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JOSEPH REISERT: Law doesn’t differentiate between accidental, intentional offenses

Should the law of free expression distinguish between those who, meaning well, inadvertently offend and those who, intending to give offense, succeed?

As it has stood since the 1960s, our law does not. It protects the right to free expression neutrally and impartially, regardless of the speakers’ real or professed motive.

From this point of view, there is no difference between the inadvertent offense caused by Feisal Abdul Rauf’s plan to build the “ground zero mosque” and the deliberate provocation of Terry Jones, who has declared his intention to commemorate 9/11 by burning copies of the Muslim holy book, the Quran.

Observers, of course, have every right to express their own feelings about the men’s conduct, or to try to persuade offended New Yorkers that the old Burlington Coat Factory building two blocks from ground zero is not really sacred, or to argue that burning of the copy of the Quran should not be offensive because ideas of the divine cannot be charred by terrestrial flames.

But if we are to be consistent with the current, liberal or libertarian view of the law, we have to concede that rights trump feelings, and that, though our leaders may have the right to try to persuade Rauf or Jones to change their plans, those leaders also have the constitutional duty to protect Rauf and Jones in the exercise of their rights, if they should choose to go ahead with their plans.

To virtually all Americans, the site where the twin towers of the World Trade Center once stood, which became “ground zero” on the morning of Sept. 11, 2001, holds profound meaning. Many Americans call that site sacred, hallowed by the deaths of nearly 3,000 innocents murdered there by fanatical adherents of a radical brand of Islam. Surely we can understand the hurt and anger of so many, who feel the construction of a new Islamic site nearby to be a desecration.

Imam Rauf had nothing to do with 9/11, and his form of Islam is as different from the hijackers’ as the egalitarian Protestantism of Congregationalism is from ultramontane Roman Catholicism. Moreover, Rauf argues credibly that he aims to promote interfaith understanding and reconciliation. 

But whatever his aims, even if they were as uncharitable and sectarian as he insists they are benign and ecumenical, Rauf’s rights under our current law would be the same, so long as he did not propose to violate the rights of others.

Our free expression law does not recognize a right not to be offended. Defenders of this approach argue that the law cannot protect against offense, because in a country as large as ours, so many of us are offended by so many different things.

Instead, they argue, the law enables us to live peacefully together in a complex, diverse society by protecting only our most basic interests, such as personal security, property rights, the freedom to make and enforce contracts, and the freedom to speak and worship as we please, without interference by government.

From the impartial perspective of our law, Jones’s proposed Quran burning presents a parallel case. The law sees no difference between burning a stack of Muslim holy books and burning a stack of Bibles — or, for that matter, burning a stack of atheist tracts, or even a pile of wood.

What Jones proposes is extraordinarily hurtful to pious Muslims, because it is an act of desecration, roughly analagous to defiling the bread and wine consecrated by a Catholic priest at Mass (assuming a protester could lawfully acquire these). It also offends a vast number of ecumenically disposed nonMuslims, appalled by what they see as Jones’s wanton intent to cause offense.

Jones has even attracted criticism from Gen. David Petraeus, who has said that televised images of a public Quran burning could provoke violence against U.S. forces in Afghanistan and the Middle East.

Even so, our current law protects Jones’s right to protest.

Would we do better to have a less libertarian law of free expression, one that would protect the rights of those who inadvertently offend, while denying protection to those who have no aim but to offend?

In theory, yes. Surely there can be no justification for words or deeds that do nothing but cause harm to others.

But, in practice, no one could consistently enforce such a law.

Our impartial freedom may empower the odd malcontent to shock and offend, but at least it protects us all from the heavy hand of arbitrary governmental power.



Joseph R. Reisert is associate professor of American Constitutional Law and chairman of the Department of Government at Colby College in Waterville.

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