We know that free speech is not an absolute right. There are some limits that even the most tolerant societies have imposed in order to (say) protect children. In the US, the limits to what adults can say is usually judged according to the landmark US Supreme Court decision in the 1969 case of Brandenburg v. Ohio.
Commenter drr1, in response to an earlier post, gave a excellent summary of what it allows and its possible applicability to the anti-Islam film that I will reproduce in its entirety.
Brandenburg is the controlling authority, but the “incitement” test the Court produced there is rather demanding, and it has been narrowly construed over the years. In order for speech to qualify as incitement, and thus to be “unprotected” under the First Amendment, the speaker must have had a purpose to incite or produce imminent lawless action, and the speech must be likely to incite or produce such imminent lawless action. The key element here is imminence. Unless the speaker acts to produce lawlessness right now, the speech is likely to get a pass under the First Amendment. The Supreme Court and lower courts have narrowly construed the Brandenburg test over the years, consistent with the First Amendment notion that the remedy for speech is more speech, not the heavy hand of the state.
As to whether Brandenburg might have any application here – that is, whether this speech might be considered unprotected incitement, the answer is no. I cannot see a United States court ruling that the speaker(s) acted here with a purpose to incite or produce imminent lawless action. They may have known that violence was quite likely to follow; indeed, I’m willing to assume that that was at least one of the purposes of the speech. That, by itself, doesn’t suffice under Brandenburg. The speech will be protected because it cannot be shown that this speech incited or produced imminent lawless action.
In short, we’ve decided that we are – at times – willing to risk the consequences of speech that others find offensive. That those consequences come to pass does not alter the constitutional bargain. We mourn those senselessly killed or harmed, and we exercise our freedom of speech to display to the world the barbarism of those who are responsible, including those who uttered the offending words in the first instance.
As you might expect, Glenn Greenwald has written extensively on this and he would agree that in Brandenburg, the court set a very high bar indeed for when the government can limit speech. I have also agreed with this view.
But George Washington University law professor Jonathan Turley, also a robust defender of free speech, worries that the Brandenburg standard risks being misused by the Obama administration in its attempt to draft international treaty language sponsored by the Organization of Islamic Countries. Those countries have sought to bring offence to religious sensitivities, or blasphemies, under the umbrella of hate speech, sensing that outlawing ‘hate speech’, which is usually speech targeting vulnerable minority groups, is more palatable to western societies. He argues that the Brandenburg standard, which the Obama administration seems to be using to draft compromise language, can be abused since it could be used to argue that if one knows that certain language or acts will inflame people enough to cause them to riot and murder, then that might meet the threat of causing ‘imminent’ danger and thus be censorable, even if you are not directly inciting people to violence. He says,
The Brandenburg standard is controversial in the United States because of its ambiguity and chilling effect on speech. Placed in the hands of a country with a blasphemy law, it legitimates religious orthodoxy and limitations on free speech and the free exercise of religion. Countries like Saudi Arabia do not even allow public worship by other faiths. They are not going to embrace the free speech sentiments of the resolution. Rather they will continue the stated purpose of getting the West to embrace limitations of free speech in the name of religion.
He says that this would give the most intolerant people the right to decide what can and cannot be said merely by threatening violence if their sensitivities are not respected. So you could be found to be guilty of hate speech merely for saying something that in the past has caused some religious people to react in fury.
The biggest victory of the OIC came in 2009 when the Obama administration joined in condemning speech containing “negative racial and religious stereotyping” and asked states to “take effective measures” to combat incidents, including those of “religious intolerance.” Then, in March, the U.S. supported Resolution 16/18′s call for states to “criminalize incitement to imminent violence based on religion or belief.” It also “condemns” statements that advocate “hostility” toward religion. Although the latest resolution refers to “incitement” rather than “defamation” of religion (which appeared in the 2005 resolution), it continues the disingenuous effort to justify crackdowns on religious critics in the name of human rights law.
The OIC has hit on a winning strategy to get Western countries to break away from their commitment to free speech by repackaging blasphemy as hate speech and free speech as the manifestation of “intolerance.” Now, orthodoxy is to be protected in the name of pluralism — requiring their own notion of “respect and empathy and tolerance.” One has to look only at the OIC member countries, however, to see their vision of empathy and tolerance, as well as their low threshold for anti-religious speech that incites people.
International treaties that violate the US constitution are invalid in the US so the original intent of the Brandenburg ruling will likely hold sway here. But such treaty language could well become the standard in countries that do not have clear First Amendment-type constitutional protections and a robust tradition of protecting free speech, and thus could prove to be very chilling indeed.