The fatal shootings in Garland, Texas, of two extremist gunmen as they attacked an anti-Islamist meeting was a vivid reminder of the virtually unique protections afforded by the US constitution to free speech, no matter how hate-filled or provocative, according to prominent first amendment experts.
In many countries across Europe and around the world, Pamela Geller and the American Freedom Defense Initiative, who organized the event in Garland, might have fallen foul of hate speech laws such as the UK’s 1986 public order act or article 266(b) of Denmark’s criminal code.
Coming just two months after the Charlie Hebdo shooting in Paris, commenters the world over have said Geller’s decision to stage the Texas cartoon competition – participants were invited to draw the prophet Muhammad, with a top prize of $10,000 – was clearly provocative and arguably crossed the line into hate speech.
Geller herself has a long history of inflammatory acts toward the Muslim community.
But there was never any question of the Muhammad event being barred, leading US constitutional scholars say, for the simple reason that the first amendment offers an almost watertight protection of public speech.
Harvard University law professor Laurence Tribe said the Garland attack illustrated a major difference in free speech law between the US and almost every other country in the world.
“Most other nations recognize a category of hateful speech that is likely to trigger outrage and even retaliation, but the first amendment has for many decades been interpreted to allow speakers like Pamela Geller to spread their disturbing messages to the world at large,” Tribe said.
While some aspects of US constitutional law are ambiguous or blurry, the first amendment is crystal clear on this issue. The government is prohibited from punishing hate speech or language that might incite lawlessness unless the words are specifically and deliberately directed at a particular target and likely imminently to trigger violence.
Given all the legal hurdles that a prosecution would have to clear in order to be successful, actions to block public events or censor hate-filled publications are virtually extinct in modern America. Legal scholars such as Tribe date the ascendancy of the first amendment in this area to the 1969 case of Brandenburg v Ohio in which a Ku Klux Klan leader was convicted under Ohio law for holding a rally with participants in full Klan regalia parading around burning crosses and vowing “revengeance” against the N-word and Jews.
The US supreme court ruled that the law was too loosely applied and struck down the conviction, and since then the first amendment has stood supreme. “Even groups spewing hateful, anti-gay, anti-US, anti-military slogans at the funerals of fallen American soldiers have been held to be fully protected by the first amendment as long as they do not trespass on private property or otherwise violate laws,” said Tribe.
In recent times Muslims have found themselves frequently at the receiving end of constitutionally protected hate speech. In 2012, an obscure film called Innocence of Muslims produced in America and posted on YouTube sparked violent protests around the world.
Reaction within the Muslim community toward Pamela Geller’s use of the first amendment to disseminate her contentious views were mixed. Ibrahim Hooper of the Council on American-Islamic Relations said that while he was opposed to the hatred put out by Geller, he remained a firm advocate of the US constitution.
“In America you have the right to be a bigot if you want, and she is taking advantage of that right. By equal measure, we have the right to speak out against her bigotry and hatred,” he said.
Hooper added that it was ironic that although Geller billed the Garland cartoon competition as a free speech event, she has tried to prevent the Qatar-headquartered TV network Al Jazeera from broadcasting domestically in the US.
But Amani Al-Khatahtbeh, founder of muslimgirl.net, a site for young Muslim women, was more critical of the first amendment. Though she stopped short of suggesting it should be revised, she said there was a price to be paid when the right of free speech was abused.
“Muslim Americans have suffered as a result of hate speech targeted against us. We saw in Garland that inciting violence and hatred against a specific group only inspires more violence and hatred.”
Eric Posner, a law professor at the University of Chicago, said that for the time being the first amendment appeared to be indomitable in its protection of all speech short of actual incitement to violence. But he said that it was not set in stone for time immemorial.
“The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,” he said.
The provocative stance of Pamela Geller’s provocative stance posed a new legal challenge, Posner believes. “I don’t know if she was trying to provoke violence, but at the very least she was reckless. A security guard was shot as a result of her actions and if this kind of thing happens again and again, the courts may find a way to revisit the first amendment.”
