"Innocence of Muslims" and Free Speech

In the wake of the mob violence in the Middle East that is supposedly the result of the video "Innocence of Muslims," there have been cries for suppression of such speech.  In the Los Angeles Times yesterday, Sarah Chayes writes that Brandenburg v. Ohio might support suppression of such videos, or after the fact punishment.  Ms. Chayes is a journalist, a former advisor to the Joint Chiefs of Staff, daughter of law professor Abram Chayes, and is no doubt very smart.  But she is not a lawyer, and her analysis is incomplete and misguided.  For speech inciting violence to be suppressed, Brandenburg requires that the speech (1) advocate violence, (2) with the intention of inciting (3) imminent lawless action.  The first defect is that, so far as I am aware, the video does not advocate violence.  Chayes argues that the video was intended to provoke a violent reaction among Muslims, and that is enough, even though the video does not explicitly advocate violence.  Perhaps, but the intended violence must be imminent.  But each of Hess v. Indiana and NAACP v. Claiborne Hardware cast considerable doubt that the imminence requirement has been met.  In Hess, a demonstrater's statement that "We'll take the f***ing street ...," uttered just after police had shoved the demonstraters to the sidewalk, was insufficiently imminent. In Claiborne, advocacy of violent retribution against boycott breakers, followed by such retribution within a matter of days or weeks, was insufficiently imminent.  Yet, according to Chayes, the video was first posted to YouTube in July of 2012 and did not attract much attention until another person sent links to the video to reporters on Sept 6.  That hardly seems imminent, even granting the intentionality element.

Chayes does not even consider the applicability of the "heckler's veto" cases, which seem equally applicable, if not more so.  In those cases, the speaker may not intend to incite violence, but the reaction of auditors is so hostile that violence is the probable immediate result.  But even in those cases, except for the discredited Feiner v. New York, the obligation is upon government to protect the speaker by every conceivable means, and to suppress the violent tendencies of the audience.  Only if there is absolutely no remaining ability to prevent violence can the government shut up the speaker.  See Terminiello v. Chicago and Gregory v. Chicago. One might argue that there is not much the US government can do to suppress violent mobs in the Middle East, but one thing it could have done was provide better protection for Chris Stevens and his associates. 

What Chayes argues for is distortion of our commitment to free expression in order to mollify violent fanatics in the rest of the world.  Not only is that bad law, it's bad policy, as Eugene Volokh has persuasively argued.

Comments

[kiki]

The apparent, new-found distaste among the media for free speech is alarming - Christiane Amanpour was much more irresponsible - heck even look at Hillary's "outer bounds" statement. While they may not be lawyers, it wouldn't be hard for them to speak to someone reputable before they open their mouths. They're not interested in being educated or speaking accurately, because they don't really believe in hate speech laws, or in curtailing free speech. I haven't seen a single journalist harp on this that I really believed was sincere. I think it's something far worse - it's not principled or considered, it's merely expedient.

It is a political apology for the President and for Hillary. Obama sold himself as special - and promised his unique, moral vision would change the world overnight. Speak with empathy and respect and terrorism will cease. But it didn't. Not by a long shot. So, some feel they have to go around defending the principle that speaking more empathetically (after all we'd only censor you in the name of friendly fascism) will end violence. To those people I say: go say that in Tahrir Square with no security detail. Put your money where your mouth is.

[HUB LEATHER Karachi]

Not surely they're not interested in being educated or speaking accurately.