Writing at the L.A. Times, the Carnegie Endowment's Sarah Chayes, a former special assistant to the chairman of the Joint Chiefs of Staff, argues that the First Amendment should not* protect the anti-Islam film Innocence of Muslims, due to reasons of inciting imminent violence. Excerpt:
While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. "Based on my understanding of the events," 1st Amendment authority Anthony Lewis said in an interview Thursday, "I think this meets the imminence standard."
Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don't have to urge people to commit violence in order to be subject to limits, says Lewis. "If the result is violence, and that violence was intended, then it meets the standard."
This would be a novel standard indeed. Instead of whipping up your ideological compatriots to attack a common nearby enemy (think: Klan speech before a church-burning), this is an attempt to provoke your common enemy several thousand miles away to do whatever they might do. What was once an appropriately difficult standard of incitement becomes a much broader unprotected category of provocation, one that depends most of all on the potentially violent proclivities of the group being provoked. Is it unprotected speech to walk into a Red Sox bar in a Yankee jersey at 1 AM? How about passing out NAMBLA literature at a skinhead picnic?
As much as I am disappointed by Anthony Lewis (whose writing on civil liberties I have long enjoyed), the real worry here is that Chayes' view is on the grow in the military, Foreign Service, and executive branch writ large. There is an effort afoot in the culture, being pushed most heavily by government, to redraw the limits of free speech in the wake of the embassy attacks. This, I believe, is ultimately much more dangerous than the ability of cranks to put up 14-minute YouTube clips.
Meanwhile, news from countries that don't have First Amendment protections:
Germany is weighing a ban on public showings of the controversial anti-Islam video that sparked violent protests in the Middle East, pitting advocates for free speech against those worried about unrest.
Russian authorities, meanwhile, said they are moving to ban online distribution of the video for extremism.
* UPDATE: Sarah Chayes writes to me in response:
If you read my article, you'll see I do not say that the First Amendment "should not" protect Innocence of Muslims. The initial headline put on the online version of the article did not reflect its contents and was changed by the LA Times….What I said was, given potentially provable "intentionality," and depending on how judges might decide on "imminence," this film might not fall within the range of protected speech. My point was that it's at least debatable.