Why Koran burning deserves First Amendment protection

There oughta be a law. When people get angry over some perceived slight or injustice, that is usually their first, unfortunate reaction – that government should impose some fairness where life does not. That's true even in a society that cherishes freedom to the point of enshrining limitations of government specific to the natural rights of free thought, free speech, self-defense, and religious practice, a context that provided a look this week into just how fragile those restraints can be.

There is little to cheer or champion in the actions of Florida preacher Terry Jones, who had earlier threatened to light a Koran on fire, and then did so two weeks ago after a "trial" of the Muslim scriptures. Several days after the burning, riots erupted in Afghanistan, and seven United Nations aid workers were brutally murdered. Instead of blaming the actual killers, or the imams and government officials that incited the riots, media attention instead focused on the book burner – and at least one politician leaped to take advantage of the controversy.

Whether one has an antipathy towards that particular religion or faith in general, the act of burning books holds a historical resonance – especially from the 20th century – that causes a natural revulsion in a free society. Compounding the nonsense is the anachronism of book burning in an era of mass publication and online accessibility. Burning one copy of any published book means nothing more than the momentary release of potential energy from the pages themselves. We have not lived in an illuminated-manuscript environment since not long after Johannes Gutenberg first launched his printing press, and burning a book in a modern staging of the climax of Umberto Eco's The Name of the Rose does nothing but slightly increase sales at local bookstores. All that gets destroyed in book burnings are minute amounts of capital, not ideas, whether good, bad, benign, or dangerous.

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Still, people burn books as a particularly impotent form of protest, which they have a right to do, assuming the protesters own the books they burn and break no other laws in doing so. People have just as much right to criticize the burning of books through either rhetorical speech or through other forms of demonstration. If laws do get broken – for instance, if a protest turns violent and property other than that of the protesters gets damaged or people get assaulted – then the laws of this country hold the protesters responsible for their own actions, and not the people against whom they protested. Those demanding action or sanction against the protester after a counterprotest turns deadly effectively give the lunatics veto power over the free, and make speech a privilege granted by government rather than a recognition of a natural human right.

It's bad enough that many free people fail to understand this when confronted with speech they dislike. When our elected officials fan those flames, it's especially irresponsible. Republican Sen. Lindsey Graham asserted in a CBS interview over the weekend that he would prefer to "hold people accountable" for the Koran burning, because while "free speech is a great idea, but we’re in a war," implying we can't afford both at the same time. The next day, he went into more detail with The National Review, citing Gen. David Petraeus's condemnation of the Koran burning. "Let me tell you, the First Amendment means nothing without people like Gen. Petraeus. The First Amendment does allow you to burn a Koran, but I don't think it's a responsible use of our First Amendment right."

If Sen. Graham wants to condemn burning the Koran, he's welcome to do so. If he wants to propose a resolution in the Senate condemning the Florida preacher’s actions, he is welcome to do that as well. Such a resolution is an equally valid form of protest, but otherwise legally meaningless. When Graham purports to support a ban on burning the Koran, however, that crosses the line – actually, several lines. Not only would it ban free political speech as it has been defined for at least decades in this country, but also property rights as well, since Jones owned the book. It would also create, in effect, a protected class for the Koran, which would also violate the establishment clause of the First Amendment.

Even if the ban was expanded to other religious texts, it would still cross establishment-clause lines, as well as prompt questions about what qualifies as a religious text. Does Dianetics get federal protection? How about the Bhagavad Gita? The Book of Shadows? The Silmarillion? One suspects that in theory the legal class would extend infinitely, but in practice, the government would only take interest in restraining protests involving the Koran due to the perceived security issues – again making it a protected class.

We would soon find that such a ban does nothing to improve security at home or abroad. The people who murdered the aid workers did not get magically transformed into murderers from peaceful pacifists by Jones's remote and obscure protest from halfway around the world. The murders took place because the extremists involved decided to kill, and the responsibility is theirs. To believe otherwise is to reject entirely the legal and moral principles of responsibility and free will, which are the very basis of liberty. Without those principles, the Constitution wouldn't apply at all to any human endeavor, whether in wartime or not.

No one should know this better than those selected to lead our nation. Our armed forces defend our Constitution valiantly, but that’s their job; the Constitution doesn’t exist at their pleasure. Because the Constitution acts to restrain government on behalf of a free people, it most certainly does have meaning that transcends a single individual, no matter how valorous he may be. This is yet another case where there shouldn't be a law, as the one we have in the First Amendment works perfectly well as it is. The proper and most effective remedy to bad speech is more speech, not government-imposed silence.