Thought Piece: Burning the Koran is a Form of Protected Speech

Marauder06

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The "General Petraeus thread spawned a lengthy and very interesting sidebar discussion concerning free speech and its consequences. At issue is 1) whether an inciteful act, such as desecrating the Koran, is free speech; and 2) even if it is free speech, whether or not the person doing it should be held responsible for the often-violent reaction to the act.

I decided that in order to continue this discussion without (further) hijacking the Petraeus one, that we might open the subject for debate, ShadowSpear style. The rules for this exercise are below. I hope many of you who were active in the Petraeus threus" threadead will sign up to discuss it here as well. I will also tell you that if you took a specific position on this subject in the other thread, I will most likely assign you to argue the opposite point of view for this exercise.

Also, I had a little trouble coming up with the points of view for this topic, if any of you can think of better ways to word them, let me know.

POV 1: Burning the Koran is not protected speech. It is an inciteful act, with predictable results. The act should not be covered by First Amendment protection, and persons who commit these kinds of acts should be held criminally liable if they spawn destruction or violence.

POV 2: Desecration or destruction of the Koran, while reprehensible, is nonetheless protected free speech. People who choose to exercise this right should be free from fear of prosecution or violent reaction directed towards them.


Important details:
1)If you want to participate in this exercise, your first post in this thread should be, "I'm in" or something related. After that, I will assign you to one of the two points of view above. You can request to be assigned 1 or 2, but that doesn't mean you'll get it.

2)You are not allowed to provide an opinion directly related to the topic of this thread unless you have previously been assigned a point of view (see below). If you comment on something related to the topic without being assigned a point of view first, I'm just going to delete your post. Sidebar commentary (i.e. "peanut gallery" comments) are allowed from people not participating in the debate, but providing your own opinion or substantively commenting on the posts of others participating in the debate is not allowed unless you, too, are in the debate as defined above.

3) Me assigning points of view means that you may have to debate this topic from a point of view that is different than what you currently believe. THAT IS THE POINT OF THIS EXERCISE. I assign points of view so not everyone chooses one over the other and to keep the level of outside commentary down. I also do it to help people think about an argument from the "other" view.

4) You do not need to caveat your posts with something like, "I don't believe this in real life" or words to that effect. That immediately undermines your argument and taints everything you say afterwards. If you do that, I'm going to delete your post. Act like you believe it; you'll do better research and make a better argument. There will be plenty of time to say what you really believe later.

5) We have done several of these exercises in the past, and people learn a lot. So keep it civil, keep it fun. There are no "winners" or "losers" in this exercise, we are all winners due to the education we receive from being exposed to well-researched and well-argued points of view on this topic.

... and with that, game on!

POV 1
dirtmover
CDG
Marauder06

POV 2
Skrewzloose
LOST
SOWT
 
Seeing as how I was rattling the cage in the other thread, I'm in on this one.
 
I don't know if I can allow myself to pass on this one with how active I was in the other. LOL Unfortunately, I may be all out of argument at this point, but we will see what POV I am assigned and who argues what.
 
LOST, Skrewz, CDG, dirty- check the initial posts for your assignments. Good luck.
 
Well, I'll keep the first one simple while I dig more.

Actions such as these don't have to be "protected". The text of the 1st amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Congress hasn't made any laws to prevent actions like these from happening. So, while these actions may be based in ignorance, they are not illegal. No harm, no foul.
 
Well, I'll keep the first one simple while I dig more.

Actions such as these don't have to be "protected". The text of the 1st amendment states:


Congress hasn't made any laws to prevent actions like these from happening. So, while these actions may be based in ignorance, they are not illegal. No harm, no foul.

Hey teammate, you are lobbing in some softballs... :ROFLMAO:
 
I'm trying to look this shit up while my room mate listens to a Pitbull CD that he actually purchased. A real CD...in a case...it's shiny.
I'll be back with bigger harder more balls better info in a bit.
 
To expound on the First Amendment:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

There are two parts to this I would like to address, Most importantly, The Establishment Clause, and secondly, Prior Restraint.

The Establishment Clause
The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. (SOURCE)

Lets say you have two groups, Group A and Group B to keep things simple.

When Group A is allowed to burn the holy book of Group B because there will not be any violent uprising, but Group B is being told by agents of the government not to burn the holy book of Group A for fear of violence, then you are violating the bolded part of the Establishment Clause of the First Amendment of the US Constitution.

