The First Amendment Provides Full Protection to Innocence of Muslims

September 28, 2012

The following is a preview of the December 2012/January 2013 FREE INQUIRY, in which this essay will appear as an op-ed.


Questions have arisen over whether the internet film Innocence of Muslims (or its 14-minute trailer) should be considered protected by the First Amendment.1 The very core of free speech would be nullified if it were denied constitutional protection.

Some may assert that this film meets the standard of “a clear and present danger” in inciting violence, thus rendering it undeserving of legal protection. This standard was expressed in the United States Supreme Court2 case of Schenk v. United States, 249 U.S. 47, 52 (1919), which upheld a socialist’s conviction for mailing leaflets to potential military draftees, urging resistance to conscription into the armed forces. This case would not be viable precedent today. Its rationale has been substantially narrowed in almost a century of subsequent decisions.

In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Court imposed a new test for determining if a given expression enjoys constitutional protection. It reversed the conviction of a Ku Klux Klan member who, at a Klan rally, advocated returning African Americans to Africa and returning Jews to Israel. The speaker also said that some type of revenge may be necessary if the government continues to oppress white people. He also used the horrid “n” word in saying that they will bury black people. The Court held that the comments were constitutionally protected because they were not directed toward “inciting or producing imminent lawless action” and were not “likely to incite or produce such action.” Even “mere advocacy” of such lawless action was deemed constitutionally permissible, as long as it was not coupled with inciting or producing such imminent activity.

There is nothing in this internet film that exhorts anyone to undertake any immediate violent action against Muslims. Ridiculing a religion’s beliefs and its founder is not an incitement to imminent lawless action. If free expression works properly, no adherent of any type of belief system, be it religious or otherwise, has any special right to silence a critic, even if the critic resorts to ridicule. Blasphemy is a human right. An integral part of freedom requires that anyone be permitted to express views that are deeply offensive to someone else’s beliefs. Those whose feelings are hurt are entitled to strike back verbally. The believer has a legal right to say that nonbelievers will burn in hell forever. The nonbeliever has a legal right to say there is no God in the first place, and thus no hell in which anyone will ever burn. Neither has a right to invoke the police power of the state to silence the other. Neither has a right to engage in violent acts against others or against other people’s property, as a consequence of feeling offended.

First Amendment law also does not permit a “heckler’s veto”: see Reno v. ACLU, 521 U.S. 844, 880 (1997). This means that the legal right to say something offensive cannot be abridged because an offended listener will respond violently or have some other negative reaction. Were it otherwise, our rights of free speech would be at the mercy of those who oppose our views. They could determine the legality of our right to speak merely by how they reacted to what we say. This would be the ultimate form of allowing the fox to guard the henhouse. Thus, no amount of violent rioting anywhere in the world can be permitted to put even the slightest dent in the legal right of this film to be accessible to the public. In Texas v. Johnson, 491 U.S. 397, 414 (1989), even a form of expression as offensive as setting fire to an American flag was correctly deemed constitutionally protected. The Court held that the mere offensiveness of a form of expression, regardless of how severe, cannot be a basis for allowing it to be legally suppressed.

The doctrine that “fighting words” fall outside of First Amendment protection has also been limited since that concept was first introduced. In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942), the Court said that words would not enjoy First Amendment protection if, by their very utterance, they inflict injury or incite an immediate breach of the peace. The Court allowed branches of government to punish “face to face words plainly likely to cause a breach of the peace by the addressee” (p. 573).

In Chaplinsky, the Court upheld the conviction of the defendant for calling a city marshal a “God damned racketeer and a damned fascist” (p. 569). In Gooding v. Wilson, 405 U.S. 518, 523 (1972), the Court overturned the conviction of someone who said to a police officer, “you son of a bitch, I’ll choke you to death.” The state statute that the Court held unconstitutional in Gooding read: “Any person who shall, without provocation, use to or of another, and in his presence...opprobrious words or abusive language, tending to cause a breach of the peace...shall be guilty of a misdemeanor.” While the Court in Gooding paid lip service to Chaplinsky, it’s clear that by overturning the conviction in Gooding and declaring the Georgia statute unconstitutional, the justices were backing away from the restrictions on free expression enunciated in Chaplinsky. The Court has clearly moved away from allowing the criminalization of speech because of the adverse, or potentially adverse, reaction of listeners.

