The legal and strategic considerations surrounding “fringe pastor” Terry Jones’ on-again-and-off-again threat to initiate and celebrate what he has so felicitously named “International Burn a Koran Day” to mark September 11th have been widely misunderstood or taken for granted. The situation is not quite, I don’t think, what common understanding would have it.
First: If the federal government wanted to go to court to enjoin the burning, it would not be such a frivolous attempt, notwithstanding everyone’s assumption, thus far unquestioned in the media insofar as I can see. The test for being able to obtain a “prior restraint” (via a court-issued injunction) against speech or a communicative act, set out in the 1971 Pentagon Papers case, is the imminence of harm to national security. The more general Supreme Court test for enjoining threatening speech is whether the speech is likely to produce a violent reaction (sometimes dubbed the “fighting words” test) or present a “clear and present danger” of “inciting or producing imminent lawless action.” Thus, the protection of national security and the prevention of imminent violence are written into the law as exceptions to absolute First Amendment rights. There may have been a reason that Gen. David Petraeus warned of the danger such a Koran-burning would pose to our troops – to set up a rationale to support a Department of Justice motion for a court injunction against the burning. All of the commentators seem to assume that because burning the American flag is deemed an expressive act that is protected by the First Amendment (by a very slim majority at the Supreme Court quite a few years ago, by the way), then surely burning the Koran is protected. But the national security interests are quite different. And the likelihood of imminent violence following a Koran-burning seems far greater than following a flag-burning. And so the Supreme Court’s protection of flag-burning might not be as much an obstacle to obtaining an injunction against Koran-burning as everyone seems to believe.
Second: I admit that this is more strained than my court injunction theory, but this minister seems quite cracked. I don’t think it would be entirely frivolous if the state authorities in Florida sought to get him temporarily committed psychiatrically, on the theory that he poses a threat to public safety both immediately (the bonfire without a permit) and longer-term (international political and military consequences of his actions). This is admittedly very strained, and a bit of a humorous fantasy on my part, but not entirely out of the question if he says he’s going forward with his bonfire. In the law, there’s more than one way to skin a psycho.
One could spin out still other scenarios and theories, some more fantastic than others. But my first theory is not at all frivolous. Everybody is making too many assumptions, as if the First Amendment is absolute, which (alas) it is not. I ran the prior-restraint injunction theory past a nationally-known First Amendment scholar, and his response was political, not legal: It would be unwise for Obama, suspected by the right-wing of being a secret Moslem, to seek protection for the Koran where the U.S. flag enjoys no such protection. But the decision to go to court would be made not by Obama, but by Attorney General Eric Holder, very much a known Christian. Politically, the administration surely could have gotten away with seeking an injunction against the pugnacious pastor, and legally they might have been able to succeed. I’m not happy with the fact that so many of our civil liberties are being diluted by the “national security” and “imminent violence” rationales so readily and successfully resorted to by our government since September 11, 2001. But I do try to face reality.