Legal Analysis and Commentary from Justia

Why the United States Must Either Get Behind the Anti-Islam Videographer’s First Amendment Right to Insult Religion (and Politics and Politicians and Every Other Power, Large or Small), Or Lose What Matters Most

After the tragic killings of the Ambassador to Libya and three other Americans at the Libyan Embassy last week, and the ensuing protests in Cairo outside the American Embassy there, neither President Obama nor Mitt Romney distinguished himself when it came to the constitutional principles at stake.  It was a sad moment in American history—not just due to the terrible loss of life, but also because both the President and the Republican presidential candidate failed to take a heroic stand for the First Amendment freedoms that make America worth fighting for.

It appears that the catalyst for the Libyan murders, the Egyptian demonstrations, and the unrest in numerous other countries was the combination of the anniversary of 9/11 and the distribution via YouTube of an amateurish, anti-Islam video.  Pakistan, Malaysia, and Russia threatened to shut down YouTube if it did not block distribution of the video, leading YouTube to halt distribution in some countries. Following Google’s appeasement of censorship in China, it is abundantly clear that we cannot rely on business to defend the right to believe and say what we want.  The profit motive does not liberty make.  That is what free, democratic governments must do.

The video is a second-rate attack on the Islamic prophet, Muhammed.  With all of the bullying by theocracies, extremists, and opportunist censors like Russia aimed at ensuring that the film will not be seen, the most important principle has been lost.  What is at stake here is what makes the United States worth fighting for: the very heart of the First Amendment, the right to criticize government and religion, the two most powerful social structures in any society, and the two that must be capable of being criticized, or they will become increasingly less accountable and, ultimately, dangerous to liberty.

It is worth remembering that when the First Amendment was drafted to only apply to Congress, the state anti-sedition and anti-blasphemy laws were left in place.  That’s right, we started with a system that permitted states to incarcerate citizens who spoke out against the government and religion!  But the First Amendment took on a life of its own in this free country, and it did not take long for the country to embrace, without looking back, a robust right to challenge the government, and religious leaders and institutions.

The Obama Administration’s failure to articulate long-settled First Amendment principles in this instance is disastrous, in my view.  At the same time, Romney offered such a tepid, abstract defense of these rights, that neither set the world example desperately needed amidst the din of religious thugs and censors worldwide.

The Obama Administration’s Wrongheaded Response to the Video Attacking the Prophet Muhammed

The Obama Administration repeatedly condemned the anti-Islam video as the kind of speech that hurts the feelings of religious believers.  Here is what the Embassy in Cairo stated at first:

“The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions.”

Secretary of State Hillary Clinton then said, “The United States deplores any intentional effort to denigrate the religious beliefs of others. “

Then the President said, “While the United States rejects efforts to denigrate the religious beliefs of others, we must all unequivocally oppose the kind of senseless violence that took the lives of these public servants.”

(All of these quotes can be found in this article in The New York Times.)

How the Necessary Constitutional Doctrine Was Lost in the Muddle in the Crisis

The First Amendment establishes protections in three categories: belief, speech, and conduct, which I will consider in turn.

First, belief is absolutely protected.

The Supreme Court distinguished between belief and conduct in 1940 in the landmark case of Cantwell v. Connecticut, stating that “the [First] Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be.”

The United States’ absolute freedom to believe is the cornerstone of liberty.  The government simply may never tell you what to believe or think.  The absoluteness of this principle alone distinguishes the United States from virtually every country in the world.

Accordingly, three years later, in West Virginia State Board of Education v. Barnette, the Supreme Court upheld the right of Jehovah’s Witness schoolchildren to refuse to salute the American flag or recite the Pledge of Allegiance, because their religious beliefs forbade them to make pledges to symbols – even when the symbol is a treasured national symbol.

Justice Robert Jackson’s groundbreaking opinion made this point as eloquently as it has ever been made:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.  If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Note how Jackson ties the First Amendment’s absolute protection of belief to diversity.  This is a freedom to “be intellectually and spiritually diverse,” he writes—which is to say, there is a fundamental right to disagree.  The price may be “eccentricity and abnormal attitudes,” but that price is worth it. The result is diversity.  Though neither the President nor Romney picked up on it, the miracle of American liberty is that we have found a way to encourage religious diversity while preserving the right of every believer (and nonbeliever) to criticize the others’ beliefs and conduct.  The road to peace is, ironically enough, boisterous and even cruel debate.

Moreover, according to Jackson, writing for the Court, the absolute right to believe what you want, and, therefore, to differ with others, must be strong even when the issues deeply matter, as with issues relating to religion or politics.

