You’d think so, but not according to a District Court Judge in Pennsylvania:
There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce.
There’s video of the attack at the link above. Jon Turley was kind enough to provide a transcript of some of the Judge’s remarks, which, while admirable in terms of its purported respect for the Muslim culture, is nonetheless an abjectly grotesque butchering of the jurisprudence and history of the First Amendment:
In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.
Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.
I don’t know how else to grapple with this other than to simply point out that the judge got the law blatantly and utterly wrong. Here is Justice Brennan writing for the majority in Texas v. Johnson, 491 U.S. 397 (1989):
A principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
Jon Turley, who represented Dr. Ali Al-Timimi when he was charged with inciting violence against the government, is on the same page:
I fail to see the relevance of the victim’s attitude toward Muslims or religion generally. He had a protected right to walk in the parade and not be assaulted for his views. While the judge laments that “[i]t’s unfortunate that some people use the First Amendment to deliberately provoke others,” that is precisely what the Framers had in mind if Thomas Paine is any measure.
There is absolutely no affirmative defense to the crime of assault that involves invoking your First Amendment right to religion. Your religious beliefs cannot and will not ever justify physically attacking someone on the grounds that the content of their speech is deeply offensive to you. This is a concept so deeply ingrained in our legal history that even the most egregious offenses against a 3rd party’s morals and/or conscience cannot be made to justify a violent response.
Hence the reason why the Supreme Court ruled 8-1 in favor of the Westboro Baptist Church when they were sued for protesting at the funeral of a dead American soldier, despite the fact that it was unquestionably offensive to the friends and family of the deceased, and many of them would’ve probably liked to punch the WBC protesters in the face. And hence the reason why the Court held in Texas v. Johnson that your right to burn an American flag is constitutionally protected speech, despite the fact that it unquestionably deeply offends people who believe with conviction that the flag represents a body of morals, ideals and beliefs that are worth dying for; that it is not just “another symbol,” and that it is the closest thing to a sacred symbol one can find in American civic culture; to the point where an offended person would undoubtedly have violent designs if you sullied its visage in their presence.
What bothers me most about this case is that it will inevitably be misconstrued by good-faith advocates for the Muslim community and Islamophobes alike. There will be those in the former camp who will probably sympathize with the man who attacked the protester, and blame the protester for purposefully inciting the passion of devout Muslims. The latter will undoubtedly use the judge’s ill-advised diatribe and the violent act of the Muslim attacker as evidence that Islamic values are in fact incompatible with American society, and will use this incident as yet another anecdote to justify the imposition of intolerable discrimination and cruelties against the broader Muslim community (such as the Park 51 controversy).
And therein lies the issue: allowing this sort of violence to stand makes it more difficult to soothe the American body-politic’s trenchant Islamophobia by sending a dubious message: the law will not protect you if you say or do something that is offensive to a devout Muslim. That is the wrong message to send if we are trying to get people to eschew their parochial fear of Islamic culture and replace it with cosmopolitan cultural values.
That’s why it is so imperative that we apply the law equally in cases like this. The line is simple and clearly drawn: you don’t get to hit people for saying something that offends you. It does not matter that your offense comes from deeply and sincerely held religious convictions, or strong secular ideological prescriptions. You don’t get to use violence to vindicate your offended conscience. It cannot be gainsaid that we would not likely tolerate this from a member of a different faith. We most certainly would not tolerate it if the attacker was an Agnostic or Atheist vindicating a strongly-held secular moral prescription. Why then, permit of an exception for Muslims? Does it not show a deep condescension to the innate morality of Muslim believers that they can’t be expected to restrain themselves from violence if their convictions are impugned?
Protecting the rights of Muslim Americans, and destroying the shibboleths of Islamophobia in America means we must reject the invitation to make exceptions for those who would use faith as an excuse to do violence to others. We are constantly fighting against a politics which asserts: “All Muslims are like this.” No, they clearly aren’t. But if the law assumes that they are, then the struggle to achieve social equality and respect for Muslim Americans is already lost. Permitting of such exceptions is both absurd and dangerous, and we should reject the invitation to carve out any exception in the law that leads us inexorably down that path.