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Scapegoating Free Speech

In the aftermath of a terrorist attack in Libya that killed our ambassador and three other Americans, the Obama administration was quick to scapegoat a film called "The Innocence of Muslims" for the attack, claiming that the film caused the attack. But in reality, the attack was pre-planned, and within 24 hours, the administration knew it was a terrorist attack, not a "spontaneous" eruption of outrage over the film, as it later repeatedly claimed on TV:

U.S. intelligence officials knew within 24 hours of the assault on the U.S. Consulate in Libya that it was a terrorist attack and suspected Al Qaeda-tied elements were involved, sources told Fox News — though it took the administration a week to acknowledge it.

The account conflicts with claims on the Sunday after the attack by U.S. Ambassador to the United Nations Susan Rice that the administration believed the strike was a “spontaneous” event triggered by protests in Egypt over an anti-Islam film.

Two senior U.S. officials said the Obama administration internally labeled the attack terrorism from the first day in order to unlock and mobilize certain resources to respond, and that officials were looking for one specific suspect.

Yet, "four days later, the White House sent U.N. Ambassador Susan Rice to five different Sunday talk shows to claim that the sacking and assassination sprang from a 'spontaneous' demonstration. That no longer can be explained as initial confusion over conflicting reports; it is now clearly a lie told by the White House." (The fact that terrorists, rather than demonstrators, overran the "poorly-secured" American consulate may have helped make it a "catastrophic intelligence loss.")

This false claim resulted in a vast number of people calling for censorship or prosecution of the filmmaker. Former California Democratic Party Chairman Bill Press said "we also ought to be identifying the people who made this video and go after them with the full force of the law and lock their ass up" because of the allegedly violent reaction to their film. Echoing the U.S. Embassy in Egypt, which called anti-Muslim speech in America an "abuse of free speech," he said that the film was "an abuse of the First Amendment." (“Abuse of free speech” is a phrase used by lawyers and diplomats to mean speech that can be banned as unprotected. For example, many state constitutions, drafted in a less speech-protective era, contain an “abuse” exception in their free-speech clause.) Letters calling for censorship outnumber defenses of free speech in some newspapers located in liberal regions, like The Washington Post, where readers argue that speech criticizing Islam and "jihad" should be banned from the subway lest it "provoke violence" by angry Muslims.  NPR contributor Sarah Chayes argued in the Los Angeles Times that the film was "not protected" because it supposedly led to "the death of U.S. Ambassador J. Christopher Stevens," even though she admitted it was critics of the film -- not the film -- that "urge[d] people to commit violence." Left-leaning academics and journalists called for the prosecution of the film's producers.

This idea that you can ban speech because people react violently to it is at odds with Supreme Court rulings and basic First Amendment axioms. The Supreme Court has rejected this so-called "heckler's veto" in cases like Terminiello v. Chicago (1949). In that decision, the Supreme Curt ruled that the First Amendment protected unsavory, anti-semitic speech that enraged an "angry and turbulent" crowd. The Supreme Court rejected the idea that speech can be banned to prevent unrest, declaring that "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high 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 an idea."

Banning speech because someone reacts violently to it sets a terrible precedent. It gives the most violent or angry members of society a veto over free speech and what issues are discussed. It is always possible to blame the victim of violence for inciting aggression by an angry person through expression of views that offended that person. (For example, when a security guard working for a conservative group was shot by a critic of the group, some people blamed the group's rhetoric for supposedly creating a "climate of hate" that led the outraged shooter to react by attacking it, and said it must "share" the "blame" for the "growth of" such "violent acts.")

The Obama administration has not advocated criminalizing speech against Islam. But at the United Nations, it has argued in favor of civil liability for speech that incites "discrimination" or "hostility" to Islam, based on the false assumption that civil liability is less subject to First Amendment limits. (The Supreme Court's Hess and Brandenburg decisions protect even speech that incites violence or legal violations unless the speech intends and is likely to cause imminent lawless action.  The Administration is apparently unaware of, or does not agree with, federal appeals court rulings that apply those decisions to bar civil liability for speech that incites "discrimination.") As the National Review notes, the much-criticized statement by the U.S. Embassy in Egypt deploring the "abuse" of free speech in America

perfectly reflects the views of the United States government under Obama’s stewardship. . .In 2009, the Obama State Department ceremoniously joined with Muslim governments to propose a United Nations resolution that, as legal commentator Stuart Taylor observed, was “all-too-friendly to censoring speech that some religions and races find offensive.” . . .The sharia countries were happy with the compromise, though, because it also would have made unlawful speech that incites mere “discrimination” and “hostility” toward religion. Secretary Clinton’s feint was that this passed constitutional muster because such speech would not be made criminally unlawful. Yet the First Amendment says “make no law,” not “make no criminal law,” restricting speech. The First Amendment permits us to criticize in a way that may provoke hostility — it would be unconstitutional to suppress that regardless of whether the law purporting to do so was civil, as opposed to criminal.

The administration was just wrong to take this position at the UN, as even liberal law professors like Jonathan Turley have noted.  In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court ruled that the First Amendment barred imposing civil liability on neighborhood activists for their speech opposing a housing project that incited "discrimination" (specifically, a violation of the Fair Housing Act by a city council). The court ruled that the First Amendment restricted civil liability (such as civil investigations and threats to impose civil monetary penalties) under the Fair Housing Act, and decided that even speech that deliberately incites such illegal “discrimination” is protected unless it is designed to incite “imminent” lawless action as opposed to just an illegal decision that comes after reasoned deliberation. The court ruled that officials in the Department of Housing and Urban Development could be forced to pay monetary damages for threatening to impose penalties on the activists because of their speech against a housing project for the disabled. (Disclosure: I helped brief this case. It was argued by Ken Marcus, who was later my boss at the Education Department's Office for Civil Rights.)

Although the administration's position was wrong, it was nonetheless dangerous, because its acquiescence in speech-restrictive international norms will be cited as investing those norms with the status of "customary international law" binding on Americans, in the eyes of international bodies and foreign governments. The Egyptian government, controlled by the hardline Muslim Brotherhood, has already said, “We ask the American government to take a firm position toward this film’s producers within the framework of international charters that criminalize acts that stir strife on the basis of race, colour or religion.” The U.N. Secretary General similarly argues that “provok[ing] or humiliat[ing] … others’ values and beliefs” “cannot be protected" by freedom of expression. Legal scholars like Professor Peter Spiro argue that customary international law (such as unratified treaties) can provide an "international norm" justifying restrictions on hate speech or speech that defames or incites hostility to religions such as Islam. State Department legal advisor Harold Koh, the former dean of Yale Law School, has also argued that such international norms provide a justification for restricting speech.

Banning speech because it offends violent people will backfire and lead to more violence in the future by emboldening, rewarding, and conditioning them. Law Professor Eugene Volokh explains here why banning speech because it triggers murderous reactions will only lead to more deaths in the future. Law professor Ilya Somin similarly discusses here how giving in to terrorists' demands to suppress "blasphemous" speech will just lead to more terrorism and attacks in the future. (Even government denunciations of speech may backfire. After the U.S. government recently ran TV ads in Pakistan denouncing the film "The Innocence of Muslims" (without mentioning the First Amendment), Pakistanis were not appeased, but rather expected action against the filmmaker. Indeed, a Pakistani cabinet minister then offered a $100,000 reward for the killing of the filmmakers. The State Department then responded partly by saying that the film was "offensive, disgusting, and reprehensible.”)

Giving angry listeners or viewers a veto over films that offend them will also harm the movie and entertainment industries.