A Good Way to Kill Free Speech

A recent op-ed in the Los Angeles Times attempts to make the case that the anti-Islam video that supposedly touched off violence on the Arab Street may not be the kind of speech protected by the First Amendment to the U.S. Constitution.

Is the video free speech or is it incitement to violence?  That’s the question raised by Sarah Chayes, a resident associate at the Carneigie Endowment, a woman who went to Harvard, who joined the Peace Corps, who worked as a reporter at NPR and has appeared on TV with liberal icons like Bill Moyers and Rachel Maddow.

There are two things I find fascinating:  train wrecks and liberals who argue against speech they don’t like.

Ms. Chayes tells us that "U.S. 1st Amendment rights distinguish between speech that is simply offensive and speech deliberately tailored to put lives and property at immediate risk."

After all, she says, the Supreme Court long ago put limits on what we can and can’t say.  We can’t yell fire in a crowded theater and get away with it, for example.  The First Amendment doesn’t protect that kind of speech.  Oliver Wendell Holmes made that perfectly clear in his written opinion reflecting a unanimous Supreme Court decision.

From there, it’s only a short hop to the “The Innocence of Muslims,” the movie trailer that Ms. Chayes believes may not be protected by the First Amendment.

“Holmes' test — that words are not protected if their nature and circumstances create a ‘clear and present danger’ of harm — has since been tightened,” she writes.

“The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited,” she tells us before detailing how the movie trailer may very well have had both the intent and the likelihood of inciting imminent violence.

Her argument seems to suggest that there are times when extremists who riot and kill may get the final say on what is constitutionally protected free speech and what isn’t.  After all, if a bunch of radical Muslims thousands of miles away take offense to something any of us say here in America, and then proceed to burn buildings and set off bombs – and if we should have known that would be the result -- then we’re the ones who’ve crossed the line.  We’re the ones who, in effect, yelled fire in a crowded theater.

Let’s pursue that line of reasoning – a word I use loosely – and see where it takes us.

Does a Yankee fan have First Amendment rights of expression to wear a Derek Jeter jersey into enemy territory – Fenway Park?  Before you say, “Of course,” let me remind you that anyone who’s been following fan-on-fan violence (I just did a piece on the subject for HBO’s Real Sports) would know that such a “provocation” might very well touch off imminent violence.

Do the producers of the soon-to-be released movie on the killing of Osama bin Laden have free speech rights under our constitution?  If a crummy little video touched off riots in the Arab world imagine the havoc a multi-million dollar Hollywood movie might touch off.  Bin Laden is a hero in much of the Muslim world.  The movie will show American SEALs putting a bullet in his head.  The filmmakers can say all they want that they had no “intent” to cause violence, but the rioters would disagree.  And don’t they get the last word?

And I’m afraid to imagine what would happen if a bunch of right-wing radicals rioted every time they read an infuriating left-wing editorial in the New York Times.  After a while it would become clear to the Times’ editorial writers that their work was likely to touch off imminent violence.  And the rioters could argue that that was the Times’ intent all along.  So, no constitutional rights for the newspaper of record?

Ms. Chayes concludes her piece with this:

“The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that 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.”

This is intellectual drivel. She may argue that she’s not excusing violence, but that’s exactly what she’s doing, by making a case that an American – even a dopey one – may not have First Amendment rights because of what a bunch of angry radicals might do.  Their intolerance of views they don't like shouldn't make us intolerant of views we don't like.

Liberals used to be the ones who fought for free speech.  That’s when they really were liberal. Now we have a liberal journalist and scholar putting forth an intellectual argument that perhaps government should step in and stifle free speech.  Not all speech of course.  Just the kind correct-thinking liberals like Ms. Chayes detest.