Is “Innocence of Muslims” Protected Speech?

-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.

82 thoughts on “Is “Innocence of Muslims” Protected Speech?”

  1. Muslims are innocent. If the Prophet tells em to hump a child, they do it. Put a tent on the wife’s head. Done deal. They are taught to obey and follow the rules of the Pedophile Prophet. We cant talk about this stuff in America. Its not protected speech. Right lady? So what are we talking about on this blog and all over the globe? Pedophile Prophets and Pedophile Priests, both are converts, both are beasts. I urge my fellow dogs to crap on the USA Today news stands all across America. What a rag.

  2. Re Libya investigation, without any facts but previous ones:

    All government agencies (like people) want to cover their mistakes, preferably end up painting this as advances leading to advancing some point on their standing agenda, and to the detriment of come competing element.

    Since we have over ca 16 intelligence agencies and some ignore the turf restraints imposed by law, this leads to lots of “opportunities”. A CIA officer get elaborate mostly boring one-year training. Their stateside OJT is composed of finding how to spend a day doing nothing.

    They are not allowed to do cold case calls. All activities must be elaborately cleared in advance through HQ through many self-protecting management layers, thus consuming time and losing the opportunities presented by “moving” targets. Result nothing is done, the trainees lose faith in it all, and quit the agency. Getting an overseas placement, which is the goal of “cover” officers of non-dip types is almost impossible.

    Their possibilities to practice tradecraft, interrogation, agent recruitment, coordination with FBI and other agencies, etc are less than minimal.

    So according to the intro above, CIA wants to cover their butt for this security lapse in not knowing that this was coming, not just in Libya, but in other countries.

    Why did they fail? At the time this book covers, there was one non-diplomatic placed officer, under a cover, in the region from South Asia to the Atlantic including North Africa.
    Today, is unknown but a guesstimate by the officer who wrote this, is that it is stiil a handful, in spite of the billions directly funded to provide non-dip officers. These would work under cover to do soft intelligence gathering, ie human sources who are willing to be recruited for USD 1,000 a month!!.

    No sources=no info=no security=a useless expensive and misleading agency.

    It has been like all agencies do, been using Congress and other leakers, backers, etc since it was founded. And Congress became paniced by 9/11, and still is in great part now. You put your money on a horse, and it damn well better win or you go down the drain politically.

    So the FBI is given the job to see WTF happened. The spies are not allowed to investigate the spies. Simple.
    Now how much of that which is discovered and then will be released to public knowledge is another question. Don’t count on much. Money (info) spent can not be spent again, and has no leverage in a power/budget struggle between FBI and CIA.

    Human Factor by Ishmael Jones (cover name natch)

  3. Obama is continuing renditions. Scahill writes about this. It is part of the reason that we want control over a certain portion of Bagram while claiming USG want to “officially handed over” the rest to the Afghans. The USG has taken people there for torture.

    Here’s an excerpt from an interview on Democracy Now: “AMY GOODMAN: You write that under President Obama, still we are getting intelligence extracted by surrogates in places like Somalia, in Afghanistan.

    ALFRED McCOY: Yeah.

    AMY GOODMAN: And what does that mean—through torture?

    ALFRED McCOY: What it means is that’s part of the outsourcing of this, OK? We now know through the WikiLeaks that after the Abu Ghraib scandal we reduced the number of detainees being held by U.S. forces in Iraq, and we transferred the detainees to Iraqi authorities, where the detainees were tortured. There were orders by the U.S. command, OK, that American soldiers, if they came across our Iraqi allies engaged in human rights abuse, they were not to do anything. And we know that from 2004 to 2009 U.S. forces collected, I think, 1,365 reports of Iraqi human rights abuse about which they did nothing.

    In Afghanistan, it’s the same policy. Right after 2004, we started turning over the detainees that needed to be interrogated to the National Directorate of Security. In 2011, the United Nations investigated the Afghan National Security Directorate and found a systematic pattern of absolutely extraordinary human rights abuse, brutal physical tortures. And the United States continues to turn over detainees to the Afghan authorities. Britain and Canada will no longer turn them over, because of their concerns about human rights abuse.

    So, in other—and we’re doing the same thing in Somalia. Jeremy Scahill, investigative reporter, did a superb report and found that in Mogadishu, the Somali authorities operate, in their security directorate, a prison called “the Hole” in the basement of their building…”

  4. Blouise,

    The comment section is for whatever you find interesting, and this is certainly interesting. The FBI is also more effective at interrogation.

    I also read, I don’t remember where, that Obama is continuing renditions to foreign countries.

  5. I find it interesting, on one level (many levels but only using one for this post), that the FBI is in Libya running the investigation into the death of our citizens and that the CIA is moaning over the fact that they have had to curtail their intelligence gathering efforts somewhat in order to get out of the way of the FBI team.

