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September 18, 2012 1:29 PM Fire In a Crowded Theater

By Ed Kilgore

It’s been interesting to watch conservatives whose interest in the First Amendment seemed hitherto generally confined to political contributions rush to the defense of the free speech rights of the malevolent bigots who produced, translated and disseminated Innocence of Muslims. And it has of course been discouraging and often infuriating to hear so many Muslim political and religious figures blithely demand the U.S. just junk its Constitution in order to avoid offense to their sensibilities.

What we haven’t heard until now is any serious discussion of whether Innocence of Muslims actually is protected speech under the First Amendment, and/or is subject to the kind of regulation that is possible even with protected speech. The Carnegie Endowment’s Sarah Chayes explores this question in a L.A. Times op-ed:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. “The most stringent protection,” he wrote on behalf of a unanimous court, “would not protect a man in falsely shouting fire in a theater and causing a panic.”
Holmes’ test — that words are not protected if their nature and circumstances create a “clear and present danger” of harm — has since been tightened. But even under the more restrictive current standard, “Innocence of Muslims,” the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines
.

Chayes goes on to evaluate the video under prevailing standard that “only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.”
While some facts are not yet known about responsibility for the translation of the video into Arabic, it’s pretty clear the video was intended to do exactly what it did: create a firestorm of worldwide controversy. That it was likely to succeed in it goals was evident from similar occasions in the past, though the egregiously, cartoonishly offensive nature of the depictions of Muhammad provided a great deal of insurance.

I’m not a fan of censorship, but if there’s evidence (beyond the circumstantial) that the cretins who made and disseminated this flick were aiming it squarely at Muslim audiences in hopes of setting off a religious war, then it may very well fall outside constitutional protection. And even if Innocence of Muslims is protected, it’s useful to have this discussion for the benefit of potential copy-cats out there. As Chayes concludes:

The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Richard on September 18, 2012 1:40 PM:

    First of all..who spoke? The video was made in the USA and is certainly protected by the 1st for any use of it there. But someone put it on YouTube and spoke to the world. Who did that?

  • c u n d gulag on September 18, 2012 1:42 PM:

    Well, if as the SCOTUS says, money is speech, and this "movie" has spoken, may I humbly suggest that the leaders of this odious and reprehensible project pay for the damage that's been done since they released that clip?

    How you pay back for an Ambassador's and several SEAL's lives, as well as the lives of innocent people caught up in the waves of violence, I can't begin to tell you.

    But, may I suggest after taking every penny they and their families have and give it to Middle Eastern charities dealing with orphan children, that they spend the rest of their miserable and useless lives at hard labor at some Super Max prison?

    Yes, that might be a good start.

    Free speech has consequences.
    Someone needs to pay for the bad ones.

  • emjayay on September 18, 2012 2:11 PM:

    "Congress shall make no law....abridging the freedom of speech."

    I don't see how this video could be considered in violation of this clearly stated concept. How would a restriction be enforced - a board of censors who search the world for anyone who would go beserk over anything put out here and predict the likely outcome?

    In the crowded theater, no one has to go on Facebook or give sermons to the faithful and organize them and rev them up and make sure they have the proper weapons and tell them when to do when etc. And of course the censors or courts would have to consider the whole history of general and specific grievances that would feed into any possible violence in every part of the world, which is certainly a lot of what all this is about.

    Some European countries, with a history of less separation of church and state, have laws against disparaging religion, or in Germany for obvious reasons denying the Holocaust etc. Our first amendment seems to make this sort of thing not that possible here.

    An interesting discussion nonetheless.

  • T-Rex on September 18, 2012 2:13 PM:

    Richard, that's a good point. The minute any content hits the Internet, American law is not the only code that applies to it. That's why it's so popular to sue people for libel in London even if the offending material wasn't written or published there -- if people in Great Britain can read the libelous material, then the victim has a case in Britain. And these guys, meth addled as they were, knew enough about Islam to know they were violating Islamic law. I wouldn't put up more than a token legal resistance to an extradition demand.

    If you're going to kick a hornet's nest in order to prove that hornets are innately evil and vicious, and then run away to let other people get stung while you smugly lecture about how the hornets are proving your point, well, I don't see why we shouldn't drag you right back into that swarm.

  • Perspecticus on September 18, 2012 2:20 PM:

    Remember the Far Side cartoon featuring "what you say/what your dog hears"? Her is my interpretation of how the following is perceived by the right:

    "The point here is [bzzzt] to excuse the [bzzzt] acts [bzzzzzzzzt] around the world in reaction to the video, [bzztt] to condone physical violence as a response to words [bzzzt]. The point is to emphasize [bzzzzzzt] a distinction between [bzzzzzzzzzt] today’s Middle East [bzzzzzzt] and [bzzzzzzzzt] Christian extremists [bzzzzzzzzzzt]. Appeasment.

  • boatboy_srq on September 18, 2012 2:24 PM:

    I think we've gone beyond 1st Amendment questions here.

    The issue is international. The consequences, for the US, are (so far) largely extranational. Whether there's a case to be made in US courts may not be relevant; conversely, though enforcement of any judgment may be difficult at best, it's hard to dispute findings offered by courts in Egypt, Libya, Sudan et al that hold the video makers and their backers guilty under their own laws. The issue would then become whether the a##clowns who made this particular piece of BLEEP would be subject to extradition to one of those nations where a case was allowed to proceed.

