It was morally wrong for two men to attack an anti-Islam installation last weekend in Garland, Texas, and no one should mourn the death of these terrorists. But what about deliberately provoking the assault by staging a competition for the most insulting caricature of the Prophet Muhammad? Was that morally wrong? Or was it just a reasonable exercise of the right to free speech?
It’s easy to be distracted by the condemnation of the crime, which should be absolute. No verbal provocation can justify killing.
But it’s also easy to be distracted by the First Amendment. The Constitution guarantees a right to speak. Under Supreme Court precedent, that right extends to most offensive speech, provided it doesn’t count as “fighting words” that would immediately cause a reasonable person to respond by throwing a punch. Many other countries, including those we consider free, outlaw racist speech or speech inciting racism. The U.S. doesn’t — and can’t under most interpretations of the First Amendment.
But the protected status of free speech says nothing about whether particular speech is morally right or wrong. That status allows me to advocate for child abuse or witch-burning or killing members of a race I don’t like. These kinds of speech are morally repugnant, even though they are constitutionally protected.
To evaluate the conduct of someone who speaks with the intent to provoke a violent response, then, we need to consider the speech on its own terms. We need to ask: What did those who staged the provocation intend to happen? And what were the foreseeable consequences?…
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently “Cool War: The Future of Global Competition.”
Message: Violence works!