Here’s one of those hard free-speech cases, and it’s hard for even a diehard free-speecher like me. It comes from the Wall Street Journal (a news piece, not an op-ed); click to read:
This bears on freedom of speech, although Sweden has no U.S.-style First Amendment and I don’t know how they’d regard a case like this. Instead, I’d like readers to weigh in as if this case were in the U.S.
The skinny: Swedish/Danish right-wing politician Rasmus Paludan, head of Denmark’s anti-immigrant Hard Line Party, set fire to a Qur’an live on Facebook last month. He then announced that he was going to tour Sweden over Easter Weekend burning Qurans: a tour with burnings in different Swedish cities.
Now this is clearly a provocation and, if anything qualifies as “Islamophobia,” this does. It’s not that he has theological disagreements with Muslims, but is simply trying to provoke them by burning their sacred book. He is anti-immigrant, and most immigrants in Sweden are Muslim.
And provoke them he did: the April 18 WSJ reports just the threat of such a tour incited violence:
Police in Sweden said Monday they have arrested dozens of people following clashes over plans by a far-right Scandinavian politician to burn a Quran over Easter weekend.
Over the weekend, people rioted in several cities, throwing Molotov cocktails at emergency vehicles and burning trash cans and a municipal bus.
Four people were injured Sunday when police fired what they said were warning shots above the crowd. One of the people was a police officer who was lightly injured during the clash, said Asa Willsund, spokeswoman for the police department in the East Sweden region.
. . . .Since Thursday [April 14], there have been recurring protests and counterprotests on the stops of his tour, several of which have turned violent.
The riots turned the country’s political attention back onto longstanding tensions between Sweden’s immigrant population, which is largely Muslim, and nationalist parties opposed to Muslim immigration into the country. Sweden’s leadership has been largely focused on Russia’s invasion of Ukraine as the country considers renouncing centuries of neutrality to join the U.S.-led North Atlantic Treaty Organization.
On Friday evening, Mr. Paludan’s supporters clashed with protesters in the central city of Orebro. The clashes spread into a broader riot, with 12 police officers injured and four emergency vehicles set on fire. On Saturday, hundreds of mostly young male protesters rioted in the cities of Malmo and Landskrona in southern Sweden, burning trash cans and throwing Molotov cocktails at police vehicles.
The riots prompted Mr. Paludan to cancel his stop in Landskrona, his party said on Facebook, saying the Swedish state could no longer guarantee his safety.
“We have seen violent riots before. But this is something else,” said National Police Chief Anders Thornberg. “It is serious violence against life and property, especially against police officers. It is very worrying and we will take strong countermeasures. This should not continue.”
I note that in a report from May 13 in The Daily Sabah, Paludan is continuing the Burning Tour—under police protection:
The leader of the far-right Danish party Stram Kurs (Hard Line) burned another copy of the Holy Quran on Thursday under police protection in Sweden.
Rasmus Paludan, who has dual Danish and Swedish citizenship, recently burned copies of the Quran in the Frolunda, Boras and Trollhattan regions of the southwestern province of Vastergotland, which has a large population of Muslim residents.
Around 100 police officers, as well as 10 plainclothes officers from the Swedish intelligence agency SAPO, accompanied Paludan to protect him against counter-demonstrators.
. . .Paludan has burnt the holy book in various cities in Denmark since 2017.
He continued his provocations under police protection during the holy Islamic month of Ramadan this year near neighborhoods home to Muslims and mosques.
Riots broke out in the cities Malmo, Norrkoping and Jonkoping as well as in the capital Stockholm, leaving 125 police vehicles damaged and 34 officers injured, while 13 people were detained.
Now it’s clear from these reports that burning the Qur’an is not a criminal offense in either Sweden or Denmark, for the police protect the burners from the rioters. And I know that burning the Bible is not a violation of the First Amendment in the U.S., either. Here it’s usually done not to provoke, but to make a statement about Christianity. But intent doesn’t matter: what matters to the First Amendment is the likely outcome if violence could be imminent.
Because Muslims are far more easily inflamed by the burning of their sacred scriptures than are Christians, one could argue that burning a Qur’an in front of a group of Muslims in the U.S. violates the First Amendment because it will provoke predictable and imminent violence. As the Brittanica notes, this is “incitement,” and could be construed as one of the exceptions to the First Amendment (the short article on “permissible restrictions on expression” is a good primer on what speech is not protected):
As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building). But speech urging action at some unspecified future time may not be forbidden.
But this raises a First-Amendment problem. Perhaps it’s legal to burn the Qur’an on the Internet or in front of a group of like-minded bigots (see this article for that opinion), but is it permissible to burn it in front of a group of Muslims leaving the mosque on Friday? The latter is almost guaranteed to produce imminent lawless action, as it did in Sweden and Denmark. Would that make such public burnings illegal in America, but only those burnings that will inflame a certain group of religious people?
This may already have been adjudicated in the courts, but I don’t know. and can’t be arsed to find out. I tend to side with Sweden and Denmark here, as I think that no holy books are off limits from criticism, and that includes burning. But on the other hand, burning the Qur’an may be inciting imminent and predictable lawless action while burning the Bible or the Bhagavad Gita will not.
Of course burning the Qur’an the way Paludan did is an expression of bigotry, but even bigotry is permitted under the First Amendment. Here we have a situation in which, in principle, the same action may be either permitted speech or impermissible speech, depending on the religious group at hand. I suspect that what Paludin did would be legal in the U.S., but I don’t know.
Do weigh in with your opinion: Does an act like Paludan’s constitute impermissible speech when performed in front of one group of believers, but not another (Christians)?