I’m putting aside the horrific nature of the protests in Afghanistan order to focus on the domestic moral and legal issues the Terry Jones case has dredged up. I’ve already condemned this violence, which doesn’t stop assholes from selectively editing my earlier post to make it seem I did not.

But the question of Jones’s relative guilt or innocence is not as black-and-white as some people make it out to be. It’s true that Jones did not “make” anyone riot and commit murder. And there are no excuses for murders by mob.

But what he did do, as Professor Cole explains, was hand Afghanis who are hostile to foreign troops on their soil an invaluable propaganda tool. “[T]his issue allows some of them to organize to protest the over 100,000 US troops in their country, which is really what they are objecting to,” he explained. And in earlier wars, aiding the enemy’s propaganda efforts really could get you into serious trouble (think Tokyo Rose).

In Schenck v. United States (1919) the Supreme Court held unanimously that people opposed to U.S. involvement in World War I did not have a right to distribute leaflets that advocated draft resistance. For the record, I disagree with this decision, but I’m tossing it out to show a precedent for what Jones did and how it was handled in an earlier time.

In Schenck, Justice Oliver Wendell Holmes said,

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

As I’ve said before, I think what Jones did is akin to shouting fire in a crowded theater. No, he didn’t shout that people should trample each other on the way to the exits, but he had been warned shouting fire could incite people to trample each other on the way to the exits, so to speak, and he shouted anyway.

I understand that the Schenk “clear and present danger” test has been since revised to the “imminent lawless action” test, meaning that government may not censor speech that promotes violence or lawlessness in the abstract, but only if the speech is likely to cause imminent and specific lawlessness.

I think it could be argued that what Jones did was akin to this. Even though he hadn’t explicitly advocate lawlessness and murder, he had been sternly warned before by many people that his Koran burning stunt could have horrific consequences and possibly put troops in danger, and he did it anyway.

Earlier generations took putting troops in danger very seriously. That’s one of the reasons the World War II generation reacted so strongly to anti-war activism during the Vietnam era, btw. They may not have been crazy about the War in Vietnam, but it shocked them to their foundations that people (who included me, btw) were publicly speaking out against an American military action at all. Back in the day, that wouldn’t have happened.

And I’d like to point out that righties born long after the fall of Saigon still hate and condemn Jane Fonda for undermining the war effort back then. But she was within her rights, like it or not.

However — the right to express an opinion without government censorship is nearly absolute in the U.S. Freedom of speech is one of the few values Left and Right appear to agree on; I say “appear to,” because conservatives persist in introducing amendments to the Constitution prohibiting the burning of American flags. But in principle it’s something we agree on.

So what’s to be done with Terry Jones, who has found a way to draw attention to himself by doing something he had been told would have horrific consequences? After all, he only expressed an opinion. He has a right. On the other hand, his speech is detrimental to whatever it is we are trying to accomplish in Afghanistan. He’s undermining a U.S. war effort; even Gen. David Petraeus has said so.

Republican Sen. Lindsey Graham spoke up and said something to the effect of “freedom of speech is a great idea, but we’re in a war.” Righties in particular reacted harshly to this and are preparing to rally for Jones’s absolute right to free speech. These are some of the same people who are trying to hold Van Jones “accountable” for some opinions he expressed after 9/11, mind you. So let’s not kid ourselves they care about freedom of speech per se.

But again, what’s to be done about Jones? I’m opposed to government censorship. It would be nice if the Right showed some, um, consistency and condemned him as much as they have condemned Jane Fonda. But I’m not holding my breath over that.

What I do long for is for family members of any troops or UN personnel killed in the recent riots to sock Jones with the mother of all wrongful death suits. I don’t know if it would stand up in court, but I’d like to see someone try.