LA Times op-ed: Maybe this Mohammed movie isn’t free speech after all

posted at 7:21 pm on September 18, 2012 by Allahpundit

On a day when Egypt is appeasing its mob by issuing arrest warrants for the people responsible for the film (a capital offense there, do note), this is what’s running in the biggest paper in Los Angeles. Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise. As Matt Welch notes, lately the strongest pressure on private citizens to limit their criticism of Islam has come from the top of the Pentagon. Bob Gates called Terry Jones when he first threatened to burn a Koran to ask him to stand down, then Martin Dempsey called him again a few days ago when the Mohammed movie broke big. Not content with asking citizens not to make Islamists mad, Chayes wants to blow a hole through the First Amendment using Supreme Court precedent so that they can be compelled to shut up. This is all being done with a noble goal in mind, i.e. protecting U.S. troops in the field, but I’ve got to say: If the choice is between carving off pieces of free speech to sustain an already crumbling mission in Afghanistan and bringing American troops home so that they’re out of harm’s way while keeping free speech intact, I’m all for taking a close look at the latter.

The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited…

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

The Brandenburg case had to do with a Klan leader who was trying to rile up a mob of Klansmen. It’s been used ever since as a constitutional guideline on when government can criminalize speech that incites an audience to riot. The speaker has to intend for the audience to behave violently, it has to be likely that the audience will behave violently, and the possibility of them behaving violently has to be imminent. Essentially, in very narrow circumstances, Brandenburg says it’s okay to silence a speaker if he’s colluding with a violent mob by encouraging it. There are all sorts of problems with applying that ruling to the Mohammed case — who’s the “audience”? did the movie encourage “imminent” violence (or any violence at all) or did the 9/11-related publicity do so? do we really want to assume, as a matter of law, that criticism of Islam is always “likely” to result in violence? — but never mind that. Chayes’s trick is to try to extend Brandenburg’s logic to circumstances where the speaker and his audience are enemies. There’s no actual collusion in the case of the filmmaker and Islamists, but there’s kinda sorta de facto collusion in that an insane Islamist violent reaction bolsters the filmmaker’s criticism of the faith and therefore, per Chayes, we should infer that he “intended” it. Even though, as I write this, he’s in hiding in fear for his and his family’s lives.

What she’s really making here isn’t an argument under Brandenburg but an argument under the “fighting words” exception to the First Amendment, one of the most pernicious doctrines in Supreme Court jurisprudence. It’s been around since 1942, when someone in New Hampshire was prosecuted successfully for calling a cop a “goddamned racketeer” and a “damned fascist.” The Court upheld his arrest (unanimously!) on grounds that it’s perfectly fine to criminalize words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In other words, if you say something to someone that’s so outrageously insulting that they’re apt to come after you physically, the state can step in and arrest you in order to prevent the altercation. It’s nothing less than a “heckler’s veto” loophole grafted onto the right to free speech. The Court hasn’t revisited the case much since, but as far as I know, it’s still good law — and as you can see from Chayes’ piece, there’s plenty of currency for it today as bien-pensants plot to find ways to criminalize criticism of Islam in the name of “security.” If/when blasphemy laws start making a comeback in the United States, it’s the “fighting words” doctrine — or Chayes’ bastardized version of Brandenburg — that’ll carry them. And if you think I’m being alarmist about this, I encourage you to read this post from 2010 about Stephen Breyer sounding surprisingly equivocal about whether the First Amendment protects the right to burn the Koran. Ready to take your chances with another Obama appointee or two if he wins a second term? The sooner the Supreme Court formally repudiates the “fighting words” doctrine, the better.

Exit quotation from Chayes, in deep, deep denial: “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.” If you’re giving them precisely what they want because they’re likely to commit “terrible acts,” how are you not excusing their actions?


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Maybe we should ask our soldiers what they think.

Personally, I think that they’re fighting to DEFEND America’s freedoms. If you give up those freedoms, then why are they bothering to fight?

hawksruleva on September 19, 2012 at 10:24 AM

Maybe the LA Times isn’t a newspaper, but simply birdcage liner with printing on it.

Marxism is for dummies on September 19, 2012 at 10:36 AM

I get so confused by what the different bloggers here try to argue.

So first I seen post stating that the violence in the middle east isnt BECAUSE of these videos but because of Obamas middle east policy. As in, we need Romneys “kick the ball down the field” approach he stated he would take in his mother jones videos to help calm down tensions in the middle east or something ???