Of course Innocence of Muslims isn’t even a face-to-face confrontation. It’s not even addressed to individual followers of Islam. It ridicules a claimed historical religious figure. Even if the content of the film were the substance of a face-to-face confrontation with Muslims, it would still be protected expression under today’s more evolved interpretation of the First Amendment.

In Terminiello v Chicago, 337 U.S. 1, 2 (1949), the Court declared unconstitutional a city ordinance that made it a crime to use speech to “stir the public to anger...invite dispute...bring about a condition of unrest...create a disturbance...or molest the inhabitants [of the city] in enjoyment of peace and quiet by arousing alarm.” The defendant made a speech in a filled-to-capacity auditorium, in which he vehemently denounced African Americans and Jews. The audience was growing hostile and there was an antagonistic howling crowd outside the auditorium, at pages 2-3. The Court said:

A function of free speech is to invite dispute. It may best serve its highest purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of ideas...There is no room under our Constitution for a more restrictive view” (p. 4).

Not only does the Free Speech Clause of the First Amendment protect Innocence of Muslims, but the Establishment Clause also provides protection. Ever since Everson v. Board of Education, 330 U.S. 1, 15-16 (1947), the Court has held that no branch of government can favor members of any religion over members of any other religion or favor believers over nonbelievers. Accordingly, no members of a religion have any greater rights to call upon government to censor offensive spoken words, written articles, or films. If a Muslim were to post an internet film that was scathing in its ridicule and condemnation of atheists, no atheist could legally block that film’s showing or have it taken down. The same principle applies with equal force if anyone posts a film that ridicules Islam and its founder. The United States Constitution is, as it should be, an equal opportunity protector of those who would give offense to the deeply cherished beliefs of others.

In September of 2010, the pope made a scathing attack on “atheist extremism” and “aggressive secularism” while visiting Great Britain.3 Yet we didn’t see violent demonstrations by nonbelievers anywhere in the world. No secular humanist killed or physically attacked any member of the Catholic clergy, and there was no atheist vandalism against any Catholic church or other Catholic owned property. Any legal system will suffer enormously diminished legitimacy as a protector of free speech if advocates of a certain point of view are the only ones given the right to silence opponents. This legitimacy would be even more gravely compromised if that legal system harbors even the slightest assumption that violence perpetrated by adherents of one set of beliefs, upon hearing or seeing offensive comments, deserves any more lenient treatment than the same kind of violence perpetrated by adherents of any other beliefs.

Ever since the late 1980s, certain segments of what could be called the politically correct left have promoted the idea that certain ethnic and racial groups deserve special insulation from offense.4 They would radically revise and curtail what the overwhelming majority of constitutional scholars have agreed upon as the universal application of the First Amendment. Many of these same advocates of restricting otherwise free expression would also withdraw standard First Amendment protection from pornography.5 Some on the politically correct left have also noticeably voiced support for shielding Islamic fundamentalism from full blown criticism.6 This seems particularly absurd as the types of laws that Muslim fundamentalists would impose on any nation, in which they could gain control, are antithetical to every concern of any liberal to leftist. Such attempts to restrict free speech are actually instances of a left wing position that conflicts with the core value of liberal civil libertarianism: freedom of expression.

Violations of the First Amendment are not salvaged because of the ideological motivation of the would-be censors.

We secular humanists should always oppose censorship, if its purpose is to shield members of any group from being offended. Our very right to disseminate the atheistic aspect of our message would be destroyed if laws could prohibit expressing ideas that deeply offend others.

