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Fire! The 'clear and present danger' in some free speech
Sarah Chayes' op-ed column on free speech and 'clear and present danger.'

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Date published: 10/7/2012

WASHINGTON

--In one of the most famous First Amendment cases in U.S. history, Schenck v. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

Holmes' test--that words are not protected if their nature and circumstances create a "clear and present danger" of harm--has since been tightened. But even under the more restrictive current standard, "Innocence of Muslims," the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens, among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines.

According to initial media investigations, the clip, whose most egregious lines were apparently dubbed in after it was shot, was first posted to YouTube in July by someone with the user name "Sam Bacile." The Associated Press reported tracing a cellphone number given as Bacile's to the address of a Californian of Egyptian Coptic origin named Nakoula Basseley Nakoula. Nakoula has identified himself as coordinating logistics on the production but denies being Bacile.

According to The Wall Street Journal, when the video failed to attract much attention, another Coptic Christian, known for his anti-Islamic activism, sent a link to reporters in the U.S., Egypt, and elsewhere on Sept. 6. His email message promoted a Sept. 11 event by anti-Islamic pastor Terry Jones and included a link to the trailer.

The current standard for restricting speech--or punishing it after it has in fact caused violence--was laid out in the 1969 case Brandenburg v. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.

Likelihood is the easiest test. In Afghanistan, where I have lived for most of the past decade, frustrations at an abusive government and at the apparent role of international forces in propping it up have been growing for years. But those frustrations are often vented in religious, not political, terms, because religion is a more socially acceptable, and safer, rationale for public outcry.


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