    What I find interesting about it is that originally the FBI was running all the interrogations of suspected terrorists because they had a well organized, practiced, and experienced interrogation unit and the CIA did not. When the FBI refused to involve themselves in torture, they were dismissed and the CIA and their contractors took over interrogating suspected terrorists using the Bush/Cheney torture approved methods.

    Now the FBI seems to be back in charge of interrogations … at least in this instance … interesting …

    (Sorry Nal … I know this has little to do with the free speech debate but it was this thread’s debate that got me thinking about the subtle changes going on within the intelligence/law enforcement agencies and the fact that the CIA is leaking their displeasure through a Republican on the House Intelligence Committee. Free speech in another form?)

    Article in Sunday’s NYTimes under Africa

  6. woosty:

    “Bron, a directed effort to humiliate, denigrate or belittle is pretty damn hostile.”

    It was a stupid film. So what? Maybe Muslims ought to remember the old saying, “sticks and stones can break my bones but words can never hurt me.”

    Whoops they did remember that saying and killed and probably tortured and sodomized [per Gaddafi] our ambassador.

    But hey, if a stupid movie is equivalent to a murder in your lexicon of morality, then to each his own.

  7. Wiliame,

    I’m back again to use your views as an excuse to explain mine. Nothing personal at all. Get that clear. Nothing derisive of you. You are a typical American,
    and I am too. But we have differnt views Here are mine.

    If I recall right, it was before our time, we were quite tolerant of vigilantism here in the uSA, which strung up folks by the neck, no trials except a mock one.
    nowadays, we get angry at these ME nations’ folks who think we should go home and literally get the phuck out of their lives and borders. Stop sending money to their dictators and arms for his armies.

    Again I say, we wouldn’t BE there if it were not for the OIL.

    Libya is a special case with its Kaddafi. He was leader of a rogue state, a purchaser/receiver of Pakistan’s nuclear tech, and a potential nuke proliferator, beside the Lockerbie and other terror deeds.

    So let’s take Iraq, where we fought for 10 years. For once the CIA had a good person, whom they had LOANED, who could go to Niger (a former diplomat to Africa) and get the facts from old contacts—-“We ain’t selling no uranium to Iraq”.

    Of course Bush hid the report, lied to our UN ambassador, who lied to the UN and the world’s nations—AND we the people. So we do the marine corps thing, following the fireworks of cruise missiles in nighttime Baghdad.

    Ever wonder why it was at night. Because the fireworks were more spectacular at night—and perhaps to test the adaptive navigation systems. But mainly to give CNN viewers something to ohhh and ahhhh over. Remember the live reports? Can you guess that CNN was warned when to open the live link and layout their sending in prep for the attack on this and thet skyscraper.

    I could do a rant on our “humanitarian surgical targeting”, but won’t.
    Let’s just say thet taking down WTC was less costly in lives lost. “Oh, but they earned it!”, some say. Try thinking that over with the facts in your hand.

    Me, you, we all have such short memories and such poor capabilities to see what is planned and coming.

    We are not in Libya to do national democracy building, in spite of what we say. Forget it, it is only OIL that counts. First we put Iraq, the largest not under our control, in the bag, and then Libya stands next as the next largest (circa,Venezuela is bigger) independent nation producer. Who’s next? Shall we take Venezuela or Syria? That is a later discussion.

    Until next time, develop your knowledge of who, what, when, where and primarily WHY. Otherwise you are a pawn in our nation’s game, and can not have a real picture other than lurid ones of muslims burning USA flags—which by the way is a legal form of protest here.

    I could expand on the killing of embassy personnel but won’t. As I could on taking out 40 civiians at a wedding party in Pakistan, on suspicion of a foreign national, but won’t.

    In case you wonder, I am not a supporter of the muslim nations. I am trying to let us, the Americans, make a correct assessment of what’s really happening, and why they want us out.

    And us not be such stupes. I’m supporting USA, nobody else. Shall I give the pledge for you. Well, I did two years Army-time in the Cuba missile crisis when the fingers were on the button, and my buddy got sent to Nam—could have been me as well.

    There are facts which don’t yield to wishes and woes and good/bad religious feelings. It is pure economics and empire building. Cooperation is one thing, empire is another. (Federalism is one thing, and all is determined in the Oval is another—heard that before?)

    Go to the library and take out a good book with án overview of the ME area since 1940.

  8. I do feel for my muslim brothers, and what they have gone through. The pain and suffering and the on going treatment they have to put up for so long is just too much. But for Muslim leaders to go public and to call for the killing of the movie producer is inhumane and calling extremist groups to hunt this person down with a reward on his head is too much. Come on…is this how we solve this problem, is this the only solution we know and this is what our children will learn when expressing their anger and emotion – Kill, when push to a limit- Kill.

  9. “The Constitution doesnt protect human rights, it protects individual rights,” ’cause everyone knows individuals aren’t humans, my friends.

  10. Wiliame,

    Have you never heard of people going ballistic? Tolerating much, and then they pull out whatever they have and protest. Do you remember how it began in Tunisia?
    Think about it please.

