If the First Amendment means anything, it means that the government may not

prohibit expression because of its message, ideas, subject matter, or content.

-Justice Thurgood Marshall, 1972, Chicago Police Department v Mosley

I have to admit that I do not quite understand what's going on in our country right now. I suspect,
however, it has less to do with civility and more to do with fear. What else could possibly explain the
denial of one man his right to participate in what many see as the repugnant act of burning a Koran,
while at the same time there's nary a whisper of objection to flag burning, Bible burning, or even the
burning of Harry Potter books?

What surprises me even more are the excuses people are using. The main one being that this will only
incite Muslims to more violence. Even if this is true, is our Constitutional right to expression
dependent upon the reaction of the other party? Or is it a stand-alone right, not subjected to change
according to reactions of others, either real or perceived?

In the United States, the Courts have traditionally ruled in favor of the right of the individual or group
of persons to exercise their right to expression. This isn't limited to the oral or written word. Tinker v.
Des Moines Independent Community School District, 1969, ruled that anti-war students had the right to
don black arm bands as part of freedom of expression.

Some are arguing, however, that Mr. Jones speech poses a hazard. For example, they claim, it places
our troops in danger. Not to sound heartless, but if they're in Afghanistan or Iraq, they're already in
danger and the people who want to kill them don't need an excuse to do so. Would Jones' activities
encourage Muslims who might not otherwise participate in violence to somehow swap sides? Bit of a
stretch there, if you ask me. We have no way of predicting that this could or would happen.

There are some limits to free speech. In 1919 Justice Oliver Wendell Holmes issued a decision in
United States v. Schenck which set the limit we now call the “theater fire” clause:

“The most stringent protection of free speech would not protect a man from falsely shouting fire in a
theatre and causing a panic.”

The exception to this, however, is if the theater either truly is on fire or the shouter really believes
there's a fire (he sees smoke, for example).
Child porn, obscenity, actual threats and incitement to imminent lawless behavior also fall into this
category. The question is: is Terry Jones participating in incitement to imminent lawless behavior?
It would seem that incitement to imminent lawless behavior has to involve a little more than burning a
Koran or calling Islam an evil institution.
In the case of Brandenburg v. Ohio, a KKK member was arrested and tried for incitement.
Brandenburg had stated that “...there might have to be some revengeance taken" for the "continued
suppression of the white, Caucasian race.”
SCOTUS reversed the conviction, holding that the First Amendment only allows punishment of
subversive advocacy calculated to produce imminent lawless action. Again, we ask: is Pastor Terry
Jones' opinion or his activities, a calculated attempt to produce imminent lawless action?
The answer has to be a clear and resounding NO. Just because Muslims “might” or even have become
violent, that doesn't mean, Constitutionally speaking, that this was or is Pastor Jones' intent. And, quite
frankly, I find ludicrous that anyone blames Pastor Jones for the behavior of Muslims who resort to
violence. If you want to blame it on him, you can. Just a word of caution, though: once you hold Terry
Jones liable for the reaction of violent Muslims, you will have to accept the same excuse when it's
anything else they don't like, for example, cartoons, written or oral information or opinions, etc.
I don't know about anyone else, but I'm not ready to throw away the Constitutionally protected rights of
anyone just to keep a subset of the population happy. '
The Supreme Court has often supported the right to assemble as well. In 1963 the Supreme Court
struck down the convictions of 187 African-American students who protested segregation. The case,
Edwards v. South Carolina determined that the students were indeed within their right to assemble.
The most recent turn of events involving Pastor Jones has some people scratching their heads
wondering how the judge could have placed Jones in jail. Equally worrisome is that they are refusing
to allow his protest outside an Islamic Center because they think (but cannot prove) that it incite
disorder.
Two separate cases, R.A.V. v. City of St. Paul and Virginia v. Black may well frame for a favorable
support for Jones. In both cases, the Supreme Court ruled that Cross Burning was protected under the
First Amendment. Of course there are limits. And local municipalities have constructed the limits as
needed (for example, you cannot burn a cross on private property unless it's your own).
Some are arguing that Jones is causing “incitement to hate”. The problem is, this isn't so easily proven.
It's a “predictive” sort of thing. Will other people “hate” Muslims because of the actions of Jones? Last
time I checked, how a person feels about another person or group wasn't the government's business,
unless said “hate” propels them to commit an illegal act, then its' called a “hate crime” (something else
I consider bogus law).
In my opinion, and I'm not a lawyer, there's nothing that Jones has done which could possibly be
considered illegal or worthy of censorship. And this nonsense that we dare not offend Muslims
because, after all, they have uncontrollable anger issues, is simply twaddle. Or- maybe not?
If indeed the actions of Jones “compel” the Muslim to react with violence, what does that say about
their religion? The “religion of peace” we're told. Or maybe their insult is misplaced and, instead of
being angry at Jones, Muslims should be angry at those who claim Muslims just can't control their
angry outbursts. Impulse control disorder? Or maybe the veiled opinion, the one hiding behind the
cloak of tolerance is: Muslims are crazed killers that we need to fear.
If I were Muslim I would be more pissed about that than anything Jones has to say or do.