Creating an exception to the absolute right to believe what you choose, moreover, would turn this extraordinary liberty into, again in Jackson’s words, a “mere shadow of freedom.”  The Obama Administration is perilously close to making the First Amendment a shadow, and it must change course or we won’t have a First Amendment worth the loss of life.

The Right to Speak Is Highly Protected

The inevitable corollary to this absolute right to believe is the reality that some may—and even likely could—be offended when you put those beliefs into words.  The right to speak is very highly protected, but it is not an absolute right.  For instance, under the Supreme Court’s First Amendment doctrine, “fighting words,” or words that will lead to an imminent physical fight, can be halted by the police as a breach of the peace.  But simply uttering words that give offense to someone else is insufficient, in itself, for those words to fit within the “fighting words” doctrine.  If it were, then the Court would have approved a “listener’s veto” and it certainly has not.

The price of the freedom of speech is that you might get your feelings hurt, and hurt deeply.  The Constitution offers little comfort for those who do not like what they are hearing, except that it guarantees them the identical right to talk back to their attackers.  The mutual right to offend produces lively, even if sometimes painful, debate, and it topples those who place themselves on a pedestal.  Even hate speech, in the United States, is protected.  This, again, distinguishes the United States from most countries, which either outlaw hate speech or outlaw sedition and/or blasphemy.

The absolute right to believe, when paired with the high protection of even offensive speech, is what the terrorists and their mullahs despise, and what we must fight for.  If we do not, we are lost.

The Right to Act Is the Least Protected Right of All

Finally, the First Amendment’s Free Exercise Clause protects the right to engage in religiously motivated conduct, but that right to engage in religious conduct is not as highly protected as the rights to belief or to speech.  In large part, that is because conduct can truly harm others more readily than either belief or speech can.  Thus, under the Supreme Court’s decision in Employment Div. v. Smith, religious actors are not above the law, but rather, if the law is neutral and generally applicable, they are bound by it.

These core American principles can be summed up as follows: The Islamic terrorist who believes in suicide bombings has an absolute right to believe that that is the correct path, and the government may not tell him to believe to the contrary.  Moreover, he has a highly protected right to say that that is, indeed, his belief, and even to encourage others to follow his belief.  But he has, of course, no right at all to detonate the bomb that is attached to his person, killing others, because his conduct can be, and is, readily regulated by the law.

Nor does he have the right to incite others who are imminently ready to bomb others.  The imminent incitement of illegal acts can be halted by the government under Brandenburg v. Ohio, but the scenario must be much closer to action than mere belief or speech.

This legal framework—with its different levels of protection of belief, speech, and conduct is the framework that has kept peace here despite the United States’s dizzying diversity of believers.  The Court’s message is very clear: Believe, and debate, but do not hurt or harm.

Republican Presidential Candidate Romney Does a Better Job Than the Obama Administration in Honoring Abstract First Amendment Principles, but Lacks the Courage to Stand Behind the Right to Criticize Religion and Religious Leaders

In contrast, Presidential candidate Mitt Romney correctly went after the Obama Administration for “effectively apologizing for the right of free speech.”  However, he also foolishly accused the Administration of siding with the enemy, which did not play well, in part because in these moments of crisis, we as a people usually stand behind our government.  His attack, therefore, came off as politically motivated, even if the First Amendment stance that he took was more constitutionally sound than that of the Administration, as in fact, it was.

Romney further failed, though, because he only went halfway—by talking about generalities, rather than the realities of the First Amendment doctrine.

Romney said the following: “America will not tolerate attacks against our citizens and against our embassies. We’ll defend, also, our constitutional rights of speech and assembly and religion. We have confidence in our cause in America. We respect our Constitution. We stand for the principles our Constitution protects.  We encourage other nations to understand and respect the principles of our Constitution, because we recognize that these principles are the ultimate source of freedom for individuals around the world . . . having that embassy reiterate a statement is not the right course for an administration.”

True enough, but how about playing out what that constitutional principle demands?  Under our Constitution, the government must permit all citizens to believe whatever they want, and even when idiots make stupid videos about religious people, the government still must stand up for their right to make those videos, and their right to insult religious leaders as well.  Romney needed to say that he stood shoulder-to-shoulder with the right to insult religion, but at this point, the Republican Party is so close to advocating a Christian theocracy, I am sure he feared angering his so-called “base.”

