Does First Amendment protect ‘Innocence of the Muslims’ film?

Justice Oliver Wendell Holmes Jr. wrote a century ago that free speech didn’t protect a person “falsely shouting fire in a theatre and causing a panic.” Now some news commentators are dusting off that memorable aphorism to suggest the offensive film,

“Innocence of the Muslims,” is not protected by the First Amendment.

The commentators are probably wrong.

Christiane Amanpour put it this way on ABC this week: “There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can’t [falsely] cry fire in a crowded theater.”

Amanpour is off base for a couple of reasons. Holmes’ line, while colorful and memorable, is not a law. Moreover, Holmes wrote those words in an early First Amendment case where he upheld the conviction of a socialist who circulated leaflets urging men not to comply with the draft during World War I. That kind of speech would clearly be protected today, now that the First Amendment is more robust.

Offensive expression, even burning a Bible or a Koran, would be protected in the same way that burning the American flag is protected speech.

Just because the First Amendment protects the speech does not mean Google must keep it posted to YouTube. The First Amendment applies to the government, not to a private enterprise such as Google.

YouTube took down the movie trailer in Egypt and Libya. Pakistan and Afghanistan also took steps to block it and Indonesia asked that the film trailer be blocked. Otherwise, the trailer remained accessible.

In a statement YouTube said the film trailer was clearly permissible under its terms of service.

“We work hard to create a community everyone can enjoy and which also enables people to express different opinions,” the YouTube statement said. “This can be a challenge, because what’s OK in one country can be offensive elsewhere. This video – which is widely available on the Web – is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt, we have temporarily restricted access in both countries. Our hearts are with the families of the people murdered in yesterday’s attack in Libya.”

YouTube’s terms of service state: “We encourage free speech and defend everyone’s right to express unpopular points of view. But we don’t permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation/gender identity).”

The Justice Dept. announced it was investigating the murders of the 4 embassy personnel in Libya. It was unclear whether that investigation concerned hate crime laws . But prosecution under hate crimes statutes requires a high proof of intent, which could be difficult to muster in this case.

Amanpour commentary:

New York Times story on YouTube:


  • Anonymous

    I do not think it is a wise course of action to say that since the Muslims are overreacting, it is all their fault.  Yes, they are over reacting.  That was predictable.  I think just like the libel laws  have a provision for “malicious intent” the intent of the video maker is key to determining culpability.  Free speech does indeed need to have limits.  Yelling fire in a crowded theater is not just “colorful and memorable.”  It is wise. 

  • Anonymous

    It seems quite clear what the intent of this unfortunate film was.  It was to incite Muslims and offend their belief systems.  It also resulted directly in riots in several countries leading to many injuries.  While Libya, according to the government was a coordinated attack, which may or may not have been traced to the movie trailer, it resulted in the deaths of four Americans and several Libyans.  What is the intent of hate speech other than to incite violence?
    I think YouTube should pull the offending trailer.  They do not have first amendment rights in the countries where they are causing riots.  Leave it on the American YouTube if they must, however, there is no question that it has offended people’s religious beliefs in other countries and possibly here as well.  
    We all are stumbling into the globalization of information and sometimes we will make missteps.  This is clearly one of them.