Earlier this week, a Florida pastor announced his plans to burn copies of the Islamic holy document, the Koran, on September 11. His plan was met with widespread criticism, including the US Attorney General and President Obama. While the consensus is that the planned event was distasteful, offensive, and would endanger American soldiers oversees and even civilians, would it be protected under the First Amendment?
The Attorney General weighed in on the issue first. In a private meeting with leaders of various religions, he expressed his dismay at a Florida pastor’s plan to burn copies of the Koran. According to a person in attendance, Holder called it "idiotic and dangerous."
A few days later, the President voiced his opinion. Although the President understood the pastor would be acting based on his own religious beliefs, the President said “I hope he listens to those better angels and understands that this is a destructive act that he’s engaging in.”
While much of the public thinks this the demonstration is a terrible idea, is it protected under the First Amendment? Freedom of speech protects all kinds of statements, including statements that the general public finds offensive and disagreement. That freedom has been extended to burning the flag (which Congress has attempted to prohibit, only to be struck down by the Supreme Court).
The First Amendment, however, does have an exception for speech that is directed to produce or incite violent acts and it is likely to have that result. While this may seem like a large exception, the Supreme Court has rarely invoked this and has refrained from applying liberally. For example, burning crosses was held protected under the First Amendment.
Here, it is unclear if that would allow a court to declare the demonstration unlawful. Both the President and military leaders have pleaded with the pastor that this demonstration is likely to endanger American soldiers and even American citizens. This is based on a prediction that the demonstration will result in riots and other acts directed at harming American soldiers. That would be a truly horrific event, but would it be enough for a court to step in and declare the act unprotected?
What do you think? Is the type of behavior that is protected by the First Amendment? Should it be?