Sarah Chayes, former special assistant to the chairman of the Joint Chiefs of Staff, writes: In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. “The most stringent protection,” he wrote on behalf of a unanimous court, “would not protect a man in falsely shouting fire in a theater and causing a panic.”
Holmes’ test — that words are not protected if their nature and circumstances create a “clear and present danger” of harm — has since been tightened. But even under the more restrictive current standard, “Innocence of Muslims,” the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines.
The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.
Likelihood is the easiest test. In Afghanistan, where I have lived for most of the past decade, frustrations at an abusive government and at the apparent role of international forces in propping it up have been growing for years. But those frustrations are often vented in religious, not political, terms, because religion is a more socially acceptable, and safer, rationale for public outcry.
In the summer of 2010, Jones announced his intent to publicly burn a copy of the Muslim holy scripture, the Koran, that Sept. 11. He was eventually dissuaded by a number of religious and government officials, including Secretary of Defense Robert Gates, who called him to say his actions would put the lives of U.S. soldiers in Iraq and Afghanistan at risk. On the Joint Chiefs of Staff, where I worked at the time, consensus was that the likelihood of violence was high.
When Jones did in fact stage a public Koran burning on March 20, 2011, riots broke out in Afghanistan, killing nearly a dozen people and injuring 90 in the beautiful, cosmopolitan northern city of Mazar-i-Sharif. Seven of the dead were United Nations employees; the rest were Afghans.
In Afghanistan, and in all of the Arab nations in transition, an extremist fringe is brawling for power with a more pluralistic majority. Radicals pounce on any pretext to play on religious feeling. I could pick out the signs of manipulation in Afghanistan — riots that started on university campuses where radicalized Pakistani students abound, simultaneous outbreaks in far-flung places, the sudden
appearance of weapons. By providing extremists in Libya and elsewhere such an opportunity, the makers of “Innocence of Muslims” were playing into their hands.
As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.
While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”
Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”