Secular government would be seriously endangered if there were some special benefits or rights conferred upon adherents of any religious belief system, which were not equally available to everyone else, including nonbelievers. The moment there is any discussion about providing only followers of one or some viewpoints on matters of religion–and no one else–with special legal rights to silence offending critics, we must all, in the words of James Madison, “take alarm at the first experiment on our liberties.”7

The First Amendment prohibits giving greater government concessions to Muslims who are enraged by this film than what is provided to anyone else outraged by something they have heard or seen. Our Constitution permits no greater solicitousness for the feelings of Muslims aggrieved by the ridiculing of Muhammad than it does for atheists upset over religious proclamations of eternal damnation for nonbelievers. We don’t need to protect expression that is not controversial or hurtful. We need constitutional protection for those expressions which cause the greatest offense to all of our most cherished beliefs. Otherwise, we reduce the First Amendment to nothing more than an umbrella that is taken away as soon as it begins to rain.

Notes

1. “Does ‘Innocence of Muslims’ meet the free speech test?” http://articles.latimes.com/2012/sep/18/opinion/la-oe-chayes-innocence-of-muslims-first-amendment-20120918

2. All cases cited in this article are decisions of the United States Supreme Court.

3. “Pope Benedict XVI goes to war with ‘atheist extremism.’ ” http://www.guardian.co.uk/world/2010/sep/16/pope-benedict-xvi-atheist-extremism

4. “Public Response to Racist Speech: Considering the Victim’s Story.” Matsuda, Mari 87 Mich. L. Rev. 2320, 2380 (1989).

5. “What’s Left: Hate Speech, Pornography, and the Problem for Artistic Expression.” Adler, Amy, 84 Cal. L. Rev. 1499, 1500, 1503 (1996).

6. “Of Sin, the Left & Islamic Fascism,” Hitchens, Christopher, The Nation, October 8, 2001 edition, http://www.thenation.com/article/sin-left-islamic-fascism

7. Madison, James, “Memorial and Remonstrance Against Religious Assessments,” 1785, http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html

Comments:

#1 Quine on Saturday September 29, 2012 at 4:26pm

Terrific piece. Thank you, Edward.

#2 free_of_belief on Saturday September 29, 2012 at 6:05pm

innocence of muslim is NOT a criticism of islam. it is actually a product of very pathetic imagination of some pathological moron. it is not based on historical fact nor on common sense.

the story goes on like this: muhammad was a mad man from birth. he was raised by khadija’s father as a mad slave. later khadija married him and taught islam. khadija created koran as a subversion of bible. then muhammad go on preaching madness and violence.

this “story” raises some questions: why a rich merchant like khadija will marry a mad slave called muhammad? she might have many rich and sane suitor. why she would create islam and quoran? why let muhammad preach it about?

these questiones make the “movie” a joke. it is not criticism because criticism bases on historical facts and not some hocus pocus imagination.

therefore no need to protect such fuzzy thing.

#3 Marcus (Guest) on Sunday September 30, 2012 at 10:41am

I now understand the First Amendment much better, thanks. Let defamation law clean up the spillage.

#4 free_of_belief on Sunday September 30, 2012 at 7:50pm

all you understand marcus is the secular humanist version of first amendment.

#5 dewdds on Monday October 01, 2012 at 12:02am

Well written piece!

As for the incoherent response above by free_of_belief, I don’t see this as relevant to the issue. The story of Muhammad comes to us from a theological narrative and most (if not all) cannot be historically verified as true.

While most of us agree that this film is a waste of celluloid and certainly not deserving of a ‘thumbs up’ rating, the makers are still free to say anything they like about this Muhammad character. It is not slander or libel to speculate about the sayings or actions of legendary figures. Nor is it suddenly ‘unprotected’ speech to engage in historical revisionism (at least in the US) no matter how silly or distorted the message.

