As the protests overseas continue to grow over a film trailer and violence has turned the demonstrations horribly ugly, a question is raised by the entire situation from a domestic perspective. An article in the CSM points to the question:
The difficult legal question involving free speech is whether the offensive video in this case amounts to what US Supreme Court Justice Oliver Wendell Holmes in 1919 called a “clear and present danger” akin to someone “falsely shouting fire in a theater and causing a panic.”
The FBI has now spoken to the filmmaker but should he be implicated for the reaction to his video? The obvious Constitutional answer is no. But the fact he has been, at the very least, contacted by a federal law enforcement agency suggests the answer is not that obvious.
This question is provocative and has many debatable points but, for this post, let’s just focus on the idea of whether a negative depiction of a culture is akin to yelling fire in a theater. The idea behind yelling fire in a theater is the knowledge a panic will erupt and people could get hurt in the ensuing chaos. But when negatively portraying something in a film that is near and dear to another person’s heart, where should the line be drawn?
Anything can be taken as offensive and potentially enrage people sensitive to the subject being ridiculed or criticized. But in a country where free speech is king, how do we judge what is okay and what is dangerous? Take the upcoming release of the film Red Dawn, for example. In this remake, the bad guys are the invading North Korean army. How can we be sure there will be no violent reaction in North Korea to this movie? We simply can’t.
Let’s take another example more relevant to the recent protests: the Kevin Smith comedy relating to Christianity, Dogma. Protests occurred and people were angry at the movie but no embassies were attacked. No one that I’m aware of was killed despite the anger. But how did we know for sure nothing would happen prior to the release of this film? We didn’t know but allowed the release anyway.
And for these reasons, the filmmaker of the anti-Islamic trailer should not be prosecuted. It is a difficult balance to reach, particularly on the subject of religion and also after lives have been lost, but we cannot know the reaction of the public when a movie, a piece of artwork, a song, or anything else that could be offensive is released. Prosecuting this filmmaker would be no different than prosecuting the makers of the Dark Knight for the proceeding shooting in Aurora, Colorado. Some may see this as the lesser of two evils but there is no doubt it is in the interest of freedom of expression in the long run.