It’s been interesting to watch conservatives whose interest in the First Amendment seemed hitherto generally confined to political contributions rush to the defense of the free speech rights of the malevolent bigots who produced, translated and disseminated Innocence of Muslims. And it has of course been discouraging and often infuriating to hear so many Muslim political and religious figures blithely demand the U.S. just junk its Constitution in order to avoid offense to their sensibilities.

What we haven’t heard until now is any serious discussion of whether Innocence of Muslims actually is protected speech under the First Amendment, and/or is subject to the kind of regulation that is possible even with protected speech. The Carnegie Endowment’s Sarah Chayes explores this question in a L.A. Times op-ed:

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


Chayes goes on to evaluate the video under prevailing standard that “only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.”
While some facts are not yet known about responsibility for the translation of the video into Arabic, it’s pretty clear the video was intended to do exactly what it did: create a firestorm of worldwide controversy. That it was likely to succeed in it goals was evident from similar occasions in the past, though the egregiously, cartoonishly offensive nature of the depictions of Muhammad provided a great deal of insurance.

I’m not a fan of censorship, but if there’s evidence (beyond the circumstantial) that the cretins who made and disseminated this flick were aiming it squarely at Muslim audiences in hopes of setting off a religious war, then it may very well fall outside constitutional protection. And even if Innocence of Muslims is protected, it’s useful to have this discussion for the benefit of potential copy-cats out there. As Chayes concludes:

The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.

Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.