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

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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