The First Amendment Provides Full Protection to Innocence of Muslims

Edward Tabash

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Questions have arisen over whether the Internet film Innocence of Muslims (or its fourteen-minute trailer) should be considered protected by the First Amendment.1 The very core of free speech would be nullified if the film were denied constitutional protection.

Some may assert that this film meets the standard of “a clear and present danger” in inciting violence, thus rendering it undeserving of legal protection. This standard was expressed in the United States Supreme Court2 case of Schenk v. United States, 249 U.S. 47, 52 (1919), which upheld a socialist’s conviction for mailing leaflets to potential military draftees, urging resistance to conscription into the armed forces. This case would not be viable precedent today. Its rationale has been substantially narrowed in almost a century of subsequent decisions.

In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Court imposed a new test for determining if a given expression enjoys constitutional protection. It reversed the conviction of a Ku Klux Klan member who, at a Klan rally, advocated returning African Americans to Africa and returning Jews to Israel. The speaker also said that some type of revenge may be necessary if the government continues to oppress white people. He also used the horrid N-word in saying that they will bury black people. The Court held that the comments were constitutionally protected because they were not directed toward “inciting or producing imminent lawless action” and were not “likely to incite or produce such action.” Even “mere advocacy” of such lawless action was deemed constitutionally permissible, as long as it was not coupled with inciting or producing such imminent activity.

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