Freedom of expression: Beyond the language of law

Shocking opinions

In the early hours of June 21, 1990, a group of teenagers in St Paul, Minnesota, put together a cross from the legs of some broken chairs. The ringleader of the group then took his friends outside and across the street into the front yard of his neighbours, an African American family.

The teenagers set the cross on fire inside the yard as an expression of racial hatred. Before long, the police arrived and the ringleader of the group was charged with a crime under St Paul’s Bias Motivated Crime Ordinance. The law mandated that anyone who placed any sort of object or graffiti on private or public property that was intended to arouse anger, resentment or alarm on the “basis of race, colour, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanour”. The individuals involved were charged accordingly.

The case RAV vs City of St Paul was heard by the US Supreme Court on the issue of whether the city’s anti-bias ordinance was allowed under the First Amendment of the US constitution. Justice Scalia, delivering the opinion of the court, deemed the law unconstitutional because it impermissibly restricted political speech.

The court’s opinion declared that under the First Amendment of the US constitution, no limits may be placed on speech when they referred to the content of the speech in question, making it impermissible to ban the burning of a cross or an American flag. The only exception to this rule, the court declared, were actual threats against specific people which would then come under ensuring safety rather than political speech. For a curb to be placed the danger must be imminent and specifically intended rather than a general threat. Under the court’s decision, the teenagers could not be charged with any crime because the anti-bias ordinance was itself unconstitutional.

The RAV vs City of St Paul case is illustrative of a cornerstone of American jurisprudence: the inability of government institutions to legally limit freedom of speech or expression even when it causes deep offence and hurt to members of a religious or racial group.

Interestingly, the same First Amendment that prevents state institutions from limiting political speech also makes it legally impossible for them to interfere in the free exercise of religious faith in the public sphere. For example, the governor of New York, David Patterson, is opposed to the construction of the Islamic cultural centre in Lower Manhattan. However, the First Amendment that prohibits limits on speech also prohibits limits on the free exercise of religion on private property.

As these two examples illustrate, the First Amendment is a double-edged sword. It states specifically that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

As interpreted through centuries of American jurisprudence, it enables the expression of opinions and attitudes however repugnant and abhorrent they may be to the sensibilities of some. At the same time it also allows religious minorities, such as American Muslims, the ability to build their places of worship on private property regardless of how many Americans oppose the project due to their own sensitivities.

Hypothetically, if American Muslims were able to win a case that allowed the burning of Islamic scriptures to be declared illegal, similar victories could be won by those who wished to prevent the construction of mosques.

American law, specifically constitutional jurisprudence, has long been a bulwark with which religious and racial minorities have constructed their freedoms even when social and political events render their beliefs repugnant to the majority. The American legal system thus is the last rampart of protection for a minority that is unlikely to ever have the power of numbers at the ballot box.

The recent controversies confronted by American Muslims regarding the construction of their places of worship demonstrate their precarious political position.

Few politicians in either the Democratic or the Republican parties have chosen to be vocal against growing Islamophobia. Recent statements by prominent Democrat leaders such as Harry Reid and Governor David Patterson substantiate the premise that American Muslims are orphans at the ballot box, with neither party welcoming their support. Despite the fact that they number at least two to three million, few American politicians are interested in obtaining their votes at the risk of appearing too pro-Muslim.

These developments are also paving the way for the normalisation of Islamophobia as a valid intellectual position. The actions proposed by Pastor Terry Jones were easy to condemn given their obvious hate-filled agenda. More pernicious are comments such as those made by Martin Peretz, editor-in-chief of The New Republic, a prominent publication of the American left. Writing on Sept 4, Mr Peretz said: “Muslim life is cheap, particularly to Muslims” and “I wonder whether I need to honour these people and pretend that they are worthy of the privileges of the First Amendment which I have in my gut the sense that they will abuse”.

Fortunately for American Muslims, it isn’t up to Mr Peretz to decide whether or not they are deserving of First Amendment protections. Not quite so fortunate is the fact that he is part of the growing number of intellectuals, mostly on the right but now also on the American left, that wish to paint prejudice and racism against Muslims as politically permissible.

The challenges American Muslims face, therefore, are legal, political and intellectual. In relying on legal elements to forestall impediments in the way of religious practice, Muslims are retracing the footsteps of earlier American minorities that faced similar challenges. The political and intellectual challenges, however, represent more complicated phenomena whose global dimensions and complex trajectories represent problems that demand innovative solutions beyond the language of the law.

(Photo: Dan Nguyen)

Rafia Zakaria is Associate Editor of and an attorney who teaches constitutional history and political philosophy. This article was previously published in Dawn (Pakistan).

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