US law 'allows' Qu'ran burning

2010-09-08 14:08

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Miami - Pastor Terry Jones will undoubtedly offend and infuriate many people around the world if he follows through on a plan to burn Muslim Qu'rans at his church this weekend.

The First Amendment of the US Constitution protecting free speech will cover him, in the same way it allows the Ku Klux Klan to burn crosses and for protesters to torch the American flag.

The US Supreme Court has made clear in several landmark rulings that speech deemed offensive to many people, even a majority, cannot be suppressed by the government unless it is clearly directed to intimidate someone or incite violence, legal experts said.

"Are you just saying something or are you trying to incite violence? That kind of becomes the dividing line," said Ruthann Robson, a constitutional law professor at West Virginia University. "You can speak, and express an opinion, and do it in a symbolic way by burning something, but you can't do it in a way that would incite violence."

Jones, pastor of about 50 followers at Dove World Outreach Centre in Gainesville, Florida, has drawn condemnation from the White House, the top US commander in Afghanistan, the Vatican, Muslim groups, military veterans and interfaith religious organisations for his plan to burn Qu’rans this Saturday on the ninth anniversary of the 2001 terror attacks.

Jones remains undeterred, saying he wants to dramatically emphasise his belief that the Qu'ran is evil because it promotes violence and radicalism.


Muslims consider the Qu’ran the sacred word of God and insist it be treated with the utmost respect, along with any printed material containing its verses or the name of Allah or the Prophet Muhammad.

Yet under US court decisions, burning Qu’rans to make a point probably isn't illegal.

One applicable Supreme Court ruling came in 1989, when the justices struck down laws in Texas and 47 other states that prohibited desecration of the US flag.

That case grew out of flag-burning by otherwise non-violent demonstrators outside the 1984 Republican National Convention in Dallas.

In a 5-4 decision, Justice William Brennan wrote for the majority: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Steven Schwinn, law professor at the University of Chicago, said any law that attempted to prohibit Jones from burning the Qu’rans would likewise be deemed unconstitutional.

"When the government is in the business of suppressing speech, even in the form of action, the regulation is likely to be overturned if it's content-based," Schwinn said.


In another key case in 2003, the Supreme Court invalidated Virginia's law against cross-burning because it did not include a crucial component: whether the KKK intended to intimidate someone by burning the cross.

The Virginia law was so broad, the justices determined, that it would allow authorities to "arrest, prosecute and convict a person based solely on the fact of cross burning itself. As so interpreted, it would create an unacceptable risk of the suppression of ideas".

"The First Amendment does not permit such a shortcut," the justices added.

One wild card in Jones' plan is his failure to obtain a fire permit from local officials. Jones has said he plans to stage his bonfire anyway, and authorities said on Tuesday he would likely only be issued a citation for the violation unless the fire got out of hand.

Constitutional experts said the First Amendment's free speech protections would not apply to a violation of local regulations, so long as they do not single out a specific kind of conduct.

"Denying him the permit had nothing to do with the content of his speech and enforcement of the law presumably has nothing to do with the content of his speech," said Lyrissa Lidsky, a professor at the nearby University of Florida College of Law.

"If I set a bonfire in my front yard here in Gainesville, presumably they would do the same thing."

- AP

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