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
Gene,
Don’t forget the RCC. The bishops would love to have some control over the US of A.
Tony C.,
Not to say that 1bz1 is correct in assigning this instance to a conspiracy to “Christianize” our government (this episode smells more like Heinlein’s Razor than conspiracy), don’t be too quick to write of a conspiracy to do just that. There is a concerted element within the government (see members C Street and the Family) and from institutions like Regents, Oral Roberts and Bob Jones Universities to inject conservative and often fundamentalist Christian dogma into our secular government by attempting to influence both legislation and foreign policy. Many of these people are dangerous zealots and theocrats of the worst sort. They are a threat to our Constitution and our nation as a whole with their dogmatic agendas (and pursuit of the End of Days in some cases). However, in this case, I haven’t discounted malice, but the evidence really seems to me simply to point to an idiot somebody put a black robe on and exercised the poor discretion to allow him to be called a judge.
You can take “Kung Fu Fighting” away from me when you pry it from my colf dead hands.
Tony C. 1, March 9, 2012 at 5:19 pm
@Dredd: I do not understand your point.
Are you saying they should not have been allowed to say that?
Or are you saying that freedom of speech by celebrities and the politically powerful should be enough to satisfy us, and freedom of speech by common citizens without power is too much freedom of speech?
====================================================
Thank you for asking.
“Are you saying they should not have been allowed to say that?”
No, I think they should have been allowed to say that.
“Or are you saying that freedom of speech by celebrities and the politically powerful should be enough to satisfy us”
Nothing should satisfy us but the truth. In our culture for thousands of years “the truth” has been determined by, in criminal cases, 1) a grand jury, and 2) a petite jury of peers should the grand jury return a true bill.
In the video I link to various experts, including one commissioner of the 9/11 Commission, say Saudi Arabia partook of 9/11. Did you get that? Saudi Arabia helped kill 3,000 Americans.
Yet we cut them slack because they have oil.
DO YOU GET IT YET?
The U.S. government went after Afghanistan and Iraq but it was oil kings in Saudi Arabia who conspired to kill Americans, and we let them of totally, because they have oil.
The CIA agent, when asked why scores of Saudi Arabian officials were allowed to fly home on 9/11 (when all American civilian aircraft were grounded) by Hardball’s Chris Matthews, he said “because we needed Saudi Arabia to help with the war against Iraq” (paraphrased).
WHAT? The war against Iraq came years later in 2003, after Bush II said over and over he had not yet decided to invade Iraq.
The stink reaches to high heaven, but no one cares that we invaded the wrong countries and let the real perpetrators go?
THAT IS INSANE.
“… freedom of speech by common citizens without power is too much freedom of speech?”
No.
Here is a link to the video: http://video.msnbc.msn.com/hardball/46596274#46596274
@1zb1: I do not believe there is any conspiracy to do anything but whatever the hell they want. Since 9/11 politicians of all stripes have realized they can do whatever they want, lie all they want, cut backroom deals all they want, and just do whatever the hell they want without retribution of any kind.
That is all that is going on; the judge feels free to let loose and screw a guy with a legitimate complaint because the judge viscerally dislikes the guy; he thinks he is a doofus. So he indulges that sentiment without having to pay a price for it. Public outrage be damned, as long as nobody actually threatens his job, he will do whatever the hell he wants.
That is the attitude of all elected and appointed officials now; they are just like the career criminals: Right and wrong no longer matter, how much we whine or protest or cry doesn’t matter, all that matters is whether anybody has the guts to punish them.
Speech is secondary to action….. If you hit someone because of their speech….who is capable depends on what the speech was… If a threat…did they have the apparent ability to carry it out….. If not then…. Walk away…. Sometimes when you argue with an idiot… The idiot may well be arguing…….
Thanks for the article….
This has nothing to do with imposing sharia law and everything to do with being a cover to impose biblical law in America.
@Dredd: I do not understand your point.
Are you saying they should not have been allowed to say that?
Or are you saying that freedom of speech by celebrities and the politically powerful should be enough to satisfy us, and freedom of speech by common citizens without power is too much freedom of speech?
