April 2012
The recent exchange
between an atheist and a judge in a small courtroom in rural Pennsylvania could
have come out of a Dickens novel. Magisterial District Judge Mark Martin was
hearing a case in which an irate Muslim stood accused of attacking an atheist,
Ernest Perce, because he was wearing a "Zombie
Mohammed" costume on
Halloween. Although
the judge had "no doubt that the incident occurred," he dismissed the charge of
criminal harassment against the Muslim and proceeded to browbeat Perce. Martin
explained that such a costume would have led to Perce’s execution in many
countries under sharia, or Islamic law, and added that Perce’s conduct
fell "way outside your bounds of 1st Amendment rights."
The case has caused a
national outcry, with many claiming that Martin was applying sharia law
over the Constitution — a baseless and unfair claim. But while the ruling
certainly doesn’t suggest that an American caliphate has gained a foothold in
American courts, it was nevertheless part of a disturbing trend. The conflict in
Cumberland County between free speech and religious rights is being played out
in courts around the world, and free speech is losing.
Perce was marching in a
parade with a fellow atheist dressed as a "Zombie Pope" when he encountered
Talaag Elbayomy, who was outraged by the insult to the prophet. The
confrontation was captured on Perce’s cellphone. Nevertheless, Martin dismissed
the charge against Elbayomy. Then he turned to Perce, accusing him of acting
like a "doofus." Martin said: "It’s unfortunate that some people use the 1st
Amendment to deliberately provoke others. I don’t think that’s what our
forefathers intended."
For many, the case
confirmed long-standing fears that sharia law is coming to this country.
The alarmists note that in January, a federal court struck down an Oklahoma law
that would have barred citing sharia law in state courts. But there is
no threat of that, and
certainly not in
Oklahoma, which has fewer than 6,000 Muslims in the entire state. Rather, the
campaign against sharia law has distracted the public from the very real
threat to free speech growing throughout the West.
To put it simply, Western
nations appear to have fallen out of love with free speech and are criminalizing
more and more kinds of speech through the passage of laws banning hate speech,
blasphemy and discriminatory language. Ironically, these laws are defended as
fighting for tolerance and pluralism.
After the lethal riots
over Dutch cartoons in 2005 satirizing Muhammad, various Western countries have
joined Middle Eastern countries in charging people with insulting religion. And
prosecutions are now moving beyond anti-religious speech to anti-homosexual or
even anti-historical statements. In Canada last year, comedian Guy Earle was
found to have violated the human rights of a lesbian couple by making insulting
comments at a nightclub. In Britain, Dale Mcalpine was charged in 2010 with
causing "harassment, alarm or distress" after a gay community police officer
overheard him stating that he viewed homosexuality as a sin. The charges were
later dropped.
Western countries
are on a slippery slope where more and more speech is cited by citizens as
insulting and thus criminal. Last year, on the
Isle of
Wight, musician
Simon Ledger was arrested on suspicion of racially aggravated harassment after a
passing person of Chinese descent was offended by Ledger’s singing "Kung Fu
Fighting." Although the charges were eventually dropped, the arrest sends a
chilling message that such songs are voiced at one’s own risk.
Some historical
debates have now become hate speech. After
World War II,
Germany criminalized not just Nazi symbols but questioning
the Holocaust.
Although many have objected that the laws only force such ignorance and
intolerance underground, the police have continued the quixotic fight to prevent
barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a
Hitler speech as a ring tone.
In January, the French
parliament passed a law making it a crime to question the Armenian genocide. The
law was struck down by the Constitutional Council, but
supporters have vowed to
introduce a new law to punish deniers. When accused of pandering to Armenian
voters, the bill’s author responded, "That’s democracy."
Perhaps, but it is
not liberty. Most democratic constitutions strive not to allow the majority to
simply dictate conditions and speech for everyone — the very definition of what
the framers of the U.S. Constitution called tyranny of the majority. It was this
tendency that led
John Adams
to warn: "Democracy … soon wastes, exhausts and murders itself. There was never
a democracy yet that did not commit suicide.”
Legislators in the United
States have shown the same taste for speech prosecutions. In June, Tennessee
legislators passed a law making it a crime to "transmit or display an image"
online that is likely to "frighten, intimidate or cause emotional distress" to
someone who sees it. The law leaves free speech dependent not only on the
changing attitudes of what constitutes a disturbing image but whether others
believe it was sent for a "legitimate purpose." This applies even to postings on
Facebook or social media.
Judge Martin’s
comments are disturbing because they reflect the same emerging view of the
purpose and, more important, the perils of free speech. Martin told Perce that
"our forefathers" did not intend the 1st Amendment "to piss off other people and
cultures." Putting aside the fact that you could throw a stick on any colonial
corner and hit three people "pissed off" at
Thomas
Paine or John Adams,
the 1st Amendment was designed to protect unpopular speech. We do not need a 1st
Amendment to protect popular speech.
The exchange between the
judge and the atheist in Mechanicsburg captures the struggle that has existed
between free speech and religion for ages. What is different is that it is now a
struggle being waged on different terms. Where governments once punished to
achieve obedience, they now punish to achieve tolerance. As free speech recedes
in the West, it is not sharia but silence that is following in its wake.
Jonathan Turley is a professor of public interest law at George Washington University.
Los Angeles Times: Op-Ed, March 9, 2012
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