Indeed, it appears that he was uttering meaningless platitudes.  Instead of pointing out that the world is filled with a wide range of religious believers and that we must be tolerant as well as thick-skinned to achieve peace in this diversity, he had to remind us that, yes, he believes in the Christian God: “We mourn their loss and join together in prayer that the spirit of the Almighty might comfort the families of those who have been so brutally slain.”  Talk about missing an opportunity, not to mention the point!

The Obama Administration Seems to Be Taking a Page From the Clinton Playbook When It Comes to Religious Believers

The statement coming from the Cairo Embassy, decrying insults to religious believers, takes a page right out of the Bill (and also now Hillary) Clinton playbook.  As I have written in a scholarly article, President Clinton was the most pro-religion President since Grant tried to “Christianize the Indians.”

Indeed, there was not a pro-religion statute or policy that Bill Clinton, as President, did not fully embrace.  His Administration, including now-Supreme Court Justice Elena Kagan, was fully behind the ill-fated and shortsighted Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Both were congressional attempts to rewrite the First Amendment, which tipped the Amendment’s critical balance among belief, speech, and conduct—skewing that balance, instead, toward near-absolute protection for religious conduct, which, as I noted above, is the least protected in the hierarchy of constitution protections relating to religion.  Both RFRA and RLUIPA gave religious believers the hammer of federal law to get what they wanted by intimidating the government with the threat of federal litigation for conduct that the Constitution would not protect.

Now, Hillary Clinton seems to have taken these pro-religion attitudes into the State Department—which, unbelievably, attempted to persuade the Supreme Court to reverse the decision of the U.S. Court of Appeals for the Ninth Circuit in favor of a sexual abuse survivor, and against the Holy See.  The only issue in that case was a state-law issue, which is no reason for Supreme Court review, but in an obvious attempt to help the Holy See avoid responsibility for the sexual abuse of children by priests, the State Department—along with the Solicitor General’s Office, which at the time was headed by Ms. Kagan—filed briefs with the Supreme Court suggesting that it summarily reverse, without argument or briefing, the Ninth Circuit’s grant of permission for the case to go forward.  I represent the victim in that case, along with Jeff Anderson, but even setting aside my role as attorney, I was astonished at how far the Clinton State Department would go to help an institution that was accused of creating the conditions for child sex abuse—globally.  It was despicable, but also part and parcel of the Clintons’ blind devotion to religious leaders and lobbyists.  Indeed, when I read the first release by the Cairo Embassy, I had a moment of déjà vu, seeing the Clinton fingerprints all over it.

Before being elected, then-candidate Obama gave a moving speech on the separation of church and state.

If he does not separate himself from the Clintons’ approach to religion now, in this time of crisis, then he will be unable to lead us through these dark, terrorist times, when we must stand up for the right to believe that religious leaders are wrong, and the right to say so, even with tasteless videos on YouTube.  Obviously, YouTube—which is, after all, just a business—will not stand up for these rights.  That is what great sovereigns do.  And if America does not stand up for the First Amendment against its sworn enemies, then soon enough, we won’t truly have a First Amendment anymore.

We cannot quake in the face of the implacable religious zealots who are offended by freedom.  A French newspaper just did what no American newspaper has had the guts to do since the Libyan embassy deaths: publish cartoons about Muhammed to make the point about the freedom of the press.

Radical Muslims have killed for cartoons in the past, as I discussed in this column, but the West must not cower in fear.

What is easy here is not right.  The National Guard is needed, not silence and self-censorship.

This is a critical moment for the United States to stand up for what the terrorists hate the most: our willingness to permit the people to criticize those in power, including those with religious power.  In these dark times, we need a visionary leader with the strength to stand by the right of a second-rate videographer to criticize a prophet.  Sadly, neither the President nor Romney seems capable.

Marci A. HamiltonMarci A. Hamilton is a professor of law at Cardozo School of Law, and the author of Justice Denied: What America Must Do to Protect Its Children, which was just published in paperback with a new Preface. She also runs two active websites on issues she writes about frequently, www.sol-reform.com and www.RFRAfolly.com. Her email address is Hamilton02@aol.com.
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  • Sam

    Please try to understand
    that, Muslims believe that GOD Really exists, therefore they also believe that
    “Mohammed” existed, moreover, they believe that Islam (as religion),
    and Muslim leaders, are in a weak position, not in a “Leadership level “.

    as those leaders are always

    To further explain: I will
    use analogy from Christianity ( as I understand it ) :

    Just like “Jesus Christ” once
    was a victim and was crucified, many Christians feels passionate and stands
    with Jesus for this and other reasons.

