Ngoại lệ của Tự Do Ngôn Luận là những phát biểu hay “ngôn luận” không được Tu Chính Án thứ Nhất [Hiến Pháp Hoa Kỳ] bảo vệ [unprotected speech] nếu  phát biểu thất thực,  với chủ tâm hay cố ý  gây tai hoạ rõ rệt, cấp thời, hiện tại  cho sinh mạng và tài sản liên hệ tới biến cố. Thực hiện và quảng bá cuốn phim Innocence of Muslims [Sự Vô Tội/Ngây Thơ/ của Tín đồ Hồi Giáo] với chủ tâm gây náo loạn đúng ngày kỷ niệm cuộc Khủng Bố 11 tháng 9 có được Tu Chính Án thứ Nhất bảo vệ hay không? Hay đã lạm dụng Tự Do Ngôn Luận để trở thành hành vi khả trách, sai phạm khả trừng? [Toà soạn Việt Thức]
Does Innocence of Muslims meet the free-speech test?
U.S. 1st Amendment rights distinguish between speech that is simply offensive and speech deliberately tailored to put lives and property at immediate risk.
Holmes’ test — that words are not protected if their nature and circumstances create a “clear and present danger” of harm — has since been tightened. But even under the more restrictive current standard, “Innocence of Muslims,” the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines.
According to initial media investigations, the clip whose most egregious lines were apparently dubbed in after it was shot, was first posted to YouTube in July by someone with the user name “Sam Bacile.” The Associated Press reported tracing a cellphone number given as Bacile’s to the address of a Californian of Egyptian Coptic origin named Nakoula Basseley Nakoula. Nakoula has identified himself as coordinating logistics on the production but denies being Bacile.
According to the Wall Street Journal, when the video failed to attract much attention, another Coptic Christian, known for his anti-Islamic activism, sent a link to reporters in the U.S., Egypt and elsewhere on Sept. 6. His email message promoted a Sept. 11 event by anti-Islamic pastor Terry Jones and included a link to the trailer.
The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.
Likelihood is the easiest test. In Afghanistan, where I have lived for most of the past decade, frustrations at an abusive government and at the apparent role of international forces in propping it up have been growing for years. But those frustrations are often vented in religious, not political, terms, because religion is a more socially acceptable, and safer, rationale for public outcry.
In the summer of 2010, Jones announced his intent to publicly burn a copy of the Muslim holy scripture, the Koran, that Sept. 11. He was eventually dissuaded by a number of religious and government officials, including Secretary of Defense Robert Gates, who called him to say his actions would put the lives of U.S. soldiers in Iraq and Afghanistan at risk. On the Joint Chiefs of Staff, where I worked at the time, consensus was that the likelihood of violence was high.
When Jones did in fact stage a public Koran burning on March 20, 2011, riots broke out in Afghanistan, killing nearly a dozen people and injuring 90 in the beautiful, cosmopolitan northern city of Mazar-i-Sharif. Seven of the dead were United Nations employees; the rest were Afghans.
In Afghanistan, and in all of the Arab nations in transition, an extremist fringe is brawling for power with a more pluralistic majority. Radicals pounce on any pretext to play on religious feeling. I could pick out the signs of manipulation in Afghanistan — riots that started on university campuses where radicalized Pakistani students abound, simultaneous outbreaks in far-flung places, the sudden
appearance of weapons. By providing extremists in Libya and elsewhere such an opportunity, the makers of Innocence of Muslims were playing into their hands.
As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.
While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”
Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”
Indeed, Justice Holmes’ original example, shouting “fire” in a theater, is not a call to arms. Steve Klein, an outspoken anti-Islamic activist who said he helped with the film, told Al Jazeera television that it was “supposed to be provocative.” The egregiousness of its smears, the apparent deception of cast and crew as to its contents and the deliberate effort to raise its profile in the Arab world a week before 9/11 all suggest intentionality.
The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.
September 18, 2012
Sarah Chayes, former special assistant to the chairman of the Joint Chiefs of Staff, is a resident associate at the Carnegie Endowment and a contributing writer to Opinion.
Actor duped into appearing in ‘Innocence of Muslims’ explains
Innocence of Muslims was described to actors as a movie called Desert Warrior. One actor says the script he saw didn’t mention Muhammad or Islam. When he saw the finished movie, he was horrified.
