Free Speech in the Age of YouTube

Barack Obama couldn't censor that anti-Islam film -- even if he wanted to.

Innocence of Muslims is a strange, amateurish, and rambling video that attacks the Prophet Mohammed as a hypocrite and fraud. It purports to express the anger of Coptic Christians against Islamic oppression. Posted on YouTube and translated into Arabic, the video -- said to be a trailer for a feature-length film -- has inflamed passionate anger and outrage throughout the Islamic world, most dramatically in Egypt and Libya, where U.S. Amb. J. Christopher Stevens was murdered in the ensuing riots.

These cycles of Islamic offense and violence have by now become predictable. Once Iran's Ayatollah Khomeini rose to the bait and issued a 1989 fatwa requiring Salman Rushdie's execution on the ground that The Satanic Verses were "blasphemous against Islam," it became clear that insulting Islam would become an easy and cheap way to create an international incident. That path has now become well-worn, from the 2005 publication of the Mohammed cartoons in the Danish newspaper Jyllands-Posten to the 2010 "International Burn a Quran Day" of Florida pastor Terry Jones.

Millions of Muslims are deeply offended by the publication of material that insults Islam and its prophet. Such speech is prohibited as blasphemous by the laws of many Islamic states. In Pakistan, two senior government officials were assassinated for advocating the repeal of Pakistan's harsh and repressive blasphemy laws, which are used to oppress religious minorities. In the Islamic world, outrage at Western blasphemy is a ready tool for the arousal of anti-Western sentiments.

It is easy to cast blame on those like Nakoula Basseley Nakoula, the apparent producer of Innocence of Muslims. They know they are throwing matches into a tinderbox. They mean to be provocative. Many argue that they should be held accountable for the readily foreseeable consequences of their speech. Those inclined to this position invariably cite the famous aphorism of Justice Oliver Wendell Holmes in his opinion in Schenk v. United States: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

But we ought to be cautious about applying Holmes's precept. Superb lawyer that he was, Holmes was careful to condemn only the man who falsely shouts fire in a theater. The charge against Innocence of Muslims is not that it is false. It is rather that the film is blasphemous, that it will likely provoke those who are offended to acts of violence, and that it will damage the foreign interests of the United States.

The First Amendment jurisprudence of the United States does not permit our government to punish speech merely because it is blasphemous. Speech becomes blasphemous when it is deemed intolerable by the standards of a particular group. Muslims have their definition of blasphemy; Catholics have a different definition. The constitutional tradition in the United States is that no group can impose its definition of the sacred to restrict the space of public debate.

Our First Amendment jurisprudence is built on the concept of individual rights. We believe that every person should be allowed his or her contribution to public discourse. The Supreme Court explained the justification for this belief 72 years ago in the transformative case of Cantwell v. Connecticut:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds.

Because we are a country of many creeds, it is exceedingly important that no single creed can hold the nation hostage to its sensitivities. What might be blasphemous to Catholics might be truth to Jehovah's Witnesses. We interpret our First Amendment to create a public space that is controlled by neither Catholics nor Jehovah's Witnesses, nor indeed by any group, so that every individual can participate in public discussion.

The controversy enveloping Innocence of Muslims recapitulates this same point, only on an international scale. Some argue that Nakoula should be legally penalized for failing to respect the sensitivities of Muslims in Libya, Egypt, and Afghanistan. In the words of one imam, "We don't think that depictions of the prophets are freedom of expression. We think it is an offense against our rights."

But if the First Amendment prohibits the state from taking sides in creedal disputes among American citizens, if it systematically privileges individual expression so that "many types of life, character, opinion and belief can develop unmolested and unobstructed," it surely should not permit the state to take sides in an international creedal dispute. If American citizens cannot use law to silence those whom their group considers blasphemous, why would the U.S. Constitution cede this authority to foreign groups?

The real reason others might want to censor Innocence of Muslims is that the film has caused immediate and foreseeable damage to American foreign policy. Nakoula must have known that his amateurish film would incite violent anti-American sentiments throughout the Middle East. The argument is that he should therefore be held accountable for the consequences of his speech.