    I suppose this is part of why the Reichwing whinges about black UN helicopters, FEMA camps and how bad the ICC is.

  • Josef K on September 18, 2012 2:34 PM:

    From boatboy_srq at 2:24 PM:

    The issue would then become whether the a##clowns who made this particular piece of BLEEP would be subject to extradition to one of those nations where a case was allowed to proceed.

    The first thing that would need to be established is whether or not the US has an extradition treaty with any of those countries (which I don't believe we do).

  • Remus Shepherd on September 18, 2012 2:35 PM:

    Do we really want to limit speech that causes violence because people take offense to it? Anyone could claim to be offended by anything, and in that way make any form of speech illegal.

    Similarly, do we want to limit speech that causes violence in other countries? I've offended Australians by calling them 'sir'. I can't even imagine what linguistic accidents could happen if we were to police our behavior by its effect in all other cultures.

  • jjm on September 18, 2012 2:38 PM:

    Freedom of speech is unknown in a great deal of the world. What is emitted by US citizens is free for them, but to the rest of the world it looks like officially sanctioned discourse. Otherwise it would have, they imagined, been banned.

    There is little way out of this dilemma. But: there should be accountability for this so called 'free speech' when it results in multiple deaths and countless injuries. What is it?

    Well Egypt is itself issuing arrest warrants for the US citizens involved in producing what appears now to be only a trailer for a movie, not the movie itself. This is something like when Spanish judge Balthasar Gracián issued arrest warrants for Pinochet and other criminals from the Chilean takeover and massacres. The Egyptians involved will no longer be able to leave the US for Egypt or any other country that might extradite them.

  • square1 on September 18, 2012 2:43 PM:

    What a beautiful defense of mob violence, T Rex.

    I, for one, enjoy living in a country where freedom of speech means something (even if it doesn't mean as much as it should). I would politely suggest that those who prefer to live in a country where rioting and murdering scapegoats are acceptable responses to hurt feelings go find such a country and move there rather than ruining this one.

  • Inkadu on September 18, 2012 2:50 PM:

    This is my biggest political WTF moment since the public was on board with torturing. No, no, no! You absolutely can not abridge free speech because the audience itself responds violently to it out of offense. There is no limit to where it could lead and such a ruling would actually encourage violence as groups learned they could silence their enemies by responding violently. Speech against Muslims would be more restricted than speech against the Ahmish. Seriously, it is prima facie idiotic in a free society and a betrayal of the us tradition of allowing more speech than european countries. And as far as rendering citizens to other countries to enforce our woynded, extra legal sense of morality is also quite stupid. Are we going to extradite heretics to Muslim countries as well? I am honestly completely floored that you guys - - whom I consider my political fellow travelers - - are even considering this.

  • john sherman on September 18, 2012 2:50 PM:

    I'd like to try out an odd idea on motivation. That the video pisses off Muslims is pretty obvious. The early stories surrounding it tied the production to Jews and Israelis; these stories were apparently false, and the producers were apparently some stripe of Christians. So the apparent intended effect is to make the Muslim/Jew relationship already terrible, catastrophically worse.

    Who has an interest in that? One answer is that there is a subset of fundamentalists who are actively cheering on the Second Coming, but in their view this can only happen after a colossal war in the Middle East destroys Israel. Their intent then would be to do all they can to blow up the Middle East, particularly Israel.

    This is not shouting fire in a crowded theater; this starting a fire in a crowded theater and pouring gas on it.

  • Rieux on September 18, 2012 2:59 PM:

    And when we've handed over Egyptian-American Copts to the Muslim Brotherhood for prosecution for blasphemy, who's next? Danish cartoonists? College kids chalking stick-figures labeled "Muhammed" on their campus sidewalks? Trey Parker and Matt Stone? Salman Rushdie?

    That Americans are seriously contemplating subjecting First Amendment rights to the whims of people who would commit murder over bruised religious sensibilities is at least as chilling as the Middle Eastern violence itself. Shame on you.

    "Innocence of Muslims" is an idiotic work, but the notion that it is anything other than centrally protected First Amendment expression is absurd and frankly offensive.

  • Mitch on September 18, 2012 3:06 PM:

    I tend to come down on the side of free expression, even for vile garbage like this.

    Were these scumbags hoping to cause mass riots, chaos and possibly a religious war? You betcha. There's nothing Fundies (of any creed) love more than fighting with other Fundies. I know - for a fact - that many Bible Belt Christians already think we are in life-and-death war with Islam. But I am not convinced that punishing the promoters of the video is a good idea.

    My fear is that by restricting what one can say about Islam (and religion in general, since our government cannot and should not favor one faith over another), we would only be strengthening the power of theocrats and wannabe theocrats.

    For example, last year Professor Richard Dawkins gave a speech at the university in Kentucky that my little brother attends. There was a small protest, it being the Bible Belt and Dawkins being one of the most outspoken critics of religion. Had those protesters turned violent, would that have been Dawkins' fault?

    After all many of his writings, particularly The God Delusion, are viscerally against religious belief. Indeed, if you are a Fundamentalist (like the bulk of my family) then every word in that book could be taken as a personal insult, every sentiment is offensive. Yet, if we blame the creators of this video for inciting violence, then Dawkins is certainly just as guilty.

