The struggle for civil rights forged a national commitment to preserving free speech in the face of hostile audiences. It is alarming how quickly the Koran controversy has melted that resolve.
Initially, everyone from Mayor Bloomberg to the White House affirmed a right to burn the book even as they condemned the act. Then Gen. Davide Petraeus got involved, followed by the FBI, and now Supreme Court Justice Stephen Breyer says Koran burning may not be protected speech after all.
The key to this rapid reversal was General Petraeus’ warning that Koran burning “could endanger troops” and the war effort. Although styled as a request not a demand, his comments laid the legal foundation for compelled government censorship. The reason is that First Amendment rights are not absolute. The Constitution permits the government to censor speech if necessary to achieve a compelling government interest. This is a very high standard, but the fact that the nation’s top commander made a rare public appeal for restraint will be cited as strong evidence that avoiding offense to Muslims is essential to the national interest.
Once this dangerous premise is accepted, the door is open to court injunctions against speech that inflames Muslim sentiment in strategically important locations.
It has already started.
Last week, the New Jersey Transit Authority fired an 11-year veteran employee for burning the Koran at a 9/11 rally. Ordinarily, a government employee cannot be dismissed for expressing personal views on a matter of public concern unless it interferes with the orderly functioning of the workplace. Should he sue, the government may try the “Petraeus defense.”
Hopefully it will fail.
In a series of cases arising out of civil rights demonstrations, the Supreme Court explicitly held that free expression cannot be limited “simply because it might offend a hostile mob.”
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