Raising a False Flag for Free Speech

In 1984, a protester outside the 1984 Republican National Convention burned an American flag ostensibly to show his disagreement with the policies of the Reagan administration. The protester was arrested, charged, and convicted of a crime for burning the flag. The protester, with the help of the ACLU, appealed his conviction all the way to the U.S. Supreme Court on the theory that his burning of the American flag constituted a form of political expression that is protected by the Free Speech Clause of the First Amendment. In 1989, the Supreme Court heard the case and it agreed that burning the American flag as an expression of protest is constitutionally-protected speech because the idea that “the government may not prohibit expression simply because it disagrees with its message is not dependent on the particular mode in which one chooses to express an idea.” Texas v. Johnson, 491 U.S. 397, 416 (1989). The Johnson decision received a torrent of criticism, especially from conservatives. Many liberals defended the Johnson decision as a correct one under First-Amendment jurisprudence. Among the general public, however, opposition to the decision was so widespread that Congress passed the Flag Protection Act in response to it. The Supreme Court promptly struck down the Act in United States v. Eichman, 496 U.S. 310, 313 (1990). There were no violent protests in the wake of these decisions.

In 1989, the National Endowment for the Arts (“NEA”) subsidized with a grant an art exhibition that included, among other artists, the work of Andres Serrano. The works of Serrano on display included a depiction of the crucified figure of Jesus immersed in a jar of urine. (I will not mention the title of the piece but I am sure most of you are aware of it). Liberals praised the work as “iconic” and defended Serrano’s right to create and display it as a matter of “artistic expression” protected by the Free Speech Clause. There was no violence in the wake of publicity about Seranno’s piece or the federal government’s support of it. The general outcry against the piece was so voluminous, however, that Congress rewrote the law to require the NEA to take into account “decency” and “respect” when providing grants to artists. The New York Times pilloried the new law. Some artists filed an action against the law, claiming it violated the First Amendment. In National Endowment for the Arts v. Finley, et al., 524 U.S. 569 (1998), the Supreme Court disagreed, primarily on the basis that grants from the government do not substantially affect First Amendment expression.

Why am I raising these 25-year-old hot-button social issues? Because a little over a week ago two assault-rifle-wielding gunmen in body armor attacked an art contest event in Garland, Texas. A traffic cop shot and killed both gunmen. Of course, it was not just any art event; it was a “Draw Muhammad” cartoon contest spearheaded by a group which calls itself the American Freedom Defense Initiative (“AFDI”), a group founded by Pamela Geller.  The foiled attack once again put free speech in the public cross-hairs.

That an attack was attempted was not very surprising. In several strains of Islam, drawing any depiction of the prophet Muhammad is considered blasphemous because they believe images tend to be worshiped and Muhammad ordered Muslims only to worship God, not Muhammad or any other prophet. (Muslims also consider it wrong to depict Moses and Jesus). Moreover, in January, two gunmen killed 10 employees of the French satirical magazine Charlie Hebdo because of cartoon depictions of Muhammad that had been printed in the magazine. AFDI knew these facts and had quite a bit of security at the Garland event.

The immediate reaction to the foiled attack from liberals, including from the New York Times, was that the cartoon contest constituted a form of “hate speech.” The liberal mainstream media (but I repeat myself) also implied that it was a close question whether the cartoon contest deserves protection under the First Amendment by writing stories about how there is a “fine line” between “hate speech” and “free speech.” In contrast, conservatives fell all over themselves to trumpet AFDI’s free speech right to hold the event. Indeed, some conservatives praised AFDI for doing a great service for the First Amendment.

The first thing that should be apparent from all of this is that liberals and conservatives usually only trumpet free speech when seeking to protect speech they like. Liberals tend to be particularly fond of speech that undermines what they perceive to be dominant American values like Christianity and patriotism. Conservatives are fond of speech that irritates liberals and which paints Islam as a violent religion bent on the destruction of Western culture. The fact that both sides might be right in their observations, i.e., that Christianity and patriotism are important to America and that at least certain strains of Islam want to destroy the West, does not make either side right in its free speech principles.