    Now coming back to nowadays,
    as there is a continuous attack against Islam and Mohammed by the west and
    other foreigners ( in relevance to Muslims ) ,

    Which leads Muslims to believe
    in this great belief conclusion: that Islam and Mohammed are in the victim’s position
    ( always and forever,);

    and Muslims believes that
    ISLAM and Mohammed are not having any power.

    That’s why they always stand
    on the side of Islam and Mohammed ( as they are the weaker side of the equation
    ) .

    Now , imagine what you will
    do , if you see a giant , attacking a BABY ?

    This is exactly how Muslims react,
    they are just trying to protect the BABY.

    This also will lead to : The
    more attack against Islam and Mohammed ( from west and Foreigners ). The more
    Muslims will stick with their religion and prophet .

    I hope it is clear for you .
    Sam
    someir@hotmail.com

  • Sam

    Please try to understand
    that, Muslims believe that GOD Really exists, therefore they also believe that
    “Mohammed” existed, moreover, they believe that Islam (as religion),
    and Muslim leaders, are in a weak position, not in a “Leadership level “.

    as those leaders are always

    To further explain: I will
    use analogy from Christianity ( as I understand it ) :

    Just like “Jesus Christ” once
    was a victim and was crucified, many Christians feels passionate and stands
    with Jesus for this and other reasons.

    Now coming back to nowadays,
    as there is a continuous attack against Islam and Mohammed by the west and
    other foreigners ( in relevance to Muslims ) ,

    Which leads Muslims to believe
    in this great belief conclusion: that Islam and Mohammed are in the victim’s position
    ( always and forever,);

    and Muslims believes that
    ISLAM and Mohammed are not having any power.

    That’s why they always stand
    on the side of Islam and Mohammed ( as they are the weaker side of the equation
    ) .

    Now , imagine what you will
    do , if you see a giant , attacking a BABY ?

    This is exactly how Muslims react,
    they are just trying to protect the BABY.

    This also will lead to : The
    more attack against Islam and Mohammed ( from west and Foreigners ). The more
    Muslims will stick with their religion and prophet .

    I hope it is clear for you .

  • JudgeRight

    The right to free speech does not extend only to being able to crtitisize the government and religion but also the powerful forces in contemporay society of atheism, humanism, socialism, politically correct views and government-mandated homosexualism. With this addition I welcome the professor’s argument.

  • Edward Tomchin

    I’m glad I never took a class from you. We’d have argued this tooth and nail. When the producer and distributor of the subject video did so with the intent to incite Muslims to violence against the United States, and was their sole purpose, that is speech prohibited under the exception of speech with intent to incite to riot and violence. How could you possibly conclude otherwise?

    • What the heck??

      I think a group of people who rise to riot and violence over a mere video should be addressed and is more of a concern and issue than the argument that the video creator tried to incite a riot or violence. Everybody seems to be missing the point on everything. I don’t care how pitted your beliefs are if you kill somebody over a stupid video then there is without a doubt some seriously disturbed and twisted issues with you as a human being. It makes me almost sick to my stomach every time I hear someone come to the defense of these people. It’s like the issue isn’t even about this guy’s right to make the video is about giving barbaric people the right to kill over the video. Is this the twilight zone I have stepped in??

  • http://www.goldprospectors.org/ Walter H. Eason, Jr.

    Very good article, Hope it is republished by many that read it of forums, blogs or just send it to a friend. We all need to remember what Americans have given their lives for in years past.

  • Dan

    Professor, I agree that our leaders should promote free expression as a core American value, but I don’t understand how the administration’s response failed to respect anyone’s freedom to believe, to speak, or even to act. Are you suggesting that, by “deploring” or “condemning” the video, the administration in some way infringed on the filmmaker’s freedom to hold his beliefs or restricted his ability to express them? The First Amendment prohibits government from using the machinery of government to suppress speech; it does not bar the government from expressing its own opinion about that speech. There is no need to demand that the president append the Voltairean caveat to every opinion he expresses (“I disapprove of what Todd Akin says about ‘legitimate rape,’ but I will defend to the death his right to say it!”).

    If we were talking about efforts to actually suppress speech (for example, the administration’s efforts to ask youtube to review whether the video violated their terms of service) that would seem to worth more of a First Amendment debate than the government’s use of “mere words” to condemn a video.

  • TheCraftyTrilobite

    There’s no contradiction between embracing a right to speak and deploring what certain people choose to say. When Obama (or Romney) censor or advocate censorship of the video in America or by Americans, then I’ll worry. All they’ve done here is choose not to go out of their way to raise the issue in a fight about speech in another country by a speaker whose citizenship was then unknown.

