A Few Stray Saturday Thoughts About The "The Innocence of Muslims" Video

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


  1. Agent T says

    Regarding your #6… This administration, and the administrations before it, intercept communications crossing the border. US citizens (and their minor US citizen children) can be executed by executive decree without trial or judicial oversight. Why would we expect 1st amendment rights are global?

  2. Malc says

    Possibly the use of the "Bataan Death March" is unfortunate, on the grounds that the accounts of that atrocity were used to promote messages such as "What are you going to do about it? Stay on the job until every murdering Jap is wiped out!" in US Army official propaganda!

  3. ttl says

    There are two numbers fives. This must be because I had the number give when I played youth soccer.

    "Note: the government could have crafted a public approach that did not threaten coercion."

    Could someone give an example of this?

  4. says

    Any law which bans speech which "offends religions" implicitly bans nearly all religious speech. Any statement of faith in any religion is a statement that the other religions are factually incorrect, implying that those who follow them are either ignorant of the truth, or too stupid to recognize the truth when it's presented to them. If I say "Jesus is not the Messiah", I am saying "Anyone who believes he IS, is wrong." How is that not an insult to every religion which claims Jesus is the Messiah? Any statement of faith, or rejection of all faith, is a clear insult to everyone who holds to a different faith.

    Politely "agreeing to disagree" does not remove the insult; it merely says, "You're too stupid to understand this, or I don't want to bother educating you about the truth, so I'm going to let it drop because the alternative is pointless or tedious." You can honestly say "It's an insoluble issue" when discussing matters of opinion, but not of fact, and religions are, for the most part, based on statements of what their believers believe to be facts. Jesus WAS the son of god, or he WASN'T. He can't be the son of god to some people, and not the son of god to others; someone's got to be wrong. Joseph Smith found golden tablets and translated them, or he didn't. We're covered with body thetans, or we're not. Etc, etc, etc.

    Any attempt to convert someone to your faith is an implicit insult: You are saying "Stop believing what you believe, because it's wrong." To convert someone, you must say, "Your religion is worse than my religion; it's in your self-interest to switch, since my religion is better."

    Saying "Your religion is worse than mine" is an insult, is it not?

    If you believe that only those who accepted Jesus as their personal savior can avoid the fires of hell, then you are telling everyone who does NOT believe this — every Jew, every Muslim, every Buddhist, every Hindu, etc — that all of their beloved dead relatives and friends are being tortured for eternity. How can that not be an insult to them? The same applies to every other conflicting vision of the afterlife. And, of course, any mealy-mouthed, wishy-washy, "We all just see reflections of a greater Truth none of us truly understands, we just have to be nice to each other, isn't that enough?" attempt at ecumenicism is an insult to anyone who holds to any actual faith at all — you're basically patting them on the head and saying how CUTE they are, and that their actual religious beliefs, which may have come after great personal struggle with conflicting ideals, are irrelevant as long as they don't kick any kittens and try to reduce their carbon footprint. (About the worst spin one can have is "Well, we all go to the afterlife we believe in." My experience is that the most moral people are filled with self-doubt and believe they are not good enough, while the most vile are utterly convinced of their own righteousness.)

    Hell, any scientific truth that contradicts someone's favorite myth is an "insult to religion".

    Thus, in actual practice, laws against "insult to religion" are a bludgeon used to against not all insults to any religion, but against whatever insults a religion with appropriate political and social clout — most often, whichever religion can get its members to threaten violence.

  5. Ancel De Lambert says

    Sorry Ken, but I have no idea what you were trying to say at the start of point 4. You seem to have an aborted draft in addition to a dropped fragment that has coalesced into a pool of what is this I don't even.

  6. Beauzeaux says

    "I'm troubled by the Obama Administration contacting YouTube and asking them to "review" whether the "Innocence of Muslims" video violates their terms."

    The link is to an article in Politico which links to a "Jay Carney" page where there is nothing. Not saying it didn't happen but a circular link on Politico isn't evidence. Every link I could find on Google is to the Politco story, which goes no where.

  7. Joe Pullen says

    "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."


  8. says

    I agree with all of this and think it should be mandatory reading from anyone who cares to weigh in, except perhaps on #1. I'm not really offended by the Obama Administration asking Google to reconsider the video. In some respects I think it may have had to in order to show the world it shared its contempt of it, and that it was not something US policy supported. As long as Google was free to say no, and as long as the Obama Administration accepted that answer, there is no problem, and perhaps there is even some value in that transaction, for this is the reasonable way things are supposed to work in a free society and the world should take note.

