Pro & Con: Can Congress ban people from threatening to burn the Quran?

In the vast majority of situations, the First Amendment is a sure bet, but it is not an absolute legal trump card that tolerates and protects any manner and form of speech and expression regardless of its potential to provoke or cause harm. Like other amendments in the Bill of Rights, it has some limits and those can be applied to prevent the burning of the Quran.

The Supreme Court has told us — on two sides of the same free speech coin — that we have a right to burn the flag, but we do not possess a right to yell “fire” in a crowded theater when there is none. One might hazard a reasonable guess that you probably do not have the right to burn a flag in protest in a crowded theater, yet that is effectively what the Quran burning would become.

Of course, this debate was sparked by a Florida pastor who, incensed by the “audacity” of building a mosque only a few blocks from Ground Zero, proposed to torch some Qurans in protest. But the price of his 15 minutes of fame is now an open discussion about whether the edges of the First Amendment are a little more blurred in an age of 24-hour newsfeeds, live streaming coverage and global Internet access.

To be sure, the First Amendment not only protects agreeable speech and expression. It also endures speech that offends and reeks of hate. But when that speech or expression may put lives in danger, the freedom to say anything — consequences be damned — takes on a different hue.

Both U.S. and foreign military leaders agree that burning the Quran may inspire and provoke attacks on Americans. There must be a point where the First Amendment will not tolerate collateral damage for the sake of preserving an absolute right to promote hate and violence.

We’ve seen this issue start to ripple through our schools. Playground taunts have morphed into Facebook hate campaigns with the vitriol and cruelty displayed and captured in a permanent medium. We question teen suicides, but isn’t the burning of the Quran — which undoubtedly would be filmed and shared with the world — just another bully in big-boy pants?

The Constitution is an evolving document, notwithstanding the contrary views of Justice Antonin Scalia and other constitutional originalists. It has been used to interpret the evolution of American life for more than 200 years. Issues that were inconceivable in 1789 — abortion, gay marriage, the right to die — have come under the Constitution’s scrutiny. The First Amendment is not a one-size-fits-all right. Indeed, none of our rights are.

The Second Amendment gives us the right to bear arms, but we do not have the right to pack heat in our carry-on luggage because it’s an obvious safety risk. In our current climate of fear-mongering and in-your-face media coverage, the burning of the Quran is just as risky.

Of course, the slippery slope argument — that removing one grain from the First Amendment’s foundation will erode the entire structure — is a legitimate concern.

But such a law can be narrowly crafted and apply to the few situations where lives are in real danger.

News no longer travels by Pony Express, and the realities of our connectedness shift priorities. You have an absolute right to voice your indignation, bigotry and closed-mindedness.

You do not have a right to use your speech and expression to fuel the fire of rage and violence against others and then turn around and hide behind the First Amendment.

Jessica D. Gabel is a law professor at Georgia State University College of Law.

NO: Don’t let government determine what is offensive speech.

By Ronald D. Rotunda

The Supreme Court is now deciding whether in-your-face protestors can obnoxiously picket a dead soldier’s funeral. The oral argument a few days ago showed a court worried about where to draw the line when it comes to offensive speech.

One way to approach the issue is to ask if the First Amendment protects someone who ridicules religion. Surely the answer is yes. It is not polite to make fun of other people’s faith, but the Constitution protects offensive speech because the government should not have the power to decide what is orthodox in politics or religion. That is why the Supreme Court has ruled that we have a constitutional right to burn the American flag.

Yet, Justice Stephen Breyer recently suggested a different answer when it comes to the Quran. George Stephanopoulos of ABC News reported that Breyer told him that “he’s not prepared to conclude that — in the Internet age — the First Amendment condones Quran burning. Breyer added, “Holmes said [the First Amendment] doesn’t mean you can shout ‘fire’ in a crowded theater.” “Why?” he said: “Because people will be trampled to death.”

Breyer is wrong. First, Justice Oliver Wendell Holmes never said you cannot shout fire in a crowded theatre. He said the First Amendment does not protect “a man in falsely shouting fire in a theatre and causing a panic.”

The distinction is crucial. Shouting false speech causes people to panic where there is no time for contrary speech to ferret out the truth. The court has always said that the cure for the speech we do not like is more speech, not less. Inciting a panic with false speech does not give us time to persuade the panicked crowd of the error.

Martin Luther King should be able to lead a march protesting racism in Selma, Ala., (a racist stronghold at the time) for the same reason that the American Nazi Party can march in Skokie, Ill., where many survivors of the Holocaust lived. The city argued that the Nazis’ proposed march was not speech but “an invasion, intensely menacing no matter how peacefully conducted.” Skokie’s expert psychiatric witness testified that “the intrusion of self-proclaimed Nazis” would cause mental anguish. The court rejected the argument. The government cannot protect listeners from offensive speech if listeners can simply turn away.

We often talk of “exercising” our right of free speech. We do not mean “exercise” in the sense of physical exercise — that it is a good idea to walk every day just for the sake of exercise. Still, the decision to be offensive belongs to the speaker, not to the government. Some speech, like burning the Quran, is provocative, but it is constitutionally protected. Sadly, government does not always realize that. At the World Trade Center last Sept. 11, a protester burned pages from a Quran. He was an 11-year employee of the New Jersey Transit Authority, which promptly fired him when the media broadcast photos of the incident. The Transit Authority violated the First Amendment. The court has told us (in the course of protecting flag burning) that the purpose of free speech is “ to invite dispute.” It “best” serves “its high purpose” when it “stirs people to anger.” The Transit Authority should not enforce Shariah law.

Book burnings are a relic from a barbaric past. Recently, some people burned the Book of Mormon to protest the Mormon Church’s opposition to gay marriage. We do not expect Mormons to riot, but even if we did, the First Amendment does not allow a heckler’s veto.

If you are ever in a theater and see a fire, please feel free to tell everyone. Do not worry about being prosecuted for warning people of the danger. Holmes was right; Breyer was wrong.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law.