  • Berkana

    This should be read by every adult – very well written and eye opening. Once again, thank you, Marci.

  • mattlove1

    Yes, Hillary Clinton, and for that matter, Amnesty International, Sting, McCartney, and hipsters all over the world should be backing up the filmmakers, just as they backed up Pussy Riot..

  • Seth Nathanson

    There clearly needs to be an allowance for diplomacy in the public declarations of any Administration. Speaking strictly about the sanctity of our Constitution to the people whose sanctity of their God has been offended might not be the best tactic.

    Wouldn’t it be reasonable for an administration to publicly deplore the speech of the KKK in “Brandenburg”, without immediately being accused of defacing the First Amendment?

    Romney, not tethered to the responsibility of being the voice of the United States, has a little more latitude to be righteously indignant. But even he, as you point out, has to bow to the realities of politics, being tactful to avoid offending his theocratic base.

    Unless and until the administration (or anyone else) mounts a plan to silence the sadly cobbled cartoon of the idiotic Islamophobes, the First Amendment will quietly continue its vigil.

  • Jarrett Stroman

    Dear Ms. Hamilton,

    I am writing in response to your article “Why the United
    States must either get behind the Anti-Islam Videographer’s First Amendment
    Right to Insult Religion( and Politics and Politicians and Every Other Power,
    Large or Small), or lose what matters most.
    I believe that you are misguided in your belief that this situation
    called for the First Amendment to be defended.
    The Constitutional right to free speech is clear, but there is no
    constitutional principle which requires the government to agree with the
    message of that speech. The First
    Amendment is satisfied simply by not infringing upon the right to speak.

    In your article you describe the three categories of speech
    protected under the First Amendment but fail to address how any of these
    principles have been threated. The
    creator of the video fully exercised his right to believe, speak, and act under
    the First Amendment. The Obama
    Administration did not attempt to silence the video in any way. There was no punishment given to the creator
    of the video. There was no apology made for the right to make the offensive
    speech.

    The article also criticizes the President for making several
    statements condemning the video and its efforts to hurt the religious feelings
    of Muslims. You argue that speech
    criticizing government and religion sits at the cornerstone of the First
    Amendment and thus the right to make that speech must be enforced. But you fail to demonstrate how government
    disagreement with the statement threatens free speech guarantees. The government issues statements disagreeing
    or condemning messages, both foreign and domestic, as a regular course of
    business. Speech, although protected
    under the constitution, is not shielded from government criticism and
    disagreement, nor should it be. The
    speech contained in that video was worthy of disagreement and it was important
    for the Obama Administration to make our government’s position on the video
    clear.

    When the Obama Administration issued a statement condemning the
    message it indicated the strength of the right to free speech. Diverse opinions, disagreement, and robust
    debate are essential to the First Amendment especially when they conflict with
    the government. When a private citizen
    can make such a video, despite the government’s disagreement, it demonstrates
    the strength of our constitutional principles and serves as an example to much
    of the world. There was no need to stand
    up for American values because they were not being threatened; instead they
    were in full force.

    Sincerely,

    Jarrett Stroman

    • Eric

      That was a perfect summation of the 1st Amendment and how our government applies to it. Bravo! Another point to add is that our government officials are protected by the same rights that we are and have the right to say what they want.

    • Diana

      Yes, and —- we can infer that Obama, Clinton and the rest quoted here, were not speaking in their official capacity, on behalf of the government, with the statements. But, just expressing their personal opinions, speaking as an individual.

    • John_Piermont

      Terrible.

  • http://profile.yahoo.com/RKCLD27OEYIMCX2HXIY2YEJWWQ Frank

    Great article. Thanks.

  • wake-up sheeple

    It’s Ok to make fun of other religions but never Islam? I have seen so many skits that make fun of Jesus but I don’t see people dragging out the creators of South Park and killing them. It doesn’t matter if ten million people created ten million videos making fun of “Muhammad”. There should not be one murder that is OK because of any of them. Come on man wake up and think about what you are saying and trying to justify the situation. You are no better then our government officials when it comes to your “point”. The freedom of speech and expression of it is our natural born right. I think what you posted was stupid if anything not the guy who created the video. The people who re-acted to a simple cartoon the way they did with violence is stupid and barbaric. I don’t have the right to drag people out of their homes and offices because I was offended by what they did or said. If it was ok to do those things there would be lots of people killing other people all the time because someone is always going to be offended by something others do. Get a clue man!!!

 

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