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Why Is It Legal To Burn A Holy Book In The United States?

A group of Indonesian demonstrators rally outside the U.S. Embassy in Jakarta on September 4.
A group of Indonesian demonstrators rally outside the U.S. Embassy in Jakarta on September 4.
From the White House to top military commanders in Afghanistan, U.S. officials have condemned plans by a Christian pastor in Florida to burn copies of the Holy Koran on the anniversary of the September 11, 2001, terrorist attacks.

The U.S. State Department has called Terry Jones's threatened protest "provocative, disrespectful, intolerant, and divisive."

U.S. General David Petraeus, the commander of international forces in Afghanistan, has said Jones's remarks are inflammatory. He warns about an anticipated backlash that could endanger U.S. troops in the region.

President Barack Obama has called the plan a "destructive" and dangerous "stunt" and "a recruitment bonanza for Al-Qaeda."

Nevertheless, the U.S. government appears to have few legal tools to stop Jones from carrying out his threat.

First Amendment

It all goes back to the First Amendment to the U.S. Constitution, which states that the U.S. Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."

The 14th Amendment, adopted in 1868 after the American Civil War, extends those protections so that state and local governments also cannot violate the constitutional rights of individuals.

Thus, there are no federal laws in the United States that forbid "religious vilification," "religious insult," or "hate speech." Some states retain local blasphemy statutes on the books. Most are from the 19th century.

But in a precedent-setting ruling in 1952, in the case of "Joseph Burstyn vs. Wilson," the U.S. Supreme Court struck down a state blasphemy law in New York as an unconstitutional restraint on freedom of speech.

That Supreme Court ruling says, "It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures."

David Nash, a professor at Oxford Brookes University who specializes in the history of blasphemy, says that the 1952 ruling has forced U.S. authorities to alter their legal strategies in cases of offensive speech against a religion or religious beliefs.

"In the United States, [prosecution of] blasphemy became unconstitutional after the early 1950s when there was a famous case called the Burstyn case against an Italian filmmaker -- a film called "The Miracle." The judgment in this case decided that prosecutions of blasphemy were unconstitutional," Nash says.

"This hasn't stopped attempts to prosecute blasphemy in America. The thing that isn't [protected] by the First Amendment is obscenity. So where something has been considered to be blasphemous -- paintings or films or writings -- there has been an attempt to find something obscene in them."

Threat To Public Order

Another possibility for the authorities is to cite national security. Again, the options here are very limited and it's a tough legal argument to make.

In the 1931 case of "Near vs. Minnesota," the Supreme Court held prior restraint could be used by the government -- in a time of war -- in order to prevent the obstruction of military recruiters, the publication of strategic information about troop movements, or other utterances that threaten national interests. The ruling also says, "The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government."

Nash says the Obama administration may not have attempted to get a court injunction blocking Jones's Koran-burning protest because it is "difficult to present absolute proof" that the actions of the pastor present a clear and present danger to individuals. But he says the threat of public disorder over the protests may be the best legal strategy for authorities to try to block the burning of copies of the Koran.

"There are also is public-order issues at stake here, which tends to be the thing that government is most comfortable at dealing with," Nash says. "If it can decide blasphemy is a public-order issue, it will much more readily intervene than if something is considered to be a form of private offense merely to a group of believers."

There also is a 1942 Supreme Court ruling that describes a "fighting-words doctrine" that can be used by the government to limit free speech. In that case, "Chaplinsky vs. New Hampshire," the court ruled unanimously that "insulting or 'fighting words,' those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" were among the "well defined and narrowly limited classes of speech [which] the prevention and punishment of...have never been thought to raise any constitutional problem."

But over the years, later decisions have steadily narrowed the grounds on which the "fighting-words doctrine" can be applied.

Nash concludes that Jones's protest should open a public debate in the United States about the nature of hate crime and of religious incitement. He notes that in Britain, the law against blasphemy has been replaced by a law against religious incitement.

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