First Amendment Musings Re: Terry Jones and Violence

Terry Jones in court

The Koran-burning pastor, Terry Jones, came to Dearborn the other day basically for the purpose of painting Dearborn as friendly to Sharia law and suppressive of freedoms, as weird as that might sound. So of course, what happens? He's arrested and convicted of breach of the peace for planning a demonstration, which, well, isn't a crime. Of course, were it a crime, it would violate the First Amendment. Even if he had successfully executed a demonstration, it would have been protected by the First Amendment (unless barred by a content-neutral, time, place or manner restriction).

Anyway, as the article says, under current law, this is a pretty clear cut case, but it got me thinking. The mayor said that he was worried about violence, and that the prosecution was over a public safety issue. He's probably thinking about the murders that the perpetrators blamed on Terry Jones' last Koran burning. Under the prevailing standard, Brandenburg v. Ohio, only incitement to crime or violence is unprotected by the First Amendment, not encouragement or advocacy. Under the still-sometimes-cited-for-some-unknown-reason standard, "clear and present danger," which Brandenburg replaced, there was wider latitude to ban speech. Under either standard, intervening time and third-party decision-making made the connection to violence more remote, and thus the First Amendment protection of the speech greater.