Now it seems that you guys are arguing whether or not it’s acceptable to try to limit speech in some cases that may be seen as inciteful. Now look, Im all for free speech, you can say what you want but you have to be prepared for the reaction that may come with it. If you want to go to Black bike week in Florida wearing your KKK gear and shouting racist epithets, hey..feel free but dont expect me to feel sorry for you when you’re leaving on a stretcher.

Same thing as if you want to make anti islamic films, hey..do your thing but when those radical muslims show up at your door and want to harm you and your family dont expect me to feel sorry for you.

I seen a blog here berating the media for showing where this guy lives on the news, whats wrong with that? They have freedom of the press right? If this guy knowingly wants to put peoples lives at risk just because he has the right to “free speech” then Im not going to knock the media for reporting his whereabouts as they have the right to “freedom of press”.

It’s easy to sit behind the comfort of your computer and try to attack people in our Government for trying to take steps to not inflame tensions that endanger our people on the ground in those parts of the world but what would you have them do? I mean I personally think we should bring all our soilders and citizens from the middle east home and let the place take care of it self but you guys made fun of Ron Paul for saying that, so whats your answer? What should over Government do if they know that some guy buring a Koran is going to set off tensions in the middle east,whats your answers? Not these make believe fantasy ideas like nuking the place off the map that we know will never happen but whats some real life ideas for both keeping our people safe while at the same time putting some of our other peoples life at stake just because some dumb*** wants to cause trouble?

Politricks on September 19, 2012 at 10:37 AM

All the moronic raving liberals completely ignore, or, are more ignorant of the fact that what sets our country apart, and head and shoulders above the rest of the world is our Constitution, and the First Amendment. What ignorant, slavering, worms. They will say, or do anything to destroy our liberty and demonize freedom of speech.

Remember everybody, it’s only hate speech if Republicans do it. Freedom of speech is only for liiibeeeraaallllls.

ultracon on September 19, 2012 at 10:40 AM

News from 1620: the Mayflower just turned around and headed back to England, saying “Why bother?”

jangle12 on September 19, 2012 at 10:52 AM

I seen a blog here berating the media for showing where this guy lives on the news, whats wrong with that? They have freedom of the press right?

Uh, responsibility of the media comes to mind, the man has neighbors who have nothing to do with this, to consider. If you lived next to this man, would you want his address and location identified so the media vultures and stalkers can wreck havoc on your street and, oh, mistakenly do something to injure you or damage your property?

It isn’t necessary to the story for the public to know exactly where he lives.

hawkeye54 on September 19, 2012 at 10:56 AM

Doesn’t the criminalizing of this sort of thing just encourage people to behave badly if/when insulted/mocked?

Could Mormons get the popular theater production mocking them banned if they were only to behave badly as a response to it? LDS adherents would, in effect, be punished for behaving civilly in the face of the insult/mockery.

krome on September 19, 2012 at 10:57 AM

Maybe someone already commented, but how many Christians went on a rampage when that dolt put the Crucifix upside down in a bottle of urine??? Not one, and that was more defamatory than this video.

chai on September 19, 2012 at 10:58 AM

Same thing as if you want to make anti islamic films, hey..do your thing but when those radical muslims show up at your door and want to harm you and your family dont expect me to feel sorry for you.

The glaring flaw in your argument is almost too easy: no Islamists showed up at the filmmaker’s door. Instead, it was US law enforcement (*snort*) seeking a private citizen on a trumped-up pretext and acting on the direct orders of the Obama administration. East Germany or North Korea couldn’t do it as efficiently.

Many, including the administration, seem to take it for granted that the violent Islamic rabble are a constant in the equation. These animals react to only the most basic stimuli. In the absence of any negative reinforcement, they are enjoying a feast of positive reinforcement. But unloaded guns and an administration cowering in the corner will tend to do that.

jangle12 on September 19, 2012 at 11:14 AM

In other words, if you say something to someone that’s so outrageously insulting that they’re apt to come after you physically, the state can step in and arrest you in order to prevent the altercation. It’s nothing less than a “heckler’s veto” loophole grafted onto the right to free speech.

I don’t see the connection since the “insulting” speech was made on US soil and the altercations took place overseas. The US does not have jurisdiction to “keep the Peace” in relation to “insulting” speech in other countries who have their own militaries and police forces.

