Allahpundit @ Hot Air:
On a day when Egypt is appeasing its mob by issuing arrest warrants for the people responsible for the film (a capital offense there, do note), this is what’s running in the biggest paper in Los Angeles. Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise. As Matt Welch notes, lately the strongest pressure on private citizens to limit their criticism of Islam has come from the top of the Pentagon. Bob Gates called Terry Jones when he first threatened to burn a Koran to ask him to stand down, then Martin Dempsey called him again a few days ago when the Mohammed movie broke big. Not content with asking citizens not to make Islamists mad, Chayes wants to blow a hole through the First Amendment using Supreme Court precedent so that they can be compelled to shut up. This is all being done with a noble goal in mind, i.e. protecting U.S. troops in the field, but I’ve got to say: If the choice is between carving off pieces of free speech to sustain an already crumbling mission in Afghanistan and bringing American troops home so that they’re out of harm’s way while keeping free speech intact, I’m all for taking a close look at the latter.
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…
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.”
The Brandenburg case had to do with a Klan leader who was trying to rile up a mob of Klansmen. It’s been used ever since as a constitutional guideline on when government can criminalize speech that incites an audience to riot. The speaker has to intend for the audience to behave violently, it has to be likely that the audience will behave violently, and the possibility of them behaving violently has to be imminent. Essentially, in very narrow circumstances, Brandenburg says it’s okay to silence a speaker if he’s colluding with a violent mob by encouraging it. There are all sorts of problems with applying that ruling to the Mohammed case — who’s the “audience”? did the movie encourage “imminent” violence (or any violence at all) or did the 9/11-related publicity do so? do we really want to assume, as a matter of law, that criticism of Islam is always “likely” to result in violence?