Law & the Courts

American Speech Law Is Exceptional

Challenge those who say otherwise.

‘We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” (From Justice Brennan’s Opinion for the Majority, Texas v. Johnson, 1989.) 

It is America’s vigorous exchange of ideas that insulates us from ignorance and inspires us to new contemplation. Yet the First Amendment’s greatest power is not the speech it protects, but rather the philosophy it fosters: the belief that we should speak openly and confidently — an ultimate protection against self-censorship.

Unfortunately, today, a clamor of voices is calling for a chilling of American free speech. More specifically, in the aftermath of Sunday’s attack by two terrorists on the Garland Community Center, some are claiming that the organizers of the “Draw Mohammed” event — primarily, Pamela Geller — engage in hate speech that cannot be described as genuine free speech and deserves only scorn.

At Vox, Max Fisher decries the event’s content: “The cartoons displayed . . . are not satirical like [Charlie] Hebdo’s. Rather, they are straightforward portrayals of Mohammed as a vile monster with a clear, non-satirical message of anti-Islam hate.” Fisher rules that Geller & Co. are “figures of hate,” and that to call her anything else “legitimizes and spreads her group’s ideas, which are hateful, destructive, and dangerous.” Fisher implies that unpleasant portrayals of Mohammed are therefore apolitical acts of mindless hate. However, the appropriation of Mohammed’s heritage by such groups as ISIS is undeniable. He must therefore be open to debate.

At CNN Opinion, Haroon Mohgul asks: Should “offensive” speakers be “surprised if a few people react violently, even if that violence is unacceptable? (Which it is.) What if you kept doing it, over and over again?” Moghul concludes with a particularly insipid question: “For what possible reason would you want to [repeat the offending speech]?”

Perhaps because a society in which speech is arbitrated by violent thugs is no society at all? Mohgul is clearly suggesting that if we refuse to shut up and then suffer violent attack, we must share in the blame for our assault.

A clamor of voices is calling for a chilling of American free speech.

How about Qasim Rashid at Time? Rashid references the following recent remark of a Muslim caliph, Mirza Masoor Ahmad: “Let it not be that in the name of freedom of speech the peace of the entire world be destroyed.” Rashid then tells us: “Personal accountability is the key to establishing peace. . . . If we truly want peace, society must rise above the intolerance that Geller and ISIS alike espouse.” This equates Mohammed cartoonists with ISIS — because drawing cartoons is morally equal to burning people and filming it.

Sadly these are just a few of the silly comparisons of recent days. On Wednesday, for example, CNN’s Chris Cuomo went on Twitter to try out his knowledge of constitutional law. He did not succeed. Misinterpreting the dated Supreme Court case of Chaplinsky v. New Hampshire, Cuomo asserted that a Prophet Mohammed cartoon could constitute unlawful speech. Again, this is simple delusion. In an array of cases since Chaplinsky, the Supreme Court has held that to constitute a breach of the peace, any statement must be made face to face, and be likely to cause specific personal insult and/or invoke immediate unlawful conduct (violence). But that’s not all. Now that the Supreme Court has held that flag burning does not constitute incitement of reasonable citizens to immediate breaches of the peace, and has issued such rulings as Snyder v. Phelps that grant political speech (which, as I’ve noted, Mohammed cartoons constitute) foremost legal protection, the argument that Mohammed cartoons could be illegal in America is absurd. Geller’s rants (her bus posters, etc.) fail the three-pronged test the Court enunciated in its historic 1969 Brandenburg decision: intending likely, imminent unlawful violence.

Let’s be clear. Pamela Geller doesn’t represent all those concerned about the challenges presented by political Islam. I’m concerned, and I’m certainly no Geller fan. Yet Islam’s censorship challenges are real — see Ayaan Hirsi Ali and Alice in Arabia — and enabled by an absurd union between leftist zealots and theological fundamentalists. Of course, there are many other issues of public controversy beyond Islam and satire. Each demands the wide attention of free discourse. Still, the foundation of American speech law — the belief that maximal speech offers the most equitable social outcome — embodies exceptionalism. Contrast that doctrine with the chaos born of British speech laws, for example.

We should be unequivocal. The First Amendment is immensely precious and those who would undercut its virtue deserve only scorn.

Tom Rogan is a columnist for National Review Online, a contributor to the Washington Examiner, and a former panelist on The McLaughlin Group. Email him at


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