When does Free Speech become HATE speech?
Based on media reports of the shooting at the Prophet Mohammad cartoon contest in Garland, TX, if it were not for the harrowing actions of one police officer, this could have been a repeat of the Charlie Hebdo shooting in Paris. In both cases, two men armed with assault intended to attack artists and public figures who are notorious for their portrayals of the Prophet Mohammad.
This attack was predicted by law enforcement agencies who issues warning about threats to the event and one of the shooters was well-known to the FBI. While the shooting at the Texas art contest shows again that cartoon depictions of the Prophet have the power to incite violence from Muslim’s who are deeply offended by the images, is this type of art contest an expression of freedom or a display of hate speech that should be legally restricted?
Free speech in the United States does not come without limited restrictions. One of these restrictions is “obscenity” which may be banned simply because a legislature concludes that banning it protects the social interest in order and morality. No actual harm, let alone compelling governmental interest, need be shown in order to ban it. Is the display of a cartoon that is intended to offend a minority population an obscenity?
Virginia v. Black involved a cross burning aimed at terrorizing an African-American family. A Virginia criminal statute had outlawed cross burning “on the property of another, a highway or other public place …with the intent of intimidating any person or group.” In a 6–3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners. Was the Prophet Mohammad art contest directly targeting individuals or serving a political purpose? Was the intent to terrorize as specific community?
The three-part Miller Test stands as the yardstick for differentiating material that is merely offensive and therefore protected by the First Amendment, from that which is legally obscene and therefore subject to restriction. The Miller test determines that material is obscene if:
(1) The average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests
(2) It depicts or describes patently offensive sexual conduct
(3) It lacks serious literary, artistic, political, or scientific value
Based on the Miller Test and the definition of obscenity, the Mohammad cartoons are shameful based on contemporary community standards (both Muslim community values and American value to support religious freedoms) and lack a serious artistic value. Should provocative events targeting minority religious communities be something that we risk the lives of law enforcement officers and citizens to protect?