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Tuesday, September 18, 2012

It seems to me that we should be more bothered than we seem to be

by this ("Man Linked to Film in Protests is Questioned", NYT Sept. 15, 2012):

One of the men behind the anti-Muslim film trailer on YouTube that has set off violent protests at Western embassies across the Middle East was taken in for questioning by federal probation officers early Saturday morning, law enforcement officials said. . .

I am not making (only) the skunk-in-the-garden-party observation that the blogs of and read by law professors would be reacting differently to this picture if John Ashcroft were the Attorney General or George Bush were the President (though, I feel confident, they would be).  That is what it is.  That said, I think that the impulse to focus law-enforcement resources on this "film"-maker, and arguments like these, in The Los Angeles Times ("Does 'Innocence of Muslims' Meet the Free Speech Test"), could reveal a troubling wobbliness. 

To be clear:  I am open to arguments that recent decisions about crush videos, offensive funeral protests, violent video games, and lying about medals illustrate a free-speech regime that is perhaps in need of some re-calibration, and I agree with those who say that, sometimes, that regime discounts or undercounts the real harms that result from offensive speech.  I agree also that it is an abuse of the freedom of speech to gratuitously insult (as opposed to thoughtfully criticize) the religious beliefs of others.

Still . . . a violent heckler's veto is still a heckler's veto, and I am inclined to think that there is little, if any, room for such a veto in the approach that a constitutional democracy takes to the regulation of even offensive and ignorant "politcal" expression.  Thoughts? 

Posted by Rick Garnett on September 18, 2012 at 05:21 PM in Rick Garnett | Permalink


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It depends on what he was taken into questioning for. There is mounting evidence that he engaged in massive fraud in the creation of the movie—the actors, for instance, were told they were starring in an independent movie about something else entirely (see http://journal.neilgaiman.com/2012/09/a-letter-from-scared-actress.html for more details). If he is just being questioned because he made an unpopular film, that is problematic, but we currently have insufficiently information to know if that's the case.

Posted by: Charles Paul Hoffman | Sep 18, 2012 5:41:51 PM

I have read that his probation restrictions include not using the Internet and other technology limitations. If that is true, then this is an obvious probation violation and law enforcement would be remiss in not investigating. And it certainly would remove any notion that this is a matter of politics or free speech.

Posted by: Corey Rayburn Yung | Sep 18, 2012 5:55:20 PM

I do not think we should react to pictures. Nothing looks like he was violently dragged in. Witnesses to crimes are also put in police vehicles and brought to the station house, even though they are not accused of doing anything wrong. The guy wanted a towel on his head to protect his face from being photographed.

I am not sure what we are supposed to be upset about. Has the guy complained and said we has being asked inappropriate questions or treated inappropriately? Has he been charged with anything without basis?

Posted by: Analysy | Sep 18, 2012 6:46:37 PM

Yeah, it seems likely that this guy violated his probation regardless of the content of the video. Would it be any better to decline to enforce the probationary terms because it might look political to do so?

Posted by: Don | Sep 18, 2012 7:14:19 PM

According to some news accounts, his terms of probation precluded his use of false names. If so, wouldn't it be derelict not to bring him in for questioning?

Posted by: John Steele | Sep 18, 2012 7:22:12 PM

I've written strongly against some of the assaults on free speech surrounding this whole thing, but I think the people above are right that this isn't very troubling. Less troubling, certainly, than the federal government asking YouTube to look into removing the video from its site.

Posted by: Andrew MacKie-Mason | Sep 18, 2012 7:48:44 PM

If he had been whisked off to a military brig, I would be upset.

For now, let's see if they actually try to hold him -- or charge him -- and with what.

Posted by: JR | Sep 18, 2012 8:16:00 PM

The questioning was related to his potential violation of his probation which prohibited, as has been noted, the use of false names as well as the use of the internet. The police in LA have been fairly vehement that he is not about to be arrested and that its questioning had nothing to do with the content of his speech or the results in the Middle East.

