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A United States Attorney in Tennessee apparently thinks that the First Amendment to the Constitution has been repealed. Multiple news outlets are reporting [1] that Bill Killian, the US Attorney for the Eastern District of Tennessee, thinks that criticisms or attacks on Islam might violate federal civil rights laws.
Bizarrely enough, Killian seems to have made the remarks as part of an effort to educate Muslims about their rights under federal law. It is obvious that Killian needs to be educated about the constitutional rights that all Americans have, including the right to free speech and freedom of religion.
Free Speech Now Illegal?
What exactly would constitute hate speech under Mr. Killian’s criteria? Byron Tau of the Politico website [2] gave one example. Killian believed that Barry West, a county commissioner in Coffee County, Tenn., should be prosecuted for posting a picture of a farmer pointing a double barreled shotgun at the camera and the words “How to Wink at a Muslim” on his Facebook page [3].
The photo is certainly in bad taste, and the attitude betrayed is absolutely loathsome, but it is not illegal. It is an attempt at humor and satire and is therefore permissible speech. West should certainly be criticized for this, but his speech is protected under the Constitution.
Where will this end? Would Mr. Killian prosecute South Park creators Matt Stone and Trey Parker? Their cartoons regularly make fun of religious figures, including the Prophet Mohamed, Jesus Christ, and Mormon founder John Smith. Is satire now illegal in the United States of America?
Will ministers or preachers who give sermons criticizing Islam be prosecuted? Then why stop at Islam? Why not prosecute Stone and Parker for their play The Book of Mormon, which pokes fun at Mormonism? After all, Stone and Parker are violating Mormons’ civil rights under Killian’s thinking.
Note to Killian: civil rights violations consist of actions such as locking citizens in concentration camps or confiscating their property, not in staying stupid things on Facebook or anyplace else.
No Federal Assault on Free Speech Planned
Fortunately, Killian’s thinking, which appears to be based on political correctness, doesn’t appear to be a federal policy. When Politico’s Byron Tau contacted the Justice Department for comment, he got no response. Apparently, Killian is speaking for himself, or his statement is just so stupid that the Justice Department doesn’t want to respond to it.
Nor is there any evidence that Killian or anybody else at the Justice Department is planning to prosecute persons for making anti-Muslim statements online. Instead, this simply gives us a window on the politically correct worldview. Those who subscribe to such thinking believe that words are just as destructive as actions.
In an interview [4] with the Tullahoma News newspaper, Killian only said that some people who post inflammatory documents targeted at Muslims online could be prosecuted. He did not mention any specific law that gives him the power to do so. Instead, he simply mentioned so-called hate speech, which he thinks has inspired violent outrages in the past.
That’s particularly bothersome in itself. A federal attorney is talking about expanding the scope of federal prosecution, but he cannot cite any law or legal precedents to base his actions on. Probably because there are none – Killian’s statements run counter to 200 years of America constitutional law and expanding civil rights legislation.
They are also in direct violation of the First Amendment, which clearly grants freedom of speech. The courts have long ruled that offensive or potentially offensive speech enjoys the same protections as other speech. That’s important because almost anything anybody says can be found offensive by somebody.
Worst of all, the interview was done to promote an event called “Public Disclosure in a Diverse Society” that was held at the Manchester-Coffee County Conference Center on June 4. The event, hosted by the American Muslim Advisory Council of Tennessee, was described an educational effort on civil rights laws. If anybody needs an educational effort on civil rights laws, it is Bill Killian.
US Attorney in Need of Legal and Constitutional Education
Several online commentators noted that Killian’s statements are actually in violation of the current laws and legal precedents. When he was told of Killian’s statement, first amendment attorney Floyd Abrams said [2] Killian was just plain wrong. He noted that it is blatantly unconstitutional for the federal government to try to suppress any speech hostile to religion no matter how offensive. Abrams noted that the role of civil rights legislation is to protect people from actual discrimination—such as a policy banning African Americans from eating with whites, not to suppress speech.
This sounds like the muddle-headed statement of one ignorant political hack, not a new government policy. Yes, it’s an example of political correctness run amuck, but it isn’t an active effort to punish individuals for posting “offensive material” online. My guess is that a federal judge would quickly throw any such prosecution out of court.
A Legal Doctrine that is a Century Out of Date
Even if Mr. Killian succeeded in getting somebody prosecuted for such hate speech, it would be overturned by higher courts, although it should be noted that there is a sick legal argument from our history that justifies such thinking. During World War I, distinguished Supreme Court Justice Oliver Holmes Junior wrote an argument that the court upheld in a case called Schenck vs. United States [6].
Holmes wrote and the court agreed that persons could be imprisoned for speech that did damage. The speech in the case was a pamphlet attacking the draft during World War I. The federal government prosecuted a man named Schenck under the Espionage Act of 1917 in the case. Holmes tried to claim that Schenck’s actions were the same as a man who yelled fire in a crowded theater and caused a panic.
Fortunately, Holmes’ thinking was overturned in a decision called Brandenburg vs. Ohio in 1969. In that case, the Supreme Court clearly ruled that a person could only be prosecuted if their speech actually led to violence or damage. Therefore, under the current doctrine, West’s Facebook page is protected free speech because it does not specifically cause damage. Killian is just plain wrong on every level – his ideas of Constitutional law are a century out of date.
That means Killian could prosecute somebody who posted bomb plans online or a false claim that led to panic. He cannot prosecute people who simply criticize or attack Islam or any other religion.
Danger of Political Correctness
Killian’s statements show the danger from political correctness or the idea that any offensive speech is as bad as actual violence oppression. What’s frightening is that there is at least one US Attorney who thinks it would be a good idea to scrap the Constitution and started basing our laws on political correctness. It’s time for Bill Killian to go because he doesn’t understand anything about our law, our history, or the First Amendment and the basic concept of freedom of speech. We need US Attorneys that understand and respect the Constitution, not individuals who are completely ignorant of it.
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