Unfortunately, the editorial from which this quote comes was written in defense of her comments on Twitter yesterday (the link is to a conservative political website that recorded the tweets because Butler’s Twitter account is now locked) stating that the U.S. should jail Sam Bacile, the alleged person who is allegedly behind the (truly bizarre) film “Innocence of Muslims.” The film, which is highly critical of the Islamic prophet Mohammed, is said to have inflamed the attackers who killed U.S. Ambassador to Libya Chris Stevens and three others, as well as the protesters who stormed the U.S. Embassy in Cairo and tore down the American flag.
The proverbial “first rule of holes” states that when you find yourself in a hole, stop digging. Unfortunately, Butler seems to have forgotten that rule and instead hired the biggest available backhoe to get herself in further. You really have to read the whole editorial to appreciate it, but let me highlight this part:
So why did I tweet that Bacile should be in jail? The “free speech” in Bacile’s film is not about expressing a personal opinion about Islam. It denigrates the religion by depicting the faith’s founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers. Even the film’s actors say they were duped.
Bacile’s movie is not the first to denigrate a religious figure, nor will it be the last. The Last Temptation of Christ was protested vigorously. The difference is that Bacile indirectly and inadvertently inflamed people half a world away, resulting in the deaths of U.S. Embassy personnel.
Let’s address a couple of these points. First, Butler says “the ‘free speech’ in Bacile’s film is not about expressing a personal opinion about Islam.” It isn’t? It’s not even clear that Bacile is a real person, but assuming he is, how does Butler know this isn’t his actual opinion? And why is “free speech” in scare quotes? Presumably, it’s because Butler does not think that this particular expression of opinion should be protected by the Constitution. So who’s going to make the determination of what is protected and what isn’t? (Later in the column, Butler actually suggests that the military might be the right people to decide! I am not making this up.)
Second, Butler correctly points out that this movie is neither the first nor the last film that denigrates a religious figure. She then distinguishes the film from The Last Temptation of Christ (which depicts Jesus as, among many other things, having a sexual relationship with Mary Magdalene—something many Christians, and likely many Muslims, found highly offensive) by saying that “[t]he difference is that Bacile indirectly and inadvertently inflamed people half a world away, resulting in the deaths of U.S. Embassy personnel.”
A clearer endorsement of the “heckler’s veto” cannot be imagined. The “heckler’s veto” is a First Amendment term for when the government limits someone’s freedom of speech because the audience either has or is likely to have an angry reaction to the speech. What it means in practice is that speech that is unpopular with people who are willing to use violence to react to speech is to be censored, while speech unpopular with people unwilling to use violence is to be tolerated.
It should surprise no one (except perhaps Professor Butler) that the Supreme Court has roundly and repeatedly rejected this in extremely clear terms. In Terminiello v. Chicago (1949), the Court held that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” And more recently, in Forsyth County v. Nationalist Movement (1992), the Court wrote that “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”
As far as I can discern, Butler is asking for exactly what the Supreme Court in Forsyth County prohibits: that speech be punished because it did in fact offend a hostile mob, and not even one in the United States. By this logic, speakers are liable for punishment if their speech is blamed for violence anywhere in the entire world!
We’ve had this argument before, with the famous Danish Mohammed cartoon controversy. At the time, the Foundation for Individual Rights in Education (FIRE, where I work) was in the forefront of protecting those on campus who were censored or punished for posting or printing the cartoons.
Likewise, we were there to blow the whistle on Yale University when it shamefully distinguished itself by censoring the cartoons from a book its press published about the effect of the cartoons. It’s only been two days since this film became a known issue, and we’ve yet to see any reports of it being censored on campus. But Professor Butler’s shocking column has to be seen as a truly ominous warning of what might be in store on our nation’s college campuses. In fact, it might already be on the way.
Robert Shibley, an attorney, is Senior Vice President of the Foundation for Individual Rights in Education (FIRE, thefire.org).