Even for the most committed civil libertarians, it is hard to work up sympathy for Quran-burning Pastor Terry Jones. However, that is the plight of free speech advocates — you often end up supporting the most obnoxious members of our society. In Dearborn, Michigan, the order barring Jones from protesting utside of the Islamic American Center raises some constitutional concern.
It appears that the matter was presented to a “jury” which found a proposed protest by Jones and his associate Wayne Sapp was likely to breach the peace and incite violence.
This is a rather novel system where a jury is allowed to rule a protest to be a danger based on the anticipated response of others.
After a general matter, the use of such a jury does not improve the matter in terms of free speech. A jury of citizens is even more likely to support silencing unpopular individuals or groups. The Constitution generally does not allow for the prior restraint of speech based on the anticipated response of others. This is why a Nazi organization was given the right to march in Skokie, Illinois.
It reportedly took a jury 3 hours to deliberate and rule against the pastor. Mitigating the effect in this case is the fact that Jones was only required to post $1 though it is not clear what liability he had to assume in the act of posting in light of the finding of the potential for violence. Moreover, he may have wanted to preserve his claim for an appeal. Jones was taken into custody when he refused to pay the bond. The bond was paid by an unknown third party.
What is equally problematic was the argument of prosecutors that Jones should only be allowed to protest at another site in a “permit free zone.” That would appear a significant limitation on speech.
The prosecutors insisted that the sheriff was correct in denying the permit outside of the mosque.
It did not help Jones that he was carrying a firearm that accidentally discharged in the parking lot at Detroit TV State WJBK Thursday night.
In its closing argument, the Wayne County Prosecutor’s Office argued, “Just because we have the first amendment doesn’t mean you can say anything or do anything at any time.” This statement was tied to the over-used argument that you cannot yell “Fire” in a crowded theater. It is a maddening argument that is used to justify all sorts of prior restraints. Here the prosecutors are analogizing Jones’ religious beliefs to yelling “fire” — an argument that is merely a way to say that someone’s views are too unpopular to be freely expressed.
Source: WXYZ as first seen on Reddit.
Jonathan Turley
1) Quit feeding the troll. Fold up your arms, turn your back, walk out of the room.
2) I don’t see “yelling fire in a theater” as the concern. To me this is something of a “fighting words” problem.
Let’s say that there was a guy who, for whatever reason, traveled around to various towns. In each, he would go out on the sidewalks and yell vitriol at passers by: insult their appearance, use racial epithets, make claims about sexual intercourse with their mothers, and so on. This would all be an attempt to get the passers by to start a physical fight with him, which he usually succeeds in.
So, this guy arrives in your town. Should anything be done to stop him from heading to Main Street and doing his thing?
Much like the Westboro jerks, this twerp appears to be actively trying to get people to take a swing at him. This is going way beyond “protesting” or presenting his position on an issue. I think most reasonable people would say that he is trying to provoke an angry or violent response. At some point, don’t attempts to provoke violence from onlookers or taunting of the target of your “protest” override your right to otherwise unfettered public speech?
(In the end, though, the real problem is that this slimeball was given national/international attention at all. I have to assume that other pathetic, scummy “preachers” across the nation have burned various competing holy books – the Koran, the Book of Mormon, teachings of the Catholic Church, etc.)
The Federal District of Colorado and the 10th Circuit engage in prior restraint several times a year. They order that certain people can’t file non criminal petitions they write in federal courts. I was imprisoned for doing so.
Andy,
“Fire” is contextual. If you yell it and know there is no fire, you are merely inciting panic which could result in people being harmed. If you yell fire and there is one? You’re a hero. If you yell fire and have reason to believe there is one – say a lot of smoke unknown to you coming from a smoke bomb – then you would not likely be held culpable for inciting panic because you acted upon a reasonable but untrue belief aka the honest mistake. It all goes to knowledge and intent.
As to Jones, it also goes to intent however intent cannot be determined until action on his part is taken because the action he intended to take is speech. Absent supervening proof that his intent was to incite – say an e-mail where he said “I’m going to go piss some Muslims off”, we wouldn’t know if he was merely exercising his 1st Amendment rights or actually trying to stir up trouble. Maybe his intent was to simply read Bible verses aloud? As non-psychics with no evidence, we cannot tell until he speaks. However, to deny his right to free speech simply because what he might do without evidence is simply an abhorrent miscarriage of justice and in infringement on his rights.
As to the firearm, yes, it can be colored as evidence that he had intent to incite, but it can also be colored as due to recent controversial publicity that he reasonably had it for self-defense as well.
Too bad Jones didn’t shoot himself in the foot when that gun went off; that would be delicious irony. (BTW was he charged with any firearms violation?)
