matter, saying instead “we protect expression that we hate.” Breyer’s initial remarks could indicate a question in his mind—the seed to a possible shift in views, perhaps small, perhaps large.

“We revisit the scope of free speech protection periodically. It’s done on the local level, and sometimes nationally and sometimes globally,” says Timothy Zick, a constitutional law professor at William & Mary Law School in Williamsburg, Virginia. “It’s a good thing to revisit because it forces us to reexamine our commitment to certain First Amendment values.”

Broad Protection for Expression
Traditional free speech advocates argue that the Framers intended to protect the minority from being silenced by the majority. Therefore, the First Amendment free speech guarantee should be interpreted broadly.

“The Constitution protects free speech even when it is viewed as obnoxious by the majority of citizens,” says Jonathan Turley, a nationally recognized constitutional law scholar and professor at The George Washington University Law School in Washington, D.C. “It is there to protect people who are in the minority, people who are hated and despised for their comments.”

But the United States is fairly unique in its perspective. Other countries, from Germany to Jordan, have criminalized comments that either criticize or mock a particular religion, or are considered outside the realm of polite exchange.

“In the United States, we have always recognized the rights of people to proselytize for their own religion. But also to criticize other religions,” says Turley. “That has always been a bright line rule and should remain so.”

In fact, state blasphemy laws do not hold up under constitutional scrutiny. In June 2010, a federal judge found unconstitutional a 1977 Pennsylvania law banning blasphemous or profane words from the names of corporations. U.S. District Judge Michael M. Baylson in Pennsylvania explained that the law impermissibly requires employees on the state Corporation Bureau to make judgments “based on nothing but their own individual religious beliefs.”[1]

The trend in recent years is for more expansive free speech protection in the United States. However, not everyone agrees that this is the direction our country should be going. And when Jones threatened to burn the Koran on September 11, 2010, certainly many Americans began to wonder why there was not a clear path to stop him.

To some observers, there is a problem when our interpretation of our laws does not match up with our sense of appropriateness in political conversation. In other words, why can’t we determine Koran burning as so outrageous it falls outside the realm of protection?

“It’s possible to ban the assaulting words and gestures and symbols as assaults,” says Hadley P. Arkes, the Edward N. Ney Professor in American Institutions at Amherst College in Amherst, Massachusetts. “This isn’t diminishing in any way the freedom of people to make substantive critiques.”

But Eugene Volokh, who teaches First Amendment law at the University of California, Los Angeles School of Law, argues it would have been unlikely for the Supreme Court to uphold any attempt to stop Jones from burning copies of the Koran.

“The Supreme Court in recent decades has provided very broad protection for political expression,” says Volokh. “There’s no reason to think the Court would reach a different view in this case.”

Messy Marketplace
As every law student learns, the original U.S. Constitution did not contain the Bill of Rights. But, as a concession during the battle to get the Constitution ratified, the Federalists agreed to write up a series of amendments addressing the protection of individual rights.

James Madison, originally a skeptic of the need for additional protection, wrote the Bill of Rights. Thomas Jefferson, who did not attend the Constitutional Convention, wrote to Madison to advise him: “A bill of rights is what the people are entitled to against every government on earth… ”

The First Amendment forbids Congress from passing any laws restricting the free exercise of religion or speech. Over the decades, in a series of landmark rulings, the Supreme Court has reiterated that, under the First Amendment, the government cannot suppress speech simply because it may be offensive to the majority of citizens.

That being said, the Court has carved out some exceptions to the protection, such as obscenity or speech clearly directed to intimidate or incite violence.

To some, our public exchanges can appear a bit like a rude and crazy shouting match.

“We have this vision of a marketplace of ideas, and sometimes it’s messy,” says Charles C. Haynes, director of the Religious Freedom Education Project at the Newseum in Washington, D.C. “But the argument is that democracy is best served by a robust and free debate.”

For certain, First Amendment protection was not always interpreted as broadly as it is now. The Sedition Act of 1798, signed by President John Adams, allowed for the prosecution of anyone suspected of plotting against the federal government. In addition, the act made it a crime to speak or write maliciously about the president or Congress. The Sedition Act expired two years later and was never renewed.

Wartime Worries
During wartime, our country also has narrowed the scope of free speech rights. For example, during World War I, Congress passed several laws, including the Espionage Act of 1917, limiting language that could encourage disloyalty to the United States. Also during that time, a Federal Censorship Board regulated taking “subversive” books off the shelves of stores and libraries.

