Firing a Qur'an in a Crowded Theater

A letter writer in the April 5 Star Tribune wrote that burning a Qur'an is not protected speech, but should, instead, be considered the same type of act as falsely shouting fire in a crowded theater.

Ironically, the case where Oliver Wendell Holmes used the "fire" analogy was Schenck v. United States, 1919, where the government prosecuted an anti-draft leafletter during World War I. Holmes and the Court found that the leaflets presented a "clear and present danger" to the government's war effort.

From the Wikipedia:

The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).

The Wikipedia also reminded me that:

In A People's History of the United States, Howard Zinn suggested that Schenck's statements were more akin to a person standing outside a burning theater and shouting "Fire!" in order to warn people not to go inside. In other words Europe was the theater, and World War I was the fire, thus warning the American population to not become involved.

Since the Brandenburg decision, the standard has been imminent lawless action as caused by the speech or act.

So what about Qur'an burning? Is it any different from cross-burning, Bible-burning, or flag-burning?

In 2003, the Supreme Court ruled that cross-burning is protected speech unless its purpose is proven to be intimidation of the intended viewer. I assume that by intimidation they meant the implied threat of personal violence and property damage that has historically accompanied cross-burning. I don't know how hard it is to prove that type of intention beyond a reasonable doubt; I wonder if any cases have come forward since 2003?

Flag-burning, to me, clearly should be protected... no matter which flag it is, or where it happens. It's not about intimidation at all. The intent of flag-burning could be to insult the society whose flag it is, but it also can easily be meant to express wordless rage at that society. It shouldn't be done lightly, in my opinion, because it brings such a visceral response (and extravagantly negative media coverage). I would never burn a flag, U.S. or otherwise, but I think it clearly can be an expression of speech.

The intent of burning a Qur'an, it seems to me, is not so much intimidation or wordless rage, as it is extreme insult, similar to spitting on the book or grinding it into the dirt. But because flame is the medium, it also destroys it, the ultimate insult. Burning a Bible or any other holy book would be very similar. (And since just about all books are holy to me, that rubric goes a long way.)

But what brings us to the Holmes quote about theaters, or more accurately the imminent lawless action standard, is the reaction to the burning. Is the person who burns responsible for knowing what the reaction to his act is likely to be? A person who falsely shouts fire in a crowded theater can reasonably be expected to know that a stampede will occur.

Would Muslim and Christian riots be the same? What if the riot isn't in the U.S.? Justice Stephen Breyer was quoted as ruminating on this question: "What is a crowded theater today?", implying that, in the age of the Internet, the whole world is the theater.

Science blogger Ed Brayton responded to Breyer's pondering like this:

In the theater hypothetical, it is people acting out of fear that leads to a potentially deadly result; in a situation where someone might react violently to someone burning a Quran, those people are acting for the specific purpose of denying someone their right to express an idea they don't like. In the latter case, it is the job of the government to protect the speaker against a violent response to the expression of their views, not to enforce the anti-speech views of the mob reacting to them.

The case becomes clearer for me if the cause of the riot is something like drawing a picture of someone else's god, whether disrespectfully rendered or not. I'm not prepared to give up that right, even if it does cause a riot.

But why does the fact that burning is involved seem significant to me? The key is the nature of the two acts: drawing is at least minimally creative, bringing a new idea to the exchange of thoughts, while burning can only be destructive. That seems important.

On the other hand, I can see that an unintended consequence of banning the burning of holy books, out of fear of violent reactions, will likely result in more frequent violent reactions to every perceived affront, as a way to restrict speech all the more. And generally, such a ban seems counter to the part of the Supreme Court's ruling in Schenk that the banned act must be directed to the illegal outcome -- in other words, that urging others to illegality was the intent of the burner. Brayton's point that it's the burner who needs to be protected, not the book, resonates with me as well.

Hmm. It's something to be decided by people who are smarter than me, that's for sure.