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Free speech and Islam on fire

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent   |   Sept. 23, 2012 at 3:30 AM   |   Comments

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WASHINGTON, Sept. 23 (UPI) -- How can the U.S. government allow a shadowy Los Angeles area man to make and show an anti-Islam film that has outraged Muslims across the globe and ignited protests in North Africa and the Middle East that resulted in the deaths of four Americans, including an ambassador, and put other U.S. diplomats and military in the greatest danger?

The film, or video, "The Innocence of Muslims," depicts the Prophet Muhammad as a power-hungry bisexual pedophile of indeterminate parentage.

What isn't fully understood outside the country's border is that in the United States, even more than in other Western countries such as Britain, France or Germany, the government has very little power to control speech.

Like it or not, there is very little the government can do to control individuals or groups who choose to draw attention to themselves by outraging Muslims.

A case in point is the Rev. Terry Jones, pastor of a small non-denominational Christian church in Gainesville, Fla., who told the world in 2010 he planned to burn the Koran. Jones and others actually followed through on the threat in April -- and was fined $271 for burning books without a permit.

More recently, Jones was banned from entering Germany by Interior Ministry officials who said his attendance at a Berlin showing of the anti-Islam film was not in the "interest of maintaining public order," the American Thinker reported. German officials also vowed to stop the showing of the film.

In contrast, U.S. officials were reduced to begging Jones by telephone not to further provoke Muslims, citing the danger to U.S. personnel overseas. Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, called Jones last week and asked him to stop promoting the anti-Islam film.

"He asked Pastor Jones to consider withdrawing his support for the film," Politico quoted an administration official as saying. "Mr. Jones did hear the chairman's concerns but he was non-committal."

U.S. Supreme Court decisions in the last few decades do not bode well for any government attempt to control or suppress expressive speech, even when the average American might find that speech repellent.

The First Amendment to the U.S. Constitution says: "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."

On its face, the Bill of Rights, the first 10 amendments, applies to the federal government. The 14th Amendment applies the Bill of Rights, including the First Amendment, to the states as well.

U.S. courts use the highest of three forms of scrutiny -- "strict scrutiny" -- when evaluating government attempts to restrict speech. A government restriction must further a "compelling" government interest; it must be narrowly structured to achieve that interest; and it must be the "least restrictive" method for achieving that interest.

One of the most famous high court free speech cases involved a form of protest -- flag burning.

In Texas vs. Johnson, a man burned a flag in protest during the 1984 Republican National Convention in Dallas. Gregory Johnson was convicted under a state desecration statute, but the Texas Court of Criminal Appeals reversed, saying the First Amendment protected Johnson's freedom of expression.

The U.S. Supreme Court agreed in 1989, saying "Johnson's conviction for flag desecration is inconsistent with the First Amendment."

Brushing aside Texas' argument that flag-burning was inimical to the public peace, Justice William Brennan conceded in his majority opinion: "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. ... It may not, however, proscribe particular conduct because it has expressive elements. ... It is, in short, not simply the verbal or non-verbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid."

He added: "Precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Brennan concluded: "Johnson was convicted for engaging in expressive conduct. The state's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the state's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

The lone dissenter was liberal Justice John Paul Stevens, a World War II veteran.

"The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach," Stevens said. "If those ideas are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

A case involving even more repugnant conduct came to a climax in the U.S. Supreme Court last year.

The Rev. Fred Phelps and his Westboro Baptist Church of Topeka, Kan., have "picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military," the Supreme Court majority opinion said. "The church's picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers.

"The picketers peacefully displayed their signs -- stating, e.g., 'Thank God for Dead Soldiers,' 'Fags Doom Nations,' 'America is Doomed,' 'Priests Rape Boys' and 'You're Going to Hell' -- for about 30 minutes before the funeral began," the opinion said. "Matthew Snyder's father ... saw the tops of the picketers' signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night."

The Marine's father filed a suit against Phelps, his daughters -- who participated in the picketing -- and the church, claiming "intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy."

A jury held Westboro liable for nearly $11 million in compensatory and punitive damages. A federal judge reduced the damages, but left the verdict intact.

A federal appeals court reversed, saying Westboro's speech was protected by the First Amendment.

In an 8-1 decision in March last year, the U.S. Supreme Court agreed, saying the protection of speech involving public issues was entitled to "the highest rung of the hierarchy of First Amendment values."

Writing for the majority, Chief Justice John Roberts said, "The 'content' of Westboro's signs plainly relates to public, rather than private, matters. The placards highlighted issues of public import -- the political and moral conduct of the United States and its citizens, the fate of the nation, homosexuality in the military and scandals involving the Catholic clergy -- and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible. Even if a few of the signs were viewed as containing messages related to a particular individual, that would not change the fact that the dominant theme of Westboro's demonstration spoke to broader public issues."

Moreover, "Apart from the content of Westboro's signs, [the Marine's father] contends that the 'context' of the speech -- its connection with his son's funeral -- makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro's speech. Westboro's signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is 'fairly characterized as constituting speech on a matter of public concern,' ... and the funeral setting does not alter that conclusion. ...

"Speech is powerful," Roberts said. "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."

© 2012 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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