MSNBC aside, we now have a serious argument that The Innocence of Muslims does not deserve protection under the First Amendment. Sarah Chayes, former special assistant to the chairman of the Joint Chiefs of Staff and a resident associate at the Carnegie Endowment, presents it in the Los Angeles Times.
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.
Ms. Chayes doesn't elaborate on the issue in Schenck, but I will. He sent circulars to draftees during WWI that criticized the draft and urged them to assert their rights. The Court ruled unanimously that Schenck did not enjoy First Amendment protection.
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.
The clear and present danger test would be later be used to deny free speech rights to communists arguing, even abstractly, in favor of an overthrow of the American government. It is very doubtful that the contemporary Court would allow any such restrictions. Ms. Chayes is resting her case on abandoned applications of court principles that one would think are universally recognized now as serious threats to freedom of speech.
She is right, of course, that the "fire in a theater" restriction still stands. Indeed, free speech rights are not absolute. That metaphor, however, is intended to do two things: limit restrictions on speech to cases of imminent danger and to keep it local, or narrowly tailored so as to be as little burdensome on First Amendment rights as possible.
She makes a good case for the imminent danger that the film represents. While the film may have been in the can for a while before the trouble started, it started immediately once the Muslim world became aware of it. The film and acts such as pastor Terry Jones' burning of Koran can provoke violence and murder very quickly. Chayes argues that it doesn't matter whether the intent of the speech is to provoke violence.
Words don't have to urge people to commit violence in order to be subject to limits, says [Anthony] Lewis. "If the result is violence, and that violence was intended, then it meets the standard."
Of course, the standard suggested by the jurisprudence that Chayes cites is much broader than that. If it were adopted by the Court, the government could crack down on any speech it thought likely to provoke violence. In the current environment, that could include virtually any film or book or article that might offend militant Islamists. A scholarly work that undermined doctrinal histories of Islam would be subject to review. Even if the standard is limited to actual violence, the threat to freedom of speech would be pervasive.
Surely Salman Rushdie's novel The Satanic Verses would lose First Amendment protection. I don't know if anyone has actually died because of this novel, but no one can argue that the threat of violence has not been imminent for the author since the Iranian Regime put a bounty on his head.
The film maker Theo van Gough was murdered for producing a film Submission that criticized the treatment of women under Islam. He worked with the Somali-born writer Ayaan Hirsi Ali, who came to the U.S. when the Netherlands decided she wasn't worth protecting. Under Chayes' standard, this would be sufficient grounds for stripping First Amendment protection from U.S. film makers who intended to produce a similar movie. Of course, says Chayes:
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.
Regardless of what point she thinks she is making, the effect of her standard is to reward "the terrible acts perpetrated by committed extremists." All they would have to do to put a writer or film maker in the dock would be to burn a few flags, jump over a few walls, and murder a few innocents.
Protecting free speech has always been inconvenient. It has never before involved the kind of threat presented by militant Islam. This is a moment when we have to decide whether we are really prepared to defend our liberties or not. Sarah Chayes thinks we should back down. I dissent.
ps. I found the clip posted at the beginning after I had posted the above. I am now rather ashamed by timidity. Long live Christopher Hitchens.