Whether or not the recent influx of attacks on U.S. compounds throughout the Middle East and parts of Asia have been in retaliation for the online video “Innocence of Muslims” is certainly up for debate.
Another debate also rocks the very foundation of our country: the debate on free speech. Specifically, questions regarding whether content like “Innocence of Muslims” is protected or unprotected speech have been raised. Is this content legal?
The answer is yes. “Innocence of Muslims” is protected speech in the U.S.
But we’re in an Internet age where information travels faster than ever before. This film spread like wildfire over our planet, and ignited the tempers of many in the process. In this rapidly progressing technological era, websites like YouTube control the free speech pipeline.
The burden falls on their backs.
In the U.S., narrowly tailored standards for what is unprotected speech give us great freedom in what we want to say. Our unprotected categories of speech include obscenity, libel (false and defamatory comments made about someone else), and incitement to violence, among a few others. Offensiveness does not fall within any of these categories.
“I think it’s very clear that, as a legal matter, this film is protected by the First Amendment. The First Amendment allows people to say and write and publish a whole variety of offensive things, and just because its offensive, does not mean that it’s illegal,” said Jason Shepard, Communications professor.
“There’s a long history of the Supreme Court protecting offensive speech, and this film clearly does not fall into one of the unprotected categories of speech,” Shepard said.
Several landmark court cases set precedent for what is protected speech and what isn’t.
In Hustler Magazine v. Falwell, an ad was run in Hustler magazine parodying Jerry Falwell, who was a prominent religious figure at the time. Despite the ad being a clear parody, Falwell claimed that it caused great emotional distress.
“In that case, the Supreme Court said just because an advertisement offends a religious leader, doesn’t mean that it could be a cause to censor somebody,” Shepard said.
Elsewhere, in Texas v. Johnson, the Supreme Court voted to invalidate a federal law that prohibited people from burning the American flag.
“The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech,” reads the case brief on Oyez.org.
Shepard said that if any argument was to be made that “Innocence of Muslims” fell within a particular category of unprotected speech, it would be the incitement to violence category.
In Brandenburg v. Ohio, a three-part test was developed to determine whether speech was unprotected under this category.
“The Supreme Court has said that speech that might advocate or incite violence can only be banned when the speech is directed at inciting violence, the violence is imminent, and that it’s likely to incite violence,” Shepard said.
“It’s hard to make the case that the film was directed at inciting imminent lawless action,” Shepard said.
Establishing and reiterating American standards concerning free speech is important because we cannot compromise our identity as a free, trendsetting country. The burden is not on Americans to suppress the offensive speech of the few just to satisfy the wants of those who turn violent whenever something offends them.
In today’s society, one nutjob can autonomously post something on the Internet and it could lead to civil unrest in over a dozen locations across the globe. This wasn’t a video posted on a U.S. government website. This was a video posted on YouTube, owned by Google.
“At Google we have a bias in favor of people’s right to free expression in everything we do, but we also recognize that freedom of expression can’t be—and shouldn’t be—without some limits. The difficulty is in deciding where those boundaries are drawn,” wrote Rachel Whetstone, senior vice president for communications and public policy at Google, in a 2007 blog entry.
“For a company like Google with services in more than 100 countries—all with different national laws and cultural norms—it’s a challenge we face many times every day.”
Google has the power to be the moral agent that the U.S. can’t be. The U.S. can’t punish offensive speech—it would corrupt the country’s ideals—but Google certainly can. Its terms of service can be tailored in a way to minimize violence, and they wouldn’t be infringing on First Amendment values by doing so since its a private company.
Of course, it saddles companies like Google with an enormous responsibility and pressures them into moral obligation. Since things on the Internet aren’t necessarily limited to being seen by people in any one country, companies like Google suddenly dictate what constitutes free expression online.
The power is in their hands.