Posted by: Brian Clarke | Sep 18, 2012 9:11:20 PM

My goodness, the LATimes article linked by Paul ("Does 'Innocence of Muslims' Meet the Free Speech Test") is frightfully devoid of legal knowledge or even common sense.

Posted by: doodlefarbe | Sep 18, 2012 9:34:09 PM

Paul writes, "I agree also that it is an abuse of the freedom of speech to gratuitously insult (as opposed to thoughtfully criticize) the religious beliefs of others."

I have some trouble with this, depending on what you mean by "it is an abuse". Do you mean, an actionable abuse, such that the abuser loses free speech protections?

If so, why do you say this? As a person expressing a personal moral position? As a lawprof expressing what you think the law is? (Or should be?)

Takes some examples from the last couple of decades. The art work photo "Piss Christ" comes to mind, although there were others. This seems to fit the criterion of being deliberately insulting to Christians. But so what? That represents that artist's particular viewpoint, and his expression of it.

Christians do not have the right not to have their religious sensibilities insulted.

Neither do Muslims, by the way.

Posted by: doodlefarbe | Sep 18, 2012 9:39:17 PM

Who is Paul?

Posted by: Andrew MacKie-Mason | Sep 18, 2012 10:57:35 PM

The Walrus was Paul.

Posted by: Joseph Slater | Sep 18, 2012 11:06:06 PM

Andrew and Joseph - thank you for pointing out my mistake.

Rick - apologies. I had been reading Paul's post on the recent conference at ASU and next clicked on your post without bothering to look for author. Again, sorry for the mixup.

Posted by: doodlefarbe | Sep 18, 2012 11:13:36 PM

Wow. I have to admit it -- I'm surprised. People actually believe that this intervention was because of a probation-condition violation, or because of fraud in the making of the (ridiculous) film? I'm used to double-standards, but . . . well, I am surprised.

Posted by: Rick Garnett | Sep 18, 2012 11:20:27 PM

Well, I don't actually *believe* it is because of those more innocuous reasons. I just think those other reasons obtain and can front for the scarier (1A-infringing) reasons.

Posted by: doodlefarbe | Sep 18, 2012 11:25:44 PM

I don't doubt that the WH was looking into all sorts of political angles, that some pundits and professors were calling for the criminalization of the youtube clip, etc.

But should the probation officials say, "there's pretty good facial evidence of a possible probation violation but because others are over reacting we won't investigate"? I don't think so. They should play it straight and do the investigation by the numbers.

As others have noted, my problem is with the federal government acting as if it's their role to morally evaluate and publicly denounce the speech. That's a huge mistake and the last thing we should want to do is incent and reward the violence we suffered. It's guaranteed to promote manipulation of our politics. And that's even before we get to the First Amendment issues.

Posted by: John Steele | Sep 19, 2012 12:20:22 AM

I'm not sure what the root of your skepticism is, Rick. Is it because the violation seems so trivial? In my experience (limited as it may be) probation violations are often pursued for relatively minor reasons.

Did this come to the probation agents' attention because of the media attention and politics? Probably. But as someone said above, that isn't a reason for them not to pursue it as they otherwise would.

Posted by: Andrew MacKie-Mason | Sep 19, 2012 1:55:07 AM

I, too, was surprised by his being brought in, but I assume they at least have strong legal cover (clear probation violation) for doing so. I'll be watching to see what follows from his being brought in.

Also, sorry if this is a bit off topic, but I was struck by this part of the NYT reporting on the story. The NYT says this about YouTube's policy as to when they will block a video for being hate speech: "Under YouTube’s terms of service, hate speech is speech against individuals, not against groups. Because the video mocks Islam but not Muslim people, it has been allowed to stay on the site in most of the world, the company said Thursday."

But, if you go to YouTube's actual site, it says this: "Hateful Content is videos, comments or channel information which contain "Hate Speech". "Hate speech" refers to content that promotes hatred against members of a protected group. Protected groups include, but are not limited to, race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity. Sometimes there is a fine line between what is and what is not considered hate speech. For instance, it is generally okay to criticize a nation, but not okay to make insulting generalizations about people of a particular nationality."