Chayes’s trick is to try to extend Brandenburg’s logic to circumstances where the speaker and his audience are enemies. There’s no actual collusion in the case of the filmmaker and Islamists, but there’s kinda sorta de facto collusion in that an insane Islamist violent reaction bolsters the filmmaker’s criticism of the faith and therefore, per Chayes, we should infer that he “intended” it. Even though, as I write this, he’s in hiding in fear for his and his family’s lives.

If restrictions on speech reach this point over violence overseas, then our Commander in Chief will be severely limited with what he can and cannot say in the future. Obama’s comments about Egypt “not being an ally”, if followed up with violence in Egypt against Americans, could be criminal? I mean, all the MSM talked about was how brilliant this move was because it was telling Egypt to “get in line”. According to the MSM Obama’s intentions were for Egypt to modify their behavior based on his comments. I don’t think that is a direction that the US wants to go.

weaselyone on September 19, 2012 at 11:26 AM

This is precisely why we should be focused on activism regarding the courts: doing what it takes (within legal bounds, of course) to replace judges at all levels with strict constructionists, and replace current law professors with people who are very knowledgeable about history and who have a strict constructionist view. The case cited was foolishly decided; the Klan idiot should be allowed to say his piece; if anyone acted criminally on that speech, they should have been punished severely for said acts. The perverse reasoning of this idiot Chayes is perfectly anticipated by the stupid decision of the court. And as someone above pointed out, all one has to do to shut someone else’s free speech down is threaten to riot if they speak.

avgjo on September 19, 2012 at 11:42 AM

It often seems that the newsies alredy submit their comments about Obama to his fanatical believers for review before publishing them. Not checking for facts or truth, you understand, but only for how far it can be slanted toward Obama without looking too stupid.

dahni on September 19, 2012 at 12:47 PM

Politricks on September 19, 2012 at 10:37 AM

Wordy, aren’t you?

You want some cheese with that whine?

kingsjester on September 19, 2012 at 1:09 PM

From Hot Air

“Only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited…” “I think this meets the imminence standard.”

News as reported and covered by Aljazeera

Angry Muslims around the world storm US embassies and attack slapstick film considered offensive to Prophet Muhammad.

Domestic and foreign extremists behind the Cairo and Libya attacks
Religious extremists exploit underlying East-West animosity, fomenting mob violence for their own political ends.
http://www.aljazeera.com/indepth/opinion/2012/09/201291510539957566.html
Last Modified: Sat, 15 Sep 2012 01:39:12 GMT –
Opinion
Cairo, Benghazi and beyond: Beware the false fury

An incendiary ‘movie’ should not allow fringe elements to co-opt and realign the trajectory of the Arab revolutions.
http://www.aljazeera.com/indepth/opinion/2012/09/201291464128859414.html
Last Modified: Fri, 14 Sep 2012 07:54:24 GMT –

Opinion
How did obscure hate film earn global wrath?

What started as little-seen trailer posted on YouTube in July has now incited violence and outrage across Muslim world.
http://www.aljazeera.com/indepth/features/2012/09/201291311247270525.html
Last Modified: Thu, 13 Sep 2012 11:50:19 GMT –
Features
How did obscure hate film spur global wrath?

What started as little-seen trailer posted on YouTube in July has now incited violence and outrage across Muslim world.
http://www.aljazeera.com/indepth/features/2012/09/201291365330452713.html
Last Modified: Thu, 13 Sep 2012 11:50:18 GMT –
Features
Angry protests spread over anti-Islam video

Demonstrations over movie trailer made in US and deemed insulting to Islam spread across Middle East and North Africa.
http://www.aljazeera.com/video/middleeast/2012/09/20129130543708779.html
Last Modified: Fri, 14 Sep 2012 11:54:53 GMT –
Middle East

12 Sep 2012 07:27 PM
Is The Muhammad Movie Even A Real Movie?

Rosie Gray created an (unembeddable) video highlighting the heavy dubbing of the trailer. She theorizes that the “anti-Muslim ‘movie’ that served as the spark or pretext for a wave of violent unrest Egypt and Libya may not be a movie at all”:

[N]early all of the names in the movie’s “trailer” are overdubbed. The video is a compilation of the most clumsily overdubbed moments from what is in reality an incoherent, haphazardly-edited set of scenes. Among the overdubbed words is “Mohammed,” suggesting that the footage was taken from a film about something else entirely. The footage also suggests multiple video sources — there are obvious and jarring discrepancies among actors and locations.