#6 free_of_belief on Monday October 01, 2012 at 7:10am

well, if today anybody used slander or libel against richard dawkins or christopher hitchens or james randi or any figure which free thinkers admire most, would it be still “no problem” for free thinkers? will there be no objection or hate message?

#7 free_of_belief on Monday October 01, 2012 at 7:14am

well i have heard that if any academic CRITICIZES the theory of evolution or even mentions the concept of intelligent design he or she either be fired or be blacklisted or be both. what kind of free thinking attitude is this?

why free thinkers, especially the establishment of scientists don’t tolerate the criticism of theory of evolution or darwin?

are the free thinkers true to their belief or is there anything fishy?

#8 dewdds on Monday October 01, 2012 at 11:26pm

Apples & oranges. Dawkins et al. are not legendary figures, but real, living persons.  Huge difference. All of the prominent figures in atheism and free thought today have received plenty of nasty hate mail and often even threats, but they usually shrug it off.  just check the hate e- mail section on the Dawkins foundation website.

In the US it is notoriously difficult to prove defamation that would be deemed criminal or even actionable via civil awards and penalties. That is why tabloid news can print what they do and rarely suffer consequences.

Further who is in the position to say any criticism of Muhammad is defamatory? No one today lived during the time of this supposed religious character (7th c. CE).  In a legal sense you can’t prove any critical analysis of Muhammad as false, because there are not even any extant, independent, secular sources to give an exact account of his life. You confuse theological writings for true, historical events, which is the crux of your error.

#9 free_of_belief on Tuesday October 02, 2012 at 4:39am

DEWDDS

you do not reply my second post where i mention about criticism of darwin’s theory of evolution. those established scientists who ever dare to criticize theory of evolution are either blacklisted or fired or their research funding stopped. is this the example of tollerance of free thinking community?

please watch the documentary: expelled : no intelligence allowed to know about such scientists.

#10 dewdds on Tuesday October 02, 2012 at 8:22pm

free_of_belief, your reference to that waste of celluloid, “Expelled : No Intelligence Allowed”, is an odd way to make your argument. This film was Ben Stein’s sophomoric attempt to make a mountain out of a mole hill. I watched this movie a while back and also read much about the criticism of the same. I won’t detail it all, but address two of the cases presented in the movie that supposedly demonstrates systematic persecution of ID/creationist aligned scientists.

The first was Dr. Caroline Crocker, who claimed she was dismissed from her position and blacklisted after she had taught some aspects of ID in her Cell Bio course. What Ben Stein did not reveal was that her position was non-tenure track and contracted on course by course basis. The university in question (Geo Mason U) decided not to renew her contract. Big deal! It happens. The university also added that the non-renewal of her contract had nothing to do with her belief in ID. Note that the original issue arose when students complained about her teaching concepts out of the boundaries of the course - she was employed to teach cell biology, not pseudo-scientific concepts with theological underpinnings.

The second case, one Dr. Guillermo Gonzalez, an astrophysicist at Iowa State U. claimed persecution because he was denied tenure. Why? Well according to the film it had to do with his public association (including a book) with ID. But according to the Astronomy Dept., his number of publications took a dive after he joined the faculty and also he never secured any significant outside funding. Tenure at a university is difficult and requires a steady stream of high quality publications as well as a track record of obtaining grants outside the institution. Dr. G may have been in a bad patch at the time, but again, this is not a unique event in academia.

Freedom of expression is a given for anyone in our society, but no one is forced to pay for or support it, let alone listen to it. While our secular universities have a policy of academic freedom, as well as respect for freedom of expression, they are not compelled to retain faculty who show sub-standard performance, just because that person holds some particular theological view that has no place in science.

#11 Quine on Tuesday October 02, 2012 at 11:26pm

free_of_belief, that issue was thoroughly debunked at http://old.richarddawkins.net/articles/2394 Please read-up and increase your understanding.

