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

Posted in: Constitutional Law

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.