YouTube's actual policy seems more sensible (at least if one is going to have a policy against hate speech). Otherwise, they seem to be committing themselves to the view that groups are not made up of individuals. But why would the NYT get it wrong? Why are Google/YouTube officials getting their own policy wrong? I feel I must be missing something, but I haven't seen explicit discussion of this point.

Here's the NYT article: http://www.nytimes.com/2012/09/14/technology/google-blocks-inflammatory-video-in-egypt-and-libya.html?hp

Posted by: Alex Guerrero | Sep 19, 2012 8:33:24 AM

So long as there is a valid basis for bringing him in, and there seems to be, there is not much room for complaint. You can wonder. But that's useless. If the comments are correct, he committed two violations--using a false name and using the Internet. His notoriety brought him to the attention of the authorities. So, are they supposed to treat him differently than others because people are watching?

Posted by: CHS | Sep 19, 2012 9:45:45 AM

I'm with Rick on this. Many of you seem to be contorting yourselves to avoid the obvious. Sure, if there are potential parole violations you should take action. The question is when and how. Sending six cops in the middle of the night with the glare of cameras all around to take in a non-violent offender? C'mon. There was a message being sent here and it is consistent with the Administration's request to Google.

Posted by: Mark | Sep 19, 2012 9:47:27 AM

And speaking of intended messages by the Administration see the last sentence from this paragraph in today's NY Times:

"The film was produced in the United States, though its origins are still shrouded. American federal authorities identified the man behind the film as Nakoula Basseley Nakoula, 55. Though the film does not appear to violate any American laws, the authorities took Mr. Nakoula in for questioning on Saturday over possible federal parole violations connected to an unrelated criminal conviction. That action has done little to tamp down the unrest."

Posted by: Mark | Sep 19, 2012 1:58:17 PM


Hypocrisy was the main theme of your post, and it seems to be the main theme of your follow-up in the comments.

I'm not seeing it, so I wonder if you could spell it out a little more. What analogous cases are you thinking about from the Bush era in which liberals got outraged by local police just questioning somebody on what seemed like pretextual grounds when the real "crime" was speech?

This is not a facetious question -- I'm actually trying to figure out what you're talking about.

Posted by: JR | Sep 19, 2012 2:24:33 PM

Regarding whether the possible probation violations justify bringing him in when it appears that he came to the attention of the authorities because of the film, one should reflect on one's views about the Ward Churchill case. Churchill's obnoxious 9/11 essay brought him lots of attention, but some of it turned out to be quite negative (research fraud, etc.).

Churchill defenders argued that even if he committed academic misconduct, he was being singled out because of his unpopular speech. Are those who see absolutely no problem in the filmmaker's being investigated for probation violations equally sanguine about the investigation of Churchill (and subsequent firing when the misconduct charges were sustained)?

Posted by: Tung Yin | Sep 20, 2012 2:59:04 AM

The Churchill case isn't analogous because (1) he was a tenured professor, not a felon on probation, (2) the call to investigate him was explicitly related to his speech (and indeed, a Colorado jury ultimately found that the investigation itself was motivated by his speech), (3) he was subjected to the stiff penalty of termination, and (4) many argue that his termination was not justified by the misconduct in question -- though on this point, the jury disagreed.

Had the filmmaker been jailed for a probation violation that he would not otherwise have been jailed for, that would have been a free speech problem, if proven. But merely taking him in for questioning, when there was clearly a valid, non-speech-related reason to do so, seems vaguely eyebrow-raising at most. This is especially true given that authorities may well have had other motivations for talking to him, eg, offering to protect him from jihadists. (Reportedly, the filmmaker ultimately decided not to return to his home after the questioning, a decision that was apparently based on fear of attacks by angry Muslims.)

Posted by: AF | Sep 20, 2012 8:54:08 AM

AF, I'll grant that those are valid distinctions, but I'm not sure they carry the day in terms of fully distinguishing the cases. Perhaps he should not have been investigated for the essay, but once attention was focused on him, other misconduct came to light. Should Colorado have ignored that misconduct just because the original impetus for investigating him was improper?