It is difficult to see much of a distinction between Serrano’s piece of “art” and a cartoon contest awarding prizes for satirical drawings of Muhammad. Likewise, if drawing a cartoon for the express purpose of making fun of a religion’s most revered figure is “speech,” it would seem to follow that burning the American flag is also “speech.” Neither side can have it both ways, but they often try to do so anyway.

So is all of this really “free speech?” In order to answer that question, the first thing to do is return to the language of the Free Speech Clause of the First Amendment, which provides: “Congress shall make no law … abridging the freedom of speech.” If you believe as I do that the language of the Constitution is the sole test for constitutionality, then you need to determine what was the original understanding of the phrase “the freedom of speech.” The Free Speech Clause was intended to protect

“the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

Mills v. State of Alabama, 384 U.S. 214, 218-19 (1966). A large amount of historical evidence supports the fact that the Free Speech Clause concerned the people’s right to freely communicate and disseminate information and ideas about political issues. The right’s purposes were to aid representatives in enacting the people’s will and to enable the people to hold public officials accountable for their actions. (Marshaling the evidence on the history of the Free Speech Clause is not the point of this post, but if you wish to see a fairly thorough explication, read this brief).

Under the original understanding of “the freedom of speech,” only the burning of the American flag arguably could qualify as implicating free speech because the intent of the expression was communication of a political idea. Serrano’s work certainly was expressive, but no one (including Serrano himself) ever contended that it was communicating a political idea. Likewise, AFDI and its supporters might claim its contest was about communicating political ideas, but their argument is pretty attenuated. AFDI and its supporters say that the very idea of holding the contest was a statement on free speech. More specifically, they say AFDI was communicating the idea that the threat of violence will not silence criticism of Islam. But even if expressive conduct is “speech” under the First Amendment (an issue I address below), holding a contest in itself does not seem to be “expressive conduct.” Furthermore, even if it was expressive conduct, it is unclear what political message it was communicating. Some people might say that the cartoons themselves were the communication that constitute “the freedom of speech,” but I have seen very little discussion of the content of any of the cartoons. The whole debate appears to be about AFDI’s right to hold the contest and how either brave or stupid it was depending upon your point of view.

I say that flag burning “arguably” falls under “the freedom of speech” because the Founders repeatedly tied the constitutional right to speaking and writing and so there is some disagreement about whether so-called “expressive conduct” constitutes “speech” under the original understanding of the First Amendment. The late Judge Robert Bork, for example, steadfastly insisted that the Free Speech Clause was intended to protect exactly what it says, “speech,” not what might be considered non-verbal forms of communication. See Robert H. Bork, Slouching Towards Gomorrah, p. 99 (1996). In contrast, noted free speech scholar and law professor Eugene Volokh has argued that history demonstrates that the Founders believed that “speech” included symbols and even actions like burning figures in effigy, which is fairly similar to burning the flag.

Unlike me, most lawyers speed right past the question of whether any of these incidents actually qualify as free speech because they believe that constitutionality is determined by Supreme Court decisions. Under Supreme Court precedent, there is virtually no question that all of the above-mentioned incidents, including AFDI’s cartoon contest, concern free speech because the Court has cast an extremely wide net over what it considers to be included in “the freedom of speech.” The Supreme Court considers most forms of pornography to be protected by the First Amendment. It also considers most forms of provocative speech to be protected. The one very narrow exception to this protection of provactive language is what the Supreme Court calls “fighting words,” which it has defined as “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942). None of the incidents related above would qualify as “fighting words.” Moreover, the Supreme Court has never said that there is a category of speech called “hate speech” which is not worthy of First Amendment protection. In fact, in the only case before the Supreme Court that has involved a “hate-speech ordinance,” the Court struck down the ordinance because it was not content-neutral in its application. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Thus, Supreme Court jurisprudence explains why First Amendment scholars like Volokh have been vehemently defending AFDI’s right to hold the contest.

