an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On burning the Koran: Notes on the American economy of tolerance
I spoke to a London Times reporter today about Pastor Jones' plans to burn the Koran in a September 11th ceremony. The discussion was ostensibly about whether Pastor Jones could be punished consistent with the First Amendment, but the real issue, of course, was how the American system of free expression deals with the issue of political and religious intolerance. The constitutional issue is fairly straightforward. In the United States, one cannot be punished for burning an American flag (at least, a flag that one owns). If Pastor Jones can't be prosecuted for burning a U.S. flag, he can't be prosecuted for burning the Koran, or the Bible, or pretty much any religious text you can think of.
The exception, of course, is if one could show that Jones did this with the purpose and likely effect of inciting immediate violence. This is the test of Brandenburg v. Ohio. Many people think that Jones' actions will incite violence, but it's not certain that it will, and it's not clear that this is Jones' purpose. Moreover, it's unclear whether the Brandenburg test applies to situations where the violence incited is committed overseas rather than in the United States.
In any case, the American system of free expression, I explained to the reporter, is premised on a calculus of risk-- we are willing to risk a greater chance of violence in return for greater freedom of expression. Perhaps equally important, the American system of free expression is premised on a particular way of preserving the respect and tolerance necessary for successful democratic self-government.
Democracy requires a minimum level of tolerance and respect for all members of the political community. For people to feel that their government is legitimate, they must also feel that they are not second-class citizens and alienated from the project of governance. Without these guarantees, some members of the community may turn to law breaking or violence, while others may cower in fear or resignation and stay out of political life altogether. Whatever their choice, democracy is the poorer.
Some countries attempt to secure the minimum conditions of equal respect in a democracy by using public power to make some forms of public speech criminal; for example, some European countries criminalize expressions of hate speech or Holocaust denial.
The United States solves the problem differently; it privatizes the policing of intolerance and the preservation of democratic respect. It uses freedom of expression and the ability to contest social norms to secure equal respect in democratic life. It assumes that if people engage in racist or hate speech, other people in the community will denounce this as a breach of appropriate behavior in public discourse. Over time, the evolution of social forces will give people-- and especially politicians--incentives to refrain from intolerant speech. Demagogues will come and go, but (at least this is the hope) people will have the courage to call them out. Intolerance eventually will not stand if people stand up to it in the public sphere.
Over time, debates about social mores will change the categories of what speech is considered intolerant and unworthy of equal respect and equal citizenship in American democracy. This means that instead of having a fixed set of categories that are off limits by law, evolving social mores will impose norms of respect in public discourse.
This system is admittedly imperfect, but it is connected to the familiar idea that the remedy for speech we do not like is more speech. We might put it differently: the economy of speech, and of approval and disapproval of speech in the public sphere, will eventually solve the problem of intolerance in democratic life.
The state is not completely absent from this process of socialization. It protects the rights of free speech and assembly that can be used to talk back to the intolerant. It intervenes in public education; moreover, the need for reelection by a majority of the public constrains the sorts of statements that public officials make to their constituents. But in the United States, the government generally does not use the criminal process or allow civil suits to enforce these evolving norms of tolerance in public discourse, except in very limited cases and with various embedded constitutional protections. This faith in the mechanisms of the public sphere to police intolerance and promote tolerance is what distinguishes the American system of free expression from most other nations in the democratic world.
Does this system of free expression operate well? It depends on the relevant time frame in which you consider the question. Sometimes, after hearing the latest rants in the media and the blogosphere, one grows impatient for the self-enforcing economy of tolerance to kick in and actually start working. In the past few months, for example, we've witnessed an outpouring of anti-Muslim demagoguery by mostly conservative politicians, mostly outside of New York City, fulminating against the construction of a mosque and cultural center a few blocks from the World Trade Center site and whipping up anti-Muslim resentment.
I went to visit Ground Zero a few weeks back-- and 51 Park Place--where the proposed mosque and cultural center is to be built. Given the buildings that separated the former Burlington Clothing outlet from the former World Trade Center site, it seemed ridiculous to speak of the proposed center as at Ground Zero or looming over it, or, indeed, as being all that close to it at all. It's another building a very densely packed neighborhood in which one often can not see what's on the next block, much less two blocks away. The proposed center is only "a poke in the eye" if, like Superman, you have the superhuman ability to see through many layers of concrete and steel.
But I digress. My point is that even the people who have been whipping up an anti-Muslim frenzy for political gain-- and here I call out Sarah Palin and Newt Gingrich in particular-- have realized that supporting book burning is a bridge too far. Book burning, especially of religious texts, is the very symbol of religious intolerance in America. Palin quickly offered a facebook entry asking the pastor to stand down, arguing that this was an unnecessary and insensitive act of provocation. She could not resist adding, like the Park 51 project.
My point here is not to defend former (half-term) Governor Palin. Quite the contrary: I think that she is an authentic American demagogue. She is the latest in a series of dreadful politicians in our history, who have whipped up anger and resentment to advance their political careers and line their pocket-books, the latest in a rogue's gallery of American mis-leaders.
My point, rather, it is to note how even Palin feels the need to push back against intolerance greater than her own, lest she lose credibility in the larger public. Sarah Palin realizes that there are limits to how much polarization she can stoke, and what sorts of anti-Muslim tactics she can condone. She too, is governed by the American norms of fair place and equal respect, although, as the Queen of fake populist resentment, she honors these norms more in the breach than the observance. Sarah Palin, egregious as she may be, is also regulated by the American economy of political and religious tolerance that is underwritten by the First Amendment.
All this will probably be cold comfort to American Muslims. Palin and Gingrich, and others like them, are revving up a new round of religious intolerance for political gain using tactics only slightly less abhorrent than Pastor Jones but far more clever and effective.
Even so, the American system of free expression is premised on a hope: that if enough Americans stand up for tolerance and for the rights of Muslims and other religious minorities, if enough of them reject these attempts at whipping up hatred and assert that such tactics are uncalled for in a democratic society, politicians will no longer make them, just as politicians no longer make the sort of overtly racist appeals they were happy to make only half a century ago. It was, after all, as late as 1963, a year before the Civil Rights Act, that George Wallace called for "segregation now, segregation tomorrow, segregation forever!" in his inaugural address as Governor of Alabama. (Wallace, incidentally, called school integration "a boot in the face" rather than a poke in the eye.) But the American economy of political tolerance eventually overcame his demagoguery. Wallace later apologized, in part because his continued viability as a public figure demanded it.
There are genuine limits to what this economy can actually achieve. Some forms of intolerance are simply accepted, because enough people in the country accept them, and think them entirely natural. That does not mean, however, that they are forever immune from change. The economy of free expression is premised on the possibility of changing people's minds. The transformation in American attitudes toward homosexuality is an obvious example, a transformation that is still in the process of developing.
It may take some time for American Muslims to win the same degree of acceptance in the United States that Catholics and Jews have achieved. That is especially so because of the seemingly irresistible temptation for politicians to play on the fears of non-Muslims following 9/11. Nevertheless, we must remember that a Protestant-dominated America was often overtly hostile to Catholics and Jews, only later gave them a grudging acceptance, and still later, bestowed upon them the title of fully American. We can only hope that, as a result of the lessons of civil rights movement, American Muslims will not have to wait so long. Posted
by JB [link]