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The free speech test

Posted By Uncle Jimbo • [September 19, 2012]

 UPDATE: Changed the title by removing ref to LA Times since this is an Op-Ed piece.

Nice to know that our intellectual leaders, constitutional scholars and moral arbiters in the liberal elite are on the case to let us know what we can and cannot say. This Op-Ed bit in the LA Times purports to make the legal case that the Mohammed film does not qualify as protected speech. Here is some of her argument.

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

Holmes' test — that words are not protected if their nature and circumstances create a "clear and present danger" of harm — has since been tightened. But even under the more restrictive current standard, "Innocence of Muslims," the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines.....

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.

The case she references (Brandenburg) was s a Klan leader inciting a mob to violence. One person directly telling a group to go forth and commit illegal acts of mayhem, NOW! The Mohammed movie does a lame job of pointing out some things about him that quite a few Muslims don't like. There is no call for them to go out and kill Ambassadors. there is no call for any type of action at all. There is simply a point of view expressed that some people have decided, on their own, is out of bounds. Taking this seriously legally dubious standard, you remove all responsibility from the criminals who kill and riot and place it on another for simply saying something the mob doesn't like.

That should not be a hard concept to grasp, and yet we see far too many "educated" folks debating whether the filmmaker has gone too far, and far too few asking if it is proper for the mob to set standards of speech. The fact that someone could foresee the possibility that saying certain things will anger certain people, does not and cannot make the speaker culpable if the audience decides to go on a murderous rampage. The applicable analogy to Brandenburg would be when the Imams in the mosques last Friday told their flocks to be outraged by the insult to their prophet and take action. That is inciting someone to imminent violence. But somehow that doesn't get nearly the scrutiny.

Free speech is the cornerstone of our American exceptionalism and there is no place for appeasement of unappeasable hordes in it. The most important speech to protect is the most controversial, and that is the standard we must not alter. As far as the crying fire in a crowded theater, watch the sorely missed Christopher Hitchens demolish that and explain this som much better than me in this video.


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