The legal point that is easy to overlook, however, is that in only one of the above-mentioned incidents was a person’s speech actually infringed upon. The Free Speech Clause states that “Congress shall make no law … abridging the freedom of speech.” Even in its broadest context — which is to say when the First Amendment is made applicable to the States through the 14th Amendment by what the Supreme Court calls “selective incorporation” (don’t ask, just trust me that this is what they do) — the Free Speech Clause only refers to government restrictions on speech. This is why, when you buy ad space on a billboard, in a newspaper, on a website, or in any other privately-owned forum, generally the owner can prohibit any type of speech he, she, or it wants.

In the Johnson case, the protester was arrested, charged, and convicted of a crime for burning the American flag. But Serrano was never told by any government official that he could not exhibit his offensive piece of “art.” Even after Congress changed the grant criteria for the NEA, no artist was prevented by government from being able to display his or her work. Likewise, no level of government attempted to stop AFDI from hosting the cartoon contest in Garland. Consequently, in a very straight-forward sense, AFDI was not making a stand for free speech because its speech was never threatened by government abridgment. Very much like Serrano, AFDI is assuming the mantle of free speech to proclaim the righteousness of its cause when its action does not implicate the right to free speech provided in the Constitution.

People have a right to speak without the fear of being shot and killed by a random Islamic fanatic not because of the First Amendment, but because of our laws against murder. Regardless of whether the cartoon contest’s sponsor or its participants said anything or nothing, the gunmen were not justified in attempting to slaughter them with assault rifles. That fact has nothing to do with free speech. It has everything to do with the fact that being offended never justifies murder.

It is a sad commentary on the state of Islam today that the attack in Garland was expected. The notion stated in some quarters of the media that AFDI was “asking for it” should be repulsively insulting to Muslims. As I noted above, no Christian attempted to shoot Andres Serrano or any of his defenders following the public display of his “art.” Likewise, no one attempted to shoot the protester at the 1984 Republic National Convention for burning the American flag or for chanting “America, the red, white, and blue, we spit on you.” That no violence was attempted or even expected in response to either of those incidents certainly was not because they failed to arouse emotional responses. Indeed, as noted, both Serrano’s art and the flag-burning incident produced Congressional acts that garnered widespread support. For the people who opposed those incidents, however, it was a given that no matter how much they despised Serrano’s work or the burning of the flag, violence was not an acceptable response. Yet, some factions of Islam today not only threaten violence in response to offense of their religion, they actually glorify such violence (see ISIS).

It is this reality that AFDI undoubtedly was reacting to in holding its cartoon contest, and it is presumably why AFDI supporters seek to give AFDI’s actions the imprimatur of the First Amendment. But AFDI supporters — and conservatives in particular (perhaps again I repeat myself) — seem to believe that the inexcusable nature of the actions perpetrated by some factions of Islam and the assumption of the First-Amendment mantle ends all debate about the propriety of AFDI’s actions. In the words of Rich Lowry, editor of National Review:

“‘Yes, but . . . ‘ defenses of Geller don’t cut it. She had a perfect right to do what she did, and it’s a condemnation of her enemies — and confirmation of her basic point about radical Islam — that the act of drawing and talking elicited a violent response.”

Another conservative writer expressed the sentiment this way:

“The reason for the provocative event was just as righteous as the left-wing Charlie Hebdo’s reasoning for its cartoons mocking Islam: To push back against fascism, to mock those who threaten us not to mock them. That cannot be allowed in a free society.”

The underlying assumption of these statements is that defending free speech requires provocation. In other words, in order to protect free speech we must defend really awful speech. Many liberals are fond of using this tripe as a way of rendering all manner of lewd, degrading, and offensive conduct as morally courageous. It is disappointing to see conservatives taking the same line simply because this particular episode of provocative speech aligns with their view of radical Islam.

The assumption is false. You can support free speech and still condemn needlessly provocative and inappropriate conduct precisely because of the distinction I noted above between constitutional free speech and speech in general. To say that certain speech should not be proscribed by the law does not require one to say such speech should be condoned in our culture. In other words, just because it is legal doesn’t make it laudable. But according to conservatives such as those I quoted and linked above, we cannot acknowledge AFDI’s free speech right and simultaneously condemn its behavior because free speech is so sacrosanct that it absolves all moral flaws.

