Provocation Is Not Incitement


Overseas and in Canada, Islamists have succeeded in using the notion of “defaming” a religion in order to misuse libel laws and shut down criticism of Islam or Islamic leaders.  Fortunately, the US has proven more resistant to such abuses.

As an end-around, Islamists seeking to suppress free speech in the name of “respect” for Islam are using a treacherous linguistic bait-and-switch to get restrictions written into national laws.

Historically, incitement to violence – or any criminal act – has been considered at least a justification for prior restraint, and sometimes even a criminal act in itself.  This Findlaw page on the legendary Judge Learned Hand discusses changing standards for what constitutes incitement – and therefore what written material might be subject to prior restraint. It is clear that the term means encouraging or instructing someone to commit a crime:

At that time, the legality of written or spoken words was usually judged by the probable result of the words—that is, if the words had the tendency to produce unlawful conduct, then they could be banned. Hand took a different approach: his solution focused on the words themselves, rather than on a guess at the public’s reaction to them. He invented what became known as the incitement test: if the words told someone to break the law, if they instructed the person that it was a duty or interest to do so, then they could be banned. The Masses magazine praised conscientious objectors and antiwar demonstrators, but it never actually told readers they should behave similarly. For this reason, Hand ruled that the postmaster could not ban the magazine.

Here’s a case of modern-day incitement, although for some obscure reason, charges were never brought:

This definition places the burden where it belongs: on the mob and on the guy who yelled, “Burn it down!” or “Kill the Jew!”  That is, the mob who actually did the destruction, the individual who actually committed the act, and the person who inspired them to commit that act.

Islamists seek to reverse this logic, and therefore, gain power over our speech and our writing.  They do this by subtly redefining incitement, so that if someone published cartoons insulting to Islam, and a mob uses that as a pretext for wreaking havoc, the publisher of the cartoons will have “incited” the mob’s behavior, even though this wasn’t the intent of the speech or the writing.

Take this 2012 oped by Randall Hamud, a San Diego attorney who gained brief notoriety in the aftermath of 9/11 for representing some men accused of being involved with the plot.  Here, Hamud is trying to make the case that Mark Nakoulay, of Beghazi Video fame, may have committed a criminal act by making and distributing the video.

In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes Jr. wrote that free speech did not include the right to falsely yell “fire” in a crowded theater resulting in a panic. If there were a clear and present danger of substantive evil, such speech would not be protected. In 1969, the Supreme Court held that government cannot punish advocacy in the abstract. However, advocacy can be criminalized where it urges “imminent lawless action and is likely to incite or produce such action.”

You see what he did there? The video doesn’t even come close to urging imminent lawless action, and the action presumed taken – riots by an Islamist mob – are certainly not what Nakoulay had in mind.  On a nontrivial technical note, the Court said “and” rather than “or,” meaning that the lawless action taken has to be the one contemplated by the speaker.

Consider the following scenario.  Jyllands-Posten publishes a series of juvenile cartoons making fun of Muhammad. The local imam takes those cartoons, waves them around at Friday prayers, and demands satisfaction.  Young Arab men then stream out of the mosques, burning and smashing the business district of their town.

Under the traditional definition of “incitement,” the imam would be guilty of incitement, and the mob would be guilty of property destruction.

Under the revised, Hamudian definition, the publisher would be guilty of incitement, and the imam would off scot free.

Whenever Muslim mobs rampage allegedly over some perceived slight, or Islamists walk into a newspaper and murder the staff, apologists would argue that they were “incited” to do so by the cartoons/editorial/image/oped/sandwich, effectively giving the most-touchy, most thin-skinned guy with access to a knife veto power over what we can say.

I’d like to be able to report that the US government, leader of the free world and primary defender of liberty across the globe, is having none of it.  Sadly, in 2011, then-Secretary of State Clinton enthusiastically endorsed UN Human Right Council (sic) Resolution 16/18. Whether this is the result of useful idiocy or active sympathy is beside the point – the US government has opened to door to subverting the 1st Amendment at the behest of our enemies.

Randall Hamud, by the way, was presented in 2002 with something called the “Alex Odeh Freedom of Speech Award.”

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