That Anti-Muhammad Film: It's Totally Protected by the 1st Amendment

Neither the mysterious director nor Terry Jones appears to have "shouted fire in a crowded theater." In this interview, Yale Law Professor Jack Balkin explains why. 

Terry Jones at a hearing about his right to protest in Dearborn, Michigan, in 2011. (Reuters)

"Sam Bacile" and Terry Jones may be hateful, but they are not, as far as we know, criminals. The impulse to argue that repeat offender Jones in particular has somehow overstepped a line and, as commenters across the web have put it, "shouted fire in a crowded theater," is tempting and understandable, both as an emotional response and as an intellectual one. From a distance, the line between protected speech and incitement seems blurry.

To clarify the legal status of both men's speech, I called Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School.

As people try to puzzle out whether there is any legal action possible against either the filmmaker or Terry Jones, two ideas keep coming up. One is that the film and the promotion of the film are protected speech, and one is that this has somehow crossed a line, and that either the film itself or Jones's promotion of it constitute something akin to that famous example of "yelling fire in a crowded theater." What's the line between protected speech, even hate speech, and speech that's not protected?

The relevant question is whether or not speech is an incitement to riot, or to produce any other imminent lawless action. Whether it incites violence is the central question -- and that means not just that the speech produces violence, but that the speaker intends it to.

Generally speaking, the rule is you can't be held liable for speech that moves other people to violence unless your speech is intended to producing violence and is likely to almost immediately produce it. That's the point of the familiar example of shouting "fire" in a crowded theater -- you're trying to cause a ruckus. But you can also see why this is not the best example. Sometimes there actually is a fire.

So intent is critical.

Yes. Imagine if somebody digs up a film, made in 1950, that portrays Arabs or Islam in a bad light. I'm sure there are a lot of them. Someone releases it online, and people see it and say it's insulting to Islam and then they riot. Even if someone released the film knowing that it would be likely to produce a riot, that doesn't mean the film was made with the intent of producing a riot.

Given that, it seems like the filmmaker is pretty clearly within his rights in making and releasing the film. But what about Terry Jones? He screened and publicized the trailer as part of a so-called "International Judge Muhammad Day."

The question is still whether Terry Jones is deliberately trying to incite a riot by promoting the speech at issue - and were his actions almost certain to have produced any resulting riot? The case is further complicated by the fact that the riots occur outside the United States. But let's assume that where the riots occur makes no difference. The question would be, are his actions directed to causing the riots?

Sounds like it would be pretty difficult to prove intent in court.

The standard is designed to be difficult to prove. The point of the doctrine is to err on the side of protecting speech, even if it's disgusting.

Some people have argued that changes in technology might warrant changes in how we apply the First Amendment, or even changes in the Amendment itself. It's reasonable to guess that if we didn't have technology that could spread video around the world more or less instantly, this might not have resulted in a lethal attack -- it wouldn't have come on as suddenly.

Arguments about technological change don't apply to this example. Film itself is not a new technology. The visual image by itself isn't new. The fact that people can now see the film who couldn't see it before -- I'm not sure that by itself means that the rules about what speech is protected should be different.

Ultimately, as Balkin explains, it is very difficult to prove incitement, which requires proving that 1) the speech in question intended to cause an illegal violent act, and 2) that the speech did directly cause the illegal violent act at issue. In no way does what either Jones or "Bacile" did qualify as incitement.

Further, we always err on the side of protecting speech, because, as Balkin put it in response to a follow-up question:

Democratic legitimacy in this country comes from the fact that people can express themselves on public issues, no matter how unpopular or ill-considered their views. We rely on speech by other people to respond to these speakers and to correct their errors. As long as speakers are trying to persuade people to their point of view rather than trying to incite people to violence, the Constitution protects their rights.

This also helps to explain, though obviously not to excuse, the riots in Egypt and Libya (and now Yemen). The right to freedom of speech is not as settled a matter in either country as it is here, and some Egyptians and Libyans think that any products of the U.S. media that make it to their countries have at least tacit U.S. government approval. A very small part of this sad mess may be a cultural translation problem.

Christopher Stevens and his staff were sent to Libya partly in order to promote freedom of speech, and this makes their deaths tragically ironic, as well as plain old tragic. One of the best ways to honor their memories is to make sure we recognize the value of the First Amendment.