The First Amendment Isn't for Juries to Decide

I believe that a person who does something solely to exercise a right is operating at the lowest form of intellect known to man. The First Amendment is a right often abused in this manner by those too lazy to think up actual defenses for their arguments, and I've written about this at length before (Danish cartoons, Free speech as an abstract proxy, as opposed to a literal right). "Pastor" Terry Jones is a living, breathing example of the idiocy of extreme, baseless assertions of First Amendment rights.

All this I understand. I understand that Jones is a moron. I understand that there is nearly universal opposition to his planned protest in Dearborn, MI among people of all faiths and even from military leaders. But what I don't understand is why the man has to convince a jury to let him exercise his First Amendment rights.

(Photo from Detroit Free Press)

When Jones first came to Dearborn, Wayne County prosecutors brought charges against him that I'm still trying to wrap my head around. As the Detroit Free Press reported, prosecutors argued that Jones and his crew "would disturb the peace if they were allowed to protest." Apparently there was a jury trial over this anticipated breach and the jury sided with the prosecution. Jones was barred from the mosque where he sought to protest for three years. His protest won't happen.

Obviously the government can and should regulate the time, place and manner of free speech, but this trial seems like a bit of a sham, doesn't it? Just because the police and prosecution anticipate that some speech will be inflammatory, they can bar it completely? That sounds a little wrong and dangerous. Dearborn police complained that they had received many threats against Jones and allowing his protest to continue would be a safety issue. But it's their job to protect peaceful protesters, is it not? Since when can the cops just throw their hands up and say some speech is simply too disagreeable to protect? I must have missed that day of my Con Law class.

Yes, I'm well-versed in Justice Oliver Wendell Holmes's famous limitation on free speech: No one has the right to yell fire in a crowded theater. But are we really saying that a man criticizing Islam in Dearborn is as explosive an event as that? Is Dearborn really that insecure and intolerant? I lived and went to school in Dearborn for several years. Its people are sophisticated and mature; they can handle free speech like grown-ups. They deserved the chance to show their peaceful solidarity against a deranged man like Jones while allowing his exercise of his First Amendment rights.

I know from my work in the Michigan Innocence Clinic that police and prosecutors will take shortcuts to "law and order" every chance they get. But the Constitution is about law and order within the frame of certain enumerated protections for individuals. Free speech is perhaps the most important of these protections. To anticipatorily conclude that any speech is too dangerous is to venture down a dangerous path. Muslims, though very much opposed to Jones's views, should especially understand the significance of such a dismissal of a basic Constitutional right (I wrote about this in the context of the opposition to the proposed Ground Zero mosque).

Constitutional rights like free speech belong to us all. Reasonable regulation is inevitable, but to have a jury simply take those rights away is simply unacceptable.