One Film That Put Free Speech In the Cross Hairs…
posted at 9:08 am on September 15, 2012 by Matt Vespa
In the wake of the embassy attacks in Cairo and Benghazi, which left four dead, including Ambassador Chris Stevens, it appears members of academia, the media, and some diplomats are shaping a narrative that would curtail our right to free speech in this country.
Hans Bader, Senior Attorney at the Competitive Enterprise Institute, wrote on September 13 that “the Egyptian government said, ‘We ask the American government to take a firm position toward this film’s producers within the framework of international charters that criminalise acts that stir strife on the basis of race, colour or religion.” Some in the realm of international law have sided with the Egyptian government, but:
Similarly, journalists and a professor argued that the film’s producer should be prosecuted.The professor’s USA Today op-ed is entitled ‘Why Sam Bacile Deserves Arrest.’ Law professor Eugene Volokh quotes them as follows:
[Professor Anthea Butler of the University of Pennsylvania]: “Good Morning. How soon is [producer] Sam Bacile going to be in jail folks? I need him to go now.When Americans die because you are stupid…” “And yes, I know we have First Amendment rights,but if you don’t understand the Religion you hate, STFU about it. . . . people do jail for speech. First Amendment doesn’t cover EVERYTHING a PERSON says.” “[T]he murder of the Ambassador and the employees is wrong, wrong. But Bacile will have to face his actions . . .”
[MSNBC’s Mike Barnicle] “Given this supposed minister’s role in last year’s riots in Afghanistan, where people died, and given his apparent or his alleged role in this film, where, not yet nailed down, but at least one American, perhaps the American ambassador is dead, it might be time for the Department of Justice to start viewing his role as an accessory before or after the fact.”
[MSNBC’s Donny Deutsch]: ‘I was thinking the same thing, yeah.’
In reality, the minister that the MSNBC commentators blamed for the film depicting Mohammed does not appear to have been involved in its production, and the attack on our embassy in Libya that left our ambassador and three others dead appears to have been preplanned, and not inspired by recent outrage over the film after it was publicized in the Islamic world.
First of all, Sam Bacile, the person allegedly behind this film, is a phantom. As Bret Stephens wrote in The Wall Street Journal on September 13, Bacile’s identity remains to be fully authenticated.
Second, when did the U.S. get so timid? We’ve had Islamists hurl their rage and hate at us before and we’ve never disseminated communiques, like the one from the U.S. Embassy in Cairo, apologizing for our citizens’ alleged abuse of our First Amendment rights. As Mary Katherine Ham posted today on Hot Air’s main blog, there is a serial stupidity concerning free speech coming from the left. It appears it’s the new thing to be rationed – like health care.
Anthea Butler made Ham’s list writing:
If there is anyone who values free speech, it is a tenured professor!
So why did I tweet that Bacile should be in jail? The “free speech” in Bacile’s film is not about expressing a personal opinion about Islam. It denigrates the religion by depicting the faith’s founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers. Even the film’s actors say they were duped.
Bacile’s movie is not the first to denigrate a religious figure, nor will it be the last. The Last Temptation of Christ was protested vigorously. The difference is that Bacile indirectly and inadvertently inflamed people half a world away, resulting in the deaths of U.S. Embassy personnel…
While the First Amendment right to free expression is important, it is also important to remember that other countries and cultures do not have to understand or respect our right. My condolences and prayers go out to the families of the U.S. Embassy employees killed in Libya.
The last time a cultural event set of a wave of Muslim fury was in 2005 when the Danish paper Jyllands-Posten published a cartoon featuring the prophet Muhammed. In 2007, Islamic ire was directed towards Swedish cartoonist Lars Vilks who also drew a caricature of Muhammed. In fact, Swedish Muslims are still infuriated and even attacked him when he tried to give a free speech lecture at a Swedish university in 2010.
While the outrage from the Muslims was more widespread in 2005, Bader noted “The Wall Street Journal‘s James Taranto [who said], under the Bush Administration, ‘the United States defended the right of the Danish and French newspapers to publish the cartoons.’ The Obama Administration has done no such thing regarding the film depicting Mohammed, although it distanced itself from the embassy’s statements.)”
Ironically, “the most open and transparent administration in history” is pushing for a blasphemy clause in the United Nations. Bader noted that:
In USA Today, liberal law professor Jonathan Turley criticized the Obama administration for endorsing a ‘blasphemy’ exception to free speech: ‘Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.’
Other legal scholars have articulated their reservations about this measure as well. In this field of international law, Bader wrote that if such an ordinance can be passed by the UN, it will severely curb our civil liberties.
International law (including unratified treaties) can also undermine civil-liberties by arguably creating a ‘compelling state interest‘ in regulating speech that conflicts with international norms. The First Amendment’s text does not contain any written exception for speech that the government has a ‘compelling interest’ in banning, but the Supreme Court has made up such a ‘compelling interest’ exception. Legal scholars argue that compliance with either international treaties, or ‘customary international law‘ (international norms contained in treaties that the U.S. Senate may not even have ratified), is such a ‘compelling interest,’ and that hate speech orspeech that defames or incites hostility to religions such as Islam must be restricted pursuant to international law, since treaties have been interpreted by committees of legal scholars as requiring countries to restrict such speech.
The federal appeals court in Washington once upheld a municipal ordinance restricting protests around embassies based on a ‘compelling interest’ derived from international law, although a divided Supreme Court partly reversed that ruling in Boos v. Barry on the grounds that one of its restrictions was not proven to be essential to achieving that compelling interest, because Congress, unlike municipal authorities, had not supported the restriction or viewed it as essential. (It upheld other less onerous restrictions without really needing to rely on interests derived from international law.) Three of the Supreme Court justices, however, would have upheld the ordinance in its entirety, including its prohibition ‘on the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into ‘public odium’ or ‘public disrepute,’ based on the reasoning of the lower court, which had relied on international law to justify the restriction. (On the other hand, the Supreme Court’s earlier decision in Reid v. Covert (1957) said that ‘no agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution’ (i.e., the Bill of Rights). Still earlier cases arguably rely on international law to reject rights claims. The law is murky on this point.)
Bader warns that such curtailments to free speech via “customary international law” could be expanded to irreparably harm protected speech in other public venues.