Opinion: Mohammad and the 1st Amendment: Crying Fire in the 21st Century

Foreign policy has become a major focus of the presidential campaign, which had been centered almost exclusively on the economy.  That changed suddenly when the trailer for the movie “Innocence of Muslims,” which mocks the Prophet Mohammad, and was made in the United States, prompted widespread attacks and protests in a number of countries. 

I was already contemplating free speech issues last week when the anti-American violence reached full boil. I was writing a proposed syllabus for a class I hope to teach this spring. “The Law of Messages: Communication and the Law,” a reprise of a course I taught back in the 1990s when I was a fellow at the Stanford Law School.  But so much has changed since then.  

For American lawyers, law students, jurists and policy makers, the First Amendment – the freedom of speech, press and expression - is a constant.  But the Constitution is also understood in the context of a changing society.  In the last decade, technology, like the iPhone, and social networking sites like Facebook have helped revolutionized human interaction.  But, even more than the introduction of the personal computer, smart phones have upended the technological world order, transforming how we manage our daily lives.  Twitter helped spark the Arab Spring.  And then there is YouTube.

The collective 80 million hours we spend watching videos on YouTube every day may seem, at first blush, like a terrible waste of human time and attention.  But if you scratch the surface, you discover something much more hopeful – and potentially problematic.  Hidden among all the stupid animal tricks and pirated television programs, online video is driving astonishing innovation.  It is also raises a fundamental question:

Can American ideals of free speech rooted in the First Amendment co-exist with the reverence for the Prophet Mohammad rooted in Islam?

Ambassador Christopher Stevens and three other Americans were killed in one attack, last week, by Muslim protesters on the U.S. consulate compound in Benghazi.  The four Americans were killed when an angry mob stormed the consulate to protest the U.S. made video, after it was widely disseminated on YouTube. Hours before the protest erupted in Benghazi, protesters scaled the walls of the U.S. Embassy in Cairo, Egypt, tearing down the American flag and replacing it with an Islamic banner.

Our First Amendment has always set the United States apart.  But this incendiary video and America’s response to the violence inspired by it underscore our uniquely democratic values in the area of free speech and expression.

Consider by contrast the Egyptian response: Egypt's Islamist President Mohamed Morsi asked the United States to take legal action against the makers of the film.  Secretary of State Hillary Clinton took pains to explain that we simply don’t punish citizens for their speech:

"I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.  In today's world with today's technologies, that is impossible. But even if it was possible, our country does have a long tradition of free expression, which is enshrined in our Constitution and our law.”

She put a fine point on it:  "And we do not stop individual citizens from expressing their views no matter how distasteful they may be."

Yet, First Amendment protection is not absolute. Despite the passage of time, the very first unit of the class I teach will remain the same.  It goes to the long line of Supreme Court cases that place limits on protected speech.

The most famous example is the popular “Shouting fire in a crowded theater” metaphor.  That is the frequent paraphrasing of Oliver Wendell Holmes’s opinion in the U.S. Supreme Court case Schenk v. United States, a case that dates back to 1919. I start my "Communications and the Law" class there, noting that the paraphrasing generally does not include the important word: Falsely.

That word was originally included by Justice Holmes to highlight that speech, which is dangerous and false, is not protected by the first amendment.  (Of course, if the theater is, in fact, on fire, one should yell, “Fire!”)

But perhaps more relevant to the firestorm surrounding “Innocence of Muslims” is Brandenberg v. Ohio.   In that case, Clarence Brandenberg, a Klansman spoke at a Klan rally in Cincinnati.  He made hateful remarks about blacks and Jews and threatened to take action against the government for suppressing the rights of white Christian citizens.  Brandenberg was arrested under a local ordinance that made it crime to advocate violence as a means of political reform.  

In 1969, a unanimous Court held in favor of Brandenberg.  But the justices found that speech can be without protection if  “it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  Note: Imminent.  Also note:  Likely to produce.

Now consider the current video that is prompting anti-American rage across the Arab World.   It was uploaded to YouTube last summer. The uproar was slow to start, not reaching its peak until last week. Hardly imminent.  And the film was made in the U.S., while the violence is happening overseas.  The fact pattern is complicated, under the Brandenberg line of cases, to say the least. 

Of course, as a policy matter the United States wasn't disrespecting Islam by declining to censor a film trailer that nobody in authority knew anything about.  At the same time, America’s commitment to religious tolerance goes back to the very beginning of our nation.  How we reconcile First Amendment values, 21st century technology and an increasingly volatile global state of affairs remains to be seen.  Most likely on YouTube first.