18 Sep

LA Times op-ed: Maybe this Mohammed movie isn’t free speech after all

Allahpundit @ Hot Air:

On a day when Egypt is appeasing its mob by issuing arrest warrants for the people responsible for the film (a capital offense there, do note), this is what’s running in the biggest paper in Los Angeles. Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise. As Matt Welch notes, lately the strongest pressure on private citizens to limit their criticism of Islam has come from the top of the Pentagon. Bob Gates called Terry Jones when he first threatened to burn a Koran to ask him to stand down, then Martin Dempsey called him again a few days ago when the Mohammed movie broke big. Not content with asking citizens not to make Islamists mad, Chayes wants to blow a hole through the First Amendment using Supreme Court precedent so that they can be compelled to shut up. This is all being done with a noble goal in mind, i.e. protecting U.S. troops in the field, but I’ve got to say: If the choice is between carving off pieces of free speech to sustain an already crumbling mission in Afghanistan and bringing American troops home so that they’re out of harm’s way while keeping free speech intact, I’m all for taking a close look at the latter.

The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited…

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

The Brandenburg case had to do with a Klan leader who was trying to rile up a mob of Klansmen. It’s been used ever since as a constitutional guideline on when government can criminalize speech that incites an audience to riot. The speaker has to intend for the audience to behave violently, it has to be likely that the audience will behave violently, and the possibility of them behaving violently has to be imminent. Essentially, in very narrow circumstances, Brandenburg says it’s okay to silence a speaker if he’s colluding with a violent mob by encouraging it. There are all sorts of problems with applying that ruling to the Mohammed case — who’s the “audience”? did the movie encourage “imminent” violence (or any violence at all) or did the 9/11-related publicity do so? do we really want to assume, as a matter of law, that criticism of Islam is always “likely” to result in violence?

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About Curt

Curt served in the Marine Corps for four years and has been a law enforcement officer in Los Angeles for the last 20 years.

5 Responses to LA Times op-ed: Maybe this Mohammed movie isn’t free speech after all

  1. Ditto says: 1

    Is this the precedent that the Obama administration wish to set? Or do Democrats propose that it only applies to Islam. (I.e it’s an unconstitutional executive office approved bureaucratic mandate that both violates the separation between church and state, and set’s forth a privileged religion that can not be offended whilst all others can.)

    Or does the same goes for any other person’s message that “enrages” any religious group? Therefore by this doctrine, all out anarchy is the way to get far-left radicals and bigots to stop creating offensive antisemitic and anti-Christian “free speech” all those offended have to to do is react in the same manner as radical Muslim fanatics and terrorists and riot, burn, pillage, rape and murder?

    Or does this reinterpretation of “what is free speech” go further and make it illegal to “offend” anyone because it is possible for them to go medieval on your *rse?

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  2. Ditto
    hi,
    the DEMOCRATS HAVE ALREADY INCITED THE ARABS AMERICANS, THEY DID IT IN FRONT OF THE WORLD BY ASKING TO MAKE A CHOICE AT THE DEMOCRAT CONVENTION, THEY STARTED IT BY HUMILIATE THEM PUBLICLY, THAT WAS A BREACH IF THEY DID NOT THINK ABOUT HURTING THE MUSLIMS ‘S FEELINGS
    SO IT STARTED THERE AND THE MOVIE IS JUST A SCAPEGOAT FOR
    THE MUSLIMS TO LEGITIMATE THEIR MURDERS, THEY WANTED TO SHOW THE WORLD
    THEIR STRENGTH BY ORGANISING THE MOB ON ALL THEIR COUNTRIES AND OTHER FREE COUNTRIES WHERE THEY FEEL STRONG BY THE NUMBER OF PEOPLE THEY CAN MOBILIZE, THAT TOOK TIME AND CHOICE OF THE DATE TO BE COVERUP FROM BEING A REMEMBRANCE OF THEIR MURDER INTO THEM BEING OFFENDED BY WHAT THE STATED ON MANY BANNERS,
    BEING THE MOVIE OR THE BLIND PRISONER RECALL, OR AMERICA’S HATE OR MORE OF
    EVEN OBAMA WAS DEPICT AS HATED, THEIR EXCUSES KEPT CHANGING BY THE MOMENT
    AND BY THE COUNTRIES, BUT LET’S NOT MAKE A MISTAKE, IT STARTED AT THE CONVENTION, AND IT HUMILIATED THEM,
    BIG TIME BECAUSE IT WENT ALL OVER THE WORLD,

    ReplyReply
  3. Nan G says: 3

    I wonder how the LATimes would feel about covering this part of the story:
    It is NOW ”Blasphemy” to simply NOT GO ALONG WITH PROTESTS of the Mohammad movie!!!

    Pakistani officials say they have opened an investigation into a businessman who has been accused of blasphemy after refusing to join protests over an anti-Islam video….

    Hundreds of protesters in the city of Hyderabad who rallied against the film that mocks the Prophet Muhammad demanded businessman Haji Nasrullah Khan shut his shops in solidarity.

    When Khan refused, one of his tenants said his decision supported the film.

    City police chief Fareed Jan said Wednesday the protesters claim Khan insulted the Prophet.

    Jan said there’s no evidence to suggest this happened and said police were pressured by the mob to open the case.

    Blasphemy is punishable by life in prison or death in Pakistan.

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  4. Hard Right says: 4

    If I were the LA times I would not want to set a precedent about stripping 1st amendment protections because someone doesn’t like what was said. They would be one of the first to suffer with the garbage they print.

    ReplyReply
  5. MataHarley says: 5

    I have a couple of quibble points with Allahpundit’s HotAir post.

