There was a recent article in American Thinker regarding Supreme Court Justice Stephen Breyer and some comments he made regarding the burning of the Koran and the fact that a case that doing so may be in violation of exceptions to free speech tenets in our Constitution. The article focused on concepts of international law creeping into our Supreme Court jurisprudence. Although many may find this an esoteric, academic exercise, the ramifications of this line of thought are profoundly deep. In effect, the Supreme Court has increasingly let the notion of “international norms” creep into their decisions. One example is the case of Lawrence vs. Texas where a state law against consensual homosexual sodomy was struck down (ignoring their precedent in Bowers vs. Hardwick) based primarily upon notions of international norms. That is, they cited the fact that the European Court of Justice had cited that most modern nations have come to accept, by removal of state criminal statutes, consensual homosexual sodomy. Likewise, international norms were cited in the case of Atkins vs. Virginiabecause the it was the international consensus that executing retarded people was wrong. While many may agree with this notion on purely legal grounds rooted in American tradition (we only hold those cognizant of the “wrongness” of the crime accountable- the insanity defense), the insertion of international norms into the discussion was unwarranted, yet the Court did exactly that in their majority opinion.
This has the potential to lead to a bad slippery slope where we surrender our free speech rights, guaranteed by the First Amendment, to international norms. For example, in the Breyer comments, it was in response to the actions of Pastor Terry Jones and his plans to publicly burn the Koran. Breyer intimates that such action may actually be an exception to free speech rights since it creates a “clear and present danger” in violation of the famous analogy of yelling “Fire!” in a crowded theater. Of course, Breyer left out a key word- “falsely,” namely that “falsely yelling” fire in a theater creates a clear and present danger. Regardless, that particular case was essentially abandoned in the Brandenburg case where the concept of “incitement to violence” was adopted to warrant restrictions on free speech. Specifically, that case asserted that political speech could be restricted if the speech is directed to inciting or producing imminent lawless action and that such actions are likely. Breyer seems to believe that the burning of the Koran will incite Muslims to violence and that the intentions of Jones is to do exactly that. He is partially correct in that it did incite Muslim violence- in Afghanistan. However, if we accept that doctrine, then any action by anybody in this country has the potential to incite violence anywhere in the world by anyone. In effect, we are to be held hostage to the alleged sensibilities of anyone in the world.
Of course, what Breyer and his ilk are calling for is “political correctness” as it applies to religious or even ethnic groups. However, the hypocrisy of this line of thinking is that although it may offend the sensibilities of Muslims to burn the Koran and should therefore not be allowed, depictions of the crucifix in jars of urine receive less protection against offending the sensibilities of a religious group. It almost universally accepted that the actions of the Westboro Baptist Church offend the sensibilties of most rational people- despite their religious affiliations- with their protests at military funerals to advance their particular political agenda, yet Breyer placed himself squarely in the majority in Snyder vs. Phelps and deemed this protected speech. Personally, I find the idea repulsive, but I also value free and open speech, especially in the political sphere, no matter how repugnant. I may disagree with a liberal website’s assertion that the south got what it deserved with the recent spate of tornadoes because their congressional leaders deny global warming, but I agree that they have the right to say it. Likewise, I disagree with the message and the methods of Westboro Baptist Church, but I agree they have the right to say and do it. I definitely disagree with the agenda and views of Code Pink, but they have the right to say what they say. I disagree with the racist messages of the Ku Klux Klan or the Neo-Nazi movement, but they have the right to say what they say and demonstrate as they do. What I do not agree with is any governmental body- legislative, executive, or judicial- telling me what I can or cannot listen to or say.
