Charles Haynes: Free Speech Must be Protected

Charles Haynes, senior scholar at the First Amendment Center, makes the point in this September 24 article:

Extremists of all stripes are having a field day.

Loony rabble-rousers at home — the people behind “Innocence of Muslims,” the film insulting Muhammad — have succeeded in giving loony rabble-rousers abroad a golden opportunity to promote violence in the name of their own sick, twisted vision of Islam and the world.

The filmmakers join the ranks of Terry Jones, Fred Phelps and other American extremists who will say and do anything to make headlines and provoke outrage.

But however vile the filmmakers’ motives and however odious their speech, we must defend the indefensible by upholding their right to freedom of expression.

Needless to say, much of the world doesn’t agree.

Even in the land of the free, protecting the right to offend is a tough sell. According to a 2009 survey by the First Amendment Center, 43 percent of Americans do not think people should be allowed to say things in public that might be offensive to religious groups.

The U.S. Supreme Court does allow some restrictions on speech under the First Amendment, including speech intended to incite imminent violence. This film doesn’t meet that test.

Although the filmmakers surely knew that their film would provoke angry protests, they aren’t responsible for radical groups halfway around the world using the film as an excuse to kill.

If the United States were to react by attempting to censor speech that offends religions (as in some European countries), or speech that is blasphemous (as in some Muslim countries), Americans would forfeit the right to freedom of speech and religion.

Once government has the power to punish speech deemed “offensive” or “hateful,” the First Amendment is effectively repealed and no one’s speech is safe from prosecution and no one’s religion is safe from government interference.

Some religious and political leaders counter the American defense of the right to offend by claiming that “Innocence of Muslims” and other expression insulting religion violates what they call “religious freedom.”

In this alternate universe, freedom of religion is defined as freedom from offense. Interpreted this way, religious freedom gives religious leaders the right to determine when speech is sufficiently offensive to warrant government action.

Religious liberty as freedom from offense would be the death knell of authentic religious liberty, as the Supreme Court made clear in Cantwell v. Connecticut (1940), a landmark case defining free exercise of religion.

In that case, Jesse Cantwell, a Jehovah’s Witness, played a record with a strongly anti-Catholic message in a heavily Catholic neighborhood. Two men who heard the record called the police.

A unanimous Court upheld Cantwell’s right to proclaim his message, noting that “the tenets of one man may seem the rankest error to his neighbor.” But, the Court reasoned, “in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.”

In other words, a free marketplace of ideas — including ideas many find wrong or repulsive — is a necessary condition for ensuring that people are free to pursue the truth.

Charles C. Haynes is senior scholar at the First Amendment Center. His email is