    Essentially, in very narrow circumstances, Brandenburg says it’s okay to silence a speaker if he’s colluding with a violent mob by encouraging it. There are all sorts of problems with applying that ruling to the Mohammed case — who’s the “audience”? did the movie encourage “imminent” violence (or any violence at all) or did the 9/11-related publicity do so? do we really want to assume, as a matter of law, that criticism of Islam is always “likely” to result in violence? — but never mind that. Chayes’s trick is to try to extend Brandenburg’s logic to circumstances where the speaker and his audience are enemies. There’s no actual collusion in the case of the filmmaker and Islamists, but there’s kinda sorta de facto collusion in that an insane Islamist violent reaction bolsters the filmmaker’s criticism of the faith and therefore, per Chayes, we should infer that he “intended” it. Even though, as I write this, he’s in hiding in fear for his and his family’s lives.

    Two corrections.

    1: We don’t know that Bacile/Nakoula did not deliberately insert his Arabic translations into the Egyptian media in the days before the Sept 11th anniversary with the intent to aid in the terrorist attacks on US soil. His specific timing – first trying to have Israel take the blame as well as disregard for how that would affect other Egyptian Coptic Christians in the nation – are suspicious. Also that he came from no where, and has no footprint prior to this. Jones and Morris Sadek had never heard of him until he called them for aid in distributing an anti-Muslim film in Egypt.

    2: His home was not besieged by anything other than reporters. He requested police protection and has told media outlets he has received death threats, but then he also told media he was an Israeli Jew and a California real estate developer. Obviously he cannot be held up as an icon of truth. Many of the death threats are said to come from social media, according to the Daily Caller.

    Death threats aren’t uncommon by angry people with extreme and passionate viewpoints and tendencies… as even climate scientists receive death threats. A wacky, 3rd rate starlet of his work of art happily grabbed the media spotlight to comment on her small role in the film, and now she claims the same death threats. The Danish ‘toon artists got death threats. Hang, even the Internet host server for the French satirical rag got cyber attacked, which was followed up with death threats, just for hosting the French magazines anti-Muslim Arab Spring cartoons last year. What a bummer for the uninvolved, experiencing problems just because they shared the same host server.

    I’ve even seen comments on this site resembling death threats… some individual, some just a blanket “nuke ‘em all” type statement. The anonymity of the Internet emboldens many who feel they can do such without fear of being identified. Technology has created a bizarre turn, and I believe a decline in face to face communications and interaction. People say things they would never dream of saying in person. This perceived safety net allows them to vent extreme views with nary a thought.

    I think the point is Nakoula went into this knowing very well that death threats could follow. But then, wouldn’t it be ironic to find out he was in deliberate collusion with the Islamists, and US LEOs are now providing him with protection?

    INRE the legal precedents. I doubt the SCOTUS will be overturning Johnson and Eichmann precedents to provide exceptions. Ed Morrisey, in a post a year ago, got kind of panicky because Justice Steven Breyer made some statements on GMA.

    Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on “GMA” that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.

    “Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?” …

    “It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn’t a fake.”

    Morrissey seemed to fear the the liberal Justice had decided, in advance, to reverse Johnson and Eichmann as it relates just to Islam. I suggest that Morrissey doesn’t spend enough time reading SCOTUS opinions, or recognize how Justices tend to view specific cases and specific arguments and events, without relating it to the context of one ideology… i.e. protecting Islam counter to the 1st Amendment. I didn’t get that from Breyer’s observations at all.

    I realize that most want to assume that since Breyer is definitely a liberal leaning Justice, that it’s a given he’d come to that conclusion. But this is the same Justice who agreed with a 6-3 majority that a radio host cannot be sued for airing an illegally taped telephone conversation. Even Ginsberg was on board with that one.

    Both Ginsberg and Breyer added to their concurrence a minor caveat – that the media shouldn’t consider the ruling a “blank check” for future behavior… especially in the Internet age and digital media. But it’s clear that even liberal Justices will give the heavier weight to Constitutional freedoms when the specific case and arguments define the parameters.

    And then there’s the CA officials vs the Entertainment Merchants Associate decision last year. This was INRE CA’s law on selling video games to minors and related penalties. The EMA said this was a violation of their 1st Amendment rights. Both a Federal court and the liberal Ninth Circuit agreed and enjoined enforcement of the statute. The SCOTUS held that. The two dissenting Justices? Breyer and Clarance Thomas… go no. The details as to why they disagreed can only be detailed as your read their respective dissenting opinions, but it’s not some heinous disregard for the 1st Amendment… especially from Thomas, fer heavens sake. But points of law as it relates to the specifics of the arguments before them.

    That said, there is no 1st Amendment right to maliciously shout “fire in a crowded theater”. Nor is there a 1st Amendment right to create propaganda material to aid in a plot to attack American interests. What the Courts are there for is to decide is whether a particular defendant and case was nothing more than an idiot exercising his right to be a bigot on the public stage, or whether the intent of that exercise was designed to elicit the desired result and can be considered criminal in nature. It’s not a blanket finding, but a case by case, individual by individual ruling.

    And therein lies the difference – everything is specific to cases, individuals and events. The SCOTUS could never use precedents to infringe on the 1st Amendment as it relates only to Islam in a generic fashion. But what they can do is find that that, in one particular instance, the defendant’s intent was criminal in that it was deliberate, malicious and designed to bring about the outcome.

    I don’t always agree with SCOTUS opinions, but I don’t fear that they have the nefarious goal of ignoring precedents, just so they can implement a blanket destruction of our Bill of Rights either. That’s just not the way cases and opinions work. They are quite narrow in their scope to the argument before them.

    ReplyReply

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