Update: Welcome Crusader Rabbit readers. Unless you want to read an exposition on U.S. law of freedom of speech, the parts you want to read are higihlighted in yellow.
Writing in the LA Times, Sarah Chayes, like many on the left, is demanding that the producer of the "Innocence of Muslims" be tried for inciting the violence of 9-11-12. Leave aside for the moment that this argument is a pretext to take focus off of Obama's failed foreign policy, just as for the radical Islamists, the movie was itself a pretext for their violence directed at the U.S.
The roadblock to the left's call for prosecution is the First Amendment. But Ms. Chayes has an answer to that - stop applying the test of how a "reasonable person" would react to particular speech, and apply the test of how radical Muslims would react to the same speech. Ms. Chayes would give radical Islamists control over our right of free speech and insert a de facto "blasphemy" exception into our Constitutional law, one applicable only to Islam. This from Ms. Chayes in the LA Times:
In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. 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 . . .
The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. 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. . . .
As a threshold matter, despite Ms. Chayes's obfuscations, the law applicable to the film in question is crystal clear and long settled. The Supreme Court held, in the 1952 case of Joseph Burstyn, Inc. v. Wilson that the makers of a sacriligous film could not be prosecuted for their speech:
[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.
Ms. Chayes wholly ignores that case law to make her argument. But even then, and leaving aside whether the speech has any intrinsic "value," the Holmes test mentioned by Ms. Chayes is ultimately a test of how a reasonable person in OUR society would react in the circumstances, not how al Qaeda members living in Egypt would react. In America, a reasonable person does not react with violence, even when an artist displays a crucifix in a jar of urine, when Louis Farrakhan regularly denigrates Judaism, when Islam strips Christ of his divinity, or even when the Onion uses an obscene cartoon to make the point that reasonable people in our nation do not respond with violence to criticism of the basest sort against their religion.
Most importantly, there is a historical reason to treat Ms. Shayes's argument with utter derision. The questioning of religious dogma and customs were critical parts of the Renaissance and the Enlightenment, and such questioning was the entire basis for the Reformation. Those titanic events of Western History took all aspects of our civilization, including our religious practices, out of the Dark Ages and into modernity.
Without these titanic historical periods, we would still be living under the yoke of a Dark Ages interpretation of religion. Witches would be executed, as would blasphemers and heretics. Any criticism of religious dogma would be met with violence. Any who left our religion would be subject to murder. Corruption among the clerics would be beyond reproach. Religion, instead of being a faith, would be a central tool of political power and state control. Our civilization would be dysfunctional, not dynamic. Our government would subject people of other religions to severe state discrimination. Modern science, sparked by the Enlightenment and the basis for all of the technological advances of Western civilization, would have been severely circumscribed. Wouldn't that be horrendous?
Well, take a look at Islam today as practiced in the Middle East, and that is what you will find - all those things and more in every country with a Muslim government. And as to science, do note that Saudi Arabia only put the flat earth theory behind them with the recent turn of the millenium. A fatwa issued by the Grand Mufti in 1993 instructed "the earth is flat. Whoever claims it is round is an atheist deserving of punishment."
The radical Muzzies have never gone through a period of Enlightenment, a Renaissance or a Reformation. And they never will if criticism of their religion, in any and every form, is silenced. That is the world to which Ms. Chayes would consign Muslims, and if not altered, it is a world that will inevitably lead to an existential clash with our own civilization. Ms. Chayes's proposal is the precise opposite of what is needed, both for the Muslim world and our own.