#12 free_of_belief on Wednesday October 03, 2012 at 5:20am

dewdds

i read your answer and notice several points where i can’t agree with you. the first point is about cherrypicking from the film. you presented only 2 out of several cases which you can easily manipulate. what about the rest of the cases? “cherrypicking’ will not prove or disprove anything.

secondly lets talk about your cases. caroline crocker in the film herself said that departmental head told her that she will be disciplined for teaching ID.  yes, ID is something beyond the boundaries of a typical cell bio course. so she was fired for teaching ID. and also no university will ever admit that they fire somebody for teaching something out of the boundary of the course because freedom of education is a serious issue in the US.


now take the gonzalez case. he was fired because his publication dived after he joined the course. how ridiculous argument. have you ever studied the publication chart of Dr.G? the number of publication before and after his joining the faculty? no. then how are you so sure that the astronomy department is not lying? it is a vague argument. and why his publication dived? have you found out the reason or the department provide you with a reason?
i know that the department of astronomy will never admit the fact that he was fired for teaching ID because of freedom of education issue.


lastly i want to make it clear that in the world of freethinkers persecution goes on very subtly, in the guise of improving the quality or freethinking or science, persecution of freethinker goes on. you have to be careful to find it out.

#13 dewdds on Wednesday October 03, 2012 at 8:01pm

Cherry picking?  Now that is hilarious. The entirety of the anti-evolution polemical “Expelled : No Intelligence Allowed” is about cherry picking! Ben Stein and his producer distorted, misrepresented, and left out important facts in these supposed ‘persecution’ cases. Stein, who trained as a lawyer, likely knew the whole story in these various events, but choose to conveniently expunge them from his reports.

You still insist both of these professors were fired. They weren’t. Crock simply did not have her contract renewed for a non-tenure track position. Shortly after the dust settled, she was doing research again in immunology - not what one would expect if one was blacklisted. Gonzalez was denied tenure, but not dismissed. He was free to continue at ISU, but without job security that tenure offers, decided to go elsewhere.

By the way the number of peer reviewed papers of Dr. Gonzalez is easy to obtain - it is certainly no secret. I offer as evidence the following site that lists his publications and how they trailed off after he started at ISU:  http://scienceblogs.com/neurotopia/2007/12/06/a-handy-graphictimeline-of-gon/

Another site covers all the cases in that film and gives a much fairer view of what happened:  http://www.expelledexposed.com/index.php/the-truth/

Read the full story before you lap up the Kool-Aid my friend.

You have an odd notion of what it means to be persecuted. Boohoo, the film ‘Innocence of Muslims’ hurt your tender feelings. Why are you angry with the film maker? You should be angry with your god and dead prophet, who seem too impotent to defend their honor over such blasphemy. You accuse freethinkers of subtle persecution, which I read as you being frustrated that we call you out for siding with violent minded thugs, who want immunity from any criticism, no matter how constructive or necessary.  You want the world to respect you because of a belief in a silly superstition, but you reserve the right to withhold the same to those of us who don’t share the exact same belief.
Your use of the word ‘persecuted’ is tiresome, overblown and borders on outrageous. Persecution is not what the people in Ben Stein’s film suffered. Nor do the world’s 1 billion plus Muslims suffer persecution due that silly trailer about Muhammad. Do you really want to know what persecution is? It’s a young, mentally deficient lady in Pakistan being accused of desecrating a stupid religious text that 50% of the people in her own nation can’t even read and receiving death threats. It could also be a group of Shia pilgrims in Iraq getting gunned down for simply believing a minor variant of Islam. Or maybe it’s Christians in Nigeria having hand grenades tossed in their churches by violent Muslims, all because they don’t follow their religious meme. Persecution is writing innocuous poetry about Muhammad and then being arrested and threatened with death until you recant, as happened to a young man recently in KSA. Its also about posting your non-belief on Facebook and having your government imprison you for ‘insulting religious feelings,’ as we have seen in both Egypt and Indonesia. Those are great examples of persecution. You, however, cheapen the meaning of the word as you use it.

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