Free Speech and Political Violence

I find the number of people willing to censor offensive speech in the wake of the anti-Islam film, and the reaction that it has provoked, disturbing. One example is this USA Today op-ed, written by a professor of religious studies, arguing that “Sam Bacile” (Nakoula Basseley Nakoula), who is said to be responsible for the film, should be arrested. I assume that this view is not widespread among prominent American commentators, but the idea that the U.S. should alter its speech regime is rather prominent abroad. As a couple of quick examples (and there are many more), one Pakistani senator claims to have spoken to Interpol’s secretary general “to enact international law to stop anti Islam material being projected on the Internet”; and a Turkish columnist writes that “the committing of blasphemous acts, be it cartoons, a film or what so ever, [is] not implicit in the right to express one’s self freely.” But the primary reason I write this post is because of the great number of intelligent people I’ve interacted with on social media or by email who feel that arrest or censorship is an appropriate response in this case.

Before making several points about free speech and political violence, I should note that Bacile/Nakoula may have violated the terms of his parole through his work on this film. If so, I have no objection to throwing the book at him. Violating the terms of his parole breaks the law in a manner that renders First Amendment considerations beside the point. Rather, I write against the idea that the First Amendment should be rendered inoperable in this particular case, where some faction would respond to the (admittedly offensive) exercise of free speech with violence. Here are a few points that I think are worth bearing in mind:

  • Deciding to censor speech based on the reaction of an audience is a very slippery slope. Doing so would essentially create a “heckler’s veto,” which our legal system rightly rejects at present. If we as a society made speech illegal when offended people are willing to use violence in response, then essentially those willing to use violence have control over the limits of speech. Is that desirable? If anti-gay groups adopted a strategy of violent protest in response to homosexual imagery in media, should we outlaw such imagery because of their willingness to use violence? Are works like The Last Temptation of Christ or Serrano’s “Piss Christ” protected by the First Amendment only so long as offended Christians (whom both of those works intend to offend!) do not use violence in response? Free speech would be contingent upon the audience reaction.
  • Leaving aside the implications of what kind of censorship might occur if other groups decided to embrace a violent strategy, note the utter unfairness of this speech regime toward groups that do not use violence to respond to works that offend them. Those willing to use violence will have the legal system protect them from being insulted or offended, and it would actually prosecute creators of works they find offensive; whereas those who respect civil society and refrain from violence can be subjected to insult and offense at will.
  • The First Amendment is designed to protect offensive speech. After all, if nobody found a certain kind of speech offensive, then nobody would be pushing to prohibit it. The offensiveness of any kind of speech is thus an awful rationale for arguing that it can be prohibited.
  • A system that only prohibits offensive speech toward one particular faith is absolutely unacceptable. Such a system would in effect run counter to the First Amendment’s reluctance to allow speech restrictions that discriminate based on content (i.e. the principle of content neutrality).
  • The speech contained in the film does not fall under any exception to First Amendment protection. One exception is the incitement standard, that speech can be excluded from First Amendment protection if it is likely to produce imminent lawless action, and if the speaker intends for it to do so. In this case, there is no evidence that the intent of this film was to spark violent mob action; certainly the movie does not call upon mobs to form and attack U.S. diplomatic outposts. Nor is hate speech a legally proscribed category: a good example of this is the Skokie case, which upheld the rights of neo-Nazis to march through the predominantly Jewish town of Skokie, Illinois. (The existence of college and university hate speech codes, which are of dubious constitutionality in the first place, does not alter this dynamic.)
  • It is not clear that jailing those responsible for this film would actually reduce the propensity to violent protest. Isn’t it possible that the opposite is true: that using the legal system to punish the purveyors of offensive speech would send the signal that violence works, and is thus a desirable reaction?

I am all for criticizing the speech contained in this film. The traditional cure for offensive and inaccurate speech under our legal regime is counter-speech. But censorship has significant ramifications that people advocating it are not, in my opinion, fully considering.

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15 Responses to Free Speech and Political Violence

  1. Alexander says:

    Putting aside all technicalities, how far can the the US as a system and society continue to insult and offend foreigners without expecting any backlash? Which is to say, be damned the 1st amendment – the unruly mob in the streets of Cairo today sure did, the US allows for the kind of reprehensible speech which offends millions if not the full billion to some degree or another and the US expects said millions of people to respect and treat Americans well? Why does muslim youth have to adhere to, understand and be okay with legislative in a foreign country? They after all had no say in the matter, they’re just on the receiving end of blasphemous and offensive speech.

