Constitutional senior lecturer-in-chief misunderstands the First Amendment
According to the Washington Times, President Barack Obama made statements at the National Prayer Breakfast on February 5, 2015 that establish that Obama has a fundamental misunderstanding of the United States Constitution's First Amendment, which among other things protects freedom of speech. The Times reported:
Suggesting he disagreed with a satirical French newspaper that provoked deadly terrorist attacks by poking fun at Islam, President Obama said Thursday that people of faith are obligated "to condemn such insults."
"If in fact we defend the legal right of a person to insult another's religion, we're equally obligated to use our free speech to condemn such insults and stand shoulder to shoulder with religious communities, particularly religious minorities who are targets of such attacks," Mr. Obama said at the annual National Prayer Breakfast in Washington.
Obama did not identify the source of this obligation "to use our free speech to condemn such insults." Perhaps Obama's preferred legal code requires its adherents to condemn insults to a religion, but Obama's argument that all legal codes, or America's legal code, have the same requirement, is erroneous. If Obama wanted to be accurate, he would have stated: "If in fact we defend the legal right of a person to insult another's religion, we're equally obligated to defend the legal right of a person to use our free speech to condemn such insults."
Contrary to Obama's statement, the right of free speech does not obligate anybody to condemn any speech. Rather, the right of free speech gives the speaker the right to condemn any speech, but no obligation to do so. Having the right to do something is different from being obligated to do something.
Moreover, a legal "obligation" to condemn religious insults would violate the First Amendment. Freedom of speech entails the right to say things, and the right to refrain from saying things. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the United States Supreme Court decided whether a student could be compelled to salute the American flag, and stated on pages 634 & 642:
To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind. (snip)
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
Obama's invocation of a legal "obligation" to condemn religious insults is more than a serious error for a man who taught constitutional law at the University of Chicago Law School for 12 years as a lecturer and senior lecturer. It is a frightening unforgivable error for a president of the United States.
Allan J. Favish is an attorney in Los Angeles. His website is allanfavish.com. With James Fernald, he co-authored a book about what might happen if the government ran Disneyland. It is entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).