In Schenck v. United States,[2] the Supreme Court upheld the Espionage Act, finding that the defendant, Charles Schenck, did not have a First Amendment right to speak against the draft. In that case, Justice Oliver Wendell Holmes Jr., writing for the majority, found that the circumstances of wartime permitted greater restrictions of free speech rights.

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” wrote Holmes. The “clear and present danger” test was used for decades afterward.

Holmes also wrote in Schenck that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

In 1942 the Supreme Court established that “insulting or ‘fighting’ words” fall outside of First Amendment protection. The Court defined fighting words as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[3]

In the World War II era, Congress passed the Smith Act of 1940, making it a federal crime to advocate violent overthrow of the government. Then came the time some critics describe as the worst period for First Amendment rights in this country—the McCarthy era—when America appeared obsessed with silencing communist propaganda and support.

In 1951, for example, the Supreme Court found that Eugene Dennis, convicted of violating the Smith Act, did not have a right under the First Amendment to conspire to overthrow the government. In ruling, Chief Justice Fred M. Vinson specifically relied upon the “clear and present danger” test.[4]

By 1957, however, the High Court had started to move away from that ruling and began to narrowly construe the Smith Act.[5]

The O’Brien Test
In a landmark case, United States v. O’Brien,[6] the Supreme Court held that a federal law criminalizing the burning of draft cards did not violate the First Amendment free speech guarantee.

The O’Brien case began on a March morning in 1966, when David Paul O’Brien and three others burned their draft cards on the steps of a Boston courthouse to protest the Vietnam War. U.S. prosecutors indicted O’Brien for violating title 50 of the U.S. Code, section 462(b)(3), which makes it a crime to knowingly destroy or mutilate a draft card.

O’Brien represented himself at trial, telling the jury that he burned the draft card to state his antiwar beliefs using symbolic speech. He was found guilty, and the case eventually landed in the Supreme Court.

The High Court ruled 7 to 1 in favor of the government. Chief Justice Earl Warren, writing for the majority, found that the law only prohibited specific conduct, not speech. Warren said the federal government could limit symbolic speech when there is a substantial interest in doing so, when it is content-neutral, and when it interferes with the “speech” aspect as little as necessary. This analysis became known as the “O’Brien test” for limiting a speech-conduct mix.

Warren found that the government had a substantial interest in ensuring that draft cards were handled properly. He concluded that the law interfered with speech rights as little as necessary to achieve that end.

Unpopular Opinions
After O’Brien, the Supreme Court crafted a more expansive view of First Amendment rights, creating a bubble of protection for speakers with unpopular views. For a while, this expansive view became associated with liberal-leaning perspective.

In 1969 the Supreme Court decided Brandenburg v. Ohio,[7] one of the most cited cases in the history of the Court.

Clarence Brandenburg, a Ku Klux Klan leader in Ohio, had been caught on film participating in a Klan rally. Brandenburg delivered a speech in which he stated, “We’re not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.”

Brandenburg then announced plans to hold a march in Washington, D.C., on July 4 of that year. He was later arrested, fined $1,000, and sentenced to one to 10 years in prison for advocating violence in violation of the Ohio Criminal Syndicalism statute. The statute prohibited advocating “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

Eventually the case reached the Supreme Court, which reversed, unanimously finding that the state law violated the First Amendment.

The case is significant because the Court discarded its old “clear and present danger” test for a new and more protective test involving incitement to imminent lawless action.

“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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,” the Court stated in a per curiam opinion.

“It’s all about the incitement of imminent lawless action,” says Jamin Raskin, a Maryland state senator and constitutional law professor at American University’s Washington College of Law. “The speaker handing out bricks and egging people on to attack city hall, he can be silenced. Anything short of that is mere advocacy.”

Immature But Protected Acts
The Court’s trend of expanding First Amendment protection continued into the 1970s. In 1971 the Supreme Court overturned a disturbing the peace conviction of a man who wore a jacket bearing the words “F*** the Draft” inside a Los Angeles courthouse.

At trial, Paul Robert Cohen testified that he wore the jacket knowing the words were on the back and intending to portray the depths of his feelings against the Vietnam War and the draft.

In its 5–4 decision, the Court said that “absent a more particularized and compelling reason for its actions,” the state cannot make the “simple public display” of a “single four-letter expletive a criminal offense.”[8]

“[O]ne man’s vulgarity is another’s lyric,” wrote Justice John Marshall Harlan II for the majority.