    But hey, I’m playing the devils advocate here. The Libyans in particular have it all backwards, after what the US did for them re revolution they should be singing the US’ praises every day, all day.

    And of course, no matter how offended one might be – you don’t organise mobs to go destroy property and kill people. It’s just ridiculous beyond words, abhorrent.

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  3. Teresa says:

    While I accede that we have a Constitutional right to free speech, we also have limits on our rights. We do not have the right to incite a riot, and while there was no explicit call to form mobs, any person who can rub a few brain cells together would EXPECT the result we see all over the Middle East to this film, if we look to past history-think Dutch Cartoonist.

    Stein said they EXPECTED the result they got. This is Depraved Indifference. These people deliberately put our Ambassadors and troops in harms way. My son is in the military, as are many of his friends. Pardon me if I get a little upset at a few a**holes who want to Cause trouble for others to clean up.

    I think the film makers AND anyone who promotes this film should be turned over to the Libyans.

    • Ron says:

      So if someone made a video making fun of the KKK and they went out and riot and kill black people burn down black churches etc do you blame the KKK or the person who made the video making fun of them.

    • tim says:

      Please read the Quran and Hadith before you cede any of our freedoms. The film does not incite violence…the Imam purposefully incites violence to suppress your freedom.

    • Mother/grandmother/patriot says:

      Your comment is outrageous! What’s the matter with you? Do you remember 911? Did the terrorists consider whether they were offending the United States? People who say things like you did feel to me like traitors to our constitution; other people are allowed creative and artistic freedom and free speech. That is why we are free. There are a lot of things I do not like in the media, the movie theaters and written but I do not condemn the person who did it. I am totally shocked that you would even consider such treatment of anyone. We must respect everyone to have free thought.

  4. Aaron says:

    Completely agree with this analysis, although I’d clarify that Skokie was a “fighting words” case, as opposed to an “incitement” case. This case here more mirrors the fighting words exception anyway in the sense that incitement is more geared towards persuading others to carry out violence, while fighting words is geared towards words that, by their very utterance, incite a breach of the peace. The fighting words exception does not apply here as it would lack the “direct personal insult” requirement. However, it’s still worth bringing up, if only to knock it down.

    My major problem with the government statements in this case is the notion that, “The United States deplores any intentional effort to denigrate the religious beliefs of others.” (Secretary Clinton’s statement) There doesn’t even seem to be an intent to argue the content of the film itself. Rather, it seems that the government’s position is that ANY criticism of religious belief is off-limits. That’s absurd and dangerous, and there is no special quality of religion that should make it immune to criticism in the same way as every other ideology in the world.

    Great article and excellent summary of why speech restrictions are ineffective and dangerous and, in our emotional rush to cast blame on people for whom it is easy to hate, we should be very careful about rushing to judgments that may greatly and negatively effect us in the future.

    • Daveed Gartenstein-Ross says:


      Thanks for the kind words. To be clear, I was discussing more than one First Amendment “exception” above. The first was incitement, but when I brought up Skokie, I was not attempting to imply that it is relevant to the incitement standard: rather, I was pointing out that hate speech does not constitute a First Amendment exception. I chose to bring that up separately based on conversations I’ve had with intelligent non-lawyers who were under the impression that the First Amendment does not protect hate speech.

      I agree with the statement that “there is no special quality of religion that should make it immune to criticism in the same way as every other ideology in the world.” Most people would recoil at the very claim, which says more about our society than the claim itself. I think you are right.

  5. Stoopid American says:

    There are many truths to be found in these events.

    Clearly, the makers of this film have the right to speak, as does anyone else, regardless of how irrational, offensive, or vulgar their speech might be.

    But freedom of speech does not imply freedom from consequences. It is clear that the government can and should do nothing to the makers of this film. However, as a person who also has freedom of speech, I have every right to stand up and call out those film makers as the reprehensible and ignorant bigots that they are. Likewise, the Muslim world has every right to do the same thing.

    Violence is where the line got crossed. The mobs in Egypt and Libya do not have the right to it, no matter what was said in the film. That also is true.

    Maybe we all can learn from these events?

  6. The fourth doorman of the apocalypse says:

    It looks to me that this is a prelude to removing the second amendment.

    After all, once you agree that certain speech can be censored, you can then make a case that opposition to the removal of second amendment rights should be censored or even medicalized.

