Thursday, April 28, 2011

Speak Ill Of Islam--Go To Jail

Or to hell, as demonstrated by the signs held by the English-as-a-second-language students of Osama bin Laden University in Dearborn, Michigan (I made that last part up). The publicity-hungry Pastor Terry Jones of Florida Koran-burning fame decided to take his act on the road. And he headed straight for one of the largest Muslim enclaves in the United States.

Jones was arrested by the Dearborn police and jailed for planning to go ahead with a demonstration outside the Dearborn Islamic Center of America without paying a peace bond to cover the costs of police protection for the demonstration. At first blush, this might seem to be a clear violation of the First Amendment, but it's not nearly that simple.

The government is entitled to regulate the time, place and manner of political protests so long as the regulations serve a compelling state interest and do not directly thwart the free speech of the participants. Keeping people from being maimed or killed is arguably a compelling state interest. But since the reasons the Supreme Court has allowed regulation of demonstrations relate to preserving the peace and avoiding injury, it becomes critical to know the reasons offered in the affidavit in support of the imposition of the restraints. And that's where Dearborn may have gone wrong.

The authorities argued that Jones's intended speech would be of such an inflammatory nature as to incite violence. So in fact, the authorities were imposing onerous restrictions on the proposed demonstration based on the alleged content of Jones's speech (and perhaps his actions). Content is the one thing that the First Amendment specifically protects, and can't be the grounds for squelching speech. Theoretically, at least, it wouldn't matter what time, place or manner of exercising his free speech Jones chose, the content of what he intended would produce civil unrest (or so it's alleged).

There is no indication that either Jones or his supporters would commit any violence. So who are the authorities actually going to be required to restrain? That was of course a rhetorical question. We know who. The Islamofascists who refuse to allow a single discouraging word to be spoken of Islam or Islamic activities. Jones should not be required to post an expensive bond, or be arrested and jailed for failing to do so because followers of the fundamentalist version of Islam would commit mayhem.

The affidavit cited previous activities of Jones's, including the Koran-burning that resulted in American deaths in Afghanistan. But that still takes us back to the content. Where Dearborn went wrong was disallowing the protest without the peace bond rather than doing what it was entitled to do--set a time, place, and manner which does not step on other constitutional rights such as the right of association and the rights of private property owners. The other edge of this double-edged sword is that it must also allow a time, place and manner which does not unnecessarily inhibit the right of the speaker to get his message across (e.g., the demonstration may be held at the train yard between midnight and 1 AM, but only on a day on which there are no scheduled trains arriving or departing).

Think of it this way. Most of us are horrified and infuriated by the activities of the Westboro Baptist Church members who desecrate military funerals with their anti-gay, anti-American protests. The Supreme Court held that however loathsome the content of those protests, it must be allowed. But at the same time the Court made it clear that while the content could not be regulated, it reiterated that the time, place and manner could be. Military authorities immediately went to work on drafting statutes that would comply with the ruling, including restrictions that would keep the demonstrators off cemetery grounds and limit any interference or direct contact with the grieving families as they proceed to the burial site.

Likewise, most of us don't much care for the recent leftist and union strongarm tactic of demonstrating outside the homes of bank officials. We know that the demonstrators have the right to express their political opinion, but it's dubious that they have an absolute right to do it in quiet neighborhoods. The litigation in this area is only beginning. But the right of free speech comes up against the rights of property ownership, rights of privacy, and rights to peace and quiet. Even in more public spaces, the authorities have the ability to restrict some speech activities if they unnecessarily burden lawful businesses.

So I come down on the right of Jones to do his thing however much it might upset easily-provoked Muslims. On the other hand, had Dearborn based its decision on the fact that the proposed protest would be at the wrong time and the wrong place (and probably the wrong manner), it could simply have said that the location would produce unacceptable inhibitions on ingress and egress. Or more on point, it could have said that the demonstrations to be held directly in front of a place of religious worship and study were an intrusion on freedom of religion and granted the permit for a location not in direct conflict with the activities of the Islamic Center.

The Muslims are going to get furious and probably violent anyway, but two or three blocks down the street, the freedom of speech would trump the nonexistent right not to be offended. The burden of preventing violence would shift to the Muslims and the responsibility for maintaining peace and good order would not fall on the person exercising his right to free speech. But Dearborn determined that the speech itself had to be regulated, and where it was done was of no import to them so long as it wasn't in Dearborn.

Dearborn can't prevent violence committed by furious Muslims overseas. Perhaps it can't even prevent it in Dearborn. But to impose burdensome restrictions on freedom of speech within an American city plays right into the hands of the international Islamists. The First Amendment was not designed to protect happy-happy don't-we-all- agree speech. It was designed to protect unpopular and contrarian speech, most specifically religious and political speech. I am one of the minority who thinks it should even protect "hate" speech. But it wasn't designed to protect all speech, at all times, in all places and in all manners.

Frankly, I don't find any completely right or completely wrong side in this debacle. Jones should understand that even the Bible says that there is a time and a place for everything under Heaven. Maybe Mohammed-bashing and Koran-burning don't belong in front of an Islamic center. Muslims need to learn that in a civilized society, we don't behead people who "defame Islam." And Dearborn needs to learn that you can do the right thing the wrong way (or alternatively, the wrong thing the right way). Even that which is constitutional can be done in an unconstitutional manner.

