Coming Soon to the Islamic Multiplex

Tuesday’s LA Times ran an op-ed laying out the case for limiting free speech in cases such as the one now raised by the imbecilic video fragment, “Innocence of Muslims.” Specifically, writer Sarah Chayes, a former special assistant to the Joint Chiefs of Staff, proposes placing restrictions on speech, including “punishing it after it has in fact caused violence.” (“Does 'Innocence of Muslims' meet the free-speech test?”).

The “Innocence of Muslims” isn’t free speech protected under the First Amendment because, Ms. Chayes believes, it was likely to incite imminent violence.

Every attempt to limit speech critical of Islam, and Ms. Chayes’s op-ed is no exception, cites Justice Oliver Wendell Holmes’s highly unhelpful dictum on free speech in a 1919 Supreme Court opinion (Schenck vs. U.S.), where he wrote “[t]he most stringent protection would not protect a man in falsely shouting fire in a theater and causing panic.”

My reasons for saying Holmes’s remark is unhelpful include that the particular facts before the court in Schenck weren’t remotely similar to those of a man who falsely shouting fire in a theater. Rather, the court was reviewing the conviction of a man for distributing circulars opposing the draft during World War I, and unanimously adopted Holmes’s faulty reasoning to uphold the conviction. Further, Holmes’s theater rule has never been adopted as an actual legal standard for determining the limits of free speech.  And the standard that was adopted in Schenck -- that free speech protections don’t extend to words that “create a clear and present danger” -- had a disfavored history most of its life before being completely tossed out in favor of a stricter standard by the Supreme Court in 1969 .

Ms. Chayes is well aware of this history, and even attempts to show how the “Innocence of Muslims” still should be excluded from First-Amendment protection under the stricter standard. But arguing for the stricter standard as she does,  she still manages to cite the “shouting fire” metaphor not once, but twice, once in her opening, and once in her closing paragraphs.

It’s not hard to see why: if you needed to capture in just a few scant words the now-familiar reaction in the Muslim world to perceived insult, what niftier shorthand is there than the image of human beings massed into a mindless stampede of hate?

Ms. Chayes explains the prevailing legal standard adopted in 1969, in a case called Brandenburg vs. Ohio,  to provide that “only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.”

Except she’s fudging the language of the holding: Brandenburg doesn’t exclude speech with the likelihood of inciting violence, but advocacy of such violence -- a gigantic distinction. Brandenburg even distinguishes “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence,” from “preparing a group for violent action and steeling it to such action.” No one’s accused the producer of the video of advocating Islamic violence – only of creating an insulting portrayal of Mohammed that, allegedly, incited Islamic violence. Certainly no one can credit Nakoula with preparing the Cairo mobs to invade the consulate or with steeling the Benghazi paramilitary for their multi-pronged attack on Ambassador Stevens – that was the doing of the Muslim Brotherhood, the al Qaeda operatives, and the imams.

Ms. Chayes spent ten years in Afghanistan, and even her own description of conditions there make clear just who exactly deserves the blame for stirring up violence:

In Afghanistan, and in all of the Arab nations in transition, an extremist fringe is brawling for power with a more pluralistic majority. Radicals pounce on any pretext to play on religious feeling. I could pick out the signs of manipulation in Afghanistan — riots that started on university campuses where radicalized Pakistani students abound, simultaneous outbreaks in far-flung places, the sudden appearance of weapons. By providing extremists in Libya and elsewhere such an opportunity, the makers of “Innocence of Muslims” were playing into their hands.

Which raises the question, how can Nakoula be both the mastermind of the violent outbreaks, at the same time as he’s a dupe playing into the hands of the extremists? If it’s radicals who are pouncing on pretexts, playing on religious feelings, and supplying weapons for planned outbreaks, then why is it fair that Nakoula be punished? The worst thing he can be accused of is providing a pretext to opportunistic extremists by insulting the religion of Islam.   Yet isn’t the whole meaning of “pretext” that it’s false explanation for bad actions?

According to Ms. Chayes’s summary of free-speech rulings, “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.”  Maybe.  But “simply offensive” is about the best that can be said for Nakoula’s video – and that’s just speaking to its production values.  Still, Ms. Chayes seems to know for certain that Nakoula intentionally designed it to put lives at risk, because it “was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.”

How can she possibly conclude that from the facts? What Nakoula may have expected is hardly the cause of what followed. She may as well say that a Christmas card she sent last year was the cause of a national outbreak of gift-giving and decoration-hanging.

And since when is there anything sensitive about September 11 for Muslims? Muslims weren’t attacked on September 11, we were. The only thing sensitive about 9/11 in that part of the world is that, like Fridays after mosque, jihadists see it as an extra-special time to launch attacks on infidels and symbols of Western decadence. Trailer or no trailer, anyone paying attention already expected violence on that anniversary. That’s why the Obama administration’s failure to add security to our foreign missions in advance of 9/11 is now the object of a huge White House whitewashing.

The only real difference between ordinary “simply offensive” speech on any other subject and “simply offensive” speech on Islam is that any and every instance imaginable of the latter has the potential for putting lives at risk, because that’s how Muslims choose to respond to offense. Islam has no threshold of tolerance beneath which an insult to the Prophet might fail to justify violent reaction. “Especially in the heightened volatility of today's Middle East,” writes Ms. Chayes of the YouTube video, “such provocation is certainly irresponsible.” Stated another way, if we know that statements considered blasphemous to Muslims will lead to trouble, the only responsible thing to do is never make such statements.

Ergo, the only protected speech is that favorable about Islam.

And that sets Ms. Chayes up for her second, closing appeal to that much-maligned man shouting “fire!” in a theater. People wanting to criminalize speech against Islam love Holmes’s metaphor for aptly bringing to mind what we’ve all now seen for ourselves about the Islamic world: hundreds of millions of people in a confined society, with little chance for escape, easily tricked into mayhem and murder by an unfounded appeal to their basest instincts.

The thing is, that metaphor completely fails in the other part about the shouting man, for the reason that there isn’t now, nor ever has been, any Westerner in a like fashion shouting “fire!” at Islam. (For that matter, I couldn’t find any historical figure in American criminal history who was ever charged for shouting “fire!” in a crowded theater).  Terry Jones burning a Quran wasn’t shouting “fire!”; Nakoula’s trailer portraying Mohammed as a buffoon isn’t shouting “fire!”; and Salman Rushdie wasn’t shouting “fire!” when he wrote The Satanic Verses. Insulting someone’s religion is not the equivalent of falsely instigating a panicked stampede in a crowded building.

My response to Ms. Chayes’s argument is simply this: the Ummah doesn’t need us to start their stampedes.

And as if to underline the point, reports say that, among other acts of destruction by Pakistani rioters given the day off today by the government for that very purpose, two Peshawar cinemas actually were set afire.  

We don’t know if they were occupied at the time.  But if they were, we can only hope that some heroic loudmouth had the courage to shout, “Fire! Fire! Fire!”

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