    Pointing out the disturbing and heinous parts of the Bronze Age mythology believed by The People of the Book (to use the beautiful Islamic term for Muslims, Christians and Jews) is ALWAYS going to be taken as a personal insult by those believers. Many of them find words against their religion as offensive as any racial insult.

    Liberal Christians may be able to discard the parts of the Bible that they find distasteful (like rape victims being commanded to marry their rapists) but there are many more Christians who will not discard a single word. Indeed the suggestion that they do so would be as offensive to my parents as insulting Mohammed's marriage to a 9 year old would be for Islamic Fundamentalists.

    Religious folk have no problem insulting non-believers, or believers of different faiths than their own. Witness pretty much anything said by Pat Robertson over the years, not the least of which is his recent "move to Saudi Arabia so you can beat your wife" quip. My own mother has called me a fool; I have been told that I should not have the right to vote by my own father, I have been told that I deserve eternal pain and absolute disgrace simply for being an atheist. I have been equated to Nazis, Stalinists, Satanists, serial killers and child abusers simply due to my lack of faith. I have been dehumanized, had my manhood questioned and told by an uncle to avoid family gatherings - all at the Christmas dinner table.

    Is that not supposed to offend me? Is that not supposed to make me afraid? Am I not supposed to worry that millions of Americans view me as scum of the Earth simply because I hold to no religion?

    We have a few thousand years of history that shows us what happens to nonbelievers when theocrats take over. In Europe for fifteen centuries the barest suggestion that you did not believe in Christ was enough to ensure a death sentence, if not agonizing brutality and tortures that would make Dick Cheney vomit. I, for one, have no wish to see that history repeat itself.

    You all know how the Catholic Bishops have defined "religious freedom" to mean "the freedom to force their dogmas on others" - any legal ruling against the creators of this video would simply strengthen that argument. Then ANY speech or video or book that disagrees with a religion could be claimed to be just as offensive. How long would it be before some Fundies object to books about evolution or space exploration or (FSM help us) history, geology or modern ethics because those books "offend" their religious beliefs? How lo

  • murphro2 on September 18, 2012 3:08 PM:

    Sarah Chayes analysis is not very compelling and you half-agreeing is also not very helpful. There is a world of difference between saying "when you meet x in the street, shoot him!" and making a film that craps on another culture's traditions. Being an a---hole is still protected speech as John Stewart so eloquently put it. The question is not "Does he have a right to say that?" but why would anyone take it seriously? Because fanatics are combing the internet for any slight no matter how small or clumsy, does not mean we should curb our own speech or our defense of those whose main purpose is to shock or antagonize.

  • CharlieM on September 18, 2012 3:11 PM:

    @Rieux
    Precisely. Perhaps the reason there's been "no serious discussion" about protected speech in this is because there's not one to be made.
    Can't help but think that Justice William O. Douglas would have sneered at the points Chayes and Ed are making here.

  • Mitch on September 18, 2012 3:13 PM:

    (continued)

    You all know how the Catholic Bishops have defined "religious freedom" to mean "the freedom to force their dogmas on others" - any legal ruling against the creators of this video would simply strengthen that argument. Then ANY speech or video or book that disagrees with a religion could be claimed to be just as offensive. How long would it be before some Fundies object to books about evolution or space exploration or (FSM help us) history, geology or modern ethics because those books "offend" their religious beliefs? How long before South Park would be brought to court for being "speech that has the intent and the likelihood of inciting imminent violence or lawbreaking"?

    Do you not think that they would use such a ruling to defend their case? Do you trust courts not to rule in their favor?

    And finally, do you not think that any ruling against the video creators would basically give Fundies of all stripes permission to riot when they are offended? If it's fair for the people of the Middle East, then it's fair for anyone else. Oh, sure, some of the zealots would go to prison for their actions, but that's a small price to pay when the result would be the arrest of anti-Christians like Dawkins for "inciting violence" by offending believers in the first place.

    I do not approve of the video; it is obvious that the creators and distributors were hoping that the Islamic world would react as they have. The creators of the video are the quite simply human garbage. They deserve to be ridiculed, insulted and treated like pariahs in public. But punishing them for "inciting violence" by insulting Islam will inevitably lead to the oppression of those who speak out against religion and it's evils. It has to, because our government cannot and will not favor Islam more than Bible Belt Fundamentalism. When we start giving religious people more rights than the non-religious, then we begin to walk down a very dark road.

    Sorry for the verbosity. But I firmly believe that theocracy is the greatest enemy of human freedom, and I will stand against anything that supports theocracy until my dying day.

  • Peter C on September 18, 2012 3:15 PM:

    I’m afraid that there is a simplistic view of society which wants to reduce complicated things down to simple ones. This view wants ‘beauty’ to be a proxy for ‘virtue’ and ‘ugliness’ to be synonymous with ‘evil’. This would make living in society easier; you could tell at a glance who could be trusted and who shouldn’t be. Under this view, everything ‘bad’ would also be ‘illegal’.

    But society is not so simple. Some beautiful people are thoroughly corrupt. Some ugly things are greatly beneficial. And, some horrible things (like this hideous movie) are legal. Other unhealthy things (like large sodas) should also be legal. We don’t have to have laws have to judge as much as good and bad.

