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.