I have seen several minutes of the stupid little film that has, arguably, incited so much violence and the deaths of four distinguished public servants, including a United States Ambassador who was uniquely sympathetic to Islam and Arab interests.
There is nothing good that can be said about the low budget film. It has little redeeming social value and the world would be a better place if it had never been made or shown. Nevertheless, it would be wrong, and under American law unconstitutional, to censor or punish such despicable self-expression. Freedom of speech means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorize and which to prevent.
There are several exemptions recognized under American law to untrammeled freedom of expression. These include falsely shouting fire in a crowded theater, fighting words and speech and speech that present a clear and present danger of inciting violence. None of these exemptions would stop the mindless violence that we have seen in Libya, Egypt, Yemen and other Muslim countries. Recall that similar violence was incited by the publication in Denmark of rather innocent cartoons depicting the prophet Mohammad. Not all of these cartoons demeaned the prophet, but his mere depiction was enough to provoke violence among some extremists. And recall the murder of Theo Van Gogh, and the Fatwa placed on the head of Salman Rushdie for rather more nuanced treatments of religious issues.
Religious fanatics who are easily offended by those outside of their religion who violate the rules of their religion cannot serve as censors in democratic societies. The threat or fear of violence should not become an excuse or justification for restricting freedom of speech.
Those who blame America for allowing what some Muslims regard as blasphemous speech must come to understand that by not censoring such speech, the government does not place its imprimatur upon it. That may be difficult to understand for people who have come of age in repressive regimes which do not permit any expressions disfavored by the government. In such regimes, the publication of bigoted materials can be taken as representing the views of the government.
For example, when Iranians newspapers publish anti-Semitic diatribes, the views expressed in those diatribes are the views of the government. Not so with democratic states. Indeed it is probably true that more anti-Semitic material is published in the United States than in Iran, simply because so much is published here and almost none of it is subject to any kind of restriction or censorship. That does not make the United States an anti-Semitic country, but rather a country in which there is freedom to express anti-Semitic views. It does make Iran an anti-Semitic country, because all views that appear in the media must be approved by the government.
So let us not allow those who employ violence to initiate a debate about the limits of free speech. Democracies should not allow themselves to be held hostage to violent extremists. Having said that, freedom of speech also requires decent people to condemn those who abuse freedom by needlessly insulting the religious beliefs of others or by being insensitive to the havoc they may be causing by exercising their freedom of speech. This film should be condemned in the marketplace of ideas, but the writings of Salman Rushdie and the publishing of political cartoons should not be condemned.
Individuals have the right to pick and choose which expressions to condemn, which to praise and which to say nothing about. Governments, however, must remain neutral as to the content of expression. And governments must protect the rights of all to express even the most despicable of views. Finally, the international community must use its collective power to apprehend and punish anyone who commits violence in reaction to expressions with which they disagree.
Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard, is a practicing criminal and constitutional lawyer and the author, most recently, of The Trials of Zion.
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