We have enough free speech that Chris Matthews, CIA agent Baer, NY Times journalist Eric Lichtblau, Senator Kerrey of the 9/11 Commission, and Senator Graham, chairman of the congressional 9/11 investigation, can say:
(Hardball Video, 2-1-12). But not enough freedom of speech for you to feel comfortable about it?
Great job Professor. It is indeed scary to think how much our freedom to speak our minds is being limited. The internet could be our saving institution if the corporations aren’t allowed to limit it.
The whole point of freedom of speech is the freedom to express something others will not like hearing, or may even view as dangerous thinking. For example, slave owners did not like abolitionist talk, it was financially and culturally threatening to them and their way of life. Many thought the same about women’s suffrage, or prohibition, or civil rights, or the war in Vietnam.
The whole point of freedom of speech is to be able to say things that threaten the belief systems of others, to be able to support such statements, no matter how much it offends somebody else’s belief system.
Prohibited speech is prohibited because it is endangerment or causing somebody to risk injury or take risks trying to get to safety. Shouting “fire!” in a theatre is not protected for that reason, inciting a riot is not protected for that reason.
But “offense” or moral outrage is not either of those, offense is not protected and never should be. That is why the KKK can march, and the gays can have a parade celebrating homosexuality, and the Tea Party can march on Washington. There are citizens that take great offense to all of these things, and we don’t care. There is no Constitutional right to be unoffended, in fact the opposite is true: Freedom of speech is the freedom to offend others without being punished by the state.
There are several prongs of the First Amendment. The other day on this blog there was reference to the right of the Church, Catholic Church at that, to freedom of religion when they discriminated against their employees in the choice of medical care and items of treatment afforded by the health policy. The freedom of religion of the individual must trump the freedom of religion of the church as a whole. No one told the Church they could not proselytise when they told the Church employer to provide a product to an employee. Chirp all you want. Here we have an issue that legislators and judicial officials seek to protect the image of a religion over the rights of an individual to exercise his/her free speech either against that religion as a whole or against certain persons in stereotype from that religtion. By mocking John Paul we do not deny his right to preach pedophilia or any other nostrum of religion. Let us keep our prongs in order here.
It seems America is hell bent for self-destruction. Why are our legislators doing this for? Is it the cool-aid? We the people need to do some serious thinking about whats happening to our rights. Barack Hitler is leading the charge to dictatorship.
Re JT’s point,
He is concerned by the loss of free speech due to laws.
I am concerned by the chilling effect that surveillance has on us.
I exemplify by asking how many dare to write on the net or utter on the phone “terrorist connnected words”?
One can rightly ask if anyone has been harassed, had their homes turned upside down as one LOE opined the SS would do, prosecuted for use of these or other violence connected words. At least many more than we read about, I believe.
Does anyone dare say them now. The PC profile changes from day to day.
Free speech is a precious thing.
Regulating speech in any way is indeed a slippery slope
At the same time, unfettered speech is another slippery slope. The problem lies in what can happen to the standard of discourse that becomes ‘normal’. It can be a race to the bottom.
The Limbaugh thing is interesting. His free speech is vile unthinking hatred – but apparently hugely popular. His prominence gives comfort to the worst elements of society. It’s a spiritual virus.
But – wondrous to relate – it seems society has the potential to be self-healing without the need for imperfect laws.
From http://www.salon.com/2012/03/09/the_hidden_meaning_of_rushs_apology/
Limbaugh’s mea culpa — however insincere — is significant because it is proof that America may be both setting some basic standards for political discourse and rejecting the right-wing shrieks about “censorship” and “political correctness.”
The price of free speech can be Westboro Baptist Church turning up at a funeral. One’s perception of the justification of that price may depend on whether the funeral in question is that of some guy somewhere – or the funeral of one’s husband.
“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.”
A most excellent closing, JT. Most notable for its total lack of silence. Bravo! Well played, indeed.
I think this judge should be impeached. He is clearly not following the law.
Excellent article. You can’t make this stuff up and the more it is exposed the better. Thank you.
Hear, hear.
Perce can appeal, right? This country has definitely gone over the edge. Elbayomy gets away with assault because he was “offended”?!?
I guess I should be careful lest the irate morons who don’t like the fact that I do the speed limit assault me and then claim they were offended, or better yet, I made them “late’ to church by my reckless adherence to the law.