But for some, the Court had gone too far.

“There’s the question—why in the world would we protect such an immature act?” asks Zick, author of the book Speech Out of Doors: Preserving First Amendment Liberties in Public Places. “But under the First Amendment, we protect even the speech that is inartful.”

The next major ruling in this line of cases came at the end of the 1980s, and in a case that involved flag burning.

“There’s a lot of burning in First Amendment case law,” notes Zick. “That’s because it’s a very emotive and effective way of demonstrating disaffection. It’s almost the most extreme thing you can do to an object to show disrespect for it.”

In 1989, in Texas v. Johnson,[9] the Supreme Court found unconstitutional a state law forbidding the desecration of the U.S. flag.

During the 1984 Republican National Convention in Texas, Gregory Lee Johnson set an American flag on fire. He was arrested and charged with violating a Texas law criminalizing vandalism of venerated objects. Johnson was convicted and sentenced to one year in prison and fined $2,000.

In the 5–4 ruling, Justice William J. Brennan Jr. wrote for the majority, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Raskin describes Texas v. Johnson as “a watershed case.”

“The Court recognized that flag burning should not be considered fighting words—it’s a generalized political statement that doesn’t have the same meaning as insulting someone’s mother,” he says.

Legislating Against Hate
The question that inevitably comes up, again and again, is this: What do we do about hate-laced speech and actions? In recent years, the federal government and many states have passed laws against bias-motivated crimes—when a perpetrator targets a victim based upon criteria like class, ethnicity, gender, sexual orientation, or disability. States also have passed legislation banning cross burning.

In 2003 the High Court examined a case involving a Virginia law forbidding cross burning where the intent is racial intimidation. The Court found 6–3 that a state may ban cross burning with intent to intimidate, but it struck down a provision of the Virginia law that declared any cross burning as prima facie evidence of intent to intimidate.[10]

In dissent, Justice Clarence Thomas wrote that the statute only prohibited conduct, not expression, and should be upheld. Interestingly, Justice Antonin Scalia, who often rules alongside Thomas as fellow conservatives, wrote that he would have upheld the entire statute.

In 2009 Congress passed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which expands the 1969 U.S. federal hate crime statute to include crimes committed on the basis of gender, sexual orientation, gender identity, or disability. Some religious organizations protested the expansion, saying it would allow the prosecution of religious leaders for speaking out on their beliefs.

In September 2010, a federal judge in Michigan dismissed a lawsuit against the act that, in part, claimed it violated the First Amendment. If the case hits the Supreme Court, constitutional law experts say it is unlikely that the law would be found to be in violation of the First Amendment.

“Federal hate crime statutes generally focus on punishment enhancement for violent crime,” says Volokh. “The law does not punish speech—it punishes violence.”

Technology and New Tensions
New technology has given us the ability to communicate to the world in a matter of seconds. But with the new marketplace comes increasing concern about the impact of words that might not have traveled so far so quickly decades ago. And privacy advocates worry about how to protect the individual’s rights in the modern age.

“The marketplace has exploded because of technology,” say Toni Locy, the Reynolds Professor of Legal Reporting at Washington and Lee University in Lexington, Virginia. “It’s instantaneous that ideas are flying around the globe. It’s like a tsunami of ideas.”

A case that highlights the tension between First Amendment free speech rights and privacy rights in the modern era is presently before the Supreme Court. The case pits Albert Snyder, the father of a U.S. marine killed in Iraq in 2006, against the Rev. Fred Phelps and members of his Westboro Baptist Church.

Snyder won a $5 million jury verdict against Phelps and his church after the group protested a thousand feet from the funeral of Snyder’s son. The church members sang songs and waved signs that read “You’re Going to Hell” and “Thank God for Dead Soldiers” during the funeral as part of their protest of the government’s policy on homosexuality.

The group, which maintains a Web site, believes that God hates homosexuality and is punishing the country for tolerating it by allowing U.S. troops to be killed overseas.

The High Court heard arguments in October on whether a private citizen should be able to recover damages for intentional infliction of emotional distress and violation of the sanctity of funerals. The church members have argued that their speech is protected under the First Amendment and, therefore, they should not be made to pay. As of press date, the Supreme Court has not yet ruled on the case.[11]

Separation Anxiety
The intersection of the Establishment and the Freedom of Speech clauses of the First Amendment has always been an area of conflict. The Establishment Clause requires that “Congress shall make no law respecting an establishment of religion. . . ”

The Supreme Court has had its say in this area.

