-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.
Raf – agreed, and I think it is a testament to the decency of those folks in Skokie that they did not give the brown shirts what they wanted & what they really needed in order to advance their twisted, sick, cause. I wish our brothers and sisters in the rest of the world could behave so calmly in the face of such an insult.
Ratty – if it was the Iranians they picked an interesting agent to do their dirty work, a Coptic Christian from Egypt and a couple of end-time wingnut militia Christians from America That must have been one heck of a sales meeting!
Its also interesting to note that this cow patty was sitting unloved and ignored on youtube until a broadcaster know as “the Rush Limbaugh of Egypt” found it & used it the same way brother Rush uses excuses to inflame the mouth breathing morons who take what they are told by these oracles of excrement as gospel.
“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.”
and thence
“Every right protected under the constitution, by negative implication, may be revoked by subsequent amendment.”
and thereby the offense sought to be pre-empted by the first statement — worship of the Constitution instead of recognition of the pre-eminence of the principles stated – is reiterated.
Deleting the Bill of Rights does not “delete” human rights or make them less worthy of recognition — in fact there was some debate whether the amendments were even necessary, such “truths” being self-evident.
They were adopted to make damn certain that the national government didn’t go where it was already supposed not to go.
Interestingly, many religious followers make the same mistake — worshiping the book, the agent of transmission, or the diety described therein, instead appreciating and appropriating the deeper principles revealed: for the letter kills, but the spirit gives life.
The constitution is an organic document — it is not static, it has its own spirit, Its spirit is sacred, but the devil is in the details
Nal,
Bob is correct on that point.
Tony C.,
“I do not think any speech should be prohibited simply because it offends somebody else.”
Agreed. And our existing exceptions civil and criminal laws (defamation and inciting violence and/or panic are the two broad categories) have damage requirements beyond mere offense to prosecute and a valid public safety component to them. The exception to these exceptions is sedition. However, when law is examined as a comparative study, you’ll soon find out that America is more of the exception to the global rule even in the Western legal tradition. Many European countries, both of English Common Law and Roman/Napoleonic/Civil derivation, have torts (and sometimes criminal statutes) governing personally offensive speech.
That being said, I agree 100%. Offense is a reaction. Absent actual damages, criminalizing said reaction merely serves to chill free speech and stifle debate. For example, I’m sure the Koch Bros. don’t like it when people call their agenda corporatist fascism (which by extension makes them fascists), but their personal offense were it criminalized (or even existent – I’m pretty sure they don’t care what anyone says other than themselves in re their attempts to dismantle democracy) would only harm public debate about their very public and politically/economically damaging actions. I’m sure Obama doesn’t like it when people point out he has pissed all over the Constitution just like his predecessor and that by refusing to prosecute the traitors and war criminals in the Bush Administration, he is effectively aiding and abetting after the fact, but his personal offense is as meaningless as any protestation the Kochs might have when compared to the value of discussing their actions in a frank and forthright manner in pursuit of justice, preserving the Constitution and protecting it and our democratic republic from enemies both foreign and domestic. Just so, I’m certain the Pope doesn’t like it when the RCC is referred to as an organization with a demonstrable history of protecting pedophiles or the radical mullahs in the ME are referred to as violent psychotic zealots because its is “disrespectful” of their invisible sky daddy of choice.
The exceptions that exist are based on sound principle and legal theory, but we must be watchful that those valid restrictions don’t slip down hill to become stifled in the name of religious (or political) “offense” at dissent.
Agreement is not required for democracy to flourish. Democracy is a messy and loud form of governance. However, the ability to speak freely is a requirement. And as Winston Churchill deftly, humorously and accurately noted, “Democracy is the worst form of government except for all those others that have been tried.”
Frankly,
I grew up in Skokie and was there when the Nazi’s “marched” in Skokie. I was also working in Skokie at the time and worked with several survivors and their relatives and the kids of those survivors were ready for war with the nutcases. I agree that the march in Skokie, like this movie, were designed to get people mad, but as sad earlier, that is what the Freedom of Speech is all about. Freedom of speech is messy.