Last week, an acquaintance sent me a link to an article on the Atlantic’s website about “Innocence of Muslims,” the anti-Islam film that has provoked so much violence in the Middle East. To my horror, the story prominently featured a picture of me.
When I watched the film clip, I was even more appalled. A year earlier, I had done two days of acting in a film I’d been told would be called “Desert Warrior.” The images were clearly from that film, but my words had been replaced by words I would have never uttered, and the resulting film was something I would never have agreed to participate in. Here’s how it happened.
It was July of 2011. One night, while looking through Craigslist, I happened upon an ad looking for actors for an upcoming film called Desert Warrior. I sent an email inquiring about roles, and a few days later got a request from the director for my bio and head shot.
A couple of weeks later, I was invited to an audition at what looked like an old nightclub on La Cienega. There, I met the director and another man who identified himself as Sam Bacile. The part I read for was that of a doctor in a clinic. The director read the part of the other character, a military officer of some kind. There was no mention of Muhammad or Islam in the script I saw.
In early August, I received an email from the film’s assistant director with instructions to show up the next day at an address in Duarte. It wasn’t much notice, but I was pleased to have a role. The next day I arrived at what appeared to be a small cable television station.
A guy named Jeffrey introduced himself as the assistant director of the film and told me I would be playing a character named Amir. He gave me that day’s script and sent me off to makeup. Then I went to wardrobe, where I was given a pair of sandals, a robe and a turban. It didn’t seem like doctor’s clothing, but I didn’t question it.
I asked the director, a man named Alan Roberts, what the film was about. He told me that “Desert Warrior” was a film set in the present, but that the cast assembled that day would be shooting a flashback scene that took place a thousand years earlier. I asked if I was still playing a doctor, and he said I had been switched to a new role. Fifteen minutes later I was called to the soundstage, where a large “green screen” area was set up. Green screens are blank backgrounds that allow filmmakers to impose a new background during post-production. The strange part for an actor is that you don’t get to see where you supposedly are.
The man who said he was the producer, Bacile, told me I was to play a blind man named Amir. I was in only one scene that day, as part of a group, and I tried my hardest to look blind. The lead in the scene was played by a nice guy named Michael, who played a character named George. We laughed about how out of place the name seemed for the time and setting.
During the shooting Roberts called the shots, but Bacile stood over his shoulder and they conferred on every detail. When the scene was complete, I was told to return for another day.
The next morning, I was handed a script and issued a sword, and we shot a scene in which the character George told me to go and kill a pregnant woman. The crew was in stitches as we shot the scene. How was I, a blind man, supposed to find a pregnant woman in the desert and stab her to death? It was decided that another actor, tattooed from head to toe, would lead me to my victim. I was told that when the woman fell dead I should turn to the camera, raise my bloody sword, and say, “George is the messenger and the book is our constitution.”
When my scenes were completed, I found Jeffrey, the assistant director, to ask for my payment. Jeffrey said they needed me the next week, and that they’d pay me in cash then. I told him I would be traveling and wouldn’t be available. He said that was OK; they would send the check. It never arrived.
About a month later I sent emails to Roberts and the assistant director asking for my payment. I had no way of contacting Bacile.
No one got back to me until March of this year, when I received a call from Bacile. He said there were audio problems with my scenes and they needed me to come in and record a voice-over track to replace the original audio. I told him that I was never paid for the work I had already done and therefore wasn’t interested.
I heard nothing more about the film until Jeffrey, the assistant director, sent me an email with the link to the Atlantic. He, too, was horrified at what the film had become.
Watching that awful trailer, I thought about the other actors who had been duped as I was. I felt particularly bad for Michael, who played George. His character became Muhammad. I can tell you without any doubt that Michael would never have played the part if he’d known what it would become.
In recent days, I have thought nonstop about the film, about the misinformed people in the Middle East who seem to think it represents American sentiment, and about the U.S. citizens who died because of that.
I hope demonstrators throughout the Middle East will come to realize that this film trailer in no way represents the viewpoints of the vast majority of Americans. Most of us have respect for all races and religions. This horrible trailer does not speak for America or Americans — even those of us who unwittingly appeared in the film.
September 18, 2012
Myles Crawley is a musician, writer and actor. He publishes a music website at http://www.projectrhythmseed.com.