Obnoxious as Jones is, prior restraint is worse. However professing Muslims may act in foreign countries, American Muslims who’ve grown up here should know our Constitutional order mandates tolerance toward even insulting speech. Catholics, Mormons and all other religious people do not have the option of beating up on the creators of “South Park,” Bill Maher or Sam Harris. And Muslims who immigrate to the U.S. should be told they must assume the same obligation. (I hope a lesson on the First Amendment is part of the citizenship test.)
And the duty of the State is to protect the protestor from the mob that wants to lynch him, not to suppress free speech.
The Islamic Center that Jones wants to protest could do no better for its public image than to invite him to stand outside with his sign, or even burn his Koran, while local Muslims mount a peaceful counter-demonstration. A publicity hound like Jones will go away if he can’t stir up trouble.
It would also be helpful for Muslim scholars to rule that while scripture may be holy, its physical manifestation in the form of a book is not. A book is material, perishable. Investing a material object with an aura of sanctity that makes it more valuable than the life of even a single human being is a form of totemism. It’s unworthy of any faith that purports to be centered on One Merciful God.
I have wanted to see a discussion about the “Fire” versus free speech. I would think, and feel free to correct me (gently), that yelling fire could be considered an attempt to injure as the person should be aware of the outcome. It is sort of on one end of a “terror” curve that would have a bomb at the other. In the Jones case is his intent to protest or incite? That he had a firearm certainly weighs it on the incite side.
Ask whomever you like.
It’s not like you listen to anybody.
Remember there was a qualifier: usually. There are exceptions. Which I suspect you’ll find out about soon enough.
“criminal contempt doesn’t show up on a criminal record” ????? Thanks I will write to DOJ and ask them.
Actually, you’re full of shit – all contempt in Federal court is handled as criminal contempt (as has been explained to you several times now) and contempt usually doesn’t show up on your criminal record as a matter of course. You’d know this if you were competent to represent yourself. ‘Nuff said.
Actually BIL I have a letter from USMS saying that they don’t have authority to arrest or imprison for non criminal contempt and I have a letter from DOJ criminal division saying they have no criminal records pertaining to me.
Both Jones and I were engaged in First Amendment Activities
Your imprisonment was for contempt of court, Kay. It had nothing to do with your 1st Amendment rights. It had everything to do with you violating a legal order from a judge and your improper use of civil procedure.
Your situation and Jones’ situation have exactly nothing in common legally speaking.
How does his treatment compare to the freedoms accorded the Westboro Church, Or King, Sharpton, Jackson et al for a decade or more of civil rights protests?
Blouise
Does that mean your “heart goes out” to me for my imprisonment for filing non criminal documents in U.S. courts? Just asking about the scope of your heart or what communications you consider beyond the protection of the First Amendment…..
Thank you for your time.
As the initial blog mentions, protecting free speech is easy when it’s a not an a$s-hole you are defending. Doesn’t make it less important though.
I do have sympathy for all those who wish to stand with Jones as free speech advocates … he is a complete clown and certainly not the least bit worthy of the efforts put forward … when I read “It did not help Jones that he was carrying a fire arm that accidentally discharged in the parking lot at Detroit TV State WJBK Thursday night.” … my heart went out to each and every advocate.
What I have heard and makes me ponder is that you can shout “Fire in a crowded theater” if you’re on-stage but don’t try to do it off stage (Lenny Bruce). As I think this over, this would give credence to Mr. Jones, however repugnant his actions are.
In order to win in foreign policy in the long term we must win their hearts and minds. The way to do that is to establish the First Amendment as a right everywhere.
In Shearson v. Homeland Security the plaintiff was Moslem and the First Amendment was apparently implicated because of her dress.
Exactly why we not only must not leave Iraq and Afghanistan, but must recommmit and escalate our efforts, because it is on those battlefronts that we are phightin’ for our phreedums after all.
“It did not help Jones that he was carrying a fire arm that accidentally discharged in the parking lot at Detroit TV State WJBK Thursday night.” -from the article/posting
Though this guy is a nut-case, IMHO, I’m with Buddha…
Great point about the stupid “Fire in a crowded theater” BS. That example works because a) shouting Fire is not an expression of anything and b) the directness and imminence of the harm it will cause is obvious and apparent. Very few circumstances can be analogized to that appropriately.
I didn’t realize that they had and Office of Pre-Crime in Michigan. Spielberg wasn’t as far behind the curve in “Minority Report” as it seemed. I’ll have to admit, Jones is being oppressed. Between this and “free speech zones” at political events I’m tempted to say XXXXXX-Comment Censored By the Government-XXXXXX.