    In many places and at many times, thoughts and beliefs could be criminal. Many people were killed for thinking or saying the wrong thing. Our society has tried a different experiment – one that was radical at the time. We’ve excluded the law from matters of thought and speech. Consequently, some terrible things are not illegal. We’ve made a trade-off; we tolerate horrible ideas in order to afford people the liberties of belief, thought and speech.

    In my opinion, the trade-off is worth it. Our task is to explain our system to the rest of the world. We can’t do this through ‘American Exceptionalism’, though. Not everything that is done in our country is good. When we pretend that we are (and have been) without fault and perfect in every way (USA! USA! USA!), then we get blamed for all the bad behavior of our citizens. In my opinion, the reaction in the middle east has its roots in the NeoCon Bush administration and our radical right.

  • Mahakal / מהכאל on September 18, 2012 3:23 PM:

    It is not as much yelling fire in a crowded theater, as it may be an incitement to riot, which is also not a protected first amendment speech. See: http://en.wikipedia.org/wiki/Imminent_lawless_action

  • Gar Lipow on September 18, 2012 3:25 PM:

    You are misunderstanding the "fire in a crowded room" test. It does not apply to speech that might provoke violent opposition. Only that speech that advocates immediate and imminent violence. Censoring speech that provokes violent opposition is known as "hecklers' veto and is completely contrary to the first amendment under existing case law.

    As to international censorship: certainly nations with different laws can enforce those laws in their own nations. However such laws are not enforeable in the U.S. and should not be.

    Leaving the law aside, I think censoring even truly awful speech is a bad idea. The answer to bad speech is good speech. I will add that it is unlikely that if we had not killed so many Muslims and supported so many dictatorships in Muslim nations that it would be so easy to use this film to stir up violence against us.

  • Bob M on September 18, 2012 3:37 PM:

    Mitch, normally I hate long posts, but you rose to the occasion to articulate a great position against theocracies. I'm with you all the way.

    Besides, those SOBs can't be appeased. Give them everything today and they would be back for more tomorrow.

  • Catherine Fitzpatrick on September 18, 2012 3:39 PM:

    You need to go past Schenck to Brandenberg v. Ohio which established that only "incitement to imminent violence" meets the test for restricting free speech. The anti-Muslim hate video doesn't meet that test because incitement of violence refers to inciting others against a victim, *not* the victim then *committing* violence because he feels insulted.

    Egyptian authorities filter the Internet and control TV. Why did they show the video? And the people leading crowds to embassasies that then result in mayhem and death are the inciters in this case.

    http://3dblogger.typepad.com/wired_state/2012/09/incitement-of-imminent-violence.html

  • TomJoadsGhost on September 18, 2012 3:42 PM:

    Are you insane? You can't see a double standard with how "inciting imminent violence" is applied to under the 1st amendment? How about the 100s of people in the Bush and Obama administrations who are actively promoting violence around the world and the newspeople who were complicit in starting a purposeless war in Iraq and now doing the same thing with Iran? Should we lock them up?

  • IGD on September 18, 2012 3:55 PM:

    I have to agree with the speech advocates here. The question is not about 'crying fire in a crowded theater' since that action provokes a response designed to preserve one's life and well being, but which has the unfortunate consequence of potentially reducing such when triggered by a hoax. The real question is should there be consequences for crying 'ghost' in the middle of a crowded theater. Should one then be responsible if folks who believe in ghosts stampede for the exists, or crush bystanders while attempting to attack the individual who maligned their beliefs. Where do we draw the line in terms of protecting violent behavior simply because your feelings are hurt because someone criticizes your belief system? I think Jefferson had it covered 'It does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.'

  • emjayay on September 18, 2012 4:00 PM:

    Like I wrote way up there, after quoting the first amendment etc. "An interesting discussion nonetheless". I was talking to you Mitch and Peter C particularly, as it turns out.

  • Mitch on September 18, 2012 4:02 PM:

    @Bob M

    Thanks! I'm often embarrassed by my own insane verbosity, but sometimes I cannot help myself. And you are certainly correct; the more you give to theocrats, the more they demand. And each demand is more xtreme than the last. Always.

    @IGD

    Awesome Jefferson quote. Old TJ wrote often about this subject, as did other Founding Fathers. It's a shame most Americans are totally unaware of where their historical idols stood on such important issues.

  • Jesse Raleigh on September 18, 2012 4:04 PM:

    "I'm not a fan of censorship"

    Yes, you are. There's no grey area here, either you support free speech, or you do not.

    You clearly do not. I'm appalled but not surprised by that position.

    The right to freedom of speech also means the right to offend someone else. Being offended is not something people have a guarantee against. When Disney released a movie that upset the Southern Baptist congregation, they didn't kill anyone. They protested, they boycotted, and they found a way to settle the disagreement.

    Barbarism is what you support by advocating that America change our standards to not offend people with lesser standards. You cast your lot with people who brutally murder mentally ill people. Who stone women to death for merely going outside.

