Tolerance over free speech

Jonathan Turley is a professor of public interest law at George Washington University

The recent exchange between an atheist and a judge in a small courtroom in rural Pennsylvania could have come out of a Dickens novel.

Magisterial District Judge Mark Martin was hearing a case in which an irate Muslim stood accused of attacking an atheist, Ernest Perce, because he was wearing a "Zombie Muhammad" costume on Halloween. Although the judge had "no doubt that the incident occurred," he dismissed the charge of criminal harassment against the Muslim and proceeded to browbeat Perce.

Martin explained that such a costume would have led to Perce's execution in many countries under sharia, or Islamic law, and added that Perce's conduct fell "way outside your bounds of First Amendment rights." The case has caused a national outcry, with many claiming that Martin was applying sharia law over the Constitution - a baseless and unfair claim. But while the ruling certainly doesn't suggest that an American caliphate has gained a foothold in American courts, it was nevertheless part of a disturbing trend. The conflict in Cumberland County between free speech and religious rights is being played out in courts around the world, and free speech is losing.

To put it simply, Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language. Ironically, these laws are defended as fighting for tolerance and pluralism.

After the lethal riots over Danish cartoons in 2005 satirizing Muhammad, various Western countries have joined Middle Eastern countries in charging people with insulting religion. And prosecutions are now moving beyond antireligious speech to antihomosexual or even antihistorical statements. In Canada last year, comedian Guy Earle was found to have violated the human rights of a lesbian couple by making insulting comments at a nightclub.

In Britain, Dale Mcalpine was charged in 2010 with causing "harassment, alarm, or distress" after a gay community police officer overheard him stating that he viewed homosexuality as a sin. The charges were later dropped.

Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger's singing "Kung Fu Fighting." Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one's own risk.

Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.

In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill's author responded, "That's democracy." Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone - the very definition of what the framers of the U.S. Constitution called tyranny of the majority.

It was this tendency that led John Adams to warn: "Democracy ... soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide."

Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to "transmit or display an image" online that is likely to "frighten, intimidate, or cause emotional distress" to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image, but whether others believe it was sent for a "legitimate purpose." This applies even to postings on Facebook or social media.

Judge Martin's comments are disturbing because they reflect the same emerging view of the purpose and, more important, the perils of free speech. Martin told Perce that "our forefathers" did not intend the First Amendment "to piss off other people and cultures." Putting aside the fact that you could throw a stick on any colonial corner and hit three people "pissed off" at Thomas Paine or John Adams, the First Amendment was designed to protect unpopular speech. We do not need a First Amendment to protect popular speech.

The exchange between the judge and the atheist in Mechanicsburg captures the struggle that has existed between free speech and religion for ages. What is different is that it is now a struggle being waged on different terms.

Where governments once punished to achieve obedience, they now punish to achieve tolerance. As free speech recedes in the West, it is not sharia, but silence that is following in its wake.

This article originally appeared in the Los Angeles Times.