Prior Rrestraint
In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place. There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional. (SOURCE)

Agents of the Federal Government asked the instigator not to desecrate a holy book before he had actually done it. This is the exact definition of Prior Restraint.

Section one of the Fourteenth Amendment is also at the heart of the argument.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The bolded part of the Amendment re-iterates the Establishment Clause, but relates it at the State level instead of the Federal level like the First Amendment. Again, if you grant Group B protections, those protections MUST BE granted to Group A.
 
As was mentioned previously (before this became it's own thread, hey I'll give credit where it's due), freedom of speech extends beyond just words and covers actions as well. The following cases all show examples of 1st amendment rights being upheld when actions, not words, were called into question.

Tinker Vs. Des Moines
The act of wearing an arm band to protest the government's handling of the Vietnam war was covered by the rights afforded in the 1st amendment.

Texas Vs. Johnson
Involved the burning of an American flag during the 1984 RNC. Johnson was initially convicted, but then had the decision reversed by the TX court of criminal appeals citing protection under the 1st amendment. Again, his actions were protected, just like in the case above.

There's one more case that I'm trying to get some clarification on.
In any event. There should be no recourse for the act of burning a Quran or any other sacred text because, just as above, they are protected by the 1st amendment. If people want to be angry about something like this, they have every right to. Legally though, they wouldn't have a leg to stand on.

ETA: Found it in words that don't make my brain hurt. But here is what was/is considered the land mark case regarding the 1st amendment vis-a-vis non-verbal speech.

Stromberg Vs. California
Yes, I know it's Wiki, but the first link I found didn't make enough sense to LOST or myself. California invoked a statute banning the wearing of red flags. The decision was later overturned 7-2 by SCOTUS due to its violation of the 1st and 14th amendments.

From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. "Speech" and "press" in the First Amendment don't just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.
http://online.wsj.com/article/SB124657642816289111.html
 
The burning of a Koran is not protected under the 1st Amendment because it falls under the "Fighting Words" clause.

http://www.law.cornell.edu/wex/fighting_words

Nolo's Plain English Law Dictionary defines "Fighting Words" as: Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment. If the hearer is prosecuted for assault, claiming fighting words may establish mitigating circumstances.

http://www.nolo.com/dictionary/fighting-words-term.html

Furthermore, the decision in Chaplinksy vs. New Hampshire , 315 U.S. 568 (1942) clearly states:

"It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0315_0568_ZO.html

Given the context of all of the above references coupled with Islamist proclivity for violence when they feel their religion has been disrespected, it is clear that the burning of a Koran IS NOT protected under the 1st Amendment. The action of burning a Koran stands a very reasonable chance of inciting violence and/or a breach of the peace.
 
Nolo's Plain English Law Dictionary defines "Fighting Words" as: Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment. If the hearer is prosecuted for assault, claiming fighting words may establish mitigating circumstances.

The key here is that they are words, not actions. Because of this, your argument and case studies are irrelevant. While the First Amendment does cover actions, inflammatory (or fighting) words do not. This debate is about destroying a symbol. Nothing has been said about a speech or signs that may or may not go along with it. It is about the act of destroying the symbol. Therefore the use of "fighting words" does not fit into the argument.

Further, the definition states there must be an immediate breach of the peace or retaliation. In situations like this, while there may be protests, there hasn't been any immediate breach of the peace or retaliation in the United States. There may be threats of action, but when has there been an actual event immediately following something like this. Talking about doing something does not constitute retaliation or a breach of the peace.

One last point I would like to make. The last sentence in the definition posted makes it sound more like "fighting words" can be used as a defense in a criminal trial. It does not look like it is used to take away someone's rights under the First or Fourteenth Amendments.

Given the context of all of the above references coupled with Islamist proclivity for violence when they feel their religion has been disrespected, it is clear that the burning of a Koran IS NOT protected under the 1st Amendment. The action of burning a Koran stands a very reasonable chance of inciting violence and/or a breach of the peace.

The U.S. Constitution does NOT extend past our borders. Fundamentalist Islamists, or those with a tendency towards violence only usually act on it outside of the United States. Here, there is a tendency to protest. Protests are non-violent and do not breach the peace.

Also, I would like to point out that taking away someone's Constitutional rights on the chance of repercussions is in and of itself unconstitutional. While not following the story closely, I have not heard anyone/any group say that they will break the law if this guy goes through with his plan. Therefore there is no reason to deny him his rights.
 
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