  9. says

    @Cathy — when the government asks a corporation to "reconsider" something, it's on the same level as a mafioso "asking" a local business to consider using the mob's preferred contractor. In other words, it's not a request; it's a threat. Think of the many court decisions which have gone Google's way, and think of how any number of anti-trust laws could be "interpreted" to apply to Google, among countless other laws. Maybe the EPA should take a closer look at wherever Google wants to build their next data center? You know, just to be SURE there's no environmental concerns. It might take a year, or two, or four. Sure, copyright laws have been interpreted in favor of storing excerpts of data and caching search results… but interpretations can change, you know. So we're just politely… asking… you to, ah, "reconsider" your policies.

  10. says

    Eh, the government could do all that even without asking. I take this request at face value, as part of standard diplomatic maneuvering. I'm perfectly happy to be cynical at any actual attempts to "enforce" Google's acquiescence, but I don't think the bare request is one of them (nor do I think it helps the fight against any actual enforcement attempts to construe it as one either).

  11. Grifter says

    For the record, despite my debate in the other thread, I do think he's an obvious douche.

    Wise words as always, Ken!

  12. AlphaCentauri says

    I don't have a problem with the request to Google. No one expects Google to take it down if they don't want to. They've got an established reputation for standing up to governments, and it's something Americans take vicarious pride in. It makes Google look good to say no, and it demonstrates that in the US, the government doesn't control speech by private companies.

    If they really wanted to get the video off YouTube, they would have had Sam Bacile's probation officer ask him to take it down. But there's really no point with copies posted everywhere else already. Any request to Google is just for theater.

  13. says

    > 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.

    But raiding a guitar manufacturer for violating a foreign law that the foreign government in question does not claim is violated does not?

    But arresting a non-violent drug user every 19 seconds in service of unconstitutional prohibition is not?

    But routine patterns of police violence against suspects is not?

    But shooting dogs as the first phase of "securing" a house is not?

    But sending people to jail for exercising their second ammendment rights is not?

    Ken, we're absolutely both in agreement that the government abrogating the Constitution and the Bill of Rights is cause for armed resistance…but that tripwire is long, long, LONG past.

    The only remaining tripwire is the moral one: under Just War standards, can the fight create more good than harm?

  14. says

    @TJIC: Excellent question. This point does not exclude other points. I was speaking within the context of abuses of the First Amendment.

  15. says

    The beauty of our Republic is that we can privately condemn what we want; we can hold contemptible people in contempt; we can censor our own eyes. But we can not get the government to do these things for us. It is, at most, supposed to look in and check if everyone is obeying the law.

  16. C. S. P. Schofield says

    In a perfect world I would expect to see;

    A) A serious effort by the host government to bring the murderers of our embassy personal to heel, if for no other reason than to avoid our wrath.


    B) The maker of the "The Innocence of Muslims" video to be slung back into prison so hard he bounces, PROVIDED that he violated his parole in the matter of using an Alias.

    Sadly, I expect that what I will see is;

    A) A continuance of the bootless "speak softly and carry a limp noodle" school of diplomacy, right up to the point that we wade into the Middle East in full rage because of a terror attack on U.S. citizens …. which will see us stuck governing that international insane asylum for the next hundred years (*sigh*).


    B) The maker of the film cast into prison on specious charges that cannot be sustained on appeal, followed by a lawsuit to his enrichment.

  17. Joe Pullen says

    @TJIC – nice. We could add:

    But the DHS and CBP are allowed to seize and copy content on travelers laptops without a warrant or legitimate suspicion of wrongdoing

    But where the Supreme Court rules that the police are allowed to conduct strip searches in situations where citizens are arrested in non-violent petty situations such as failure to pay traffic tickets or failure to use a seat belt.

    But where the TSA are allowed to completely trash the 4th Amendment to conduct suspicion-less and invasive pat downs and naked body imaging.

    I'm sure the list is pretty long if enough time is given to consider it. I agree, the line at which violence against the government is morally justified is indeed long past. The problem is that too many people just don’t seem to care and a large percentage of those that do care may feel they have too much to lose by standing up to our governments’ abuses.

  18. says

    PS – This post is why I like coming here: it's an island of sanity. All the RW blogs right now are screaming about jack-booted thugs because Nakoula was taken in.

  19. says

    Set paranoia bit to ON:

    What if "Sam Bacile" is an Islamofascist agent who deliberately made an allegedly anti-Muslim movie while doing something otherwise arrestworthy for the purpose of convincing Muslims in general that rioting is an effective means of getting people they don't like jailed?