Bob,Esq.,
“The only notable exception would be the 13th Amendment; since it’s very nature is ultra vires in itself– i.e. by definition no government may exercise power over the inalienable right of self ownership.”
Is that why they are screwing around with contraception and abortion rights?
Self-ownership. Sounds good, Is new to me. Does that mean we get to use it too?
Malisha,
“Hell, if dumb speech were not protected speech our government would fall silent.”
Let’s set that on “Repeat” until things change.
As you fellow commenters know. the are several Prongs to the First Amendment. The schmucko Sarah Chayes doesnt know one Prong from another and perhaps we can educate her. Free speech, free press, freedom of religions, right to petition the government for redress of grievances. I would say that the little sequel of the film rests on all Prongs. On the other hand, it was probably financed and instigated by Iranians to stir up the muslim prongs who killed our Ambassador on the pretext that they were upset by the denigrations of some Prophet. I would prophesize that critics of the First Amendment will go far in Iran but not penetrate very deeply into America. It would be good for the muslim world to see more of this nonesense on utube and maybe over time they will get some sense but since they have none now maybe it is time to pull our embassy out of those non functioning states like Libya until they can learn to police their mongol hordes. So, I say, to all embassy people “over there”: pull out now like your father should have during your conception.
“the human rights it protects that are sacred”
Every right protected under the constitution, by negative implication, may be revoked by subsequent amendment.
The only notable exception would be the 13th Amendment; since it’s very nature is ultra vires in itself– i.e. by definition no government may exercise power over the inalienable right of self ownership.
Nal: “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.”
This is absolutely wrong. Inalienable rights are not subject to constitutional amendments. A constitution does not define an inalienable right; rather the constitution is built around inalienable rights retained within the forming of the social compact. Thus we have the ninth amendment; since those rights which cannot be alienated during the formation of the social compact must be RETAINED.
If speech were truly an inalienable right there would be no exceptions to the exercise of that right; and we know this is not the case.
I do not think any speech should be prohibited simply because it offends somebody else.
That requires some careful parsing of what I mean by “simple offense.” Threatening somebody is not “offending” them, that can be outlawed.
Lying to somebody is not “offending” them, I think lies told for personal gain can be outlawed.
But on the other hand, fiction is not lies: A lie is purposely trying to convince somebody that what the speaker knows is false is actually real. Fiction, like a movie, song, or story, is not trying to do that, if we know something is a work of imaginative art from the start, we cannot mistake it for reality. (We might be convinced it is a good metaphor that can be translated into reality.)
If Simple Offense becomes a reason to ban speech, then eventually all speech is banned. I am an atheist that takes offense anytime somebody claims the supernatural is real. They take offense at me calling their beliefs crap. Shall we therefore ban all speech related to the supernatural?
Anytime there are multiple beliefs about a topic, there can be mutual offense claimed at the speech of the other sides; and the topic would have to be banned. Should women serve in combat? You aren’t allowed to talk about that, the very idea that they cannot offends me.
Should gays be allowed to marry?
Should corporations have the free speech rights of people?
Should mailmen be allowed to drive on the wrong side of the road because it is “convenient”?
Shut up, shut up, SHUT UP! You cannot talk about those things!
What would be left? Speech everybody agrees on? First, there probably is no such thing, and second, even if there is, it does not need to be said, by definition we all agree already.
I resent being pushed to defend the likes of this film or Terry Jones or the Phelps’. But having obtained the proper permits, these folks are free to make films, burn anything they like, and shout whatever they want at whoever they want.
The mental state of “being offended” is at all times a choice.
You do not get to make that choice when FIRE is yelled in a crowed theater.
But you most certainly are making that choice through planned demonstrations and horrific attacks. That is when ALL the blame falls squarely on the protesters.
No judge in America would ever buy “the movie made me do it” defense. Please.
Having said that, I also recognize a sitting President must walk many conflicting high-wires. I hope he reaffirms the importance of the American first amendment in his speech to the UN, and how it has led the world, while acknowledging some folks don’t see it that way. I would appreciate a statement that we do not intend to back away from it any time soon.
