Karen Lugo: How Much For A Piece Of The First Amendment?

The United States faces mounting pressure from the 57-member Organization of Islamic Cooperation to comply with demands for “legislation against incitement to religious hatred, violence, discrimination on the basis of religion, in particular for Muslims.”

The response to both marauding rioters and fatwa-driven heads of Islamic states must be a confident and unequivocal defense of First Amendment guarantees as enshrined in the Bill of Rights and confirmed by America’s highest Court.

Just a year and a half ago the Supreme Court considered whether there should be a special free speech “funeral exception” to protect military families from demonstrators shouting epithets such as, “Thank God for dead soldiers” as these families bury their fallen daughters and sons. The near-unanimous ruling affirmed the full spectrum of public debate, including speech as “distasteful” as the Phelps cult’s hateful jeers. This decision, denying the Snyder family compensation for emotional pain, was a bitter pill for many to swallow, but the Court properly refused to react to pain “by punishing the speaker.”

The current talk of caving in to murderous Islamists and censoring the latest speaker, or filmmaker, is in direct violation of the same First Amendment free speech protections that applied to the funeral demonstrators. If it is safe to presume that military families who are confronted with vile demonstrators will not react violently, why the desperation to placate the offended party when thuggery is part of the equation?

Some commentators rationalize that Islamists, according to arbitrary blasphemy protestations, can be expected to “act out.” They therefore claim that the Brandenburg rule, as it excludes expressions “likely to incite or produce imminent lawless action” from the zone of protected speech, should apply to speakers who offend Muslims. This generalized approach, however, ignores the instruction provided by the Supreme Court in Brandenburg when it clarified the standard as akin to “preparing a group for violent action and steeling it to such action.” The Court was careful not to convey a vague and easily manipulated “likely to incite” standard.

Also lost in this desperate attempt to tamp down the tantrums is the absurd premise that legal culpability for a bad act can be shifted to a third party. For example, if the threatened riots had resulted from Seattle cartoonist Molly Norris’s suggestion about an “everybody draw Mohammed day,” she would have been in the impossible position of defending against the legally contorted charge that she may or may not reasonably have known that she was saying something sufficiently offensive to incite mob mania. The potential for upping-the-ante if feigned offenses can be leveraged into crimes would only be limited by Islamist inventiveness.

Unseemly haste to placate the violent mobs on their terms reveals just how desperate leaders are to put off a reckoning until another day. What we forestall along with the inevitable confrontation, nevertheless, is the audacity that accrues to the thugs as American pundits and politicians focus on censoring the filmmaker.

One of the hard lessons from the pre-school sandbox is that bullies thrive on weakness. Yet Obama hopes to escape this truth as his administration desperately pressures Youtube to ban the video, and spends $70,000 of taxpayers’ money to run public service disclaimers in Urdu. Youtube has responded that the clip is not in violation of community terms of use — although Youtube did comply with censorship requests from Libya and Egypt. Pakistanis reacted to the Obama administration’s public relations entreaties with a national day of rampage, killing at least twenty.

In Great Britain a debate over historian Tom Holland’s documentary Islam: The Untold Story scheduled for two days after the Cairo and Benghazi attacks was canceled. France recognized Charlie Hebdo‘s right to publish risqué cartoons of Mohammed but did shut down twenty embassies in Muslim countries for fear of riots.

As constitutional law professor and blogger Eugene Volokh writes, caving in to bullies only accelerates the rate and scale of their ambitions. After performing a straightforward cause-and-effect analysis, Volokh concluded that it would “actually be safer — not just better for First Amendment principles, but actually safer for Americans — to hold the line now, and make clear that American speech is protected.”

Even if accelerated tantrums and murder are the initial response, civilized society would be better off hanging tough. The future of American rule of law depends on facing down these particular bullies at this time. Otherwise, Prof. Volokh’s trifecta will prevail: “kill Americans, visibly force America to change its ways, and on top of that suppress the blasphemy or other behavior that you dislike, win win win.” The key to implementing this trifecta is the visible component of the formula. If America sacrifices prestige and moral authority on the world stage to buy temporary relief, Western states know exactly how to score the transaction: civilization loses, barbarians win.

Military families, Christians, Jews, tea party activists, and various other groups must suffer insult with a stiff upper lip so that discourse can run the full range of parody and ridicule. The kind of free, unfettered, and robust speech that sustains a free and independent people entails give and take all the way around, and the worthwhile benefit is a full vetting of ideas and policies.

Patrick Henry did not say, “Give me liberty, or . . , ahh . . , uhm . . , I will apologize for even asking.” Our examples, our founding leaders, spoke in clear and certain terms.

Daniel Webster surveyed America’s founding era in 1826 and exhorted subsequent generations to cherish the “newly awakened and unconquerable spirit of free inquiry and diffusion of knowledge such as has been before altogether unknown and unheard of.” He warned that if “these great interests fail, we fail with them.”

No matter how objectionable or socially repugnant is the material in controversy, American freedoms must not extorted away by the tantrums of raging mobs. Our destiny must remain subject to American sovereign will and be determined by time-tested deliberative processes.

Karen Lugo is Co-Director, Claremont Institute Center for Constitutional Jurisprudence.

Originally posted at the Gatestone Institute.