16 comments:

Tennessee Jed said...

wonderful, thoughtful lawyerly post, Hawk. I completely agree. Luckily, Mrs. Jed, Maggie, and I are fine after an interesting day and nightlong violent, rotational hail storms. Still, we were spared touchdowns such as those to the south of us in Etowah, Cleveland, Chatanooga, and, of course, Alabama.

BevfromNYC said...

LawHawk - I am also one of those who believes that ALL speech including "hate speech" should be protected. What bothers me about this incident is that
A. My understanding is that there were only going to be Jones and 4 other people protesting;
B. They wanted to limite what he was going to say.

If people don't like what he is saying, then "change the channel". Isn't that what others (i.e. conservatives) are always being told?
I do think the city has the right to limit where they can protest. But I wonder, with only 5 people, what would have happened if Jones had just shown up and started protesting without warning? Would they have arrested them for protesting without a license?

Where does that leave flash mobs?

StanH said...

Creeping Sharia? More and more, we are creating another special class of people who can make it up as they go along. Our sacred rights bestowed by our Founders are being eroded with complicit special group status, this must be stopped. With the continued Balkanization of our country, pitting one group against another, I fear where it will end.

The “pastor” is as much a zealot as any Islamo-Fascist, neither should be taken seriously.

Quite a night, huh Jed?

StanH said...

Oh! You wanna see a proper Koran burning, check out Ann Barnhardt @ “Gates of Vienna.” This woman is either crazy or fearless, maybe both, but she makes your point with a sledge hammer

BevfromNYC said...

Tennessee - You are in my prayers. Stay safe. Do you have a safe room or storm shelter just in case?

LawHawkRFD said...

Tennessee: Stay safe. Every year, I see those twisters moving through tornado alley and am reminded how people in the South and Midwest talk about California's earthquakes. Our shakers are nothing compared to that. I was at my aunt's farm in Waterloo, Iowa when I was nine years old when a twister went through, and I remember that more vividly than the ten or fifteen earthquakes I've been through since then.

LawHawkRFD said...

Bev: It's true that the numbers of the Jones protesters was no threat. That leaves only the content of what he was expected to say and do, and that could have been reasonably restricted in time, place and manner. Frankly, given the hatred that flows both ways there, I don't think the result of an unplanned, unannounced protest would have been pretty.

The flash mobs I saw in San Francisco were largely "peaceful" but very messy. Cleanup was lengthy and expensive. BTW, that's why Dearborn could have required a bond for cleanup, and would have been within its constitutional bounds. But that is something quite different from a "peace bond" which assumes the content of the speech itself will provoke violence.

AndrewPrice said...

Jed, Sorry to hear that, I hope you stay safe. I heard it was a pretty bad night around the region.


Lawhawk, This guy has the right to burn the stupid book if he wants to because the Constitution will protect him. The Islamists are going to have to learn that they can't control the world. Too bad.

LawHawkRFD said...

Stan: The Muslims are not the first ones to commit violence and then claim victimhood. We did the same thing in the 60s, hoping the police would overreact and give us the opportunity to claim our rights had been trampled on. But still, most of us didn't bomb buildings (Ayers) or behead people to get attention. And we didn't expect a different law to apply to us from the law that applied to our opponents and the police. However misguided we may have been, we were demanding that the law apply equally to everyone, not that we had our law and they had theirs.

LawHawkRFD said...

Stan: I know the site, since anyone with a history background can't ignore a blog entitled "The Gates of Vienna." I'll take a look, and thanks for the tip.

LawHawkRFD said...

Bev: Strange irony. I have a steel and concrete root cellar built into the side of the hill on one side of my house. It would make a great storm cellar, except that we don't have that kind of weather here. I hope our friends in tornado country have something similar.

LawHawkRFD said...

Andrew: You know I couldn't agree more. I just didn't want Jones to become some kind of martyr-hero over a misapplication of protest restrictions. More importantly, the Islamists need to learn that we won't let them control the world or have their own law here in our world. Muslims have the same rights as the rest of us, but they are not entitled to special rights because of their own particular religious "sensitivities."

LawHawkRFD said...

BTW: I see Jones's time, place and manner to be constitutionally restrictable considering when, where and how he intended to launch his protest for the reasons I stated in the article. I also see it in exactly the same terms as I see the Ground Zero mosque.

Tennessee Jed said...

Appreciate everybody's good thoughts. We were, once again, extremely lucky. Sometimes you just have to not be in the wrong place. Am so sorry for the people of Tuscaloosa which was the really big one.

Bev, my house sits on top of a hill on a peninsula which juts out into the Little Tennessee River. Makes for spectacular view of the river and the mountains, but I sometimes feel kind of exposed to wind and lightening. (Sort of like the Tai-Pan and his concubine Mai Mai l.o.l.)

Fortunately our house is in someways like a walk-out so the lower level is generally pretty protected. Last night the cells just kept exploding in wave after wave, silver dollar sized hail. Only A few roof shingles and smaller tree branches gone, luckily. Lost internet connectivity for awhile so I just worked on my movie reviews for Andrew instead ;-)

LawHawkRFD said...

Tennessee: Glad to hear you're at least partially sheltered. Those pictures from Tuscaloosa are frightening. I can't imagine what those poor people must have been thinking as that monster approached.

LawHawkRFD said...

Proposed sign for demonstrating against Jihadis: You killded 3,000 New Yorkers, we shooted you in the face. It takeded 10 years, but we dood it.

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