That dramatic event in prospect, the burning of Korans by Pastor Terry Jones and his merry band, became far larger as a story than it could ever have been as a real happening. That pseudo-event has now been canceled. But it is still worth reflecting on, because it reminded us of the rather unlovely shaping of the law, by conservative as well as liberal judges, over the past forty years.
The roster of opposition got longer day by day: Sarah Palin and Glenn Beck joined the clergymen coming together to denounce Pastor Jones and his plans for an excellent adventure. The clergymen struck a tone of moral outrage, along with claims of high principle in defending religious freedom, and so it was plain that they had no trouble in pronouncing the plans of Pastor Jones deeply “wrong.”
And yet, the clergymen, along with Glenn Beck and the ever-present Mayor Bloomberg, were quite as emphatic in acknowledging that Jones had a “right”—a “perfect right,” some said—to do what he planned to do. Robert Gibbs, speaking at the White House, remarked that this event would have violated “every value” that marked America.
But surely there could not have been a clearer sign of the tendency of jurisprudence in our own time to detach the law so sharply from the moral ground that justifies—and limits—the making of laws. Or to put it another way, to detach what is “morally right” from what is “legally right.” That detachment increasingly raises a problem of coherence for the law—as it did for the clergymen, who insisted on denouncing as deeply “wrongful” what they took as eminently “rightful” in the eyes of the law.
The clue to the problem should spring out as soon as we run through the precedents: the burning of draft cards, then the burning of the American flag, and finally the burning of crosses outside the homes of black families. It took no small inversion of the moral sense of the law for justices of the Supreme Court to talk themselves into this line of cases, so that even conservative jurists could persuade themselves that there is nothing less than a constitutional right to burn crosses in a gesture of assault and intimidation; that the law somehow lacks the standards for judging the “content” of speech.
Mark Russell once told the story of the Unitarians who move into a Southern town, and the bigots come in the night to burn on their lawn . . . a large question mark. Not all that long ago the law could tell the difference between the burning of the question mark and the burning of the cross outside the home of the black family, newly moved into the neighborhood. The law could do that because it could draw on the clearest things taught in linguistics about the meaning of words and symbols.
It was simply in the nature of human beings, as moral creatures, to commend and condemn, to applaud and deride, and the words that carried these functions had to be clear at any time. Justice Frank Murphy could write in the classic case of Chaplinsky v. New Hampshire (1942), of those “insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Murphy drew on the ancient recognition that an “assault” in the law did not require the laying on of hands. One could point an unloaded gun and pull the trigger, or use a loaded gun and deliberately miss.
Verbal assaults, designed to frighten and intimidate, were every bit as much “assaults” in the eyes of the law. And there was nothing subjective about the standards, for they were drawn from what ordinary people would understand in “ordinary usage.” A jury could be told: convict only if the expression was clearly established as a term of insult and denigration, and in case of doubt, do not convict.
Try it even now. Which of these words would be identified clearly as terms of insult, and which would be on the borderline of derision or innocence: nigger, kike, meter maid, dentist, saint.
The critical turn came in the law in 1971, in Cohen v. California, when Justice John Marshall Harlan pronounced that now famous line that “one man’s vulgarity is another’s lyric.” For Harlan the meaning of these charged words was entirely subjective and emotive, without substantive content. And so he could not judge whether it was offensive for young Mr. Cohen to walk into a courthouse in Los Angeles with a jacket bearing the inscription “F—k the Draft.”
But at the same time he was certain that Cohen was engaged in political speech, and therefore that his speech should be protected. Yet, if the meaning of words was so subjective, how did Harlan know that the speech was “political”? Answer: because he knew that the speech condemned the draft. But if judges could discern the moral functions of commending and attacking, they could just as plainly identify the functions of defaming and assaulting.
Ten years later vandals painted swastikas on the wall of the Shaare Tefila synagogue in Silver Spring, Maryland. The matter could have been handled simply as a defacement of property. It would have been a defacement of property even if the vandals had painted on the walls excerpts from the Declaration of Independence.
The federal government treated the matter rather more seriously, under the Civil Rights Acts, as an assault on a racial group. But how did the prosecutors know that this was a racial assault? Only because they could decode the meaning of a swastika on the wall of a synagogue. In other words, there was nothing merely “subjective” in the meaning of symbols and words, in the context in which they were employed.
Justice Murphy had pointed out in the old Chaplinsky case that these assaulting gestures and symbols were so gross, so detached from analytic prose, that they were not strictly necessary to the exposition of any argument. And so they could be barred without producing the slightest diminution in the freedom to make any substantive argument in politics.
Chief Justice Burger once imagined a couple having sexual intercourse on the steps of City Hall in New York for the sake of making a political statement. If they were barred from that assault on the sensibilities of the public, they would not suffer the slightest restriction in their freedom to make the most serious, impassioned argument against the Administration of Giuliani or Bloomberg.
In the case of Pastor Jones and his critics among the clergy and the politicians, the upshot is this: that the law was once able to restrain the antics of a Terry Jones, as it was able to restrain the burning of crosses, without abridging in any way the freedom of speech or religion.
Commentators make the most profound mistake then when they argue that, if people were constrained from burning crosses or Korans, freedom of speech would be imperiled. That kind of confusion simply reflects the way in which judges have misshapen the law, and misshapen at the same time the understanding of lawyers.
Ordinary folk, without college degrees, can discriminate with high sensitivity the gestures and words of assault—they know when they are being treated flippantly or insulted. The law, taking its measure from common sense, did not think it was incapable of making the discriminations that truck drivers and construction workers have no trouble in making.
It is another irony that the people on the Left who have been trumpeting the rightful freedom of Pastor Jones to express himself are the same people who have shown no constitutional scruples in legislating in a free-wheeling way about “hate speech,” quite detached from the standards that once confined the meaning of “fighting words.”
When those new laws are used to punish students for opposing same-sex marriage, or priests for preaching against the homosexual life, the purpose is not to block vulgar epithets and assaults. The purpose, plainly, is to intimidate into silence the people who will not accept the new orthodoxy that the authorities are pleased to impose with the levers of the law.
That is not an example of what the law may do when it would cast judgments on acts of speech. It is an example, rather, of what the law may do when it is detached from any serious discipline of moral reasoning.
Hadley Arkes, a member of First Things’ editorial board, is the Edward Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths (Cambridge University Press). His most recent articles for “On the Square” are Mr. Justice Breyer Writes a Dissenting Opinion and Vast Dangers—Confirmed.