Free Speech Under Fire

Below is today’s column in The Los Angeles Times exploring the growing attacks on free speech in the West and the recent controversy of the “Zombie Mohammad” case.

The recent exchange between an atheist and a judge in a small courtroom in rural Pennsylvania could have come out of a Dickens novel. Magisterial District Judge Mark Martin was hearing a case in which an irate Muslim stood accused of attacking an atheist, Ernest Perce, because he was wearing a “Zombie Mohammed” costume on Halloween. Although the judge had “no doubt that the incident occurred,” he dismissed the charge of criminal harassment against the Muslim and proceeded to browbeat Perce. Martin explained that such a costume would have led to Perce’s execution in many countries under sharia, or Islamic law, and added that Perce’s conduct fell “way outside your bounds of 1st Amendment rights.”

The case has caused a national outcry, with many claiming that Martin was applying sharia law over the Constitution — a baseless and unfair claim. But while the ruling certainly doesn’t suggest that an American caliphate has gained a foothold in American courts, it was nevertheless part of a disturbing trend. The conflict in Cumberland County between free speech and religious rights is being played out in courts around the world, and free speech is losing.

Perce was marching in a parade with a fellow atheist dressed as a “Zombie Pope” when he encountered Talaag Elbayomy, who was outraged by the insult to the prophet. The confrontation was captured on Perce’s cellphone. Nevertheless, Martin dismissed the charge against Elbayomy. Then he turned to Perce, accusing him of acting like a “doofus.” Martin said: “It’s unfortunate that some people use the 1st Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended.”

For many, the case confirmed long-standing fears that sharia law is coming to this country. The alarmists note that in January, a federal court struck down an Oklahoma law that would have barred citing sharia law in state courts. But there is no threat of that, and certainly not in Oklahoma, which has fewer than 6,000 Muslims in the entire state. Rather, the campaign against sharia law has distracted the public from the very real threat to free speech growing throughout the West.

To put it simply, Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy and discriminatory language. Ironically, these laws are defended as fighting for tolerance and pluralism.

After the lethal riots over Dutch cartoons in 2005 satirizing Muhammad, various Western countries have joined Middle Eastern countries in charging people with insulting religion. And prosecutions are now moving beyond anti-religious speech to anti-homosexual or even anti-historical statements. In Canada last year, comedian Guy Earle was found to have violated the human rights of a lesbian couple by making insulting comments at a nightclub. In Britain, Dale Mcalpine was charged in 2010 with causing “harassment, alarm or distress” after a gay community police officer overheard him stating that he viewed homosexuality as a sin. The charges were later dropped.

Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal. Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger’s singing “Kung Fu Fighting.” Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one’s own risk.

Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.

In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill’s author responded, “That’s democracy.”

Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: “Democracy … soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.”

Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to “transmit or display an image” online that is likely to “frighten, intimidate or cause emotional distress” to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a “legitimate purpose.” This applies even to postings on Facebook or social media.

Judge Martin’s comments are disturbing because they reflect the same emerging view of the purpose and, more important, the perils of free speech. Martin told Perce that “our forefathers” did not intend the 1st Amendment “to piss off other people and cultures.” Putting aside the fact that you could throw a stick on any colonial corner and hit three people “pissed off” at Thomas Paine or John Adams, the 1st Amendment was designed to protect unpopular speech. We do not need a 1st Amendment to protect popular speech.

The exchange between the judge and the atheist in Mechanicsburg captures the struggle that has existed between free speech and religion for ages. What is different is that it is now a struggle being waged on different terms. Where governments once punished to achieve obedience, they now punish to achieve tolerance. As free speech recedes in the West, it is not sharia but silence that is following in its wake.

Jonathan Turley is a professor of public interest law at George Washington University.

Los Angeles Times, March 9, 2012

68 thoughts on “Free Speech Under Fire

  1. Actually, I was saying what I meant, I did not think any conspiracy was needed for this particular judge to act as he did, or for many of the other acts of judges and elected officials.

    That is consistent with the fact of actual conspiracies (like The Family) trying to get America to encode religious obedience (or deference, or obeisance) into law.

    But in this case, I think it is an example of elected officials learning that far too many of their supposed boundaries and codes of conduct are not written anywhere at all. Or they have learned that their superiors are extremely reluctant to use them, for whatever reason.

    As a result, there does not have to be any grand plan to undermine the rule of law, personal pique is sufficient when personal pique will not be reprimanded, overturned, or otherwise censured or punished.

    I am not a lawyer, but in the half dozen or so cases I have had to bring to the court, I see a court riddled with personal biases and pique by court officers that skew “justice” to whatever they felt like at the time. Where there is unimpeachable discretion in the application of the law, there will corruption in the application of the law.

    Even in these little things, absolute power corrupts absolutely. That does not just apply to judges, but to District Attorneys as well, when they decide not to prosecute a cop for killing a civilian without cause, and cops, when they are free to exercise their “discretion” with racial or cultural prejudice.

    There doesn’t have to be a conspiracy. Once people become accustomed to making decisions that are not questioned, they naturally revert to non-thinking decisions based on their gut emotional reactions. It is why cops tase people for talking back, because in their gut, they have absolute authority and dissent is illegal. Fuck the law and freedom of speech, because they won’t be punished. Same thing with this judge. Fuck the law and freedom of speech, because in his gut, he is the law, and won’t be punished.

    Wherever there is discretion in the application of the rules, laws or bylaws, especially unimpeachable discretion, you will find it being used with personal bias. I have found that true in laws, corporations, charities, and at every level of business from line managers to CEOs. People forget why they were given discretion, and the line between professional discretion and personal pique or prejudice is eventually blurred into non-existence.

  2. Tony C.,

    Exactly. “Never attribute to malice that which can be adequately explained by stupidity, but don’t rule out malice.” Or simple arrogant malfeasance for that matter.

  3. Decent article. I do feel I need to point out that it wasn’t cartoons in Dutch papers but in Danish papers that caused outrage in certain parts of the world.

  4. […] Since then there have been some further events and so this post is another update. The original story came to me from Turley’s Feb 24 post. The LA Times picked up his story on March 9th publishing Turley’s op-ed “Free speech under fire” which claims to be about “laws banning hate speech, blasphemy and discriminatory language” but jumps first to Judge Martin’s dicta in the Zombie Mohammed ruling. Turley also posted this on his blog to cross-promote his LA Times Op-Ed. […]

  5. When there are people loving whoever as themselves with no militarily or jails the thought of free speech will not be have to be thought of because we will truly have free speech with people giving blessings not cursings.

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