Cost of Free Speech

When it comes to raising public consciousness of the First Amendment, Pastor Terry Jones and his threat (thankfully never carried out) to burn Qurans at his Gainesville church is the gift that keeps on giving:

The City of Gainesville said late last week that it plans to bill the Dove World Outreach Center $200,000 for the costs of increased law-enforcement presence around town. The Gainesville Police Department and the Alachua County Sheriff's Office assigned more officers and deputies, as well as bomb-sniffing dogs, not only around the church property, but also to a University of Florida football game and the local mall because they feared violent reprisals against the threatened Quran burning on Sept. 11.

According to the Gainesville Sun, the city manager said he isn't sure how realistic it is to expect the church to pay or how much legal authority the city has to compel the church to pay.

The answer to both should be: zero.

First, the church didn't ask for additional security, and the extra officers were a decision made by the police and sheriff in response to media reports that hyped the event and not, it appears, to direct threats.

Next, the request likely is unconstitutional. The Supreme Court in Forsyth County v. Nationalist Movement (1992) ruled that governments could not charge private groups different fees for the use of public places. The majority found that the local ordinance in question often required that the fee be based on the content of the speech - a violation of the First Amendment.

As Justice Harry Blackmun wrote, "The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content.

Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." (Hat tip to UCLA law professor Eugene Volokh at his blog volokh.com.)

This is another example of the classic "heckler's veto," or in the case of the burning Quran, the "rioter's veto" or the "terrorist's veto." Government imposing onerous costs on the exercise of speech based on how it believes others will react to that speech can have the effect of silencing the speaker. People who can't pay will be forced to shut up. Those who threaten violence will be empowered.

Gainesville can't charge Dove Church what it wouldn't charge others because of the content of Dove's speech.

Supreme Court Justice Stephen Breyer created a minor stir last week when he suggested to ABC's George Stephanopoulos that Quran burning might not be protected speech because of the violent reaction overseas to Jones' stunt. Two days later, though, CNN's Larry King of all people got the justice to clarify his remarks.

Breyer said the most analogous case is flag burning and noted that "we protect expression that we hate."

"You know," Breyer said, "it's so often I hear people say ... 'Well, that's just so terrible what he's saying.' I say, oh, you think that free speech is only for people who don't say things that are terrible."

We couldn't agree more. Breyer understands he gave an inartful response to ABC. It's good to see him clear the matter up.

Perhaps justices when asked hypotheticals like that should just plead the Fifth.

REPRINTED FROM THE PANAMA CITY NEWS HERALD.

DISTRIBUTED BY CREATORS.COM