In 1980 the High Court found unconstitutional a Kentucky statute requiring the posting of the Ten Commandments on the wall of every public school classroom in the state.[12]

In 2005 the Supreme Court ruled 5–4 that public displays of the Ten Commandments on government property, such as courthouses, violated the Establishment Clause of the First Amendment.[13]

A current battle in King, North Carolina, depicts an ongoing friction between supporters of the Establishment Clause and those who think the government should be able to symbolically represent a particular religion.

In September 2010 the King city council decided to remove a Christian flag that had been displayed as part of a war memorial in a public park. The city leaders made the decision on the advice of the city attorney after receiving a complaint from a resident. The council said it was concerned about the cost of defending itself in a lawsuit if it chose to continue displaying the flag on government-owned property.

The council’s decision infuriated many of King’s residents, who protested the decision as a violation of their rights to both freedom of speech and religion.

Katy Parker of the American Civil Liberties Union in North Carolina told Fox News that the organization supports residents’ right to free speech, but “there is a critical difference between private religious speech and government religious-based speech.”

Constitutional experts say the case is a fairly clear example of a violation of the Establishment Clause, and that the city would likely lose a legal case against it if it chose to continue displaying the Christian flag.

“The free speech clause protects the rights of religious people to express themselves in public, but it does not establish any right of a government to promote a religion,” says Raskin.

Nevertheless, the city council voted in November to eventually allow the flag to continue flying as a part of a larger display of religious flags recognized by the U.S. military.

Protect the Speaker
Constitutional law experts and comparative law scholars say that the United States is unique in its broad First Amendment protections. Other countries have criminalized certain areas of speech, including criticizing either the government or certain religious beliefs.

In 2009 the United Nations Human Rights Council passed a resolution condemning “defamation of religion” as a human rights violation. Free speech advocates remain concerned that such a resolution could be used to stifle criticism and silence religious dissenters.

Some nations have very strict blasphemy laws. Muslims believe the Koran is the sacred word of God. In countries where the majority of people are Muslims, government officials can take quite seriously laws ensuring that the Koran and references to the Prophet Muhammad are treated with respect.

In this country, some states have anti-blasphemy laws on their books. However, the Supreme Court has rejected arguments that speech should be silenced even if it attacks a particular religion, or if it could incite a violent reaction in religious supporters.

Another difference comes in the area of encouraging courteous conversation in public discourse. In countries like Germany, there are civility codes, with bans on expression such as cursing or using obscene hand gestures.

“In places like Canada, there’s no such thing as a false idea, but you have to be polite in the way you express your thoughts,” says Ronald J. Krotoszynski Jr., a constitutional law professor at The University of Alabama School of Law in Tuscaloosa, Alabama, and author of The First Amendment in Cross-Cultural Perspective. “In other places, like Germany, there are false ideas with limited freedom to express, such as you can’t call for the overthrow of the government.”

Krotoszynski says the argument in favor of limits is that “if you ban the public use of really offensive terms, you create a more inviting marketplace of ideas in which minorities feel comfortable in participating on a full and equal basis.”

But the United States allows for the protection of seemingly rude, even cruel, speech as part of a free exchange. For this reason, there was little that could have been done to stop Jones, a pastor with about 50 followers, when he announced plans to burn the Koran on the ninth anniversary of the 2001 terror attacks.

As Zick explains, “We tend to protect the speaker, whereas other countries focus on the dignity of the audience and equality issues.

“We are clearly exceptional in the degree that we protect the speaker who says deeply offensive, even psychologically damaging, things,” he adds.

Evaluating the Media
Some critics blamed the media for the way it reported on Jones’ threats. They declared the press irresponsible and asked why it did not just ignore the entire story.

The primary legal standard applied to the press comes from a 1964 case. In New York Times Co. v. Sullivan,[14] the Supreme Court established that the media must have “actual malice” before comments about public officials can be considered defamation or libel. The Supreme Court later said that the actual malice standard applies to public figures as well. The media is generally required to tread more carefully with private citizens.

Beyond these standards, the U.S. media faces very few restrictions on how it portrays a given news situation. Concepts like journalistic objectivity and fairness are not codified—they are professional attitudes.

