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Fire! The 'clear and present danger' in some free speech page 2
Sarah Chayes' op-ed column on free speech and 'clear and present danger.'

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Date published: 10/7/2012


In the summer of 2010, Jones announced his intent to publicly burn a copy of the Muslim holy scripture, the Quran, that Sept. 11. He was eventually dissuaded by a number of religious and government officials, including Secretary of Defense Robert Gates, who called him to say his actions would put the lives of U.S. soldiers in Iraq and Afghanistan at risk. On the Joint Chiefs of Staff, where I worked at the time, consensus was that the likelihood of violence was high.

When Jones did in fact stage a public Quran burning on March 20, 2011, riots broke out in Afghanistan, killing nearly a dozen people and injuring 90 in the beautiful, cosmopolitan northern city of Mazar-i-Sharif. Seven of the dead were U.N. employees; the rest were Afghans.

In Afghanistan, and in all of the Arab nations in transition, an extremist fringe is brawling for power with a more pluralistic majority. Radicals pounce on any pretext to play on religious feeling. I could pick out the signs of manipulation in Afghanistan--riots that started on university campuses where radicalized Pakistani students abound, simultaneous outbreaks in far-flung places, the sudden appearance of weapons. By providing extremists in Libya and elsewhere such an opportunity, the makers of "Innocence of Muslims" were playing into their hands.

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula's video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many First Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. "Based on my understanding of the events," First Amendment authority Anthony Lewis said in an interview recently, "I think this meets the imminence standard."

Finally, much First Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don't have to urge people to commit violence in order to be subject to limits, says Lewis. "If the result is violence, and that violence was intended, then it meets the standard."

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