How free is free?

For the last couple of days, the fight over Terry Jones (the Koran-burning minister) and his efforts to hold a rally in front of a Dearborn mosque have occupied the front pages of the Detroit Free Press.

As a First Amendment literalist, I see this as a simple matter of free speech. Jones has every right to go there and say anything he wants, and he has the right to burn a Koran right there in front of the mosque as long as he is on a public street. Similarly, the Ku Klux Klan has a right to hold a rally in Detroit. 

The First Amendment does not contain exceptions for irritating, offensive, or inflammatory speech. Period.

Of course, there is the interesting question of who pays. The legal wrangling in Dearborn involves not only the attempt to stop Jones from speaking in front of the Islamic Center (which I think is dead wrong), but whether he can be required to pay $46,000 in security costs for being allowed to speak at all:

A battle over free speech played out Thursday in Dearborn as Quran-burning Pastor Terry Jones arrived in metro Detroit to make his bid to protest today in front of the largest mosque in Dearborn. And questions remained as to whether the pastor would be able to carry out his plan.

Dearborn officials and Wayne County prosecutors sought to convince Jones to post a bond for security costs if he wants to protest in Dearborn. And they urged him to rally not at the Islamic Center of America — his desired spot — but instead in front of their City Hall or civic center.

With his courtroom packed with police and reporters, Dearborn District Judge Mark Somers sided with government officials, finding their arguments compelling. The officials argued that for logistical and security reasons, Jones should not be allowed to rally at the Islamic center.

Jones declined to post the bond, prompting the judge to order a jury trial for 8:30 a.m. today that will decide whether Jones has to pay to hold his rally this evening. Dearborn police say they would have to pay an extra $46,000 in security for the protest.

OK, right there I see a problem. Requiring a large sum of money as a precondition of free speech constitutes a flagrant violation of the First Amendment. 

I’m glad to see that the ACLU is supporting Jones:

Earlier Thursday, the American Civil Liberties Union of Michigan and others criticized authorities, saying they were wrongly denying Jones his constitutional rights.

The government should “not impinge on a person’s right to protest, even when their speech is as distasteful and offensive as Rev. Jones’ is,” said Rana Elmir, communications director for the Michigan ACLU. “We should combat hate speech with more speech.”

Dearborn Police Chief Ron Haddad said there are serious problems with having Jones protest outside the Islamic Center, noting that Jones has received numerous death threats and has a $1.2-million bounty on his head from a Pakistan-based terrorist group.

Moreover, the mosque is surrounded by several churches that have Good Friday services, making traffic an issue, he argued. The site also is logistically a challenge because of a lack of pedestrian and vehicle access, he said.

The city already has denied Jones a permit to protest — a decision that might have to be revisited today after the trial.

“It would have been chaos,” Dearborn Mayor Jack O’Reilly Jr. said Thursday.

There’s no denying that there might be chaos. So what? There would probably be chaos if the Nazis or the Klan were to hold a rally, but that has nothing to do with free speech.

Where tends to confuse people is the security cost. The government has a duty to protect the public, and whether they can do their job properly or not is an issue independent of the First Amendment. Isn’t the talk about the cost of security mixing apples and oranges?

When he discussed Koran burning recently, Glenn Reynolds described his sentiments as in line with Cohen v. California.

From the Wiki entry:

On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket bearing the words “Fuck the Draft” inside the Los Angeles Courthouse. Inside the court room he had the jacket folded over his arm, only after exiting the room he put the jacket on and was then arrested. He was convicted of violating section 415 of the California Penal Code, which prohibited “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct.”

The Supreme Court held as follows:

“[A]bsent a more particularized and compelling reason for its actions,” it said, “the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.”^[1] In his opinion Justice Harlan famously wrote “one man’s vulgarity is another’s lyric.”^[2]

Let’s suppose that the “FUCK THE DRAFT” jacket had outraged patriotic citizens enough for them to have violently assaulted Cohen. The police would have had a duty to protect him, just as they would any other citizen who was engaged in legal, constitutionally protected conduct. The level of emotions that might be raised is irrelevant. Even if someone wore a t-shirt with the n-word, or a slogan like “SUPPORT NAMBLA,” the police would still have to protect them from violent assault the same way they would anyone else. They have no right to evaluate the inflammatory nature of the message, and bill people in advance for the privilege of displaying it, because that would be inconsistent with the First Amendment.

So, I see no way they can constitutionally demand a security bond from Terry Jones.

Absolutist that I am, the First Amendment is silent about who has to pay the somtimes high cost of inflammatory speakers.

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.

While requiring the payment of a bond would abridge freedom of speech, what about doing absolutely nothing to protect the speaker and/or the public? Suppose a bankrupt city like Detroitwas faced with an impending Klan rally. Could they just tell the Klan that the police would do nothing and that the rally would be at the Klan’s and the public’s own risk? Or do they have to guarantee safety for all, no matter what the cost?

While the First Amendment is silent as to cost, could a case be made that refusing to police an event would constitute an abridgement of speech? 

I don’t know the answer, but I am curious.

Having your city visited by guys like Terry Jones and Fred Phelps can get expensive, especially in these days of budgetary woes.

Taking a broad general view, though, I think it is fair to point out that Dearborn has been all but asking for a visit from Jones.

And what would Henry Ford say? The town he founded is no stranger to inflammatory rhetoric; thanks to Ford’s tract being a best-seller in the Mideast, Dearborn is known around the world.  

Free speech has many facets.

MORE: The latest news is an outrage. In a mockery of the First Amendment,  Dearborn jury has “ruled” that allowing the rally would “breach the peace”:

A judge late today sent two Florida pastors to jail for refusing to post a $1 bond. After a short time in jail they left on $1 bond each.

The stunning developments came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn.

Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set
bond at $1 each for the two pastors. They refused to pay. And Somers ordered them remanded to jail.

Chaos broke out outside court as opposing factions yelled at each other. Jones and Sapp were led out of court by Dearborn police. That left Jones’ supporters stunned, given that he hadn’t even attempted to go to the mosque yet.

According to the Wayne County prosecutor’s office, both Jones and Sapp are prohibited by the court from going to the mosque or adjacent property for three years.

This is not the sort of thing that is up to a jury. The jury simply decided — based on their perception of the content of the speech — that it should not be allowed.

We have the First Amendment to prevent such injustices. It is not for a jury to decide what sort of speech is acceptable in America.

The morons are acting as if the whole point is Terry Jones and what he says.

Who he is and what he says has nothing to do with it.

Appalling.

It’s bad day for free speech in America, but I predict this will be overturned in a higher court.

I don’t know why people keep confusing the right to free speech with whether the speech in question is right, but they do.

The case reflects a huge failure to impart basic civics in this country.

MORE: Eugene Volokh calls the decision “a pretty clear violation of the would-be demonstrators’ First Amendment rights” and predicts it will be overturned.