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.