-Submitted by David Drumm (Nal), Guest Blogger

The film “Innocence of Muslims” and the violence in Libya, Egypt, and Yemen, are at the heart of a debate as to whether the film falls within the category of “freedom of speech.” In an Op-ed in the LA Times, Sarah Chayes writes that it’s not “free speech protected under the U.S. Constitution.” In USA Today, Anthea Butler calls for the arrest of the filmmaker and writes that the film denigrates religion and “is not about expressing a personal opinion about Islam.”

James Madison, no stranger to abuses of speech and press, wrote in the Report of 1800 that

it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression;

While many consider “Innocence of Muslims” a “noxious branch,” who determines what is noxious? Does not Sam Harris’ description of God as “imaginary” denigrate religion?

Khalid Amayreh, a prominent Islamist commentator and blogger, demonstrates a profound misunderstanding of American legal philosophy when he says “But you must also understand that the Prophet (for us) is a million times more sacred than the American Constitution.” It is not the Constitution that is sacred, but the human rights it protects that are sacred. These rights are inalienable, unaffected even by the dictates of religion.

Many like to appeal to the authority of Justice Oliver Wendell Holmes’ “fire in a theater” argument, to determine if a certain example of speech is protected. In subsequent dissents, Holmes may have regretted letting that genie out of the bottle.

In Brandenburg v. Ohio (1969), the per curium opinion is that the State cannot forbid free speech

except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The film “Innocence of Muslims” is an “indirect” cause of the violence. The proximate cause is the cognitive dissonance of the participants in the violence. Also, the lawless action took place under other country’s laws. Are US citizens to be imprisoned because of an Egyptian law against “insulting religion?”

H/T: Ed Kilgore, Eugene Volokh, First Amendment Center, Ken (Popehat), Russell Blackford, Ken White.