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

Tuesday, September 25, 2012 - 11:46 AM

Some Muslims say that the Park 51 furor, and a rise in Islamophobia, make it harder to profess their faith publicly. Apparently not for this Bangladeshi halal butcher in Jackson Heights. (Arun Venugopal)

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.


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Comments [9]


(cont'd) When did it become an American value to accept the pressure of the government to suppress criticism?

Hillary Clinton vowed to arrest and prosecute this man. She did so. This is the most frightening, arbitrary kind of political chill we can experience, and this tacit approbation by someone purportedly committed to the rule of law is really shameful.

PS: It's not "the Prophet Mohammed." Is that your opinion? Do you have some empirical evidence of prophecy that we don't have access to? It's "Mohammed" or "the Muslim prophet Mohammed." I eagerly await your next mention of "Our Lord and Savior Jesus Christ" in future articles.

Oct. 27 2012 10:38 PM

(cont'd) When did it become an American value to accept the pressure of the government to suppress criticism?

Hillary Clinton vowed to arrest and prosecute this man. She did so. This is the most frightening, arbitrary kind of political chill we can experience, and this tacit approbation by someone purportedly committed to the rule of law is really shameful.

PS: It's not "the Prophet Mohammed." Is that your opinion? Do you have some empirical evidence of prophecy that we don't have access to? It's "Mohammed" or "the Muslim prophet Mohammed." I eagerly await your next mention of "Our Lord and Savior Jesus Christ" in future articles.

Oct. 27 2012 10:32 PM

(cont'd) So the claim that imminent lawless action would result is a circular argument. The lawlessness is a result of the example of the personage ascribed to have been insulted, who himself prescribed murder for personal insult! These people have no choice in the matter but to follow long-gone Mohammed's example? There is no intent to cause others to act lawlessly and violently. One might easily argue that the filmmaker's intent is to broadcast to those unaware of what the Qur'an actually says as to its content, as a means of changing opinions about the societal value of Islam. There isn't a day that goes by that there aren't websites that do that very thing. Are we to arrest them, too? There was no direct linking of the action resulting from the speech. The lawbreakers did not do so to save their lives or anyone else's life. They did it to protect an ideology from critique by holding certain speech impermissible. The violence is in furtherance of continued suppression of criticism! Are we to hold people responsible because it "causes" others to suppress others' speech?

Lastly, this false conflation of "religious tolerance" (which allows that the state should not make law respective of a religion nor establish a state religion which people must join to participate in governance or work) with the separate idea that all people must "respect" all religions, which is not a Constitutional idea, let alone an ethical one, is pervasive and wrong. Ideologies that claim a deity are to be no or more less respected than ideologies without a deity. Each person may adjudge the ideas and practitioners based on the actions they perform, deity or no deity. It is the state that has no business discerning between ideas insofar as the acts that result do not result in the breaking of duly constituted laws. If a religion wanted to sacrifice babies, should we be tolerant? Did we not all snort in derision at the New Jersey judge who claimed that a Muslim husband could rape his own wife at will since his religion traditionally held that was not considered rape? Must we "respect" these acts simply because they're religious? Or do we always pursue and prosecute rapists, and pursue and prosecute the murderers of infants? There is no Constitutional basis for making people respect anything. There is only a restriction on the federal government creating law based on religious tenets. The Constitution does not ask individuals to "respect" anybody else's beliefs. This is a religious tenet of multiculturalism, as demonstrated by a lack of discernment and unearned equivalency as its most basic principle. Individuals are pressured to no longer apply values to create acceptance. One would think an attorney would understand that the Constitution does not tell individuals what they can and cannot think or do. It tells the government what it cannot do. "Religious tolerance" does not mean what you imply it means, not at all.

Oct. 27 2012 10:31 PM

(cont'd) It is not a filmmaker's fault that there are more savage fools in Islam than anywhere else. You display a staggering amount of "the soft bigotry of low expectations" by assuming vast swaths of Muslims will be unable to control themselves, and it can't be helped, they're just not accountable since it's appropriate for them to hurt others and others' property if they perceive a slight toward a traditional religious figure who died 1400 years ago.

If you stand, as an attorney, for the upholding of all Constitutional ideals, then when it counts, you should model that ethos by not excusing the optional actions of other people and acting like it's some sort of hand-wringing conundrum. It is your perception of Muslims as "less than" that emboldens them and gives lie to the First Amendment as a principle you hold. It seems to only hold when there is no risk.

There were legions of people in the last 1400 years who held the same conditional principles as you. They were the dhimma--the subjugated and subdued residents of Muslim-conquered regions. They knew that to speak about Mohammad at all was to invite death or worse. They knew to ingratiate themselves with the beys and sultans if they wanted to survive and continue their academic work, as well as remain in a position of influence so as to intervene on behalf of the dhimmi population. To not do so meant death or forced conversion, even if it meant heavy taxation and constant humiliation. Remember that when someone tries to tell you how well Muslims got along with Jews and Christians and Hindus when they "coexisted" in these lands. They conveniently skip the part about how the Muslims came to be in charge of those lands. It wasn't by knocking on doors and handing out pamphlets.