Even putting aside the fact that “the freedom of speech” refers to government limitations on political speech, the Founders never intimated that free speech was an end unto itself. It is a tool for preventing tyrannical government. The idea of defending free speech for the sake of free speech alone would have puzzled the Founders. The First Amendment is not like God’s Word which is inherently good simply because God said it. The First Amendment is good because of the ends it seeks to achieve. Did AFDI’s event achieve those goals? Did it reduce government tyranny? Did it hold our leaders accountable? Did it address a social problem?

Ahh, that last question is where AFDI supporters presumably would answer with an emphatic “yes.” Their assumption is that the real goal of the cartoon contest was to push back against Muslims who believe that violence is an acceptable response to being offended. There is no denying that this belief is a serious problem, but was AFDI’s contest a part of the solution? AFDI supporters say we do not get to ask that question because this is about the First Amendment. All that matters is that pictures of Muhammad should be able to be drawn without fear of violent reprisals.

I must have missed the part of the conservative credo where it says we are supposed to ignore moral failures for the sake of legal principles. Lowry says:

“Geller is an attention-hungry provocateur who will never be mistaken for Bernard Lewis, the venerable scholar of Islam. Her Texas gathering to award a cash prize for the best cartoon of Mohammed — depictions of whom are considered offensive by many Muslims — was deliberately offensive, but so what?”

In saying this Lowry believes he is making a great statement about free speech, but what he (and other conservatives) are really doing is avoiding making any moral judgment about AFDI’s actions.

Let’s assume for a moment that burning the American flag does constitute a form free speech under the First Amendment. Does that automatically mean it is the right way, or even a good way, to convince people who disagree with you that America is doing something wrong? In other words, did that protester achieve anything with his “symbolic speech” other than draw attention to himself and make other people angry? I think most conservatives agreed at the time that the protester’s action did not provide any positive contribution to the debate about presidential policies.

Again, let’s assume that Serrano’s work of “art” was an exercise in free speech. Does its association with free speech render it an edifying work that communicated a useful message to people? Was placing a picture of the crucifixion in a jar of urine a good way to get Christians to think about their faith (if indeed Serrano was even attempting to raise some kind of substantive question rather than just being provacative)? I think most people at the time — the New Your Times aside — agreed that Serrano’s work had no redeeming value.

We should ask the same questions about the Garland cartoon contest. Is holding a contest that has as its deliberate goal mocking a religious belief sincerely held by millions of people the right way, or even a remotely good way, to convince people of that faith that they need to stop using violence to achieve their goals? Did the contest do anything other than draw attention to Geller and make Muslims angry? It should be fair to note — whether the cartoon contest was a paragon of free speech or not — that it did nothing to advance the conversation about stopping radical Muslims from using violence in the face of offense.

That second conservative writer I quoted above suggested that the contest proved its point when the gunmen showed up, but the fact is that we already knew there are radical Muslims who will readily kill innocent people simply because their religious sensibilities have been offended. We did not need Pamela Geller’s brainchild to tell us this. Another typical response is: “Well, there is no reasoning with these people anyway because they are bent on destruction.” That very well might be true, but if so, then why are we yammering on about the importance of free speech on this topic? If it is important to have the freedom to be able to say negative things about Islam, then it has to be on the assumption that someone is going to listen to what we are saying. Again, the First Amendment is not an end unto itself. It seems very apparent that the Garland cartoon contest was not going to (nor was it designed to) get believers in Islam to listen to reason.

The apostle Paul observed in 1 Corinthians 10:23 that “I have the right to do anything, but not everything is beneficial. I have the right to do anything, but not everything is constructive.” Free speech is a wonderful thing. Obviously it deserves legal protection and the Founders gave it quite a bit by enshrining it in the Bill of Rights. But maintaining free discourse in society does not mean that we should not ask whether a particular form of speech is beneficial or constructive. Condemning speech as unprofitable is not the same as arguing that it should be outlawed. I know that liberals tend to think in such terms since to them everything worthwhile requires government action. But conservatives know better (or at least they should) and so they can separate the right of free speech itself from the practice of discretion in exercising that right. AFDI failed to exercise appropriate discretion and conservatives should not shy away from saying so solely for the sake of mounting a moral high horse about the freedom of speech.