Inside the First Amendment
By Charles C. Haynes
First Amendment Center
Extremists of all stripes are having a field day.
Loony rabble-rousers at home — the people behind “Innocence of Muslims,” the now-infamous film insulting the Prophet Muhammad — have succeeded in giving loony rabble-rousers abroad a golden opportunity to promote violence in the name of their own sick, twisted vision of Islam and the world.
The filmmakers join the ranks of Terry Jones, Fred Phelps and other American extremists who will say and do anything to make headlines and provoke outrage.
But however vile the filmmakers’ motives and however odious their speech, we must defend the indefensible by upholding their right to freedom of expression.
Needless to say, much of the world doesn’t agree.
From the president of Egypt (who is calling for the makers of the film to be punished) to some pundits in Europe (who are asking once again why Americans tolerate hate speech), the American commitment to robust free speech is being widely questioned and debated.
Even in the land of the free, protecting the right to offend is an increasingly tough sell. A disturbing 43 percent of Americans do not think people should be allowed to say things in public that might be offensive to religious groups, according to a 2009 survey conducted by the First Amendment Center.
The U.S. Supreme Court does, of course, allow some restrictions on speech under the First Amendment, including speech intended to incite imminent violence. But this film doesn’t meet that test.
Although the filmmakers surely knew that their film would provoke angry protests (and no doubt that was part of their intent), they aren’t responsible for radical groups halfway around the world using the film as an excuse to kill American officials and attack Western embassies.
If the United States were to react to this violence by attempting to censor speech that deeply offends religions (as in some European countries), or speech that is blasphemous (as in some Muslim-majority countries), Americans would forfeit the right to freedom of speech and religion.
Once government has the power to punish speech deemed “offensive” or “hateful,” the First Amendment is effectively repealed and no one’s speech is safe from prosecution and no one’s religion is safe from government interference.
Some religious and political leaders in Europe and the Arab world counter the American defense of the right to offend by claiming that “Innocence of Muslims” and other expression insulting religion violates what they call “religious freedom.”
In this alternate universe, freedom of religion is defined as freedom from offense. Interpreted this way, religious freedom gives religious leaders the right to determine when speech is sufficiently offensive to warrant government action. The state would be empowered to pass judgment on films, television shows, books, speeches and sermons that cross the state-determined threshold of what is and is not acceptable to say about religion.
Religious liberty as freedom from offense would be the death knell of authentic religious liberty, as the Supreme Court made clear in Cantwell v. Connecticut (1940), a landmark case defining free exercise of religion under the First Amendment.
In that case, Jesse Cantwell, a Jehovah’s Witness, played a record with a strongly anti-Catholic message in a heavily Catholic neighborhood. Two men who heard the record called the police and had him arrested for “disturbing the peace” and “incitement to riot.”
A unanimous Court upheld Cantwell’s right to proclaim his message, noting that “the tenets of one man may seem the rankest error to his neighbor.” To persuade others, people sometimes resort “to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement.”
But, the Court reasoned, “in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.”
In other words, a free marketplace of ideas about religion — including ideas many find wrong or repulsive — is a necessary condition for ensuring that people are free to pursue the truth.
To any American tempted to use the engine of government to protect religion from offense or defamation, remember this:
State power that shields your religion today can be used to censor your religion tomorrow. What is blasphemous to one is religious conviction to another.
The greatest threat to a free society lies in giving government the authority to determine who is right.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum in Washington, D.C.