    - Jesse

  • Keith M Ellis on September 18, 2012 4:27 PM:

    There's an alarming amount of absolutist free-speech positions on display in this thread that take for granted that such is the law in the US. It's not. It's clearly and obviously not with regard to obscenity (or are the above commenters also unaware that obscenity is not protected speech in the US?); but it's also true with regard to several other kinds of speech. Not only is "fire in a theater" unprotected speech, but so are some examples of speech which are violently provocative but nothing more.

    It's also worth mentioning that most of the civil liberties protected by the Bill or Rights were almost entirely, as a practical matter, unenforced in the US prior to the middle of the twentieth century and this is especially true of free speech. Laws quite unambiguously infringing upon these rights were widely passed and enforced. I'm not exactly what lesson, in this context, I wish readers to draw from this — except possibly just to temper their uninformed idealism about US civil liberties in general and free speech specifically with some historical perspective and some appropriate cynicism.

    Or, really, I guess I do have a point: those who argue that a) it's unthinkable that this film could be anything other than protected speech and b) were it anything other than protected speech, everything would go to hell post haste should be aware that the former is simply wrong as a matter of legal fact and the latter wrong as a matter of historical fact. Now, that's not to say that I disagree that this should be protected speech because, mostly, I do. I think it should be. But it arguably isn't, and the US won't fall into chaos were it not.

  • Jimbo on September 18, 2012 4:33 PM:

    [Go troll somewhere else. You're certainly done here. -- Mod]

  • Anonymous on September 18, 2012 4:40 PM:

    The video was made in the USA and is certainly protected by the 1st for any use of it there.

    Hey, idiot, did you not read and comprehend the content of this post? The "film" is unprotected speech here in America by the "clear and present danger" standard. What are you, a "Whole Language" graduate?

    There is also the standard that if one plays with matches, and a fire later causes a casualty, lack of intent is not a defense. These worthless scum made this to be offensive, to cause the trouble it caused.

    I for one hope they are soon found face down in a dark alley, bleeding out from a large-caliber exit wound.

  • Jimbo on September 18, 2012 4:42 PM:

    [Go troll somewhere else. You're certainly done here. -- Mod]

  • Jimbo on September 18, 2012 4:46 PM:

    [Go troll somewhere else. You're certainly done here. -- Mod]

  • TCinLA on September 18, 2012 4:48 PM:

    Jimbo, take your fucking wingnut bullshit and stick your head back up your ass where you normally keep it.

  • TCinLA on September 18, 2012 4:50 PM:

    I'm both a professional writer and a professional filmaker (12 movies written that got made). I have no problem whatsoever with seeing these scum taken out and strung up.

  • Mitch on September 18, 2012 5:15 PM:

    @Keith M Ellis

    "But it arguably isn't, and the US won't fall into chaos were it not."

    I appreciate your view of things, but tell that to the Bible Belt Fundies who would be pushed to utter madness if this standard applied only to insults against Islam and not, say, the Piss Christ, the film The Last Temptation of Christ or books like Richard Dawkins' The God Delusion. Apply the protection of law only to Islam and you are not simply courting chaos, you are courting civil war.

    What makes this issue different from obscenity or "hate speech" because this video does little more than parody what was actually written in Koran. Yes, it is crude and trashy. Yes, it was created to offend Muslims. Yes, the people behind it probably hoped that it would inspire violence - to "prove" themselves correct in their belief that Islam is an irrational hate-filled religion.

    But it is no more offensive than the works I listed above, to good Christians like my folks. The fact that a minority of Muslims are violent fanatics does not change the fact that even tasteless parody should be a human right.

    Because if it is not a right, then where does it end? Should we simply give up the battle for equal rights for our LGBT brothers and sisters? Should we abandon a woman's right to contraception and the privacy to choose for herself? Should we allow racism and segregation (for I know KKK members in my home town who use Bible verses to justify their position)? Should we approve of a denial of science, particularly the heart of Biology, evolution?

    Because all of those things offend Fundies. And I fear that the only reason they do not engage in violence like radical Muslims is because they know the law would crush them. But what do I know, I only spent the first twenty years of my life as one of them.

    Are you willing to risk giving theocrats protection? Are you willing to risk an end to any speech that may insult any religion?

    Are we - as a nation - so afraid of this violent minority of Muslims that we would risk the greatest of American liberties in the hopes that it would keep them from doing what they would probably do anyway?

    I hope not. But, hey, we all have the right to our own opinion. Today, at least. Who can say if we will have that right tomorrow?

  • Keith M Ellis on September 18, 2012 5:26 PM:

    As I was just saying to my mother's Fox News-watching husband, it's not so much that Muslims find this film highly offensive and are hurting people in outrage because of it that I'm angry with the filmmaker — if the film had been made in complete good-faith and a sense of personal responsibility while nevertheless being deeply offensive (as I think has been true in some other, similar cases), then I'd defend the filmmaker.

    But I am very angry with him because there's something essentially dishonest, deliberately irresponsible, and arguably malicious against innocents about what he did.

    The post-production changes that allowed him to misrepresent the nature of the film to the cast and crew is bad. Using a pseudonym for himself but not similarly protecting the cast and crew is bad. Falsely claiming that unnamed Israeli Jewish financiers are responsible for the film is bad. And, once his identity has been revealed, essentially inviting reprisals against his fellow Coptic Christians back in Egypt where he's from but now safely away ... that's bad.

