Yesterday I described the mayhem that ensued in Sweden and Denmark when a nativist 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. This caused the expected consequences: public ire and violent protests that included overturning buses and throwing Molotov cocktails. (The Muslims, of course, were irate over the burning of their scripture, and perpetrated the violence.) Paludan is continuing his Burn The Qur’an Tour and continues to create mayhem.
However, the Swedish and Danish police protected Paludan, and several readers noted that his acts are not prohibited in Sweden and Denmark, even when they could cause damage to people and property.
The question I posed to readers was this: could burning a Qur’an in the U.S. under some circumstances not be considered Constitutionally protected speech if it led to foreseeable and imminent harm, and if that harm was intended?
Like most readers, I see no issue with burning Qur’ans, but I was posing a hypothetical legal question.
Most readers argued that this “speech” (burning the Qur’an) would be protected in the U.S. even if it was likely to lead to foreseeable and intended violence. You can see readers’ comments here.
However, I wanted a definitive legal opinion, so I consulted a very well known law professor specializing in free-speech and First Amendment issues. His/her answer was that, yes, under some circumstances burning the Qur’an might NOT be protected speech, in which case the burner could be prosecuted. The prof’s response (I’ve added the link), quoted with permission:
According to the Court’s 1969 decision in Brandenburg v. Ohio, which remains a leading precedent, the government cannot punish an individual for engaging in expressive conduct that causes others to engage in violence unless the individual specifically intended to cause that reaction and his speech caused likely and imminent violence. So, whether the right wing Swedish politician could be punished for his conduct would depend on whether the government could prove that causing the violence was his specific intent in burning the Muslim [book] and that the violent response was likely and imminent (and grave).
Now these circumstances may not obtain in the case of Paludan, and proving intent is of course quite difficult. Nevertheless, it is not beyond possibility that someone burning the Qur’an could be punished by the U.S. government for that act under the “imminent violence” provision.
I consider this opinion definitive.
Here’s a recent video of Paludin burning the Qur’an under police protection, and some of the reaction: