After any tragedy, it is a natural human response, almost a psychological need, to assign blame, to call for retribution.
This trend is no different in the wake of the attack on a U.S. Consulate in Libya that killed 4 Americans, including U.S. Ambassador J. Christopher Stevens.
The assault stemmed from a protest denouncing an anti-Islam film that was produced in the U.S. The film, ironically entitled Innocence of Muslims, depicts the prophet Muhammad as a philandering, child molesting thug, forcing people to convert to Islam or be brutally murdered.
The mere portrayal of Muhammad is forbidden in Islam, let alone depicting him as a vulgar, immoral goon. So when the 14-minute trailer for the film went viral, was translated into Arabic, and covered by Egyptian TV news, protests erupted across the Middle East. Consequently, much of the blame for those 4 American deaths is falling on the makers and supporters of the film.
Many, including Egyptian President Mohamed Morsi, are calling for legal action to be taken against the director of the film.
Some even suggested those who promoted the film, including controversial Florida pastor Terry Jones, should be investigated as accessories to the violent attacks.
Twitter users also railed against Jones and the filmmaker, calling for them to be arrested for a variety of crimes, from treason to murder.
Now, don’t get me wrong; in no way do I agree with the inflammatory rhetoric that the Innocence of Muslims and Terry Jones have spewed into public discourse. The issue I seek to address here is not whether it was right to create or support such rhetoric, but whether they had a right to do it.
One of the cornerstones of a free democratic society is the protection of freedom of speech and thought. Such a society cannot thrive if its citizens are not able to freely express their views and opinions. It is impossible to come to any agreement, conclusion, or truth if you are restricted from challenging or defending a particular set of views.
John Stuart Mill, a British philosopher, best known for his 1859 work On Liberty, defends free speech, stating in his work:
“If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”
– John Stuart Mill, On Liberty (1859)
Freedom of speech, however, often results in the expression of views that you may not agree with. Disagreement, however, is not grounds for the restriction of speech. So is it permissible then, under U.S. law, to arrest the film’s director or Jones? To answer this question, I’ll begin with another tweet:
Shouting “Fire!” in a crowded theater. The iconic phrase. Inciting a false panic in which others will be harmed. Therefore, it is illegal to do so. Many, like the Twitter user above, would argue that the “shouting fire” analogy would also apply to the inflammatory rhetoric put forth by the film. However, there is one important thing the “shouting fire” analogy has that offending a particular ethnic group does not: imminent, lawless action.
“Imminent, lawless action” is a legal standard established by the U.S. Supreme Court in Brandenburg v. Ohio (1969) that states the First Amendment does not protect speech intended to incite imminent and likely violence. While the film’s content was offensive, it did not call for the killings of any group or advocate any impending illegal activity, which puts it within the boundaries of protected speech under the First Amendment. Unlike shouting “Fire!” in a crowded theater, the film did not explicitly express a false panic solely intended to incite a violent uproar. A violent reaction to a piece of speech based on offense taken from the content is not grounds for punishment of the creator or supporters.
Other legal battles have favored similar offensive propagators, including the 1977 Illinois Supreme Court decision that allowed a Nazi march in a heavily Jewish area of Skokie, Illinois or the more recent 2011 U.S. Supreme Court decision favoring the rights of the Westboro Baptist Church to protest at military funerals. According to Chief Justice John Roberts‘s opinion in that case, the First Amendment protects “even hurtful speech on public issues to ensure that we do not stifle public debate.”
Even with their constitutional protection, the views purported by Innocence of Muslims are baseless, unfounded, and completely deplorable. Tweeting for the arrest of its creators or supporters, however, goes against one of the core principles of any free society, the very principle that enables such tweets to exist in the first place.