    These things collectively result in risking or causing bad things to people other than the filmmaker (sometimes via dishonesty) while he scrupulously protected himself (through dishonesty). It's an egregious, toxic irresponsibility that seems to me to be malicious with regard to almost everyone else, everywhere. People he worked on the film with, the audience, Muslims, Coptic Christians, American diplomats ... he showed no concern for anyone possibly being in harm's way except himself.

  • Keith M Ellis on September 18, 2012 5:46 PM:

    @Mitch, I wasn't defending suppression of speech or specifically advocating that the filmmaker be sanctioned.

    If you're interested in my political position on the matter, and perhaps you're not, it's that I favor something even more near an absolutist freedom of speech protection than which the US currently holds while, counter-intuitively, I also happen to think the benefits of expansively protected speech (such as we have in the US) and the harms of censored speech (more so than is censored in the US but still within the norms of most advanced democracies, such as Canada and in Europe) are widely and arguably absurdly overstated by Americans.

    That is, I'd prefer more protected speech, not less, but think that things would be mostly okay with less protected speech than we now have. Americans make this a fetish and, not coincidentally in conjunction with doing so, are surprisingly uninformed about what is and isn't protected speech in the US.

    Also, I'll agree with you to stipulate that both leftists and rightists tend to defend or not defend free speech depending upon whether it's their own ox being gored. Since I don't take an extreme position in either direction, I can think of many examples where I'm irked by both liberals and conservatives for wanting to suppress speech because they find it offensive and others where I'm irked by both liberals and conservatives for defending it blindly on principle (when they're not offended, natch). What can you do? People aren't consistent.

    Again, the argument I made to which you were replying was simply that, no, it's not a slam-dunk, nor is it necessarily a slam-dunk, that this film is entirely protected speech. And, no, if it weren't, we wouldn't suddenly live in an authoritarian nightmare censorship state because that state of affairs accounts for the majority of the history of the US. But, again, I was making an argument of fact, not one of my own preference. My preference is for a very expansively-defined protected speech, one that includes this film.

  • Doug on September 18, 2012 5:57 PM:

    As best I can tell, the only legal recourses against the makers of this "video" are two:
    - They COULD be charged with deliberate incitement to violence, but that charge would, I believe, apply only to actions that occurred here in the US. Even then, intent would have to be proven and that's NOT an easy task. Nor do I know of any well-established legal precedents for honoring extradition requests based on a person resident in THIS country breaking a law only applicable in the country that's requesting the extradition. I, when I dine out, LIKE sour cream on my baked potato when I have a steak; in Israel that's illegal.
    - The other recourse would be for the families of those killed to institute a civil action for wrongful death (I believe). In that instance, the "playing with matches" standard would have a good chance of being met, especially considering the backgrounds of those involved.
    If neither of these options are viable, then a politely-worded message to the Egyptian government that we're unable to comply with their request as it goes against OUR legal system and beliefs.
    As Mitch pointed out, there CANNOT be one legal standard applicable to Islam and another for Christianity. If we say that making such a video is illegal because of the effects it MAY have on Moslems, then we'll have to apply those very same standards to any work that MAY upset some Christians. Somehow. Somewhere. Sometime.
    Sorry, Mr. Kilgore, in THIS country the 1st Amendment trumps feelings of "outrage"; whether those of Moslems in Egypt or Christians in North Carolina.

  • Mitch on September 18, 2012 6:18 PM:

    @Keith M Ellis

    I understand and agree with you, except that I do feel such an erosion of free expression would automatically become a part of our American culture wars and could lead to an "authoritarian nightmare censorship" very easily.

    Look at how many American Fundies are convinced that Liberals are trying to enforce Sharia Law in our nation. Yes, we all know that is utter horse crap; but literally millions of our fellow citizens are convinced that it is the case. Millions of Americans would go insane with rage if they felt the law was protecting Islam in a way that it was not protecting Christianity.

    So if speaking against Islam, or making a crude parody of it, is "incitement to violence" then could the argument not be made that Scott Roeder was incited to violence when he murdered Dr. George Tiller because it was an insult to his religious beliefs? Could the argument not be made that Abortion should be outlawed because it is an "incitement to violence" to zealots like Roeder.

    It's a slippery slope. I feel that theocrats will take advantage of any possible loopholes in their pursuit of absolute power. And the worst part is, just like Mohammed Atta, they would be certain that they were doing the righteous thing.

  • Rieux on September 18, 2012 7:23 PM:

    Ellis:

    Opposition to a heckler's veto�and contempt for the advocacy on this thread for ratifying that veto�is not "free speech absolutism." It is merely an ordinary recognition that doing the dirty work of brutal thugs by enforcing the limitations on speech they demand is both an outrageous assault on the First Amendment AND an abrogation of the underlying human right to freedom of expression.

    As an litigator who practices constitutional law, I am well aware of obscenity law, which is an unfortunate stain on American jurisprudence. But even it, like "fire in a crowded theater" and every other red herring trotted out by those who idly contemplate empowering violent fanatics to set worldwide policy on free expression, is not a heckler's veto.

    Under the doctrine advocated by an unfortunate number of people here, the most effective way to silence expression one does not like is to credibly threaten to kill people if local authorities do not silence that expression. More than one person on this thread would directly empower, if not indeed promote, that obvious tactic. As I said, they should be ashamed of themselves.