For many observers, the answer is simple: The media should stop sensationalizing stories involving people who say—or threatening to say—offensive things. If no media outlet paid attention to, for example, a pastor announcing his intention to burn the Koran, then his actions would go unnoticed, they argue.

On September 9, 2010, Melody Moezzi, an attorney and author, wrote on the Huffington Post that fellow members of the press and fellow Muslims should ignore Jones.

“At this point, it’s as if the media is running advertisements for this pseudo-Christian man and his church,” Moezzi wrote. “I beg you to ignore this ignorance and get on with the real business of faithful practice and responsible reporting.”

But others disagree, emphasizing that the new technologically-based marketplace does not allow for anything to go unnoticed.

“Even if the national media had not paid attention to him, the situation would have drawn a lot of attention on the Internet,” says Turley. “But the media could have done a better job in raising the issue of free speech with more substance. It seemed perfectly ludicrous to watch the world’s media do a countdown to the burning of the Koran by an extremist preacher.”

And, unfortunately, some in the news media will stoop to amazingly low levels of bad taste, says Locy, a former USA Today reporter with 25 years of journalism experience. “But that’s not new. There’s always been nastiness in print, but because of technology, it’s overwhelming. It’s in your face.”

Locy points out that along with the development of new technology, there has been a crippling recession. Journalism outlets—from traditional to new media—have slashed their budgets and staff.

“With the 24/7 aspect of the media, there’s an enormous pressure to fill the air. Couple that with the recession and its impact on news media—it’s the perfect storm for bad reporting,” says Locy. “The public is going to have to demand quality reporting and be willing to pay for it.”

With quality journalism, says Locy, even the most outrageous exercise of free speech can be put into context for the public by proving background information. Who is the speaker? What is that person’s criminal record, prior conduct, and stated belief system? Who supports the speaker—a throng of congregants or a couple of followers? And, importantly, what is the source of the speaker’s financial support?

“When reporters ask the basic questions, people are in a better position to decide for themselves whether this is worth paying attention to,” says Locy.

Mass Condemnation
Some observers suggested that the pastor could be prosecuted for a hate crime if he had chosen to burn the Koran. But experts agree that Jones’ actions would not fall under any hate crime legislation.

“The burning of the Koran doesn’t fit a hate crime definition,” says Turley. “It is a vile and obnoxious statement, but it is a statement against a religion as a whole, not a direct threat to another person.”

And so the next question is, Why couldn’t we pass a law that simply banned Koran burning? The philosophical argument against doing so can be traced back to our Framers’ fear of government oppression.

“If today the government has the power to ban Koran burning, tomorrow they could ban your church from doing something that it wants to do because the power has been given to the government to determine what’s offensive and what’s not offensive,” says Haynes. “Truth be told, many religious ideas are offensive to somebody.”

Some politicians even suggested banning the burning of the Koran on the basis that it would incite violence in others. But such a notion would allow for what the courts call the “heckler’s veto”—the ability for someone who disagrees with another’s public speech to shut that person down by behaving badly, or threatening to do so.

“The Court has generally rejected that argument. The law should punish the violence, not silence the speaker,” says Volokh. “When you inform the thugs of the world that all you need to do is make threats, and occasionally make good on those threats, and the law will suppress the speech the thugs want suppressed, then the result is more thuggery.”

In the end, Jones withdrew from the debate and decided not to go forward with his plan.

“For those of us who are advocates of free speech, the situation seemed a triumph of our constitutional values,” says Turley. “There was universal condemnation by political and religious leaders. We were left with a teeny church and a pastor surrounded by an entire nation condemning their actions.”

[1] Kalman v. Kortes, Civil Action No. 09-684.
[2] 249 U.S. 47 (1919).
[3] Chaplinsky v. New Hampshire, 315 U.S. 568.
[4] Dennis v. United States, 341 U.S. 494 (1951).
[5] Yates v. United States, 345 U.S. 298 (1957).
[6] 391 U.S. 367 (1968).
[7] 395 U.S. 444 (1969).
[8] Cohen v. California, 403 U.S. 15 (1971).
[9] 491 U.S. 397 (1989).
[10] Virginia v. Black, 538 U.S. 343 (2003).
[11] Snyder v. Phelps, 09-751.
[12] Stone v. Graham, 449 U.S. 39 (1980).
[13] McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005).
[14] 376 U.S. 254.

Freelance writer Anna Stolley Persky wrote about the pared down honest–services law in the December 2010 issue of Washington Lawyer.