  20. James Pollock says

    I disagree with point #1; politely asking Google to review the item in questions balances "you should do something about this!" with "…within your Constitutional power, of course."
    I don't think it's inherently coercive, and apparently, neither did Google, because they said "no".
    (Both of these, of course, are just for show because the damage is done already. I expect a lot of new anti-Muslim videos to be created and crafted so as to be as offensive as possible to Muslims, and for a lot of them to get rejected if/when they get internally reviewed by Google to see if they meet the TOS for YouTube. And the world will continue to rotate once every 23 hours and 56 minutes or so.)

  21. Chris says

    Interesting thoughts about the point of violence against the government being morally justified. I agree with most (all?) the sentiments to that respect above. However, in the end, that talk seems somewhat meaningless. "The government" (at least in the US) is not something in and of itself that can be attacked. It is too amorphous, and there would be no clear objective.

    Further in what is still a democratic society, presumably non-violent methods could be affected to fix things. In fact, until, unless our right to vote is taken away (either literally or through fraudulent vote counting) it is the responsibility of those who want to see a change in the way things are run to find and support candidates who will cause these changes. While this may seem insurmountable in face of some of the obstacles set in place by the current system, given the leverage of the internet, I think it is possible. In fact, I've considered a completely grass roots run for president or congress fairly seriously. I think with the right person and the right strategy things can be turned rightside up again without any need for a violent reminder of where this country came from.

  22. Ariel says

    Here is the problem with treaties: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI.

    So a treaty made within which had a clause that "disparagement of any religion is punishable" leaves us open to any Administration or SCOTUS decision to enforce that clause through parsing words. So how is that wrong given the language of Article VI?

  23. says

    I completely agree with your point #2 that the movie may only be a fig leaf to cover up for the real cause of the violence. But the same question arises as to whether the stated motivation of this arrest is the real motivation. While #4 would ordinarily be the relevant way to phrase the test, I'm not sure it's the right question here.

    At this late point in the proceedings, nobody, nobody on the whole planet is going to view this arrest as being about how the US treats parole violations. And the government has to act with this in mind, that it's not a law enforcement question anymore, but a political question. Moreover, it's not like they can claim that they just don't have any choice but act on these egregious parole violations – the Obama administration has no problem using executive orders to waive prosecutions when it suits their political purposes. There would have been plenty of time later to arrest the guy for his crimes when it wouldn't have looked like a concession to the mob, if that's what they wanted to do. But it wasn't. There are more important issues at stake at this stage that whether this guy might have violated his parole terms.

  24. James Pollock says

    A treaty can override state statutes or even federal statutes, but it can't override the Constitution itself. This is a fairly straightforward rule interpreting what the Framers meant to say there (brought to you by the same people who invented judicial review, which appears nowhere in the document.)
    Perhaps mindful of this, the U.S. generally does not enter treaties which carry immediate force of law (or, in lawyer terms, are "self-executing"). Rather, we enter into treaties which call for the legislative body to enact various things into law via statute (or, in lawyer terms "enabling legislation"). For example, the Digital Millenium Copyright Act is the enabling act for the WIPO treaty (which supplemented and expanded the previous Berne Convention on copyrights.)

  25. says

    Has anybody actually asked and established that the Bacile alias was not cleared in advance by the parole officer (and therefore not a violation)? How much did the parole boys know about the film in advance? They'd logically be interested in the money, not the script.

  26. Dave says

    The problem with Article VI is the second instance of 'Constitution'. Does it refer to The Constitution or to the 'Constitution or Laws of Any State'? In other words, to State Constitutions. Seems passingly strange that the founders would have intended for their laboriously crafted Constitution of enumerated powers to be subjugated, in any manner or instance, to any treaty.

  27. Jules says

    About (1) I just really don't like the government telling anyone what to do if it isn't against the law. When Gallup had a poll that the administration didn't like, they condemned Gallup for it and summoned them to the WH to explain themselves. When Gallup refused, the DOJ joined in a 2009 whistleblower suit against them. So I do believe Google is taking a big risk saying "no" to the administration.

  28. Adrian Ratnapala says

    If Nakoula really is in breach of his parole, then there is a tension between #4 and #6. The chances are that nobody would have noticed him if his movie had been about kittens. But it wasn't about kittens, and he did get noticed — if he is arrested, the riots in North Africa. In that sense, we are "giving in". It will certainly be seen that way in the arab world.

    On the other hand, if he is in breach of his parole, then he is in breach of his parole. The US is supposed to be a nation of laws after all.

  29. says

    Glenn Reynolds is gettin' in your face!: "And sorry, claims that this was just a routine probation matter don’t pass the laugh test. They’re just pure hackery."


  30. says

    thank you – although I may quibble with some of what was written (i.e. the middle of the night detention of the alleged filmmaker is rather more troubling than what Ken suggests), this is a very excellent post.

