I have a few thoughts today about the current state of events and prevailing discussions of the embassy attacks and the "Innocence of Muslims" video. I've added an "Innocence of Muslims" tag to keep my posts together. Since I'm on a Bataan Death March of AYSO games today, this will be brief. More next week.
1. I'm troubled by the Obama Administration contacting YouTube and asking them to "review" whether the "Innocence of Muslims" video violates their terms. YouTube had heard of it already. YouTube had gotten complaints already. The only function that contact from the administration served was to imply potential government involvement, possibly involving coercion. It's not censorship — yet. But it carries with it the implied threat of censorship. (Note: the government could have crafted a public approach that did not threaten coercion.)
2. We should be very careful to assume a causal relationship between the video and the mob violence. It's entirely possible — perhaps even probable — that the video is being manipulated as an excuse for violence by people who desire violence for political ends. (That might even include the filmmakers, by the way — "Sam Bacile" lying about the video being Israeli-backed seems almost calculated to increase its tendency to be used as a justification for violence.)
3. Many people are upset by Sam Bacile aka Nakoula Basseley Nakoula being detained and interviewed, apparently at the behest of probation officers. I think the situation bears careful watching [Edit: to be clearer, by that I mean that I am open to evidence that it was an administration-driven political arrest.] Based on 6 years as a federal prosecutor and 12 as a federal defense lawyer, let me say this: minor use of a computer — like uploading a video to YouTube — is not something that I would usually expect to result in arrest and a revocation proceeding; I think a warning would be more likely unless the defendant had already had warnings or the probation officer was a hardass. But if I had a client with a serious fraud conviction, and his fraud involved aliases, and he had the standard term forbidding him from using aliases during supervised release, and his probation officer found out that he was running a business, producing a movie, soliciting money, and interacting with others using an alias, I would absolutely expect him to be arrested immediately, whatever the content of the movie. Seriously. Nakoula pled guilty to using alias to scam money. Now he's apparently been producing a film under an alias, dealing with the finances of the film under the alias, and (if his "Sam Bacile" persona is to be believed) soliciting financing under an alias. I would expect him to run into a world of hurt for that even if he were producing a "Coexist" video involving kittens.
4. The relevant legal question if Nakoula is subjected to supervised release revocation, or prosecuted for a new crime, is whether he is being selectively prosecuted. To show that he is being selectively prosecuted, Nakoula would have to show (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive. The first prong is tough to prove. Like I said, I expect that most supervisees who produced a movie under an alias while on supervised release would get revoked.
5. I'm seeing some sentiment out there that there's something wrong with decrying Nakoula, his behavior, and his speech — as if it is inherently giving in to the barbaric mobs. Not so. I argued last week that the message of the U.S. Embassy in Cario was awful because its context and content accepted the censors' narrative (that speech can "hurt religious belief" and that the film is an "abuse" of speech, which usually is another way to say "not free speech"). But supporting free speech does not mean supporting the decency of the people uttering it. The Nazis who marched at Skokie were . . . well, Nazis. The Phelps clan is vile. Many bigots protected by free speech are profoundly awful people. And Joe Francis still exists. Though it's not required that we point out these people's scumbaggery when defending their speech, there's certainly nothing wrong with it. Nakoula seems to be an awful person. He's a bigot. He's a convicted fraudster. You can believe that the barbaric mob had no justification for murder and violence and still think that it's contemptible that Nakoula used an alias to blame the film on Israelis, possibly with the intent to inspire further strife between Muslims and Jews. Plus, according to statements by the actors and crew, Nakoula shot a generic old-times-in-the-desert movie and then, with the cast's name and faces attached to it, re-dubbed it into an anti-Muhammad screed without their knowledge — while protecting his own name with an alias. That's a freakishly contemptible thing to do even if you firmly maintain, as I do, that there's no excuse for violence every time someone disrespects your religious figures. Nakoula is no sort of hero; only rank partisanship can make him one.
6. We can't cave on this in the face of demands that we censor. We can't. Today it's bigoted videos. Tomorrow it's any representation whatsoever of Mohammed. What is it after that? Women depicted out of hijabs? Allowing female anchors to question men on the news? Why, if cultural censors are given the power to demand censorship of that which they find offensive, would they grow a thicker skin rather than a thinner one? Why, if barbarians are told that we will censor our societies and betray our fundamental principals if they kill innocents, would they stop killing innocents? (Yes, I said barbarians. I don't mean Muslims. I mean people who believe that violence is justified by speech the don't like. That includes not just extremist Muslims, but their Western apologists.)
7. Some Western apologists, believe it or not, include Western law professors who believe that the United States Constitution, specifically including the First Amendment, should be subservient to international treaties prohibiting speech that offends the religious. I'm not given to frequent use of rhetorical flourishes like this, but: the point at which the government attempts to make the First Amendment subservient to international treaty is the point at which violence against the government is morally justified.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016