This also relates to the notion of hate crimes legislation. There is absolutely no doubt that hate crime legislation is nothing but legislative thought control and modification using the long arm of the law and criminal sanctions. Remember the uproar over the brutal, racially-motivated death of a black man in Texas a few years back and the fact that Bush would not consider hate crime legislation? The proponents were ignorant of the fact that the assailants were found guilty and sentenced to life in jail. If there was hate crime legislation on the books at the time, were we to sentence them to two life terms? Were we to sentence them to death? After all, most of the proponents of hate crime legislation are also opponents of capital punishment. Should racial animus be considered in sentencing a convicted criminal? Of course it should and it was permissible when, during sentencing, aggravating and mitigating circumstances must be balanced to determine the proper sentence. However, hate crime legislation simply eliminates that balancing act and makes the sentence automatically more severe.
With regards to the subject at hand- offending the sensibilities of Muslims- there are well-documented cases of this tendency descending into the realm of the absurd. Recently, a 12-year-old Staten Island youth was charged with committing a hate crime for allegedly pulling the scarf off a Muslim girl’s head on the playground at recess. The occasional action of some nut case is often trotted out as proof for hate crime legislation. For example, because someone kills a Muslim taxi driver in New York, should the overwhelming majority of Americans “suffer” for the actions of a single man in New York? Likewise, should the liberties of all Americans “suffer” for the actions of the European Union, or some proclamation about discrimination from the United Nations? In England, under political pressure, dress shops cannot sell Gypsy Skirts less they offend an Eastern European ethnic minority and they are now called “traveler’s skirts.” I suppose peasant blouses are next because they might offend, well…peasants. One is accused of racism because they use the term “black sheep.” Recently, Mitt Romney came under fire for saying that we should “hang the Misery Index around Obama.” The calls of racism immediately went up because one cannot use the word “hang” in the same sentence when referencing a black President. There are even whole articles on the Internet devoted to Ronald Reagan’s references to “state’s rights” in the 1980 campaign.
A very good friend of mine has adopted two beautiful Chinese girls. They provide a happy, loving home for them and they have assimilated quite well into America. During a conversation one day- and I do not even remember the context- I made the “mistake” of referring to them as “Oriental.” I was immediately corrected that the proper term is that they are “Asian.” When I noted that technically that would be correct, the Orient and specifically China definitely are part of Asia, I also noted that “Asian” could pertain to India, the Phillipines, Saudi Arabia, Pakistan, or even Israel. The conversation was quickly changed, but I found it ironic how even a fellow conservative can alter their way of thinking in the interest of being politically correct. Where I come from, a person with a vagina is not a “womyn” and a person from China is Oriental.
It also means that when the Constitution of the United States- not the United Nations Charter or the European Court of Justice or whatever- says that the government “shall make no law…abridging the freedom of speech…”, then they shall make no law abridging free speech. When it says the government can make no law “respecting an establishment of religion, or abridging the free exercise thereof…” then I do not expect my government, through legislative or judicial means, to pass laws that elevate one religion over another. For what are these demands to protect Islam from verbal attack but “favoritism? If an “artist” can depict a crucifix in a jar of urine, then I should not fear depicting Mohammed. If some crazy pastor in Florida wants to burn the Koran to make a political point, then they should have the right to do so. If some nutty church from Kansas wants to protest against homosexuality at a funeral, then they should have the right to do so. If some crazy self-avowed Communist in Texas wants to burn an American flag on the streets of Houston to make a political point, then he should have the right to do so. If the Ku Klux Klan wants to strut down the streets of a predominantly Jewish town in Illinois to advance a repugnant political stance, they should have the right to do so. If Louis Farrakhan and Jeremiah Wright can stand in a pulpit and denounce the alleged sins of the United States, they should have the right to do so. But no one should demand that I or anyone else have to listen to or adopt these ideas or that when exercising my American constitutional rights I have to take into account the feelings and sensibilities of this or that group. And it is exceptionally important to remember and to remind them, that it is the Supreme Court of the United States, not the world and that our Constitution should not be bound or married to popular world opinion, dictates, or mandates. The “real and present danger” is that Barack Obama will be elected for another four years during which time he may have the opportunity to appoint more “wise Latina women” to the Supreme Court, or those who feel the United States Constitution should somehow become subordinate to world opinion.