And as far as the Brandenburg case, the court found that the "advocacy" itself must produce imminent lawless action. There is no advocacy. This filmmaker advocates for nothing, places scenes from the Qur'an and the sunnah amateurishly on a digital file. Might it offend some? Sure. But what you do not examine is the reason for the alleged "incitement." The stories of Mohammed, that the Muslims themselves have allowed to be transmitted orally and then in writing through the millennia, show him taking violent and retaliatory action toward personal insult and disagreement and resistance. (cont'd)

Oct. 27 2012 10:28 PM

There is no statement the government should have made, nor action taken, as a result of this video. It is unconstitutional what this administration did to that filmmaker.

It is also somewhat silly, on September 25, to still amazingly claim that the video caused Muslims to come onto American soil and kill our citizens and our ambassador. Did you turn off your television after the 16th of September?

Schenck is not relevant because when "Fire" is yelled, the reason people run is to save their own lives, and all people have the right of self-preservation. The harm comes when others are trampled, but they are not liable nor is the "shouter" because self-preservation is excusable. To falsely yell "Fire" makes the "shouter" liable, but not the runners, because they still were preserving their own lives. In both cases, the possible harm inflicted, and in the case presented, comes from the attempt to save one's own life. Therefore the prohibition was upheld there because of the inability of the harm to be prevented. All people should run when they hear "Fire."

People who are offended by something do not harm others out of the excusable attempt at self-preservation. Therefore, the immediate fault goes to the rioter or assassin or looter or whatever he or she is doing that harms others. They could sit and rage until steam comes out their ears, but there is no legal excuse for harming others as a result of being offended. It not a proximal cause for the harm. Is it an influence, certainly, but since all people have a choice whether to view a video or engage in political musings and have a choice how to respond, the fault is only the lawbreaker's. (cont'd)

Oct. 27 2012 10:27 PM

There is a massive difference between inciting violence by saying: "Those of an inferior race should be murdered, and there are some of those people over there!" and others simply reacting, of their own volition, in a barbaric way to your speech.

The comparison simply isn't valid. One is an active advocation of violence by the speaker; the other is the listener's decision to act violently based merely the offensive content of your communication.

Oct. 13 2012 11:09 PM

"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...when an angry mob stormed the consulate to protest the U.S. made video, after it was widely disseminated on YouTube"

Apparently that was not the case.

May we have the First Amendment back now while this administration tries to get it's story straight?

Oct. 13 2012 09:13 PM

These trite analogies would work if someone cried fire in a theater or used fighting words and nothing happened in the theater but people three thousand miles away months later heard about the incident and deliberately instigated a violent riot.This highlights the path between the sensible and the absurd.
Isn't it interesting that these selective incidents of outrage ignore the many holy books and places that were destroyed in Syria in the last several months that did not spark violent protests around the world?
Could it be that the real motivations to ransack our interests around the world are based on other factors that have nothing to do with free speech in the United States.

The real cultural story this month about widespread violence in response to nasty religious insults is that it did NOT involve "The Book of Mormon" which receives popular plaudits rather than official scorn from the media for it's religious irreverence.
Is there a lesson to be learned from accepting withering and hurtful derision with tolerance and dignity?
Does the media and legal scholars congratulate those who respond to deliberate and lucrative provocations against their faith in a positive manner?
Why isn't Mitt Romney highlighted as an example of a generous and decent response to deliberate mockery against his faith.

Sep. 26 2012 10:02 AM
kafantaris from USA, Ohio

It is becoming increasingly clear that Islam has been intertwined with government for so long that Muslims cannot fathom their countries without it.
Though this may be difficult for the rest of us to understand, we should still recognize it as a distinguishing fact of most Muslim countries.
But it is their fact not ours. We should not set our clock back centuries to accommodate the Muslim mindset or lack of understanding of basic concepts of individual freedom.
It is they who should bring their ideas up to speed and in pace with the modern world.
The Muslim leaders should, therefore, continue to educate their citizens on the ways of other countries; that people elsewhere are free from their government to worship the God they want, and free to offend the God that others worship; that this is how it must be if religious freedom is to have meaning -- protection is not needed when others agree with you.
Moreover, Muslim leaders should explain that forcing others to honor Prophet Mohamed can be deemed as forcing them to some extent to adopt the Muslim religion itself. As others cannot impose foreign religious etiquette on Muslims, neither should they impose their reverence of Prophet Mohamed.
It is imperative that Muslims learn the workings of individual freedoms so that they can harmoniously play their rightful role in the 21st Century. Reading the First Amendment might be a good place to start:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Sep. 25 2012 10:11 PM

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