[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Let me introduce you to a cheerful fellow, Liaquat Ali Khan. Here’s his picture:
He writes a column today in MWC News arguing that we should make a special law banning the burning of a Koran.
No, wait, Aaron,–you might say,–he didn’t say Korans only. He surely tried to pretend he was concerned with all religions equally, right?
Um, no, he said Korans only. I mean you will have to read the whole thing to decide if I am right, but here’s the key passage:
Invoking their constitutional right, American Muslims should petition the United States Congress for a redress of grievances. They must demand constitutionally sound legislation that outlaws desecrations of the Qur’an. For Congress, such legislation will demonstrate to American Muslims that the United States is prepared to break away from the medieval custom of assaulting the dignity of the Qur’an. It will also send a powerful message to Iraq, Afghanistan, Pakistan, Libya, and the entire Muslim world, that the U.S. is neither Islamophobic, nor anti-Islamic, a move that can undermine terrorist threats to homeland security.
So that is the first problem with his proposed approach: he would declare that Islam, and Islam only would receive special protecting under our laws. Which is as flagrant a violation of the First Amendment as they come.
Further, in order to argue that this was lawful, he distorts what the Supreme Court said:
In the language of law, Qur’an burning would be an expressive conduct. The First Amendment is generous in protecting oral and written word. It is less so with respect to expressive conduct. The First Amendment shelters expressive conduct if it does not threaten to disturb the peace. The United States Supreme Court declined to outlaw the burning of an American flag because, “no disturbance of the peace actually occurred or threatened to occur.”
The flag precedent does not apply because Qur’an burning is an expressive conduct that incites actual violence. So far Qur’an burning has produced instantaneous violence outside the United States. Given the presence of a growing population of American Muslims, Qur’an burning threatens domestic peace.
Now he is right to say that Koran burning is expressive conduct. And thus content-neutral regulations of that conduct are certainly permissible. I have said from the beginning of the Jones controversy that if the locality had a content neutral restriction on burnings that was actually enforced neutrally, that I would have no problem with enforcing that restriction. But the rest of that is a complete distortion of what the Supreme Court actually said in Texas v. Johnson. Here’s the whole quote in context:
Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall … it admits that “no actual breach of the peace occurred at the time of the flag burning or in response to the flagburning.” … The State’s emphasis on the protestors’ disorderly actions prior to arriving at City Hall is not only somewhat surprising given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson’s conduct. The only evidence offered by the State at trial to show the reaction to Johnson’s actions was the testimony of several persons who had been seriously offended by the flag burning.
The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” … It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” … and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.
Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
(Citations omitted.) So under that standard, originally put forward in Brandenburg v. Ohio, you have to 1) intend to cause violence, 2) imminently, and 3) it has to be likely to actually cause that violence to occur (imminently). And bluntly, that has no application to Jones’ decision to have the Koran burned.
But the real chutzpah on display here is this part. He spends a lot of time berating any and all criticism of Islam, the Koran or Mohammed (Pedophilia Be Upon Him) asserting it is a medieval practice, etc. And to prove that we should not be allowed to criticize Islam, he cites Voltaire.
In 1736, Voltaire, the celebrated French belletrist, wrote a five-act play Mahomet to highlight the depravity of Islam, and perhaps all religions. A few years later, however, Voltaire revised his views and appreciated the Qur’an for removing idolatry.
Sure, because it’s not like as if Voltaire had anything to say about freedom of speech… Seriously, if Voltaire was alive today he would probably go to Saudi Arabia and burn a Koran in Mecca. He would not be on your side, Khan.
But while one might be galled by the chutzpah in regard to Voltaire, I felt nothing but contempt and hatred when I read this:
In 2004, Dutch filmmaker Van Gogh produced a short film, called Submission, to highlight the subjugation of women that the Qur’an allegedly advocates. The film shows nude women wearing see-through veils with Arabic verses of the Qur’an etched on their bodies, insinuating that the Qur’an perpetuates their lack of freedom. An infuriated Moroccan murdered Van Gogh. While condemning the murder, another filmmaker opined, “Longtime readers of Van Gogh’s weekly column in the Dutch newspaper “Metro” know very well that his intention was not to reform male chauvinism, but rather to express crude bigotry.”
Well, then it was okay for people to kill him, right? Yeah, he doesn’t quite say it, but the entire thrust of this article is to argue that Muslims are uniquely unable to control themselves and therefore we should suppress blasphemy against Islam and Islam only.
Now to be fair, when teamed up with a woman named Jasmine Abou-Kassem, they concluded that Pakistan’s death penalty for blasphemy was going to far. Which I guess means he is not completely down with the state murder of others. Which is good to know.
But let me explain something to you, Khan, and I want you to pull up a close seat and listen. If there is ever a day when I am convinced that Muslims as a group are incapable of responding peacefully to offense, including the burning of their holy book, that is the day I decide that Islam is a threat to America. And on that day I will start advocating things like an exclusion of all Muslims from this country.
Consider it the “anti-trust” theory of freedom of religion. You are free to believe in any religion… that will respect my freedom of religion. But if you can’t reconcile your faith to my practice of freedom of religion, then it is your freedom that will be restricted, not mine.
Hat tip: Volokh (who notes that he has pushed anti-religious-defamation laws before), via Insty.
[Posted and authored by Aaron Worthing.]