If there were ever any doubts about the motives of the two Muslim men who opened fire Sunday night outside the Muhammad Art Exhibit and Contest in Garland, Texas, they were erased today by a statement from the Islamic State claiming responsibility for the failed attack. The terrorist group went on to warn “America that what is coming will be more grievous and more bitter and you will see from the soldiers of the Caliphate what will harm you, God willing.”
Houston (make that Garland), we have a problem. As for the solution, get a load of the headline of an article published late yesterday at McClatchy: “If free speech is provocative, should there be limits?” The authors, Lindsay Wise and Jonathan Landay, are dead serious. “The attack,” they write, “highlights the tensions between protecting Americans’ treasured right to freedom of expression and preserving public safety, and it raises questions about when – if ever – government should intervene.”
They go on to quote John Szmer, “an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte,” who explains that there are two exceptions to the First Amendment, the more relevant of which is “the doctrine of fighting words” or “incitement”:
Fighting words is the idea that you are saying something that is so offensive that it will lead to an immediate breach of the peace. In other words, you are saying something and you should expect a violent reaction by other people….
I don’t think it is unreasonable to expect what they were doing would incite a violent reaction.
[F]ighting words can contradict the basic values that underlie freedom of speech. The views being expressed at the conference could be seen as social commentary. Political and social speech should be protected. You are arguably talking about social commentary.
There is indeed a legal precedent for the fighting words defense, first exercised in 1942 in the case of Chaplinsky v New Hampshire, 315 U.S. 568 and used rarely since. In it, Chaplinsky, a Jehovah’s Witness, was arrested for purportedly telling a New Hampshire town marshal who prevented him from preaching that he was “a God-damned racketeer” and “a damned fascist.” The court found that the marshal had been incited by Chaplinsky’s words and was justified in making the arrest. In its decision, the court wrote:
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 that 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.
The problem with applying this doctrine to the event organizers and/or artists in Garland is one of proportion. Would Szmer argue that the drawings that precipitated this attack or more pointedly the massacre at the offices of Charlie Hebdo were a reasonable and measured response to “fighting words”? If so, it would seem that the burden of proof would rest with the defenders of the Islamic State to find similar reactions to other acts of religious desecration. For example, by this logic, when Iran hosted a Holocaust denial cartoon’ contest to assuage anxiety over the Charlie Hebdo cartoons, the American government would have been justified in bombing Tehran on behalf of its 5.4 million Jews, claiming incitement.
The simple truth is that it doesn’t take much to incite the Islamofacists in the Middle East to violence. Finding some relatively obscure legal doctrine to defend their actions is just so much liberal sophistry.
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