Worse Than Shouting "Fire" in a Crowded Theatre and Even Worse Than Janet Jackson's Bare Breasts

09/10/2010 12:17 pm ET | Updated May 25, 2011

The assumption is that Pastor Terry Jones and his flock have the absolute, unfettered constitutional right to tell General Petraeus, Secretary of State Clinton and even Sarah Palin to go to hell, to burn Qurans and put Americans here at home and around the world at risk and incite an international incident that permanently damages the image of America around the world.

But is that really true?

Freedom of speech and expression is not absolute under the United States Constitution. In fact, Justice Oliver Wendell Holmes, in Schenck v. United States in 1919 declared that there are limits, such as shouting "fire" in a crowded theatre. The risk of harm from falsely shouting that was deemed greater than the right to express oneself. In Brandenburg v. Ohio, (1969) the Supreme Court established that the First Amendment does not protect speech if the speaker intends to incite a violation of the law, such as a riot, that is "imminent" and "likely". The "Imminent lawless action" doctrine states that speech that will cause, or has as its purpose, "imminent lawless action" does not have constitutional protection.

Pastor Jones' action, as broadcast to the entire Muslim world (different than one burning a Quran in private, for example, which is 100% legal) is intended to and will cause many immediate riots and imminent lawless actions. Why else would the FBI take the time to go to Florida and personally warn Jones about the danger he is provoking, why do Pastor Jones and his associates now carry guns and why else would the State Department issue an international warning?

But let's take off our shiny, "America is a land of unfettered freedom of speech" glasses, get real and ask some questions before we let this dangerous man inflict harm on our nation.

  1. Would police be justified in stopping Pastor Jones as he walked down the street with a burning match if they knew he was going to light a Mosque on fire as a political statement?

  2. Would Pastor Jones be allowed to go on ABC, NBC, CBS or FOX and say "F___ the Muslims"?

  • Would Pastor Jones be allowed to go into the town center of Gainesville, Florida and take off his pants as a form of protest against Islam or anything else?

  • Would Pastor Jones be free to joke, as he stands in an airport security line, that he "has a bomb" or "has a gun" or that he'd like to "blow up all the Muslims on the plane" as a joke or a political statement?

  • Would Pastor Jones be allowed to purchase ad time on television in Florida and sell "Pastor Jones Vodka" or "Pastor Jones Cigarettes"?

  • Is what Janet Jackson did, that caused CBS to have to pay huge fines -- because a millisecond view of her naked breast caused some sort of damage to the morals or health of America -- worse than the kind of hate speech and damage directed at millions of Americans and a billion of our neighbors around the world?
  • As the host of a radio show broadcast on the public airwaves in Chicago I have to curtail my freedom of speech every day. I can't say "the F-word" or the "S-word" and many other of George Carlin's favorites, no matter the kind of political statement I might want to make with them.

    Pastor Jones has every right to huddle with his flock in a private religious ceremony and do whatever he wants, including burning every Koran he can find in the state of Florida. The United States Constitution absolutely allows that. And he can do it naked, while smoking and drinking and swearing to his heart's content. But once he advertised that act he took it to another level. And if there are cameras, even unintended cell phone cameras or videos that can broadcast this act out to the world, there are different standards that relate to public decency, nuisance, health and safety and, in this case, serious and legitimate military, national security and international diplomatic considerations.

    There is no "slippery slope" argument here. Pastor Jones' actions seem to fall pretty safely within the constitutional prohibition established by our Supreme Court in Brandenburg v. Ohio. His actions, without a doubt will incite riots and unlawful and violent reactions and, as such, a very strong case can be made that they should either be kept completely private or be limited, just like my political speech every day on the radio and Janet Jackson's choice of wardrobe.

    Richard Greene, formerly of Air America Radio, is a former attorney and hosts a daily radio show from 8 - 9 pm Central Time on WCPT in Chicago called "Hollywood CLOUT!"