I do not think that this is covered by free speech…..BECAUES…… I do not think it was made with the intent of expressing one mans views. It is very strained to believe the coverage in the US is so different from the coverage in Aljazeera. This has many ear marks of “Fast and Furious” and the Second Amendment rights. Keep in mind that the president currently has an executive order on his desk Which will effect “Nationalize the Internet” for the sake of Public Safety and National Security. Something just isn’t right about this whole thing. It looks to much like the man on the grassy knoll.

Watch this one. It could be a game changer.

jpcpt03 on September 19, 2012 at 1:39 PM

“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” ~ George Washington

SpiderMike on September 19, 2012 at 3:36 PM

So we are going to classify permitted speech by the standard:

Must not offend ignorant, 6th century world-view barbarians who are looking for any reason to rape, pillage, murder, and riot.

Makes perfect sense to me.

sclemens on September 19, 2012 at 5:54 PM

It is outrageous for the United States government to apologize for the exercise of free speech by a private individual (who is in fact an Egyptian citizen deserving of asylum for being a victim of religious persecution). It goes against the spirit of freedom – but is hardly surprising for the collectivist Obama Administration and their barbarian-friendly Soft Power and Smart Diplomacy™.

The guy is also on federal probation for swindling, but that does not affect his freedom of speech. If he violated his probation by accessing the internet (which is not necessarily proven, someone else may have posted the video even if he edited it), that’s a separate issue.

If Obama won’t stand up for our Constitutional rights and traditions against the barbarian hordes, what good is he? Even if he hasn’t stifled growth and botched the recovery?

Adjoran on September 19, 2012 at 9:10 PM

More proof that the real enemy of freedom is the US federal government, including the supreme court.

woodNfish on September 19, 2012 at 9:17 PM

Speech with which nobody disagrees, requires no protection. By extension, if all speech which requires protection is also illegal, then there is no Constitution. If the First Amendment is of no effect, nothing which follows has substance.

Offensive and insulting, does not equate to violence-inducing. The people who commit violence because of an insult were wanting a reason to commit that violence already, and were given a convenient avenue of blame for their violence. Failing to recognize that pattern as fact, and reacting accordingly, is why we are no longer able to successfully deal with the outrageously outraged.

Freelancer on September 19, 2012 at 11:49 PM

It is the fundamental theory of all the more recent American law…that the average citizen is half-witted, and hence not to be trusted to either his own devices or his own thoughts.

—H.L. Mencken

claudius on September 20, 2012 at 9:03 AM

Is it still true, as the BBC site reported a couple of days ago, that Egypt wants Interpol to serve the arrest warrants here in America — with the help of our government?

Will Americans stand for their government to assist in the arrest, with possible death sentence to follow, of people exercising their right to free speech?

I wouldn’t be surprised, the way things are heading.

KyMouse on September 20, 2012 at 9:30 AM

Will Americans stand for their government to assist in the arrest, with possible death sentence to follow, of people exercising their right to free speech?

Not yet. But we already elected a President who would eagerly do exactly that if not for his concern about the negative political fallout.

The distance between picking a President who wants to do it and letting him do it is but one misplaced step ….. such as could easily happen this November.

fadetogray on September 20, 2012 at 12:17 PM

A word to rioting Muslims

http://www.youtube.com/watch?feature=player_embedded&v=GCXHPKhRCVg

redguy on September 21, 2012 at 10:06 AM

Politricks on September 19, 2012 at 10:37 AM

These protests have nothing to with the video, our government or anything else you listed. These are jihadists that have agitated since the beginning of Islam…it is clearly outlined in the Koran. Islam is dedicated to overtaking the world in whatever manner it must. It does not care or know what “free speech” is about…and, because they are where they live, they protest, murder and maim at will. Never mind that is to their own….that is not of interest. What they have discovered is that with the media behind them, they can do whatever they want and the Western countries will bend over without vaseline. Look up the word “taquiyya” and then see how that word applies to all you see and hear…the Koran is clear. The only reason you don’t see the insanity here as there, is because they know the police will come out in force here and take care of business…not to mention the citizens who will also get involved. They don’t like it when they have to face a threat from outside themselves.

sharinlite on September 21, 2012 at 12:31 PM

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