  31. says

    @David: as to pure hackery, I would yield to the subject matter expert.

    But pretending that the probation issue is only about computer use, not about a convicted fraudster doing business under an alias, is silly.

    @TMLutas: it's possible, but in my experience unlikely that the probation officer would permit extensive use of an alias.

  32. ShelbyC says

    1. I would vote we avoid revocation of probation even if we would revoke it in other situations, simply to avoid the appearance of appeasement.

    2. "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 don't know. I haven't seen anybody decrying "The book of Mormon", for example. Sweeping the Tonys is pretty much the opposite of "decrying". And of course nobody decries the South Park episodes that ridicule Mormonism and Scientology. I suspect that many of us, perhaps subconsciously, don't have a problem with speech that ridicules religious beliefs, until people react violently to it, then they decide the speech is vile and decry it.

  33. James Pollock says

    Well, nobody decried the episodes of South Park that ridiculed Islam either (although I understand the network DID tie their hands a bit.)

  34. Joe Pullen says

    System ate my prior post – likely because I’m playing with blockquotes and did something wrong so here I go again:


    "The government" (at least in the US) is not something in and of itself that can be attacked. It is too amorphous, and there would be no clear objective.

    You make an interesting point here although I might disagree a bit – we can say no to the TSA scanners and illegal searches. We can treat those we know are government employees like shit in public. We can assemble and protest. We can do things to embarrass government employees for their actions. Are there repercussions in doing this? Probably.

    In fact, until, unless our right to vote is taken away (either literally or through fraudulent vote counting) it is the responsibility of those who want to see a change in the way things are run to find and support candidates who will cause these changes.

    A lofty goal. Just realize incumbents have won re-election at over 90% for almost two decades http://www.opensecrets.org/bigpicture/reelect.php

    l believe non-violent civil disobedience can be a far more effective way to bring attention to important issues and drive change. Should we continue to vote? Of course. But ask yourself this – are we really going to organize armies of voters to toss out incumbents who vote in legislation that waters down our rights? Even if we could even get a million voters together to agree on a specific issue, all the incumbents would have to do is toss in an adjacent issue like religion, guns, or gay rights and most voters would be at each other’s throats in a heartbeat because the majority of voters are lazy, uninformed, emotional, and easily distracted from the real issue at hand.

    Don’t believe me, just go look at the comments on Ken’s post at the Salon http://www.salon.com/2012/09/13/should_sam_bacile_be_jailed/

    Despite the fact Ken’s post was clearly about how a college professor was using current events to advocate the restriction of free speech – comments on the post quickly move off the topic at hand – free speech.

    One example of lazy and uninformed is one of the posters on the Salon article by the name of “Operation Enduring Boredom” who states”

    “I don't think the argument anybody (at least not the professor or anybody here) is making is that free speech should be restricted further.”

    Wrong. Calling for the arrest of someone over a film uploaded to Youtube in which most of the rioting mob had not even seen, IS censorship or at the very least an act meant to chill free speech.

    Operation Enduring Boredom then goes on to state:

    “Personally I think "being offensive" should be something that is allowed in the U.S., if it is done for a political or artistic reason.

    Talk about emotional AND uninformed. This moron is basically stating “let’s only allow offensive speech if it’s artistic or done for political purposes”. Operation Enduring Boredom needs to change his/her pseudonym to “Operation Enduring Stupidity” because this person clearly does not understand the First Amendment.

    Unfortunately, far too many of the voting public would agree with this moron’s sentiment because they feel someone should be held accountable (other than themselves) if they get their feelings all butt hurt.

  35. says

    Well, since he tried to blame "the Jews" for the video I say lock him up. While I have an absolute belief in free speech, I'll let someone else come to his defense, and spend my time elsewhere.

  36. says

    I should also add that it's a good thing the religion he professes to follow allows him to do anything he wants, include false testimony, and simply say "I'm Really Sorry, Jesus" and be forgiven. Because if he were a member of my faith, he wouldn't get off so easily.

  37. TTC says

    One of the things that really bothered me about this whole episode was how draconian the terms of parole were. Is that normal?

  38. James Pollock says

    Perhaps a change of perspective would help:
    The terms of the parole are NOT draconian, because they are far, far less restrictive than being in prison. People who are on probation or parole are receiving a LESSER punishment than they otherwise would get for whatever offense they committed. Comparing their status to the status of free individuals who committed no offense is a false comparison.

  39. says

    @ken I can't imagine what going up against you in court must be like. I was convinced that for once, you were all wet with your first post about this guy. About 6 sentences later I was doing a 180. Thank god you're one of the good guys