Tuesday, September 18, 2012

“Innocence of Muslims”– free speech?

With politicians on both sides of the aisle hastening to pay knee-jerk obeisance to the 1st Amendment vis a vis its presumed protection of the odious and Islamophobic Innocence of Muslims (aka Desert Warrior) film, we are reminded that the Amendment’s protection of speech is not absolute.

What constitutes freedom of speech (and even the definition of “speech”) under the Constitution has been debated ad infinitum by others far more knowledgeable than I, but hate speech was addressed by the U.S. Supreme Court in Brandenburg v. Ohio, which spawned the “Brandenburg test” holding that “The government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action [emphasis mine]”.

It seems to this non-lawyer that if further investigation should reveal, and prove, that those behind the film and responsible for its posting on the Internet acted with the clear intention of inciting precipitate violent action (as it did), it would presumably meet the Brandenburg test and place the perpetrators outside the protective umbrella of the First Amendment.

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