“I do not agree with a word that you say, but I will defend to the death your right to say it.” (Voltaire)
I do not support censorship-by-riot and I do not support bigotry masked as God’s word but those are often the “noxious branches” which must be so that the fruit bearing branches of free speech may thrive. On this matter I am squarely in Madison’s camp.
The innocence of muslims is a rubbish film that’s only saving grace is that it has a go at Islam and perhaps makes a couple of valid points about the religion; points which the muslims who are rioting only serve to reinforce.
The film depicts the most cynical and negative story of the religions’ origins. It is certainly at the extreme end BUT if you read the Koran and delve in to the history it’s not entirely an unreasonable depiction; I guess the point is that it counters the idealogical view of the religions’ origins, that being at the opposite end of the same spectrum, the truth doubtless lays somewhere in between. someone should do one about Christianity too.
That said the vast majority of muslims are not rioting and appear to be treating the film with little mOre than contempt. There is even some doubt as to whether the murder of the US diplomat was connected to the film. What we see is a minority of muslims playing the outrage card being bigged up by Murdoch media.
This film was a YouTube flop until someone decided to be “outraged” and Murdoch media (Fox and BSB) decided to sensationalise it (well we all like outrage don’t we).
When the film that depicts the Navy Seals dispatch of Osama Bin Laden hits the theaters, one might expect protests, flag burning and more murders in the Middle East. Will the promoters of that film engage in “unprotected” speech? There exists some evidence that the murders in Libya were “pay back” for the drone executions of a terrorist. Will they jail the President of the United States for executing foreign nationals by drone without a Declaration of War or because the Muslims protest so violently? Which will it be?
of course it is protected speech. The whole point of freedom of speech is to protect speech that someone might find offensive. You wouldn’t need Freedom of Speech if it only applied to nice, flowery, sweet talk.
Personally I am far more offended that the government is still pushing the bullshit that all the riots across the globe were caused by some old movie that hasn’t been seen by 90% of the rioters
I agree that the maker of this so called film should be in prison since he violated his parole conditions. After completing his sentence, he should be deported back to his native country of Egypt. That will solve our problem and his. Freedom of speech does not give one carte blanche to commit crimes in the US, and not suffer the consequences of deportation. Just because he may well be murdered in being deported back home, is not a valid considereation at all. He made his bed, so he can lie in it. My guess would be that he did this precisely so that he could make a claim of asylum in the US to prevent his deportation.
The rationalizations made by some Americans that such speech should be banned is absurd. The limits of free speech are such that it prohibits inciting to riot by directly advocating such actions, NOT the offense taken by others. Such a test as profered by the two writers would simply make those who hold differents views the arbiters of what may be said. If they don’t like the speech, then they can become violent, break all kinds of laws, and make the state do their dirty work in banning such speech. So films insulting Christianity are OK since Christians won’t kill the makers of that film, but those who do the same against Islam, are to be surpressed by the state because Muslims will become lawless. That is called rewarding CRIME, not preserving peace. Such a “peace” is not worth preserving in that case. We should use force and violence against those who use it to further their political and religious ends.
Of course “IOM” is protected speech. It’s dumb but it’s protected. Hell, if dumb speech were not protected speech our government would fall silent.
I don’t know how to deal with this whole thing. Obviously if the first amendment is to mean anything useful it has to protect scum like this or Nazi’s holding a rally in Skokie and other insulting, degrading disgusting speech. These sorts of things are designed to generate angry, maybe violent responses. But there is no option that allows us to choose some speech as not permitted without the potential that our speech may one day be ruled as such.
But I’d like to twist the view of the ‘film’ by showing it in a different light. This is a case of bullying. Like all bullies they will pretend they didn’t mean any harm. Like bullies they groups doing the bullying have the power and the victims are weaker. Like bullies they will blame the victim for lashing out in the only way that they have given their relative weakness. Once again we have a case where those who profess to believe in a just God have to hope and pray that they are wrong.
Dave,
Some states have made it a grievable offense to ridicule a judge by an attorney……
It may be stupid & provocative, but that’s what the first amendment was designed to defend.
But hey, they passed a law so you can’t even protest around politicians without fear or prosecution, so why would the empire stop there.