The Judge Mark Martin is still going public in defense of his dismissal of the harassment charge against a Muslim who allegedly attacked an atheist dressed up as Zombie Muhammad and his berating of the atheist in court. Martin told CNN that free speech is a right that could be lost if people abuse it. In that, he is suggesting that the atheist was abusing freedom of speech by mocking the Muslim Prophet.
That’s concerning on it’s own. Further, Eugene Volokh, who continues to follow this story, writes that Martin in mischaracterizing the issue:
I don’t think that we’re in danger of losing our free speech rights because some people say things that are offensive to Muslims. I do think that free speech rights are in danger when judges berate alleged crime victims for their anti-Islam speech, and thus convey the message that the legal system may be biased against those who engage in such speech and may fail to protect those people because of such speech.
I have to agree—and not just because I’m in Volokh’s First Amendment course this semester.
The Supreme Court has established exceptionally narrow carveouts for content-based restrictions. Mocking Muhammad isn’t obscene. It’s not libel. It’s not fighting words as the Court has understood it. It’s certainly not child porn. And even if this was hate speech, there is no hate speech exception to the First Amendment—uncomfortable as that has been at times. Holy as religion is, mocking it is a pretty core First Amendment right.