The First Amendment, Korans, and personal responsibility
posted at 10:12 am on April 6, 2011 by Ed Morrissey
Until now, I haven’t had much of an opportunity to weigh in on Lindsey Graham’s gee-I’d-like-to-ban-Koran-burning-but-I-probably-can’t pas de deux from this weekend. Allahpundit has done a good job of analyzing the issue, and I thought that the point was self-evident enough that few would seriously argue for government intervention aimed at obscure preachers to silence political protest. Conversations I have had in the meantime with others convinced me that apparently the need to defend free speech isn’t self-evident, and when a high-ranking politician stokes those passions, it requires more effort.
My column at The Week addresses Graham’s construct, which he posits as both a need to save lives and to somehow honor David Petraeus, but in order to buy either argument, one would have to believe in remote mind control and throw out the concepts of free will and personal responsibility. That would undermine the argument for freedom entirely:
If Sen. Graham wants to condemn burning the Koran, he’s welcome to do so. If he wants to propose a resolution in the Senate condemning the Florida preacher’s actions, he is welcome to do that as well. Such a resolution is an equally valid form of protest, but otherwise legally meaningless. When Graham purports to support a ban on burning the Koran, however, that crosses the line – actually, several lines. Not only would it ban free political speech as it has been defined for at least decades in this country, but also property rights as well, since Jones owned the book. It would also create, in effect, a protected class for the Koran, which would also violate the establishment clause of the First Amendment.
Even if the ban was expanded to other religious texts, it would still cross establishment-clause lines, as well as prompt questions about what qualifies as a religious text or not. Does Dianetics get federal protection? How about the Bhagavad Gita? The Book of Shadows? The Silmarillion? One suspects that in theory the legal class would extend infinitely, but in practice, the government would only take interest in restraining protests involving the Koran due to the perceived security issues – again making [Islam] a protected class.
We would soon find that such a ban does nothing to improve security at home or abroad. The people who murdered the aid workers did not get magically transformed into murderers from peaceful pacifists by Jones’ remote and obscure protest from halfway around the world. The murders took place because the extremists involved decided to kill, and the responsibility is theirs. To believe otherwise is to reject entirely the legal and moral principles of responsibility and free will, which are the very basis of liberty. Without those principles, the constitution wouldn’t apply at all to any human endeavor, whether in wartime or not.
Whatever anyone else thinks of Terry Jones, he’s not an omnipotent demigod able to control people and rob them of free will. There is no connection between the act of setting one’s own copy of a book on fire in Florida and a series of murders in Afghanistan. To argue that they’re connected at all in any legal or moral sense, both of which Graham argued in theory this weekend, is to instantly stratify humanity into those capable of self-control and those incapable of it.
For the latter, law then could not apply to any of their actions. Criminal responsibility in a free society lies in large part on the concept on mens rea, the intent to act in a criminal matter, and more basically on the ability to form it. If certain kinds of people are incapable of forming intent, then they cannot be held responsible for their actions. That kind of construct gives governments every excuse to ignore basic and natural human rights in the interests of “safety,” “security,” and for the purported good of the benighted folk that fall under that rubric. It’s a dangerous human impulse to make that assumption, and when governments begin applying those assumptions into law, all manner of mischief can and will get official sanction.
The only people responsible for the murders in Afghanistan are the murderers and those who specifically incited them to commit violence, not critics of Islam, society, or the disappearing ozone layer. We do not need to silence our citizens on the off chance that lunatics might respond to the stimuli; such a standard would silence all speech and especially political and religious debate. Free people should understand this and defend against government intrusion even against silly and offensive speech, and those elected to uphold the Constitution that bars the government from infringing on that right should understand it best of all.
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