Heckler's Veto

Let me build on Ken's post below.  Donald argues,

"Generally I agree, and I totally agree pre-publication or pre-showing.  But what if the movie was made with the intent and specifically funded to foment violence by getting others riled up enough to commit illegal acts, including murder, that you knew would happen as a result of distributing the film?  If prosecutors could prove a nexus of this film to a plan or plot, the First Amendment right might not be defense."

As this is a rare instance of comity among SDP commentors, I hate to bicker, but let me disagree slightly with Donald.  I am not sure intent is the right measure.  If I make a video of myself eating a pork chop and my intention is to offend Muslims and Jews, does that mean that my video can be banned?  But if I make the video just because I like pork chops it can't be banned?  This looks a lot like viewpoint discrimination.

I will readily admit that this is not my area of expertise, and I am surprised that the legal blogs, especially Volokh, have not really tackled this issue from a legal standpoint (although Eugene Volokh himself, one the the nation's leading 1st Amendment scholars, makes a prudential argument against banning offensive videos here).  But it seems to me that there has to be some real incitement in any work in order for it to be banned.  Schenk, as Ken alludes, was actively encouraging people to disobey the law.  It needs to be noted, though, that "clear and present danger" was largely replaced with "imminent lawless action" in Brandenburg v. Ohio.  Does the contents of "The Innocence of Muslims" actually encourage people to violence?  From what I have seen the answer is most definitely "No."  No reasonable person could draw that conclusion.  But, of course, the fanatics are not reasonable.

In the law there is a notion of the "heckler's veto."  Just because someone does not like a kind of speech doesn't mean they get to veto it.  Example, if I say that every time Barack Obama talks about the killing of Osama Bin Laden I myself will kill someone, does that mean that Obama is inciting violence when he talks about Bin Laden, and thus the law can shut him up?  Of course not.  The heckler does not get to shut down otherwise protected speech that he doesn't like by making threats.  Indeed, as Volokh points out, this would only encourage people to violence.  If my preferred view point is not winning, I can just start killing people and then those who disagree with me or have different views must shut up.  In American law Muhammed is not sacrosanct.  If people want to depict him in violation of Muslim sharia, they are free to do so.  If they want to make fun of Muhammad, as, say, Jesus is every day in a thousand different ways, then that is protected too.  "The Innocence of Muslims" might be stupid, but it is protected speech.  We should all be angered that one of its creators is being hauled into interrogation in the dead of night to answer for this thought crime.

Update: I edited a couple typos from the original.

 

Comments

[larry kurtz]

Support for jury nullification, Prof. Schaff?

[Mike Quinlivan]

If he were being hauled in for making the video I would agree. He has every right to make it.

However, he had broken federal law at an earlier time (production of meth I believe), and was not allowed to access internet. Is it documentable that he was picked up for making the video (a gross constitutional violation), or is he being picked up for parole violation (a dumb move of his own making)?

[larry kurtz]

Stevens knew he was a target: the plotters seized the moment.

[Jon S]

It is not typical to show up a midnight with a full compliment of officers to enforce a possible parole violation by a parolee. Note, they didn't know if he'd violated parole, they just wanted him to come for...questions. From the NYT: "The film was produced in the United States, though its origins are still shrouded. American federal authorities identified the man behind the film as Nakoula Basseley Nakoula, 55. Though the film does not appear to violate any American laws, the authorities took Mr. Nakoula in for questioning on Saturday over possible federal parole violations connected to an unrelated criminal conviction. That action has done little to tamp down the unrest."

[Stan Gibilisco]

A few days ago, I made a 10-minute YouTube masterpiece of my own, expressing my outrage and disgust as the video mocking the Prophet Mohammed. (I also expressed disapproval of the publication of photos of Kate Middleton topless.)

In the case of the Islam-denigrating video, I don't think a case exists for criminal charges on the basis of its content, unless it directly demands that people commit acts of violence.Civil prosecution, however, might be another matter. I'd be interested to find out what sort of international civil proceedings might arise out of this episode.

As for the Kate Middleton case, if I were Prince William, I'd get myself a Palermo (Italy) underground telephone directory right away.

I think the person who made the video wanted to (1) test the limits of free speech and expression, and (2) cause Muslims to react violently, so that they'd make their religion look to the world like a religion of violence. In addition, that person probably wanted attention, and maybe had suicidal tendencies.

One of the principles of the justice system, unwritten of course, is that "If we want somebody behind bars, we'll find a way to put them there." Shades of Julian Assange. He's in prison, effectively, right now, isn't he?

I don't know how, or even if, justice can be served in a case like this. I will say, as a person who has experienced borderline slander from anonymous Internet users on two or three occasions (and a hilarious tantrum of irrationality in one more case) ... as a person who could see himself as a "victim," I prefer to look at the matter as a clear demonstration of the way that the Internet brings out human scum in America, the way spoiling left-out food brings out cockroaches in Miami.

I concur with the people here who have indicated that the free speech rights of all Americans should not be sacrificed on the altar of a single immoral idiot. That outcome would bring victory to the idiot, and also, ironically, to the extremists who so insanely hate him.

[Donald Pay]

Who's free speech is protected? Can actors be lied to regarding the type of production they are in? Is it free speech if fraud is committed in the process of signing actors to a production?

One of the actors in the movie is suing to have the film taken down. If the actors were told they were working in a completely different production having nothing to do with what it ended up being, that could constitute a fraud.

If speech that comes from a legally fraudulent undertaking protected? Advertising may constitute free speech unless it is found to be fraudulent or legally misleading.

I don't think things are as clear as people here seem to think it is. I expect courts will be making some judgements about whether this is free speech or whether it was fraud.

[Mike Quinlivan]

I understand the situation is not "typical". However, this man does not appear to be a typical parolee. He had/has a reason to fear for his life. Perhaps that is why there were so many agents there. I guess I will just say it; why are we basing this assumption that we live in a tyranical state on a picture that, at the moment, does not tell us much. He possibly violated his parole! I don't understand this leap from parole violation to "imprisonment in room 101 for thoughtcrime, double plus good says comrade obama!" Can't we wait a few days and see how the situation actually plays out? Or in this era of instant judgement and gratification is that simply to much to ask for?

[larry kurtz]

Snyder v Phelps affirmed 8-1:

http://www.bloomberglaw.com/public/document/Snyder_v_Phelps_131_S_Ct_1207_179_L_Ed_2d_172_2011_Court_Opinion

[larry kurtz]

CA Gov. Jerry Brown targets protests from the Phred Phelps Phamily:

http://www.huffingtonpost.com/2012/09/18/westboro-jerry-brown_n_1893849.html

[Ken Blanchard]

There is no way that this guy would have been hauled away for questioning if he hadn't offended some sensitive folks thousands of miles away and in doing so presented a problem to the Executive Branch. His parole status and issues arising between him and the actors he employed are red herrings. The only question is whether the offensive element in his film is protected speech. It is.

[kafantaris]

John Stuart Mill proved long ago that the benefit of freedom of the press is that it assures the continuing growth and relevance of our most cherished institutions:
“The peculiar evil of silencing the expression of an opinion is that it is robbing [us.] ...
If the opinion is right, [we] are deprived of the opportunity of exchanging error for truth: if wrong, [we] lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

[Mike]

How is his parole status a red herring?

[Ken Blanchard]

Mike: his parole status was an excuse to haul him in and get the photos on the web. His parole status was a convenient excuse.