Sunday, September 19, 2010

Does First Amendment Protect Pregnant Nuns, Burning Qur'ans?

          The United Kingdom, which does not have a First Amendment, recently banned an ad showing a pregnant nun enjoying ice cream. The ad included the language immaculately conceived to describe its fresh ice cream. The ice cream manufacturer said it was using gentle humor to convey the message that ice cream is our religion. The government, however, thought that the ad distorted and mocked the beliefs of Roman Catholics, an especially serious offense during a week in which Pope Benedict made a historic trip to London. And so the ads were banned.
          Meanwhile, in the U.S., where the pregnant nun ads presumably enjoy the protection of the First Amendment, Justice Stephen Breyer has people debating how much constitutional protection burning Qur'ans enjoys. Referring to Justice Oliver Wendell Holmes' famous statement in Schenck v. United States that the "most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," Breyer said in a TV interview, "Holmes said [the First Amendment] doesn't mean you can shout 'fire' in a crowded theater,...Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?" Thus Justice Breyer is not prepared to conclude that -- in the internet age -- the First Amendment condones Qur'an burning
          The Supreme Court, however, has also held that the First Amendment protects burning the American flag as a means of political protest. It has also ruled, in a case involving the Ku Klux Klan, that the First Amendment allows the states to ban cross burning carried out with the intent to intimidate. Political protest is protected but threats are not. 
          Justice Breyer is probably correct that it will take a lot of new cases to resolve the free speech controversies. Unlike in the UK, however, in any case the First Amendment should still allow individuals to distort and mock religion, even if visiting popes find the speech to be offensive. 

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