  7. Ron says:

    Every other religion gets made fun of all the time. Jews, Christians, Catholic Priest, everybody else just sucks it up and take it and ignore it. What makes Muslims above everybody else. No other religion would get away with behaving like the Muslims. Just think if a Muslim made a cartoon picture making fun of the Jews and the Israelis went out rioting burning down Muslim schools, attacking Muslims etc. The whole world would be angry and demand the Israelis be charged with war crimes. Just think if a group of Christians went out and killed atheist for making fun of them. Who do you think they would charge. The Christians who did the murder or the atheist group who made fun of them. Why should there be a double standard for Muslims?

  8. Ron says:

    My other point I want to make is this. Muslims will riot over anything . This time it could be a video . Next time it could be over a South Park episode or a talk radio host , or a cartoon , or a teddy bear. When does it end? Do we want to live under the Constitution or the Koran? This is exactly what the radical Muslims want us to do not say anything bad against Islam. In Europe they already have hate speech laws like this. If you say anything against Muslims you can be arrested. Muslims on the other hand can stand on the streets of London with signs that read ……. Behead all those who insult Islam , Your 9/11 is on the Way. . NOBODY gets arrested. Hate Speech laws are one sided. Is this what we want people to live under Shariah Law?

  9. tim says:

    Americans (infidels) need to study Islam very carefully. It is much more than a religion: it is a comprehensive religious, legal, political and military doctrine. Reading the Quran and the Hadith one time will help folks understand that the usage of violence is a fundamental tool used to suppress non-Islamic ideology such as free speech, freedom of religion, freedom of sexual orientation, equal rights of women and equal rights of any non-Islamic peoples. I appreciate all criticism, but I do plead with everyone to at least carefully read these books and read the global news, which reveals that most violence have something to do with Islamist clashes with non-Islamic peoples.

    In summary, the purpose of the Islamic violence is to eliminate opposition to Islam…free speech is just one of many freedoms that violence is being systematically used to suppress. Violence is not the only tool. There is extensive efforts to alter laws in all countries so gain more conformance to Islamic law, including the establishment of parallel legal systems so Muslims can initially secure their own laws in each country. Of course, the larger the Muslim population, the more aggressive (and eventually violent) the effort to weaken and eliminate non-Islamic law.

  10. Baby Huey says:

    First: Do any of those commenting on this post re: Mr. Nakoula’s film understand that while the film is made in a satirical/farcical manner, ALL the scenes that he shows are taken from the Islamic “holy trinity” of source materials related to Muhammad and his life? These are all scenes FROM Muhammad’s life, according to the sunna, sira and ahadith, the holiest books of the Islamic ideology (it’s not a religion, but that’s a different subject). Teresa, StoopidAmerican, do either of you understand that the film-maker, far from being “bigoted” or exhibiting “depraved indifference”, simply made a light version of the terrible things Muhammad did in his life? He was a rapist, a torturer, a sexual debauchee and a pedophile, to say the least. Again this is based on the ONLY things/data that we, and Islam, can know/have about the man they follow. All Mr Nakoula did was make a light version of these things, and by accurately portraying scenes from the life of Islam’s “prophet”, he is called an ignorant bigot. He’s actually demonstrating a rather deep understanding of Islam, and if you feel that the actions portrayed in the film are “bigoted” or “racist”, then your problem should be with Islam, not the film.

    Second: As far as free speech goes, Mr. Gartenstein-Ross is absolutely correct, as is one comment regarding religion and how it should be subject to criticism as much as anything else in the world. Teresa, “anyone with two brain cells to rub together” can understand that the Islamic world reacts with savagery and violence on ANY pretext that they can come up with, however insane or unreal it may be. That you think freedom of speech should be suppressed because “we should know this was going to happen” is absolutely reprehensible.

    I understand your concern for your son, but the liberty to say what we will is one of the things he is fighting for (on another note, the Muslim world has simply used the film as an excuse for attacks that were already planned.). That you think we should submit to bullies such as they is cowardice, and appeasement (e.g. punishing the film maker for exercising his freedom) NEVER works in this sort of situation; it only causes the bully to increase their demands. As Mr G-R points out, rewarding violence with capitulation will only legitimize and increase the violence.

  11. Shane says:

    To the Muslims currently protesting against America,

    In the U.S.A., we are governed by a Constitution, which grants all people residing in our country the right to freedom of speech. Americans have the right to express opinions on any topic, including religion. Americans may criticize Jesus and Christianity, Abraham and Judaism, Buddha and Buddhism, and Muhammad and Islam. Millions of Muslims are offended by a video on YouTube that criticizes Muhammad and Islam. You may not like this video, but our President has no authority to punish those who created it.
    Continuing to protest will accomplish nothing. I suggest that you Muslims learn to live with criticism of your religion, as Christians and Jews living in America do now.

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