Will the 'Home of the Brave' still protect free speech?
May 7, 2015
By Gene Policinski
Inside the First Amendment
The thwarted attack May 3 on a Prophet Muhammad "cartoon" competition in Texas aimed to put freedom of expression in the crosshairs.
Let's examine the latest incident — which seems now to be an unsuccessful attempt to echo the Jan. 7 attack on the French satirical magazine Charlie Hebdo — through a First Amendment lens.
The invitation to draw Muhammad cartoons at the Garland "art fair" may well be worthy of criticism by those who see respect for another faith's beliefs as a guiding concern. But such drawings, which offend Muslims who see any imagery of Muhammad as blasphemous, are protected free speech.
Some say the cartoon exhibit was too provocative to be allowed, noting it was sponsored by the vehemently anti-Muslim group, American Freedom Defense Initiative, as an "in-your-face" response to the same civic center being used in January for an event denouncing Islamophobia.
But "provocative" must not mean prohibited. The First Amendment's protection for free speech anticipates, invites and encourages blunt, emotional and sometimes shocking speech as part of the messy democratic process of exchanging views and vigorous public discussion.
Groups like the American Freedom Defense Initiative, and the better-known Westboro Baptist Church group and other groups outside the mainstream of American life, draw their life from testing our collective support for free speech. They attract attention by challenging the nation's comfort zones, from politeness to political correctness to public safety.
But as Chief Justice John Roberts wrote in a 2011 decision involving the Westboro group, "Speech is powerful. ... It can stir people to action, move them to tears of both joy and sorrow, and ... inflict great pain." But, he said, "We cannot react to that pain by punishing the speaker," adding that the nation's commitment to free and open debate means protecting "even hurtful speech on public issues to ensure that we do not stifle public debate."
Yes, the Garland, Texas, event was more P.T. Barnum than Picasso, and more crass than class. But, as Roberts wrote about Westboro admittedly using its presence at military funerals to attract attention, we cannot punish speakers for finding an effective way of being heard.
I wish I could say that the nation's commitment to Roberts's views is — pardon the expression — "bulletproof." After all, we've had the First Amendment on the books since 1791. But we live in an age of rising terrorist threats, and the record also shows that fear dramatically affects public support for unfettered freedom.
In its annual nationwide State of the First Amendment survey by the Newseum Institute's First Amendment Center, 49 percent of Americans, fully eight months after the 9/11 attacks, said the First Amendment "goes too far in the rights it guarantees" — with a similar bump up in the weeks after the Boston Marathon bombing. In such crisis moments, many of our fellow citizens apparently would surrender liberty to gain what they think will be some measure of safety.
But threats to our core freedoms don't only come during crises. First Amendment scholars also warn that the ongoing "war on terror" with its repetitive, persistent threats from groups like al-Qaida and ISIS, has the potential to alter the very legal equations by which we determine the line between protected and unprotected speech, and the extent of religious liberty and other core freedoms.
One of those measures in law is the degree to which speech is an "incitement" to violence, which can place it outside First Amendment protection. In a 2005 article in the Whittier Law Review, scholar Kenneth Lasson noted that "terrorism creates a kind of permanent imminence" that could criminalize speech seen as protected in calmer times.
But such a moving standard invites abuse and overreaction. First Amendment freedoms live at the fringes, even as they encourage dialogue and debate that creates middle ground. We've spent two centuries and more profiting from those freedoms and that standard.
Reasonable and proper steps to protect public safety are a common-sense response to true threats. But the "Home of the Brave" has an added responsibility — even in the face of terrorist threats — to defend and protect the right to push, provoke and proclaim nonmainstream views.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at firstname.lastname@example.org.