    And where in the "free speech absolutism" you sneer at do you see an historically ignorant treatment of U.S. history? Who has claimed that the American government has been some kind of spotless protector of the right to free expression? You appear to be arguing with ghosts, because we supposed "absolutists" are all too well aware of the numerous instances in which American law and government have fallen far short of any reasonable respect for this particular human right.

    It's just that we think all such failures are bad things; they obviously do nothing to excuse advocacy for similarly terrible ideas in this context. The facts that (1) the Alien and Sedition Acts passed in 1798 and (2) a Mitt Romney DOJ could conceivably prosecute Vivid Video into the ground in 2013, do nothing to make codifying a heckler's veto over "Innocence of Muslims" any less outrageous.

  • ertdfg on September 18, 2012 8:28 PM:

    Ok, I think I see the point.

    Offense against Islam isn't allowed, because they riot and kill people.

    Offense against Christianity, or Judaism or Buddhism or Hinduism is allowed, because they don't riot.

    Hypothetically, how many innocent civilians do I need to butcher in a senseless bloodbath of violence and destruction to move say Hinduism from the non-protected category to the "protected by law" category?

    How much violence specifically is required to gain the respect and protection we currently reserve solely for Islam? Can you give me the number?

    Oh, and if we mock and belittle peaceful actions and reward violent action... what do you think the outcome will be? Anyone who passed Psychology 101 care to answer that?

  • Jack on September 18, 2012 8:32 PM:

    "I’m not a fan of censorship, but" ...
    similar to
    "I'm not a racist, but"
    "I don't hate women, but"
    "I don't have anything against gays, but"
    "I don't hate black people, but"

  • castanea on September 18, 2012 9:16 PM:

    Jack, that's nothing but a series of false equivalences you write.

    You should be able to tell the difference between someone who is camouflaging bigotry and someone who is trying to provide a rational foundation for a political discussion.

    No one should be foolish enough to believe that there are not consequences to the practice of pure free speech. Claiming that a right provided in the U.S. Constitution should be practiced in the absolute without consideration of those consequences is a fool's errand.

  • Mitch on September 19, 2012 10:45 AM:

    @castanea

    But this entire issue is based on people committing violent acts due to having their religious sensibilities insulted, so actually none of Jack's statements are out of bounds.

    "I’m not a fan of censorship, but" ... People shouldn't be allowed to make offensive videos that enrage violent Muslim fanatics.

    "I'm not a racist, but" ... interracial marriage should be outlawed because some Christians find it offensive.
    http://newchristiancrusadechurch.com/sermons/sermon3.htm

    "I don't hate women, but" ... maybe you should move to Saudi Arabia so you can beat your wife, which a husband should be able to do, since he is the head of the household, according to Pat Robertson, one of the most influential religious leaders in America.

    "I don't have anything against gays, but" ... the Bible commands me to stone them to death, so I am going to. And gay marriage should NEVER be permitted because it offends my religious sensibilities.

    "I don't hate black people, but" ... slavery is condoned in the Bible, so there's no reason that black people shouldn't still be slaves. And since the Bible approves of it, it must be right, so it's a sin to deny it and that denial offends my religious beliefs.

    .......


    Sorry. Yes a minority of Muslims are violent extremists who will cheerfully commit murder upon the perceived slightest insult to their faith. But that does not automatically make such insults Hate Speech or Obscenity. And the video is not an incitement to violence, as it does not encourage radical Muslims to commit murder any more than the legalization of abortion encouraged the murder of Dr. Tiller.

    Should their be consequences to the creators of this video? Yes. But social ones, not legal ones. They deserve to be called out for their stupidity, and they will have to live in fear of the revenge of angry Muslims for the rest of their lives.

    But taking any legal action against them opens the door for ANYONE who finds religious offense in ANYTHING to have their feelings protected more than open and free expression. It sets a bad precedent, and could be used in countless situations where speech/action/laws come into conflict with other peoples religious beliefs.

  • Werewolf on September 19, 2012 11:17 AM:

    @Doug:
    Minor point-it is perfectly legal in Israel to have sour cream on your steak, and put bacon sprinkles on top if you like. Government institutions(like the IDF, and the Knesset cafeteria) are kosher, as is most other institutional food service, but that's to ensure that anyone in Israel can eat there. There is absolutely no law against eating non-kosher food in Israel, and there are quite a lot of non-kosher restaurants there.

  • Rieux on September 19, 2012 11:29 AM:

    Mitch:
    "But taking any legal action against the[ creators of the film] opens the door for ANYONE who finds religious offense in ANYTHING to have their feelings protected more than open and free expression."

    True--and, even worse, it encourages every member of that "ANYONE" to threaten and/or commit brutal violence in order to underwrite their demand that legal authorities the world over protect the thugs' religious sensibilities.

    As a result, ironically enough, the calls on this thread and elsewhere for the prosecution of the producers of "Innocence of Muslims"--those very calls incite violence, because they promote a regulatory regime in which violence is directly effective at establishing a desired form of censorship.

    ...Which does not in fact justify an attempt to legally punish those calling for the prosecution of the "Innocence" producers (the First Amendment protects disgusting political advocacy as well), but such an attempt would at least enjoy a certain taste-of-their-own-medicine symmetry.

