Legal Commentary

Jack Balkin comments on Rev. Terry Jones's planned Koran-burning ritual this weekend (Update: Which may not occur after all this noise--or not--depending). Much of Jack's piece is an explanation of why book-burning is constitutionally protected, in keeping with what he calls the "economy of speech" and the belief that "approval and disapproval of speech in the public sphere . . . will eventually solve the problem of intolerance in democratic life." This approach contrasts sharply with the system in other countries, which seek to instantiate tolerance by prohibiting certain intolerant speech.

Balkin notes that many of the people who have been whipping up anti-Muslim resentment recently (primarily over the Muslim cultural center near Ground Zero--Balkin calls out Newt Gingrich and Sarah Palin) have denounced Jones's planned event. They "have realized that supporting book burning is a bridge too far." Palin, he argues, understand "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 . . .. [and] is also regulated by the American economy of political and religious tolerance that is underwritten by the First Amendment." (Of course, in calling on Rev. Jones not to go through with the book burning, Palin likened this event in its offensiveness to the building of the cultural center in New York (which she has been saying should be moved). So she has not exactly become a real religious pluralist.).

But this calls up something I raised in the comments to Paul's post on book-burning and "un-Americanism": Precisely what is the objection to the planned event? Is it that they are burning books? And if so, what, exactly is the unique problem with burning books--is it an objection to the manner of expression or does book burning express a unique, even-more anti-Islam message. Balkin seems to suggest the latter, calling book burning "the very symbol of religious intolerance in America." In truth, of course, message and manner cannot be so easily separated--the manner of expressing an idea is part of the idea and a different manner of expression sends a slightly different message.

But suppose Jones were presenting his message in a different manner--say, a march and rally featuring speeches and signs featuring every anti-Islam and anti-Muslim slur imaginable, with cartoons of the Prophet and calls for a "Tenth Crusade" so the Christians can carry out God's will by wiping Islam from the face of America and the World. Would Jones have gotten nearly so much attention? Is burning the Koran more anti-Islam--more the symbol of religious intolerance--than the rally I imagine? Would such a rally still be a bridge too far, so that even those stoking flames against the "Muslim Enemy" would recoil? Would Palin have called on Jones to "stand-down" from such a rally? Would the media have gotten so caught up in this craziness? Would the President and Secretary of Defense be calling on Jones to cancel the rally, citing fears of anti-American backlash overseas and a "recruitment bonanza" for Islamist terror groups?

If the answer to these questions is no, then I would suggest that we have become unduly distracted by manner over ideas and thus are missing the broader point about religious tolerance and pluralism. We are paying special attention to this one instance of intolerant anti-Islam expression, while ignoring other instances that may be just as problematic in the ideas expressed. This has several troubling effects. First, it publicizes and elevates Jones above other demagogues, giving his message more public attention and notoriety than it otherwise would have gained. Jones--by all accounts the fringe head of a small fringe group--has been turned into a major voice in this debate entitled to a seat at the table, simply because of the heightened response to his chosen manner of expression. Secretary Gates called Jones personally on Thursday. His becomes a powerful voice--one to which even the President and his cabinet listen and feel the need to respond. Second, it enables these other demagogues--spewing equally hateful anti-Islam messages that are as troubling as intolerant--to pass under the radar of the "public sphere's" checks against intolerant messages that Balkin argues is what the First Amendment relies on. Finally, it allows people such as Palin and Gingrich to look as if they are standing up for First Amendment values when they likely would not say a word about an identically anti-Islam message expressed in a different, less-visceral way.

If the answer is yes, then reports that Rev. Jones will cancel the event based on new assurances that the New York center will be moved and a proposed meeting on the matter become even-more problematic (assuming the assurances are true and not a product of Jones's delusions of grandeur). Because it means the lowest common denominator among a whole host of demagogues has succeeded in his efforts.