Phrased in this way, of course, the case against Innocence of Muslims no longer turns on exotic issues like blasphemy. Incitement to illegal action is commonly regulated, whether or not the incitement is blasphemous or offensive. But "incitement" typically refers to speech that calls upon its audience to commit illegal acts. Innocence of Muslims makes no such appeal to violence. We should more precisely characterize the film as a provocation than an incitement. The film has caused violence in part because its audience is so outraged that it has felt compelled to riot and commit mayhem.

First Amendment jurisprudence uses the concept of a "heckler's veto" to analyze such situations. If a hostile audience threatens sufficient disturbance, the law will sometimes seek to protect public order by shutting down a speaker. Heckler's vetoes are severely discouraged in the United States. This is because it punishes a speaker for the illegal proclivities of his audience. A heckler's veto means that those who wish to censor speech, but who cannot directly use the law to do so, can nevertheless use law to silence a speaker if they create sufficiently threatening illegal disturbances.

A heckler's veto creates very bad incentives for those who oppose freedom of speech. If we wish to maintain open public discussion, therefore, we will not easily let law be determined by an angry mob. In First Amendment jurisprudence, we normally require the state to protect a speaker's rights by controlling the violent proclivities of an audience, even if a speaker knows that his views are so controversial that they might well spark violence.

Things appear differently, however, in an international setting. Our state cannot control Libyan or Egyptian rioters. We must instead rely on the ineffective assistance of weak governments to suppress the violent reactions of an enraged audience. In such circumstances, it can prove very costly to protect a controversial speaker like Nakoula.

The situation is made more complicated by the fact that rioters in countries like Egypt and Libya are protesting speech that in their view is undoubtedly illegal blasphemy. "We never insult any prophet -- not Moses, not Jesus -- so why can't we demand that Mohammed be respected?" asked one demonstrator who held a sign reading "Shut up, America." The rioters were in effect demanding that United States conform its law to Egyptian and Libyan customs. Mob violence in these countries illustrates the high price of opposing the diplomatic initiative vigorously pressed for more than a decade by the Organization of Islamic Cooperation to create a new international norm suppressing the "defamation of religion."

The American tradition of privileging individual rights over the sensitivities of groups has always had costs. As the globe shrinks, as we encounter cultures that do not share our tradition, these costs will undoubtedly increase. From a legal point of view, the damage of the riots should be not be imputed to Nakoula as an individual speaker. They are the foreseeable consequences of our own First Amendment values. The riots force us to ask how deeply we are committed to our own constitutional values. Are we willing to stand by them despite the damage they inflict on our foreign interests?

Fortunately, we need not address the problem solely from the legal point of view. There is a great difference between state censorship and private pressure. Innocence of Muslims is a crude and despicable film. Even if American constitutional values prohibit the U.S. government from punishing Nakoula, we are nevertheless free vigorously to communicate our judgment of his work. I would go so far as to say that President Obama, speaking as the representative of the American people, can express his view of the merits of Innocence of Muslims. He can speak out against the film for demeaning Islam. From a constitutional point of view, Obama is prohibited only from crossing the line into legal sanctions.

Google has played a fascinating and ambiguous role in this affair. Google owns YouTube, the platform that makes Nakoula's speech possible. Google has refused to remove the film from its own website. YouTube guidelines prohibit the uploading of hate speech, which is defined as "speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity."  Innocence of Muslims does not attack a group (or an individual) "based upon" any such status category. Instead it directly quarrels with the authority of Mohammed, and hence derivatively with the status of Islam as a religion. In classic American fashion, Google regards the film as a debate about ideas rather than as defilement of sacred ground.

Yet because Google is a private corporation and so not bound by the First Amendment, it can flexibly respond to the exigencies of the film's distribution. The company has accordingly blocked access to Innocence of Muslims in India and Indonesia because the film is illegal under the laws of those countries. And in response to the violence, it also has temporarily withdrawn the film from circulation in Egypt and Libya. The First Amendment would preclude the American government from playing so fast and loose with freedom of speech, but not Google.

A looming question raised by Innocence of Muslims is how we should conceptualize the public function played by international companies like Google. On the one hand, they may render our constitutional principles all but irrelevant, since in a digital world private companies will wield the sovereign prerogative of effective censorship. On the other hand, the absence of constitutional restraint will authorize private companies to respond flexibly and pragmatically, in ways that the American government cannot, to the inevitable crises that will accompany an international clash of cultures.



