BOB GARFIELD: Geoffrey Stone is a professor of constitutional law at the University of Chicago. He says that if the public and legislators are often weak in the knees about the First Amendment, the judiciary, by and large, has been consistent and resolute, this no more plainly than in 1977, when the Supreme Court granted the American Nazi Party the right to parade its hatreds before the scarred survivors of Nazism.
GEOFFREY STONE: Individuals who had survived the Holocaust were appalled at the prospect that the Nazis would march in their home town, and they basically said that, in part, the emotional distress that would be created by this event justified prohibiting the Nazis from marching.
And the courts eventually held, no, that the First Amendment gave the Nazis the right to march, and emotional distress was not a justification for restricting someone’s free speech.
BOB GARFIELD: Now, there’s inflicting offense and emotional pain, and then there is the Terry Jones case, the burning of the Quran, that he went through with, with probably the certain knowledge that it would lead to violence and death somewhere among radical Islamists elsewhere in the world. Does that change the sanctity of free speech at all?
GEOFFREY STONE: Well, it certainly raises the stakes because now the harm that’s caused by the speech is much graver – death. So the question is, well, can you suppress speech, can you punish speech because it offends people to the point where they actually go out and kill somebody? There the argument is much more difficult, of course.
But, having said that, the same slippery slope problem exists. So let's suppose that we were to hold that the reverend could be punished because the speech led to the death of individuals in Afghanistan. And now let's suppose that instead of that, that the City of New York prohibits the construction of a mosque near the site of, of 9/11, and radical Islamicists are furious at the discrimination against Islam and they go out and they kill people, in protest. Does that mean that we have to allow the mosque?