Is a troublemaker who causes a fatal stampede by falsely shouting fire in a crowded movie theater as blameworthy as one who screens a provocative movie that sparks fatal street riots outside the theater?

In both instances, people end up dead. However, as illustrated by the fallout from a recent made-in-the-U.S.A., anti-Muslim video clip – our Constitution only protects the latter. The question is why.

The First Amendment’s free speech clause prevents criminalization of many obnoxious and offensive words and images, including hateful rants and symbols. It’s based on bedrock assumptions that government should stay out of the censorship business, that one person’s garbage may be another’s art or political protest, and that free expression generally fosters a more open, robust and creative society.

The First Amendment does have its limits. In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. penned a famous opinion in which he declared that the right “of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Speech becomes punishable, he said, where “the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

Nearly a century later, in September 2012, Nakoula Basseley, an Egyptian of Coptic Christian faith residing in southern California, uploaded to YouTube the 14-minute-video trailer of an as-yet unreleased film, “Innocence of Muslims.” Though the facts are still murky, Basseley appears to have been one of its producers.

This overdubbed, wretchedly-acted trailer seems designed to call attention to Muslim extremist persecution of Egypt’s minority Coptic Christians, who have been repeated targets of violent attacks since the overthrow of strongman Hosni Mubarak. Or perhaps it’s just intended to trash Islam, with its takeaway line being “man + x = IT” (Islamic Terrorism). In any event, to make its point, the trailer crudely portrays the prophet Mohammed as a buffoon, lecher and sadist.

The obscure video quickly went viral over the internet, spreading like wildfire through the Islamic world, where it precipitated demonstrations and riots, accompanied by the familiar symbols of Muslim street rage – fists and automatic rifles thrust high into the air and ritual burnings of the American flag.

About 50 people have died in scattered violence linked to the film, including U.S. Ambassador Christopher Stevens and three other Americans killed in a Sept. 11 attack on the American consulate in Benghazi. (The attack on the consulate may have been opportunistically carried out by Islamic terrorists, using street unrest as their cover).

In addition to the deaths of four Americans, the “Innocence of Muslims” has proven a diplomatic setback for the U.S.

Separated from American society by a huge cultural gulf, many devout Muslims around the globe (including Afghanistan, where U.S. troops are still in harm’s way) feel our government’s failure to prevent production of this film or to punish its makers is tantamount to an official seal of approval. The resulting political unrest has destabilized fragile regimes in North Africa and the Middle East and created new waves of anti-American anger.

The Obama administration’s response has been measured — simultaneously condemning both the video’s message and Muslims’ violent reaction to it while reaffirming the free-speech rights of the messenger.

At the other end of the spectrum, Egypt issued arrest warrants for seven of its nationals, all Copts, and a Florida-based American pastor, who were allegedly involved with the film’s production, on charges of insulting and publicly attacking Islam. The charges are potentially punishable by death, if the accused can be brought to trial in Egypt.

Meanwhile, Nakoula Basseley, whose checkered past includes a 21-month jail sentence for bank fraud, has been arrested by U.S. authorities for a federal parole violation. But he certainly will not be prosecuted here for insulting Islam.

Still, one has to wonder. Why shouldn’t we be able to criminalize the kind of provocative speech this video represents?

After all, Basseley and his associates must have realized they were throwing a match into a huge pile of dry tinder, and their conduct, in fact, has led to numerous deaths, including those of four Americans. Why isn’t their speech like “falsely shouting fire in a crowded theater” or calling an anonymous bomb threat into a school that’s in session?

For various reasons, the answer must emphatically be, “It’s not the same!”

First, religious blasphemy is not a criminal offense under out legal system – not only because we protect free speech but because there’s no state-sanctioned religion to blaspheme.

Second, if religious fanatics here or elsewhere choose to react violently to perceived insults to their faith, then we should not pander to their irrational behavior by suppressing the offensive speech. Believers have every right to vociferously protest such insults but only in a peaceful manner, as Jews do worldwide whenever their synagogues, community centers and cemeteries are defaced with the hateful symbol of the Nazi swastika.

Third, it was a legitimate exercise of free speech to make a video calling attention to the religious persecution by Muslims of a religious minority, even if the tone and content of that video was disrespectful.

Finally, and most importantly, any attempt to criminalize forms of expression that fall outside such traditionally unlawful categories as threatening, intimidation, extortion and fraud would inevitably become a slippery slope. We would start at the top of the slope but could not stop ourselves from sliding down it into a nightmarish futuristic scenario — the kind dramatized in George Orwell’s “1984” or the movie “Minority Report,” in which citizens can be spied on and punished by authorities for impurity of thought or expression.

In a free society, we should punish people for the wrongs they do, not what they say or think.


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