    Think about how we reacted to 9/11, and then got into a war which lasted 10+ years. And which resolved nothing and left the door open for Iran.

    Well, these poorly resourced desert tribes have been persecuted since 1020AD or so, and they are now standing up for theirs. They had their heyday in 1100–1400AD, but lacking resources for industry left them flat out of the running. Can’t do much with only sand.

    If they did not have oil, they could rot as far as our government is concerned. Agreed? And they know that too.

    We think they are unreasonable.

    How reasonable was the Iraq war? How reasonable is the Afghanistan war?

    How unreasonable is it to say: “Enough, basta, FU in arabic. How unreasonable is it for them to protest our presence in Egypt, Libya (giving away their oil), etc.

    Where the phuck are we NOT in the Middle East? Why do we fight the oil companies’ wars with OUR blood and our taxes?

    Glad to hear your views. Welcome here. But agreement is hard to get here. For all I know you are an old timer. New name to me. And I am still a newbie. And an opinionated one. But there is always in my mind room for opposing opinions.

  11. Well, it is a sad situation that people had to die because of someones idea…It is indeed a sensitive issue to all muslims but to go out angry just like that and start killing people is just not right. I mean, come on, there are alot of humilating, more offensive books, videos and other stuff about Jesus then this thing, but that is what makes our religious foundation stronger to be a better human being. Our Muslim brothers need to realise that this is a test of faith..and I bet that most of the people protesting hasn’t watched the video but are riding on others emotions and it will get worse in years to come for them Muslims, Christians and others religious groups.

  12. Did I once hear someone say: There you go quoting authorities again.

    IMHO, the weakest arguments come from there.

    I don’t need no phuckin’ badge.

  13. Dredd ol’ buddy,

    If you said you were going ot nuke me I would not have bothered. No rancor intended. Just sayin’.
    Why get lathered up over that? Do you always set traps. I’m not GeneH and killing me will not make it hurt less. Hope the snark does not, but I wonder at this kicking you expend so great energy on is not motivatéd by other reasons than the small matter of relativity of reasonableness.

    Of all you write, is there any contradiction to my contention of the relativity basis of it all.
    Defining a “reasonable man”, whether it be in Wikipedia
    or in a judgement does not avoid the issue of it being relative to the opinions of the prosecution, jury and judge.

    So keep on talking, but you ain’t getting away from relativity. It is like GeneH or another said: Law is not fair, it is legal. And reasonable is equivalent to fair. A shame that this loose vague construct exists and is used. BS, I say it is.

    Einstein proved the universe was relativity governed.
    Physicists since then have not been able to go further because the background free requirement overcomes them.
    It did Newton too. So Einstein is still the smartest.
    And all tests have shown him right.

    Just a little tangent to amuse you.

  14. From the Lewis & Clark Law Review:

    When Professor Susan Mandiberg invited me to participate in this symposium, she posed what I took to be a straightforward question: who is the reasonable person in the criminal law? A closer examination of the topic showed me how wrong my first impression was; hence, the title of this Article, “Defining the Reasonable Person in the Criminal Law: Fighting the Lernaean Hydra.”

    The reasonable person appears in many areas of the criminal law.
    His or her identity is reasonably straightforward in some cases. For
    example, in considering whether a defendant was entitled to use killing
    force, a court might allow the jury to consider the defendant and victim’s physical stature. But beyond those easy cases, the law becomes quite

    (Defining the Reasonable Person, by Michael Vitiello, Distinguished Professor and Scholar, Pacific McGeorge School of Law; University of Pennsylvania, J.D., 1974; Swarthmore College, B.A., 1969). During jury selection a lawyer defending the “Innocence of Muslims” video producer would need to consider the concept.

    Right wing Christians would present a different “reasonable person” images compared to right wing Muslims.

  15. According to the ultimately reasonable WikiGuru:

    The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury. The “reasonable person” is an emergent concept of common law. While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction,[2] the “reasonable person” is not an average person or a typical person. Instead, the “reasonable person” is a composite of a relevant community’s judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.

    The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances. While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.

    The “reasonable person” construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law.

    The standard also has a presence in contract law, though its use there is substantially different. It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.

    The standard does not exist independently of other circumstances within a case that could affect an individual’s judgment.

    (Wikipedia, Reasonable Person). The gist of it is that a reasonable person standard applied to “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is the dynamic.

    In other words, a person who is “a loose canon” is not “a reasonable person”, so their assessment, as in the Ohio case, can not be the basis of a criminal conviction concerning free speech even when the speech mentions revenge, however, if a reasonable person makes that determination then the conviction can stand.where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

  16. “Reasonable Person”:

    A phrase frequently used in tort and Criminal Law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability.

    The decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances. In most cases, persons with greater than average skills, or with special duties to society, are held to a higher standard of care. For example, a physician who aids a person in distress is held to a higher standard of care than is an ordinary person.

    (Reasonable Person). Don’t be unreasonable now … 😉

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