This article first appeared in the St. Louis Beacon, Sept. 17, 2012 - Justice Oliver Wendell Holmes Jr. wrote a century ago that free speech didn't protect a person "falsely shouting fire in a theatre and causing a panic." Now some commentators are dusting off that memorable aphorism to suggest that the offensive film "Innocence of the Muslims" is not protected by the First Amendment.
The commentators are probably wrong.
Christiane Amanpour put it this way on ABC this week: “There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can’t cry fire in a crowded theater.”
Amanpour is off base for a couple of reasons. Holmes' line, while colorful and memorable, is not a law. Moreover, Holmes wrote those words in an early First Amendment case in which he upheld the conviction of a socialist who circulated leaflets urging men not to comply with the draft during World War I. That kind of speech would clearly be protected today, now that the First Amendment is more robust.
Offensive expression, even burning a Bible or a Koran, would be protected in the same way that burning the American flag is protected speech.
Just because the First Amendment protects the speech does not mean that Google has to keep it posted to YouTube. The First Amendment applies to the government, not to a private enterprise such as Google.
YouTube did take down the movie trailer in Egypt and Libya. Pakistan and Afghanistan also took steps to block it, and Indonesia asked that the film trailer be blocked. Otherwise, the trailer remained accessible.
In a statement, YouTube said that the film trailer was clearly permissible under its terms of service. "We work hard to create a community everyone can enjoy and which also enables people to express different opinions,” the YouTube statement said. “This can be a challenge because what’s OK in one country can be offensive elsewhere. This video – which is widely available on the web – is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt we have temporarily restricted access in both countries. Our hearts are with the families of the people murdered in yesterday’s attack in Libya.”
YouTube's terms of service state: "We encourage free speech and defend everyone's right to express unpopular points of view. But we don't permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity)."
The Justice Department announced it was investigating the murders of the four embassy personnel in Libya. It was unclear whether that investigation concerned hate crime laws. But prosecution under hate crimes statutes requires a high proof of intent, which could be difficult to muster in this case.