Incitement Protest, and Global Free Speech

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.

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  • sturkman  On September 20, 2012 at 5:53 pm

    Yes Hate Speech of others is not Fredom of Speech because only we are supposed to be using Hate Speech against others. We have to accuse USA for that 14 Minute Clip because that Coptic Egyptian, who produced it, lives in USA. Why USA had granted him Visa 30 years ago?
    How come USA did not know, what would he do 30 years later?
    How come USA did not know, what he was doing 30 years later?
    If USA permits our Hate Speech on Internet it doesn’t mean, USA should not respect our religion that does not permit Freedom of Speech and Expression. USA should understand Freedom of Speech and Expression is not permiited in our Religion. USA must not permit anything Anti Moslim on Internet, … right?
    Well then we should attack USA and conquer it as Islam tells us to do.

  • Najma Sadique  On September 21, 2012 at 3:02 am

    Belatedly, some sensible Americans emerge. – Najma

  • Laila  On September 21, 2012 at 3:23 am

    An extremely lucid & beautifully written piece Waris Sahib.Kudos to you!I look forward to reading more by you.Surprising:How did TFT publish this? 🙂
    I share here another piece by Ejaz Haider who seems to have developed a tongue in his head in recent years:

    Of free speech and mobs
    By Ejaz Haider
    Published: September 20, 2012
    In his recent interviews, Salman Rushdie has spoken about free speech as the defining feature of a free society. That works fine as a general statement of purpose and as a broad principle. But to imply, as Mr Rushdie and many others do, that freedom of speech is an absolute right is simply wrong.
    The classic denunciation of the Rushdie perspective, also known as the ‘harm principle’, is in JS Mill’s, “On Liberty”. According to Mill, “[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others … [This is because the] only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
    Mill’s formulation, however, goes too far. The reality is that any act or action that goes beyond the person of someone and can impact others in any way must be subject to some reasonable scrutiny or legal-administrative measures. The concept is simple: no expression or action can be granted total freedom unless it is entirely subjective; and even within that framework, most legal-normative systems do not permit suicides, indicating a limit on subjective action too.
    Still, as a broad benchmark, the subjective can be granted more freedom: Rushdie could have written a diary and no one would have noticed. But since he is an author who likes to publish and likes to be in everyone’s face, and since he chose to unburden himself of his creativity in a way that didn’t go down well with a large majority of Muslims across states and cultures, countries had to ban his book to prevent rioting and other acts of civil disturbances.
    This happens with films all the time. Directors will either let censors delete scenes of gratuitous violence or sex or resign themselves to niche viewership. The debate can go on, as it always does, but the essential point is that freedom as an absolute concept does not exist. Instead, freedoms are always subjected to various legal-normative constraints. Of course, limits vary across societies as do the ‘values’ for which members of a society would be ready to stand up, but totality of freedom is as mythical as free trade, and correctly so.
    But there’s another side to the story as well — the threat of violence. The only acceptable way to ‘kill’ Mr Rushdie, or any other writer, would be for a critic to hang them for half-baked magical realism or lack of plot or whatever else critics think constitutes a crime against high literature. Unfortunately, the world is full of bad books and mankind has found no workable filter to prevent the bad ones from getting to the market.
    Now we have, in addition to bad books, the Internet, a space so unconstrained for the most part that its promiscuity would easily surpass that of a traditional brothel. So what does one do? Some regulatory mechanisms can be put in place but total policing is neither possible nor desirable. This means that there is no way to stop people like this terrible man in LA who has started a fire, literally and figuratively, that is raging across continents. What does one do with this kind of person?
    It would seem to me that laws can be employed to convince such people that starting ‘fires’ is not a good idea. But while it is important to do so, expecting hate speech or actions to consequently disappear entirely would be unrealistic. And that brings us to what Muslim-majority states and societies need to do: they need to treat mobs as mobs. Protestors must be told that they cannot indulge in looting and arson and rioting to protest the behaviour of someone in LA. Also, the West can’t be defeated by killing other ‘Muslims’.
    Pakistan does not have the choice of disconnecting from the rest of the world. But if it is to stay connected, it needs to put into place its own laws to deal with offensive content, irrespective of the enforceability of such laws. More importantly, we need to separate the medium from the message and respond to offensive messages without isolating ourselves.
    Published in The Express Tribune, September 21st, 2012.

  • AVM At'aa  On September 21, 2012 at 6:29 am

    Please bear in mind the writer is based in USA so he has to carefully balance what he writes about this contentious issue. He cannot afford to annoy US authorities, who at the smallest chance will make a Muslim (If this gentleman is a Muslim) disappear in the name of ‘Inland security’. So his article will always have an angle in addition to fair reporting.

    • sturkman  On September 22, 2012 at 2:05 am

      Thanks for letting me know this about USA that I could not learn about it despite living in USA for the last 39 years, Kid. Could you please tell me, why has not USA made me disappear despite calling Bush a Moron, when he was about to attack Saddam?
      Is lying and cheating Islam is all about now?
      Why do you think, all countries are run by their Military like Pakistan and people can disappear just like in Pakistan?

  • Ijaz Khan  On September 21, 2012 at 6:47 am

    Most liberal democracies have limitations on hate speech . The Public Order Act 1986 in the U.K. does not require such a stringent barrier to prohibition. The Act states that “A person is guilty of an offence if he …displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress.” There have been several prosecutions in the U.K. that would not have happened if the harm principle governed “absolutely the dealings of society with the individual” (Mill p.68). The most recent example of this occured in March 2012 when Fabrice Muamba, a professional football player, collapsed during a televised game. Liam Stacey took to twitter, mocking the stricken player and then hurling racist abuse at people who responded negatively to his tweet. He was sentenced to 56 days in jail. The case provoked significant commentary, most of it taking the form of slippery-slope claims that such a ruling would inevitably lead to a totalitarian state.
    Good,logical piece by WH!

  • Mehboob Qadir  On September 21, 2012 at 3:27 pm

    A very powerful argument against those who rubbish others’ faith.

  • sturkman  On September 22, 2012 at 2:10 am

    That’s right.
    Only we Moslims are supposed to denigrate faith of others, burn Bibles, denigrate countries of others, burn Flags of other countries and kill Non Moslims because we are Allah’s Chosen People. Nobody else should be allowed to even say anything about us Savages. Allaho Akbar …!

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