In the same way, the critical inquiry here is, would the filmmaker have been investigated but for the video? We have no way of knowing, of course, but this is part of the eyebrow raising aspect of the case.

As for protecting him, it seems like he didn't need to be protected until he was publicly identified, no?

Posted by: Tung Yin | Sep 20, 2012 11:13:33 PM

If there were genuine concerns about a possible parole violation, surely that could have been dealt with in his next scheduled meeting with his parole officer. Indeed, his parole officer could even have called him up and asked him to come by the next day. But it's difficult to see what possible parole violation required hauling him out of bed in the middle of the night to come down and be interrogated by a bunch of federal agents. Indeed, it's hard to see this alleged parole violation as anything other than a pretext to justify hauling him in so that the Administration could trumpet to all the jihadists that the Administration had heard their complaints and was acting against the film maker. Is that a violation of the First Amendment? I leave that to the constitutional experts, but to me it's offensive.

Posted by: Douglas Levene | Sep 21, 2012 7:34:22 AM

Do pretexts matter?

Posted by: CHS | Sep 21, 2012 11:42:17 AM

Just to buttress my point about the folly of having our government decry the film (and thus reward the violence and political manipulation we've suffered), here's the latest from the WH: "President Barack Obama said Thursday that extremists used an anti-Islam video as an excuse to assault U.S. interests overseas, including an attack on the U.S. Consulate in Libya that killed the U.S. ambassador and three other Americans."

All the more reason we shouldn't be in the business of acting as if the federal government is responsible for private speech.

On another issue, I find the Churchill matter to be useful for comparison. In both cases, people who were legally vulnerable intended to offend people and when their vulnerabilities were exposed by the offended people, the vulnerabilities were subject to lawful investigation. I don't find that as "pretext" so much as perhaps "mixed motive." It would be pretext if there was no evidence to support the charges that Churchill plagiarized or that Bacile used a false name. But in case where people are angry at their offensive conduct, the presence of that anger shouldn't be treated as an affirmative defense to legitimate charges against them.

Posted by: John Steele | Sep 21, 2012 1:22:19 PM

Tung Yin: I'm not sure what you mean by "fully" distinguishing the two cases. They share the similarity that both individuals were publicly criticized for engaging in unpopular but clearly protected speech, and were later investigated for wrongdoing. At the end of the day, however, I think that the many distinctions between the two cases, particularly the fact that Churchill was ultimately punished while the filmmaker was not, make the Churchill case more concerning from a First Amendment perspective.

As for your question of whether Colorado should have ignored the issues that were brought to light, I think the answer is no. The fact is that Churchill did engage in academic misconduct. My understanding is that it was unclear, at best, whether this misconduct justified his termination. But a jury found that it did. For that reason, the initial outcry about Churchill (which was specifically directed at his speech) was more disturbing than the ultimate outcome, which was that he had his day in court and lost.

Posted by: AF | Sep 21, 2012 3:02:49 PM

Also, I believe journalists disclosed where the filmmaker lived, not law enforcement authorities. That strikes me as the opposite of a First Amendment problem.

Posted by: AF | Sep 21, 2012 3:11:14 PM

Re AF comment: I can't find who disclosed the location of the filmmaker but his identity was disclosed by the Department of Justice according to AP http://news.yahoo.com/feds-id-california-mans-role-anti-islam-film-164554115.html

Posted by: Mark | Sep 21, 2012 4:37:10 PM

Mark: The article you link to clearly states that it was the Associate Press who first identified Nakoula. Federal officials "identified" him in the sense that they confirmed to the AP that he was the filmmaker. Full story here: http://www.slate.com/blogs/the_slatest/2012/09/13/nakoula_basseley_nakoula_sam_bacile_innocence_of_muslims_filmmaker_ided_by_the_associated_press_.html

Posted by: AF | Sep 21, 2012 9:46:28 PM

The authorities claim to have identified quite a few parole violations. He's been held, as I understand it.


Posted by: John Steele | Sep 28, 2012 1:49:15 PM

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