Terry Jones and the First Amendment

09/14/2012 01:10 pm ET | Updated Nov 14, 2012
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Are those who condemn Islam and mock Mohammad protected by the First Amendment? There are two arguments one might make to support the proposition that such speech is beyond the protection of the Constitution. First, one might argue that such speech is blasphemous and, as such, is outside the boundaries of the First Amendment.

Historically, supporters of laws against blasphemy have argued that such laws are necessary to avert divine wrath, to enforce conformity with prevailing beliefs, to insulate those beliefs from the contagion of doubt, to protect the sensibilities of believers, and to avoid retaliation by believers against those who deride their beliefs.

During the Middle Ages, the penalty for blasphemy included death, imprisonment on bread and water (often causing a lingering death), cutting off the lips, and burning or tearing out the tongue. During the sixteenth and seventeenth centuries, executions and other brutal punishments for blasphemy were inflicted throughout Europe.

In the American colonies, the Puritans took blasphemy quite seriously. The early Puritan codes declared blasphemy a capital offense. From the 1660s through the 1680s, the Puritans initiated approximately 20 blasphemy prosecutions. In one case, the defendant was prosecuted for calling God a bastard; in another, for stating that the devil was as merciful as God. Although the Puritans never executed anyone for blasphemy, they sometimes whipped, pilloried or mutilated those found guilty of the offense.

By the eighteenth century, however, prosecutions for blasphemy disappeared almost entirely from the American colonies. Although laws against blasphemy remained on the books, they were not enforced. Indeed, by the time of the American Revolution the idea that the government could legitimately punish an individual for disparaging religion had fallen into disrepute, and the law of blasphemy had come to be regarded as a "relic of a dead age."

In the early years of the nineteenth century, however, the Second Great Awakening -- an explosion of evangelical fervor -- spread across the United States, and prosecutions for blasphemy reemerged. In 1811, for example, New York prosecuted one Ruggles for stating in a local tavern that "Jesus Christ was a bastard, and his mother must be a whore." Ruggles was convicted and sentenced to three months in prison and a fine of $500.

Speaking for the New York court that upheld his conviction, Chancellor James Kent, a conservative jurist who viewed religion as the bulwark of the social order, reasoned that blasphemy must be a crime because it "tends to corrupt the morals of the people, and to destroy good order." Christianity, he argued, was an integral part of the law of the land, and blasphemy that "insulted" that religion was "a gross violation of decency and good order." Similar prosecutions followed over the next several decades. Men like John Adams and Thomas Jefferson, who had been deeply involved in the creation of our nation, vigorously condemned these prosecutions. Adams characterized laws against blasphemy as "a great embarrassment" and called for their repeal.

As the force of the Second Great Awakening waned, the demand for blasphemy prosecutions dissipated. Since 1838, there have been only a handful of blasphemy prosecutions in the United States, and a broad consensus has emerged that Jefferson and Adams had it right. In 1952, the Supreme Court of the United States finally put the matter to rest in Burstyn v. Wilson, holding in a unanimous decision that "it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine" or to protect "any or all religions from views which are distasteful to them." The First Amendment, the Court declared, renders any such government action unconstitutional. Religions and religious figures, like political parties, politicians, businessmen, and other members of society are fair game for criticism, condemnation and even mockery.

The second argument one might make for punishing those who condemn Islam and mock Mohammad is that such speech causes serious harm because those who are offended by the speech will react to it in violent ways. In order to prevent the violence, the government must prohibit the speech. The Supreme Court has long wrestled with this problem. When can the government silence a speaker because his speech will upset or anger others and provoke a violent response?

The Supreme Court first addressed this question more than 60 years ago in Cantwell v. Connecticut. Newton Cantwell (a Jehovah's Witness) was proselytizing in a heavily Roman Catholic neighborhood in New Haven, Connecticut. Cantwell stopped people on the street and played them a record that included an attack on organized religion in general and on the Roman Catholic Church in particular. Because several listeners were incensed and came close to starting a fight, Cantwell was arrested, charged and convicted of inciting a breach of the peace. The Supreme Court unanimously held that Cantwell's speech was protected by the First Amendment, reasoning that, at least in the absence of a clear and present danger of grave harm, the government could not constitutionally punish the speaker.

Now comes the hard case. Suppose Cantwell's speech had in fact triggered a fight, in which several people were injured. Could he then constitutionally be punished for playing the record?

There are two important objections to punishing Cantwell in this situation. First, even though these particular listeners reacted violently, many others would not have done so. Suppose he had played his record to fifty groups of people before anyone reacted violently. Would it make sense to punish Cantwell because in the fifty-first instance the listeners were violent?

Second, suppose we do conclude that Cantwell could be punished because the fifty-first group reacted violently. If Cantwell's opponents know that by acting violently they can get the government to punish Cantwell for saying things they don't like, they have every incentive to act violently in the future. This would create what has been called "the heckler's veto." That is, it would turn over to a speaker's opponents the power to have him criminally prosecuted for his speech.

Apply this to the current situation, and the implications are obvious. If we punish American citizens for engaging in otherwise constitutionally protected speech in order to prevent foreign terrorists from engaging in violent acts, then we cede to those very terrorists the meaning of the First Amendment. That doesn't sound very promising, does it?