Dangerous Waters

Why China's dispute with Japan is more dangerous than you think.

The wave of anti-Japanese protests that swept across dozens of cities in China this weekend, prompted by Tokyo's purchase of three disputed islands, has obscured a potentially more worrying development that risks drawing the two countries into a larger conflict: China's adoption of a legal framework empowering it to expel foreign vessels in disputed waters in the East China Sea.

The most recent round of tension between the world's second- and third-largest economies reached a new height last week when Japan announced that it was finalizing the purchase of three of five uninhabited East China Sea islands -- which Japan calls the Senkakus and China calls the Diaoyus. While the move was intended to prevent the hard-line, nationalist Tokyo governor from purchasing them himself, that distinction was apparently lost on Beijing, and Tokyo's timing couldn't have been worse.

China reacted quickly to what it saw as Japan's reaffirmation of its sovereignty claim with a variety of measures, which state media called "combination punches." These ranged from Politburo members strongly denouncing Japan to Prime Minister Wen Jiabao vowing to "never yield an inch" to threats of economic retaliation to announcements of joint combat drills by China's navy, air force and strategic missile corps, including landing exercises in the Yellow Sea and the Gobi Desert.

But a quieter move may have more serious repercussions in the end. On Sept. 10, China's Ministry of Foreign Affairs announced baselines to formally demarcate its territorial waters in the area. In Beijing's eyes, this move legally places the disputed islands under Chinese administration in a direct challenge to Japan's administration of the islands over the last four decades. Since the islands reverted to Japanese government control in 1972, they have been administered by Japan.

This move is a departure from China's previous policy of seeking joint exploitation of resources with Japan through negotiation, and also differs from China's approach to the South China Sea, where it has maintained calculated ambiguity with regard to its claims by not fully clarifying how much of the area China actually claims as its own.

Such an unprecedented move to formalize its claim of the contested territories obliges China under its own laws -- and in the court of domestic public opinion -- to assert jurisdiction over the waters surrounding Diaoyu. Almost immediately after the new baselines were declared, China sent six Chinese Maritime Ocean Surveillance vessels into disputed waters on what the Foreign Ministry said was a "rights defense law enforcement action." Not to be outdone, China's second-largest maritime law enforcement agency, the Fisheries Administration, announced plans to patrol the disputed waters, starting with protection of 1,000 Chinese fishing boats that have just left for the area.

Beijing's tough response is catered to both domestic and international audiences. Many Chinese analysts suspect a deliberate attempt by Japan to disrupt the imminent transfer of leadership and destabilize it during a moment of vulnerability. The handover has so far been overshadowed by scandals that felled two former contenders for top spots as well as president-to-be Xi Jinping's unexpected weeks-long disappearance from the public eye. With growing domestic dissatisfaction with the widening wealth gap, widespread corruption, rising inflation, and housing prices, combined with rampant rumors about disunity in the leadership, Beijing feels it can't be seen to be betraying national interests in the face of its historical nemesis.

But the current nationalist outpouring significantly restricts China's future options to dial down the situation. For all the government's efforts at censorship and control, the internet has given the Chinese public unprecedented access to information and the tools to instantly spread commentary, eroding Beijing's control over the ebb and flow of nationalist sentiment. Internet users can now track Chinese law enforcement vessels via satellite photos, mocking and criticizing the government when they stop short of disputed waters, holding Beijing accountable to implement statements that it may have made during a time of high public pressure but with the option of future selective enactment.

And China's two largest maritime law enforcement agencies, which already compete with each other in the South China Sea for budget and clout, have now been further empowered to assert China's sovereignty in the East China Sea. A former Marine Surveillance agency chief said that China's "primary goal and task" following the baseline announcement is to drive Japan's coast guard out of the disputed areas.

More frequent Chinese patrols in the area, along with the Japanese Coast Guard continuing to patrol near the islands, raises the risk of maritime clashes higher than it has ever been. Although the two countries have dealt with past run-ins -- such as when the Japanese Coast Guard arrested a Chinese skipper in 2010 after his boat collided with a Japanese vessel -- and succeeded in cooling tensions, the current situation is of a different order. That act could be attributed to an overzealous Chinese fisherman. But now, a skirmish between official law enforcement vessels in the current context could prove irresolvable.