Today is the anniversary of the assassination of Martin Luther King, Jr. It is an appropriate day to think about political violence, like the violence that followed the burning of a Koran in Florida. I started a spirited discussion by posting my opinion on FaceBook that Terry Jones, the Florida book burner, was responsible for the murders in Afghanistan and ought to be charged with a crime. Few people agreed.
I used to be a First Amendment absolutist, like Hugo Black. I was offended by the attempts at universities to enact “hate speech codes.” I reasoned, as many do, that the most obnoxious speech is exactly that in most need of First Amendment protection.
Then, one day, I woke up and saw things differently. I saw the relationship between hate speech and violence. I began to see all hate speech as incitement to murder. And, since at least some of it was directed at my own ethnic group, I began to see it as incitement to murder my children. Seen in that light, intolerance ceased to be worthy of tolerance.
The memorial for Dr. King in Madison today attracted a large crowd, including the Rev. Jesse Jackson, who has spent much of the past month in
Wisconsin helping to get out the vote for tomorrow’s election. He brought with him two of the sanitation workers whose strike was the reason that Dr. King was in Memphis that horrible day. Madison has become the focus of the struggle for workers’ rights as human rights these past few months and the connection between our travail and that of the workers for whom Dr. King sacrificed his life is palpable.
So, when a selfish, headstrong man disregards the strong objections of those who know the obvious consequences and publicly burns the Koran, and the loss of life that was not only predictable, but predicted, occurs, my immediate reaction is, “why hasn’t this man been arrested yet?” He may not be the murderer, but he is certainly a party to the crime.
How can this be, my predictably liberal friends ask? Doesn’t he have the same First Amendment rights as those idiots who burn the flag? The difference is the forseeability of deadly violence. The deaths that followed this act were a known consequence of the act. Our commander in Afghanistan warned Terry Jones personally that this violence would be the likely result. Since we are at war in Afghanistan, perhaps the appropriate crime is treason.
It is only words, one might suggest. Let’s think about this.. The words spoken at Wannsee were only words. The words spoken in Mafia boardrooms are only words. The words spoken by Charles Manson were only words. Ah, you say, but those people actually told someone to do something. So, already, we have carved out one category of words that are not protected: those that directly tell someone to do something bad.
Then, what about words that indirectly tell someone to do something bad? Yelling fire in a crowded theater falls into this category, as does incitement of race hatred. Which of these are legal and which forbidden?
Carried a step further, what about actions that are the equivalent of words, like burning a flag, or (apparently) contributing to a campaign? Is burning a Koran a form of political or religious speech? If so, is it protected? Always, or does it lose its protection under certain circumstances?
One of the posts on my FB comment quoted a US Supreme Court case in which the operative concept was whether the dangerous speech created a “clear and present danger” of inciting violence. This approach is no longer in favor, but it does provide a construct for consideration of how the problem might be resolved.
I don’t know that a clear set of principles can be distilled to resolve when speech is protected and when it is not. It is clear that there is some speech which everyone agrees is not protected (“kill him”) and some which everyone agrees is protected. It is the most obnoxious stuff in between that is the problem, like burning a Koran or a consecrated Torah scroll. I know one can’t just say, as with pornography, “I know it when I see it.” But, I don’t have a real alternative.
I just know that Terry Jones is guilty of helping to kill a bunch of innocent people.
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