By: Waris Husain
The violent protests that took place over the last week in response to a Youtube video defaming the Prophet Muhammad (PBUH) were carried out by a minut fraction of the Muslim World. While the law has well established methods across the globe to punish individuals for rioting, especialy when it causes deaths or substantial property damage, the more difficult question is whether the video that inspired the riots was a valid exercise of free speech.
On the one hand, the U.S. judiciary has an expansive view of free speech, which includes the right to offend others. On the other hand, the Court has granted the government excessive authority to limit certain civil liberties for the sake of national security in the aftermath of 9/11. When one considers the global reach of speech by American citizens to the rest of the world and negative impact it has had on U.S. interests overseas, an argument can be made that the realm of free speech should be reexamined to prohibit extreme forms of hate-speech.
In a classic constitutional analysis, the video that caused riots across the Muslim world was a permissible exercise of free speech. The U.S. Supreme Court protects the right to insult or offend others as they explained in Terminilo v. City of Chicago, “freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs and to utter sentiments that may provoke resentment.”
However, as Justice Murphy explained, there are some forms of speech that “are no essential part of any exposition of ideas” and that their social value is “clearly outweighed by the social interest in order and morality.” In Chaplinksy v. State of Connecticut, the Court stated that freedom of speech does not sanction “incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.”
Historically, judges focus on the physical “proximity” of the speaker to his riotous audience. Therefore, the Court’s approach to free speech is limited to addressing situations in which hateful speeches are delivered in public places or offensive pamphlets are distributed.
However, offensive speech is much more mobile than ever before, but jurisprudence has not caught up to the speed of the internet age. To keep pace with globalization, the U.S. government has increased overseas involvement by investing billions in the creation and maintenance of embassies. This is especially true for Afghanistan, where the U.S. is also actively engaged in military operations. These phenomena have led some to question whether the U.S. should reexamine freedom of speech in relation to hate-speech and incitement of violence.
In a worthy law review article entitled “Shouting Fire in a Global Theater,” Timothy Zick states that speech the “originates inside the United States but crosses territorial borders may cause violence in distant locations, upset delicate foreign policy objectives and relationships, and aid foreign enemies.”
Mr. Zick points to several examples of Islamophobia in the U.S. that have directly impacted American interests abroad. In the case of Pastor Terry Jones, American military generals pleaded with him to stop his plan of burning a Koran, as it would cause a blowback of violence against troops in Afghanistan. Unfortunately, the general’s apprehensions were correct as Jones’ actions incited violent protests across the country, damaging U.S. credibility and safety.
This was repeated to a greater extent in the protests that followed the release of a trailer for the movie “Innocence of Muslims.” Hundreds poured out to protest, many organized by extremist groups like Al Qaeda, to launch violent attacks on U.S. embassies from Sudan to Egypt. The cost was all the more apparent in Libya, where career-diplomat Chris Stevens was killed along with several colleagues due to an attack on a U.S. consulate in Benghazi.
The video gave extremist groups the political ammunition needed to drum up support for violent protests in front of American embassies. As a result, the film’s creator, Nakoula Basseley Nakoula, went into hiding and is currently being questioned by the FBI. Nakoula stated that his intent in creating the film was to trick Muslims into watching it due to the innocuous title and incite a response. One of the film’s producers is Steve Klien, a Vietnam War veteran who distributes anti-Islamic propaganda and trained a militia in California to prepare for a holy war with Muslim “sleeper cells in America.”
When asked whether he would have withdrawn his support for the film knowing the violent reaction, Klien asserted, “I didn’t incite them. They’re pre-incited, they’re pre-programmed to do this.” Most importantly, Klien admitted that “we went into this knowing that something like this would happen.” This is significant because it shows that Klien and Nakoula’s intent in creating the film was to create a controversy and perhaps violent reaction so they could discredit Muslims in their community, and around the world.
For its part, the U.S. government has resoundingly rejected the video and its creators. A joint statement from the FBI and Homeland Security warned that “the risk of violence could increase both at home and abroad as the film continues to gain attention,” and “we judge that violent extremist groups in the United States could exploit anger over the film to advance their recruitment efforts.”
In a decision during World War I, the Court stated in Schneck v. U.S., that “when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.” In the aftermath of 9/11, the Supreme Court has deferred to the decisions of Congress and the President concerning national security, even when they limit freedoms. As such, the President could potentially have the power to punish hate-speech if it could be proven that the speech would directly affect American international interests.
In Holder v. Humanitarian Law Project, the Supreme Court upheld the conviction under the Patriot Act of a group providing legal advice to separatist factions in Sri Lanka and Turkey. The U.S. government designated these factions as terrorist groups and argued that offering legal advice to them amounted to “material support” which was prohibited under the Patriot Act.
The group challenged the conviction on grounds that the law violated their right to freedom of speech, which the Court rejected. The Court explained that while Congress could not ban independent forms of expression that might assist terrorist groups, they could limit expression that would “materially benefit” banned extremist organizations due to the effect on American interests abroad.
Justice Roberts wrote that ‘material support’ “helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.” The controversies created by Jones and Nakoula have certainly lent legitimacy for extremists recruiting fighters in the Middle East, who use their radical hate-speech to mischaracterize Americans as a whole.
If the Supreme Court is willing to allow the punishment of a legal aid group that was assisting Sri Lankan and Turkish separatists, it seems logical that the government could prosecute individuals like Terry Jones, Steve Klien and Nakoula for publishing material that “materially supported” the cause of extremists like Al Qaeda.
President Obama and several other high level government officials have already stated that the publication of anti-Islamic hate speech has materially affected missions abroad by inspiring more extremists to join forces against the U.S. However, one must note that the government will be on a slippery slope if they broaden the definition of “material support” too greatly. Therefore, they should reserve prosecutions against hate-speech to very limited circumstances where a nexus can be shown to national security.
This is a cross post from Friday Times. Waris Husain, JD , is Features Writer, Dawn News Group.He is also Director on the Board, Americans for Democracy and Justice in Pakistan
LL.M. in International Law Candidate, Washington College of Law.