But the fact that the video is protected on free speech grounds has been confused throughout the world with the endorsement of the content of the video. This misperception that the state's protection of an anti-Islamic video means that it endorses the video has sparked riots throughout the world. One widely circulated clip that is typical of these denunciations uses the video to suggest that democracy is inherently disrespectful to Islam, because it allows hateful anti-Islamic speech to be expressed without punishment. An impassioned critic goes so far as to suggest that disrespect of Islam is "what democracy is all about."
The confusion of protection and approval is deeply linked to the structure of our rule of viewpoint neutrality. If the government wants to condemn a message, it often does so through a ban. Government sends the message that murder is wrong by punishing murderers. We condemn racial discrimination by banning it in the workplace and in other domains. Conversely the protection of an act is often thought to signal indifference to it. For instance, the state does not ban interracial marriage, and this is taken to mean that the state does not disapprove of it. So it is not surprising that protection of the video might be wrongly thought to signal that the state condones or even approvals of it. Free speech has an "inverted structure" in that the right of free expression can protect viewpoints that are hostile to the very reasons for protecting rights. We protect Nazi speech, even though Nazism would deny free speech protection to others and even though it stands in deep opposition to the democratic value of equal respect that underlies our free speech protection.
Although the conflation between protection and approval is understandable given the inverted structure of free speech, it is a mistake to think that free speech entails government indifference to hate speech. The entire reason we protect free speech is to respect the autonomy of all citizens equally. As the legal scholar Alexander Meikljohn suggests, we protect the right of our citizens to hear all viewpoints precisely because we trust them to make good decisions in the public realm of democracy. This entails enough respect to trust that citizens can hear even the most evil viewpoints while retaining the good sense to reject them.
The basis for free speech in the democratic value of equal respect is expressed throughout the Constitution, and in particularly in our commitment to equal protection. The state has an obligation to articulate the democratic value of equal respect, which is the basis for the right of free speech, even when it allows dissent from the value as a matter of law. It rightly condemns the hate speech that it protects. And it does so often, at least implicitly. When the state "speaks" through public holidays or school curriculum it does take a side on behalf of our own liberal democratic values. We celebrate Martin Luther King Day to express the commitment to equal protection.
The Ku Klux Klan was founded in opposition to the 14th Amendment to the Constitution, which guaranteed equal protection of the law based on race. When we teach in schools the importance 14th Amendment, the government is taking a stand against the views of the Klan and other hate groups. These acts of state speech serve to clarify that while hate groups can say what they wish, the state is not indifferent to these messages. It condemns and argues against them.
The need to clarify that robust free speech commitments are compatible with condemnation of hateful viewpoints is important domestically. But it is also clearly urgent abroad. When the state "speaks" in its public diplomacy it is essential that it explain the values that underlie free speech.
Confusion about the meaning of the United State's commitment to free speech has drastic consequences. Rioters in Pakistan appeared to believe that the American government was neutral towards or even approving of the hateful views in the video. The nation and its representatives need to explain to the world that we do not protect free speech because we are indifferent to the content of those who abuse it. We can clarify that the United States protects all viewpoints, but that it condemns those viewpoints that violate the democratic value of equal respect.
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