VIDEO: Assistant Attorney General Refuses to Rule Out Blasphemy Prosecutions

Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is a New York writer focusing on radical Islam. He is completing a book on the international challenges America faces in the 21st century.


Sharia law in America is one of those crazy things that extremists like Assistant Attorney General Thomas Perez make up when they refuse to answer whether they will criminalize blasphemy or not.

Perez keeps shifting to talking about threats for good reason, because hate crimes are safe ground and because the speech police is trying to move the idea that offending Islamists is a violent act.

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. “The most stringent protection,” he wrote on behalf of a unanimous court, “would not protect a man in falsely shouting fire in a theater and causing a panic.”

I wrote about the Holmes Doctrine push some years ago. It relies on a completely discredited argument that is making a comeback because liberals, who were formerly pretending to be defenders of free speech, want it to make a comeback.

To begin with, Breyer misstated what Holmes had said and what he had meant. In Schenk vs United States, Holmes wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” The key word here is “falsely”. Shouting “fire” in a crowded theater when there really is a fire, is a warning. Shouting it when there is no fire, is a malicious attempt to start a panic.

Schenk vs United States was at least a case in which the defendant’s free speech arguably incited people to commit the illegal act, of dodging the draft. Burning the Koran does not incite people to commit any illegal acts. Schenk urged likeminded people to resist the draft. Refusing to serve was itself illegal, Schenk was encouraging sympathizers to commit an illegal act who would engage in the “stampede” and lead to the “danger” which justified criminalizing Schenk’s speech.

Either Breyer has to argue that burning the Koran will encourage violent assaults on Muslims, an argument that would essentially criminalize all criticism of Islam. Or he has to argue that burning the Koran will result in a backlash of Muslim violence. The latter is easier to prove, but sets an equally disturbing precedent, as it would criminally any speech that could lead Muslims to “stampede through the crowded theater”. A disturbing component of this argument, is that it would hold non-Muslims criminally responsible for Muslim violence.

For example a man walking through a Muslim neighborhood wearing a provocative t-shirt, who is set upon and stabbed by a Muslim, could be charged with inciting the very violence that he was a victim of. Under Felony-Murder laws, people have been charged with the murder of members of their group by law enforcement officers. Since a hate crime is considered a felony, and people have been charged with felony hate crimes for mere arguments, it would essentially become possible to charge people with the murder of one of their group by a Muslim, if they are found guilty of provoking the Muslim.

This is very explosive stuff that the left has decided to play with here. And the left is playing with it.

Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”

Now let’s calibrate that scenario a bit. The KKK announces that it will kill any black man who burns a Confederate flag. A Confederate flag is burned resulting in a riot and several deaths. Does the left really want to arrest a black man for burning that flag? Or does it want to create some magical isolated clause that will only apply to Muslim violence?

Because that is a defacto Blasphemy law.

  • jemaasjr

    Laws that restrict freedom of speech always end up being used to protect the established political order. Always. The Alien and Sedition act was the first one in the United States. It is current news (yesterday) that Nigel Farage was fined for an insult. And guess what, the insult was in the context of a political debate. A political outlier insulting the head of the EU. No doubt Obama is at least as touchy as the head of the EU.

  • Soloview

    The "Holmes" argument has been made by radical Islamists (eg by Zafar Bangash), intimating that blasphemy law falls within its effect. This is a false analogy. Screaming "fire" in a crowded theatre when there is none, indeed cannot be protected by the First Amendment. It endangers the public as its effect will be a rush for the exits in which people may be injured or accidentally killed. The rush itself is a rational response to the utterance. There is no such rational basis in the expectation of rioting to follow blasphemous speech. This is simply an excuse for acting out in an antisocial manner. One cannot excuse a rapist to act on perceived provocation of a woman's attire. By the same token, the claim that one is unable control one's outrage at a religious insult cannot stand as a valid reason for outlawing it.

  • Anamah

    What a crap!

  • objectivefactsmatter

    "Now let’s calibrate that scenario a bit. The KKK announces that it will kill any black man who burns a Confederate flag. A Confederate flag is burned resulting in a riot and several deaths. Does the left really want to arrest a black man for burning that flag? Or does it want to create some magical isolated clause that will only apply to Muslim violence? Because that is a defacto Blasphemy law."

    Exactly. The biggest flaw is placing the Muslims collectively in the position of judging our speech! This only makes sense to people who first identify Muslims as a protected class, and then rationalize the rest of their narratives without working out the initial errors. As I said before, which incitement is truly the source of the problem? The threats of the Muslims, or what they claim to be their inspiration when they actually act on those threats of violence? Give me a break. It is however consistent with reversing every injustice to blame the victim, especially when the culpable individuals belong to official classes of victims. Aren't there also blacks targeting whites in racial attacks that are being suppressed in the media? It's the same idea, but Islam is obviously far more dangerous.

    This is beyond outrageous. This issue alone makes it unquestionably critical to get rid of Obama, now!

  • Edward Clne

    Jemasjr noted that, "Laws that restrict freedom of speech always end up being used to protect the established political order. Always." How true. I discuss this issue in my column, "To Preserve the Peace, or the State?" on Family Security Matters and Rule of Reason. http://www.familysecuritymatters.org/publications

  • JustOneMan

    It is interesting that in the discussion, we loose the core issue. The Federal government should not have a word in what is God given Rights, or the servant State rights. The 1st was explicit that Congress shall make no law. And as is clearly demonstrated if you support one, you offend another. This is the realm of divisive issues and is best dealt with close to home. When the decision rises up to an oligarchy or worse, a dictator, cultures then fail. I vote we return to the 50 laboratories of innovation and their competitiveness will continue to be a light to the world.