  • Mitch on September 19, 2012 1:37 PM:

    @Rieux

    Indeed and amen.

    I don't think that it would be like a light switch. I think it would go something like this:

    After finding the creators of this horrible video guilty of Hate Speech, or Inciting Violence, the Christian Right realizes that they now have a legal "in" to attack things that offend their religious sensibilities. The teaching of evolution, LGBT rights, abortion, South Park or whatever, take your pick.

    The initial response of the courts would be, "Well, it's not the same thing. We all know that Islamic Fundamentalists murder people and cause public destruction and chaos when offended. That's why the creators of the video were found guilty. They were 'shouting fire in a crowded theater' or 'tossing a match on a fuel-soaked pyre'."

    The Christian Right would then appeal based on the US government's constitutional inability to favor one religion over another.

    At that point, the courts may very well come down on the side of the Christian Right. The precedent has already been set. And lets face it, the Federal Court system leans hard to the right, and many States are even worse.

    Now, if the courts were sane, and did not give the victory to the Christian Right, what would happen then?

    The Christians would KNOW that the government was favoring Islam over Christianity. They would KNOW that their 'religious freedom' was being crushed, since people aren't allowed to insult or parody Islam, but can say whatever they want about Christianity. They would KNOW that they, as Christians, were being persecuted against.

    And then, well, things would get ugly. Very ugly indeed. Because there are millions of Americans who are Fundamentalist Christians, and they are ALREADY convinced that the world is against them, the world is persecuting them, and the world is trying to destroy Christianity. If they had a court ruling of this magnitude that defended Islam more than Christianity, they would indeed go insane with rage, paranoia and righteous indignation.

    Oh, and they are also the Americans who are most likely to be heavily armed. Nothing like an armed zealot with a persecution complex to ruin ones day. Well, imagine MILLIONS of them, raging in the Bible Belt. It will not take them long to realize that if Islam gets more protection because Islamic Fundies are more violent, then the only way to ensure their own "religious freedom" will be to become just as violent.

    Yes, it will be a minority of Christian Fundies who take this view, and commit themselves to violence - but it is also only a minority of Islamic Fundies who do the same. Even a few dozen individuals can cause immense damage. Personally, I think it will be more like thousands or dozens of thousands of individuals, going to war for Christ. And could easily come to Holy War, Civil War and the beginning of true American Theocracy. I base that opinion on the countless sermons, revivals and discussions that I attended during the first two decades of my life.

    At the very least, it would result in an end to free expression as we know it today. Because eventually nobody could say anything that offended anyone's religion without breaking the law. That's if we're lucky enough to avoid the madness I described above.

    So, yeah, for me Free Speech trumps fear, trumps outrage, trumps offense. Every time. Punishing the creators of this video will only strengthen those who seek to force others to bend knee to their God, and it will only encourage violence as a means to that end.

  • Brenda on September 19, 2012 3:23 PM:

    The Supreme Court rejected the argument you're making here when the State of Texas made it in defense of its anti-flag burning statute:

    The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
  • Eric on September 19, 2012 3:25 PM:

    @c u n d gulag

    Your name says it all: GULAG. Throw the filmmakers in Supermax prison at hard labor? You'd make Stalin proud.

    Aside from a jaw-dropping lack of understanding of US law, you utterly fail to place any blame where it squarely belongs: on the rioting Muslims who are committing this mayhem and murder, as well as the Muslim clerics who issued direct calls for violence at their mosques. THAT is incitement to riot. "Innocence of Muslims" may provoke outrage, but those who are outraged have a choice between restraint and violence. They chose the latter.

  • Eric on September 19, 2012 4:18 PM:

    @T-Rex

    "...they were violating Islamic law. I wouldn't put up more than a token legal resistance to an extradition demand"

    Islamic law, enforceable in the United States? Are you kidding?? Even if we have extradition treaties with the offended countries, there are numerous barriers to extradition, any one of which would be sufficient:

    1. Dual criminality: the act must be an offense in both nations. "Islamic law" is null and void and has absolutely no force in the U.S. In 2011, Oklahoma voters approved an amendment to the state constitution that banned Sharia law. Unfortunately, a federal court struck down that measure. What the U.S. really needs is a (federal) constitutional amendment that not only bans Sharia and all other Islamic laws, but any law that's directly based on religion, such as anti-blasphemy laws. The Constitution may already prohibit such laws (separation of church and state), but a more forceful and explicit rejection of religiously motivated laws is needed. (As you might surmise, I'm an atheist.) Due to the powerful influence of the Christian Right, this broad form of the amendment may be unattainable, but at least a narrower form, limited to Islamic law, might be possible. The U.S. needs to make a strong commitment to keeping Islamic influence out of the country so as to avoid the problems Europe is having with large Muslim populations approaching critical mass (that is, Muslims gaining enough political clout to begin taking away the rights of Europeans).

    2. Most of the nations which might demand extradition (Egypt, Libya, Sudan, Afghanistan, etc.) are failed/failing states. Sudan's president is a brutal dictator and an accused war criminal. Egypt and Libya are being taken over by Islamists. Would the US hand over American citizens to such nations? That would be the day America dies.

    3. Any American politician who calls for, or attempts to facilitate, any extradition in this matter would be committing instant career suicide and in my opinion, high treason.