Should Anti-Islam Filmmakers Be Thrown in Jail?

Controversy over what should be done about 'Innocence of Muslims' has pushed the First Amendment to its limits

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Of all the commentary that emerged after last week’s deadly assault on the U.S. consulate in Libya, one has been getting a lot of attention. Would the man who made the anti-Islamic movie that set off the attack be arrested? asked Ivy League professor Anthea Butler on Twitter. It was an understandable yet troubling reaction.

(MORE: How Innocence of Muslims Emerged from the Seamy Side of Hollywood)

In a follow-up essay in USA Today, Butler, an associate professor of religion at the University of Pennsylvania, insisted she does not oppose freedom of speech. But the movie, she said, “is not about expressing a personal opinion about Islam.” Instead, it “denigrates the religion by depicting the faith’s founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers.” The government of Egypt agrees. It has officially called on the U.S. to criminalize “acts that stir strife” on the basis of religion, race and color.

Indeed, Innocence of Muslims appears to have been made with the express intention of viciously insulting a figure much of the world reveres — and of sparking an angry response. The movie’s producer, operating under the false name of Sam Bacile, appears also to have defamed Jews — by falsely claiming to be an “Israeli Jew” who made the movie with the backing of 100 Jewish donors. And the movie now has blood on its hands. The protests it set off in the Muslim world led to the death of Chris Stevens, the American ambassador to Libya, as well as three other Americans, and the violence then spread through the Arab world.

(PHOTOS: Protests Rage in Middle East, Sparked by Anti-Islamic Film)

Given all this, why not bring charges against the shadowy producer of the movie who was questioned by authorities but not put under arrest? Because under the Constitution, our default setting is to protect speech — even hate-filled and violent speech. A lot of countries take a different approach. In France, you can go to prison and face heavy fines for publicly insulting someone based on their race, religion or national origin. Last year, the fashion designer John Galliano was convicted of “public insults” for an anti-Semitic tirade a Paris bar. In Saudi Arabia, insulting Islam is a crime. Many European countries make Holocaust denial illegal.

The First Amendment does not allow any of these. In the U.S., Nazis have the right to parade through a heavily Jewish suburb — as the courts allowed them to do in Skokie, Ill., in the 1970s. In 1992, the Supreme Court struck down a Minnesota law against burning a cross — the Ku Klux Klan’s historic symbol of hate — as violating the First Amendment. In other words, the Supreme Court has set a very high bar for prosecuting people for stirring up violence with speech. Unless a speaker is pushing people to “imminent lawless action” — getting the mob right there to start breaking the law — he is not likely to be convicted.

Google, which owns YouTube — where the movie can currently be seen — made its own calculus. It has blocked the film in Libya, Egypt, India and Indonesia, but is letting people in other countries see it. YouTube has said that the film falls within its own decency guidelines, although the Obama Administration has asked them to review their policy. Most of the digerati support YouTube’s position to leave the video up, and agree that the company should refuse to yield to the censorship of the mob. For the government, though, the First Amendment must dictate the response — and there are good reasons our system gives even hateful speech wide leeway. Freedom of speech encourages the haters to make themselves visible. That both allows them to let off steam and makes it easier for people to keep an eye on them.

(MORE: Cohen: A New First Amendment Right: Videotaping the Police)

Even more important to remember: censorship is hard to rein in once you set it up. If we start putting people in prison for saying things various groups find offensive, how far do we go? Should Mel Gibson be locked up for his anti-Semitic and antiblack comments? Should immigration hard-liners face criminal charges for what they say about Mexicans?

Eugene Volokh, a law professor at the UCLA School of Law, has made the provocative argument that punishing blasphemous speech would likely lead to more violence: if you let the mob get people punished, there will be more angry mobs. That practical argument may be true, but it is also not the main point. The reason not to make films like Innocence of Muslims illegal or to force YouTube to take them down is that we are a nation committed to freedom of speech — and that is something that we believe in deeply. Living in a world where hate speech goes unpunished is far from ideal, but living in a world where the government decides what we cannot say is worse.