Saturday, September 15, 2012

A discussion on whether the anti-Muslim film is protected under first amendment rights

  • Yasser Latif Hamdani Holding a political or religious opinion or criticising a religion etc should be protected but this film is not protected in my view... to quote Chaplinsky v. New Hampshire 315 U.S. 568 where the US supreme court ruled : "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." This in my view fits the test.
  • Jay Sender speech like this is almsot always protected under the free speech and establishment clauses of the first amendment - i was just raising an issue of whether the incitement exception when coupled with the national security exception to prior restraint cases makes for an interesting counterpoint to standard caselaw.
  • Yasser Latif Hamdani The incitement exception + chaplinsky decision + "imminent lawless action" exception in Brandenburg v. Ohio makes me think that a film such as this is not protected under the free ...See More
  • Jay Sender I don't even need to look at Chaplinsnky to know that. The joint force of the free speech clause and the establishment clause make it clear that we can criticize religion. As a law student focusing on constitutional law, I am a damn-near free speech absolutist - I even have two black armbands tattooed around my arm signifying Tinker v. Des Moines. That being said, if the speech results in violence against U.S. embassy's in foreign countries, then we can develop additional analysis. questioning whether the incitement exception and the national security policy analysis which overrides prior constraint concerns can compete with the dual force of those first amendment clauses. I think that the Court would say that the causal link is not all-encompassing. That is, there are three possible rationales for the violent reaction: 1. Prior Anti-American resentment which built up over time; 2. Violence is the result of irrational behavior - something that the incitement clause does aim to address; and 3. Many of the protestors have resulted in violence without seeing the film meaning that the message is both controlled by foreign parties and without factual proof, meaning that the link is not an actual one - just an excuse for something larger. Essentially, the video is protected.
  • Yasser Latif Hamdani On the contrary the fact that this film did not cause any outrage when it was screened initially as "innocence of Bin Laden" and only caused outrage after it went viral and was als...See More
  • Jay Sender it's hate speech but hate speech is protected. phelps v. snyder
  • Yasser Latif Hamdani I haven't argued hate speech if you notice above. I am sticking to "fighting words" theory of the Chaplinsky decision. Hate speech is protected... but hate speech that incites imminent lawless action is not protected.
  • Jay Sender fighting words is a one-time holding - hate speech that reasonably incites lawlessness brings incitement into play, however, hate speech that does not justify lawlessness likely does not
  • Yasser Latif Hamdani precisely and I think this brings incitement into play (because causal link is clear or else the whole issue imputes redundancy to the exception as laid down by the SC) and is therefore an exception to free speech clause. In my opinion free speech clause is not where this film gets away. The real issue is the establishment clause... i.e. the legitimacy/illegitimacy of Muslim claim to protection against religious hatred and whether the idea of Muslim is a simple religious idea or whether it is a minority group of which religion is merely a demarcator of difference.
  • Malik Rashid The movie lays no claim on history. It is propaganda-negative advertising by one business establishment(religion) against another. For false advertising, ethical rules of conduct could come into play. Freedom of speech should not be held responsible. Sorry to intrude in an exciting conversation on law. Thanks.
  • Yasser Latif Hamdani It may also be stated that while I hold this position, I hold it purely from a practical legal point of view ... i.e. predominantly a major portion of 1.5 billion Muslims hold this view and a large number is likely to react in an irrational and violent way. I personally do not share the convictions of the Islamicate and while as a student of history I note the obvious inaccuracy ... I am not personally affected as my Muslim brethren are. However my argument is purely legal and that too in specific context of US Constitutional Law.
  • Jay Sender disagree for a few reasons: 1. speech protection is based upon the nature of the speech, not the resulting action of those that respond; 2. the rioters by and large did not view the video; 3. the video did not reasonably lead to rioting of embassy's - this suggests that something else is at play; 4. your analysis fails the clear and present danger test; and 5. let's change the parties - focus on the family created ANOTHER video disparaging gays - if Western Manhattan, Miami Beach and San Francisco break out into riots, the government will not be able to censor the FoF video because rioters did not have the adequate justificaiton for their actions
  • Yasser Latif Hamdani Well you can certainly argue that but my answers are 1. I urge you to read Chaplinsky and Brandenburg decisions referenced above. 2. rioters by and large did view the video. The video is widely available and surprisingly so. 3. That requires evidence. 4. Again the clear and present danger test is a wide term and has been used variously since Oliver Wendell Holmes Jr's time... in my opinion, the practical issue of having a mass of people easily ignitable all around the globe ready to resort to violence is a clear and present danger. Now I understand that this amounts to a morally unacceptable position i.e. giving in to the bullies and I frankly cannot quite reconcile myself with this idea either... but law has always been a utilitarian endeavour for an imperfect world. 5. A compelling argument but the problem is that LGBT etc are not likely to resort to violence and this is at best a hypothetical where as we face a clear and present situation in the Islamic world right now.
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