Among all the rights given to man by the United States' constitution, the freedom of speech is without a doubt the most important one. "Important" here of course is a bit misleading because essentially all rights within a system of rights are equally important in the context of people's livelihoods. "Important" here simply means that it is the most popular, the most revered, and the most historically significant. That is why whenever any form of expression is doubted, questioned, trounced or threatened, no matter its source, it is almost always the case that people can play the devil's advocate to defend it. Yet we have very real and very contemporary examples of when the freedom of expression is able to generate, whether directly or indirectly, levels of harm that force us to question the very core of the right itself.
Now, I understand that the position I am about to take will not be a popular one, but it is necessary to actually being able to achieve a robust freedom of expression without having to worry about its negative externalities. I would like to say from here on out that an unlimited sense of freedom of expression is not what we are looking for. A world where expression is in no way reprehensible would lead to certainly terrible circumstances; the infamous opinion of Just. Oliver Holmes in Schenck v. United States (1919) regarding "falsely shouting fire in a crowded theater" backs this claim not only theoretically but also historically. So, some limits on freedom of expression are not only allowable but necessary in order to get close to the true form of the right itself.
We can think of other moments where the freedom of expression must not be allowed to run wild and where the American government at least has acknowledged the potential dark side of expression. An act of bullying is not covered under freedom of expression if, as is most often the case when bullying does occur, harm is imposed on the victim of bullying. In that case, the bully is responsible for having caused that harm. Libel law is also another limitation on the freedom of expression; grossly or incorrectly tarnishing someone's reputation in public is obviously ridiculous to see protected any which way if the damage done is serious. So then what are we to think about the film that sparked outrage across the Muslim world this week and is linked with the death of four American diplomatic officers including an ambassador? People have already taken to their keyboards, hammering away at the keys calling out for protection under the first amendment, but I fail to see their point on this one.
Obviously, a blogger like myself may seem out of place trying to diminish the importance of the right of expression, but at the same time I feel entitled to be able to point out where certain rights or freedoms go too far in their search for personal emancipation from authority. This becomes especially the case when it is very simple to draw a line from the people behind the anti-Muslim film and the attacks on embassies. To be clear, I would like to stay away from conspiracy theories regarding the true intentions of the film-makers; I doubt the same people who have enough intelligence to make such a film have the intelligence needed to try to rig these attacks on American embassies. I do however suspect that their intention was, among others, to stimulate violent responses once the movie was made public given that attacking the Muslim prophet is a sure-fire way to instigate violence among Muslim radicals. In doing so the film-makers would very thinly prove their claim of "Muslims being violent" to be true, legitimizing their political positions.
Now, if that was the intention of the film-makers then they would obviously be directly responsible for the attacks taking shape considering that the attacks were only possible because of popular dissent with the film and by association the United States. We might not be able to figure out those true intentions however, so are the filmmakers still responsible for what has happened given that there was no real line of intent on their part to incite violence? According to Brandenburg v. Ohio (1969), the film most likely would not constitute "imminent lawless action" (the current standard for limiting conflict-creating expression) in its message and be therefore constitutionally and legally protected. To that extent, we also cannot say that the film's message was directly linked with the embassy attacks. That however does leave a bit of a sour taste in your mouth; it seems weird to be satisfied with the idea that it is not reprehensible to express hateful and violence-inspiring ideas in public.
That is why, like most hate speech/expression, it is not up to the courts to decide whether or not something is reprehensible, but rather up to the public. I hope i do not incite "imminent lawless action" when I say that it is up to the public to create norms that dispel this sort of hate-speech, specifically when it has a high chance of inciting real violence abroad. Fighting hate speech directed towards groups in the U.S is nothing new, but understanding newly emerging groups or simply groups that appear elsewhere in the world may seem distant and therefore not as important. As this week has shown however, forgetting about the sensibilities of these foreign groups can hit much closer to home than we can imagine. So, we can continue to socially condemn certain forms of expression, even though constitutionally they may be allowed, so long as there is ample connection between the expression and indirect forms of violence stemming from it. Otherwise, we sit in a Catch-22 of sorts, trying to harbor a right we hold so dear but that sometimes comes back to haunt us instead. Social tinkering with what sort of expression is allowed can act as a supplement to what the constitutional understanding does not cover, in this case more indirect instances of speech generating violence.
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