Daily Times

The film Innocence of Muslims has to rank as the most terribly imbecilic and ridiculous attempt to malign the Holy Prophet Muhammad (PBUH) to date. It is a deeply offensive film, which has caused genuine anguish to not just religious Muslims all over the world but all reasonable people who have read a thing or two about the history of Islam.
The Holy Prophet (PBUH) was a symbol of tolerance and one of the earliest advocates of human rights in our collective history. Long before the age of enlightenment, the Holy Prophet (PBUH) spoke of religious freedom and the rights of women. His charter of Medina was an unprecedented legal document for its time, practically giving the city of Yathrib and its tribes a semblance of civil government based on the rights and obligations of its dwellers who — regardless of their faith — were declared one ummah or community. It is therefore a travesty to malign such a historic personage whose contribution to not just the Muslims but the world is unparalleled.

By the same token must also be stated that the Holy Prophet (PBUH) would have never approved, under any circumstances, of the violent reaction that has led to the killing of the US Ambassador in Libya just as he would have never approved of the mistreatment of religious minorities in Muslim countries. Violence and chaos under any circumstances is reprehensible and is absolutely forbidden in Islam. The only course of action that Islam endorses is a legal and constitutional non-violent method. Of course, for a community that has for the last few centuries associated the spiritual concept of jihad i.e. effort with armed struggle, this is not the most automatic presumption.

This opens up the broader question of how the US legal system interacts or purports to interact with the Muslim community’s claim to a right against incitement of religious hatred. As a young freshman at the Rutgers University in the US, I was exposed to the idea of freedom of speech when I found a college rag engaging in profanity against Jesus Christ. This current outrage however is very different. It is not the case of freedom of speech as much as it is hate speech against an entire community of believers who are collectively maligned, humiliated and shamed. Now hate speech in of itself is constitutionally protected in the US under the first amendment, which protects against infringement on freedom of speech as well as religion and forbids the state from either impinging or establishing any religion, but hate speech combined with fighting words is not.
A unanimous opinion of the United States Supreme Court in Chaplinsky v the United States 315 US 568 (1942) held the following:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libellous, and the insulting or fighting words those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The test is therefore established in no uncertain terms. The film is a lewd, obscene and profane group libel (to an entire class of people living in the US i.e. Muslims), and has caused by its very existence grave injury and a breach of peace i.e. the killing of the US ambassador to Libya. The film falls squarely within the category of “fighting words” as defined by the United States Supreme Court. Were the utterances and depiction contained in the film an essential part of any exposition of ideas? The answer is no. Was there any benefit that may be derived from the said film? The answer is again no. It must also be remembered that the film was not intended to be a satire and therefore cannot be protected as such under the exception for satire. Not that there is any comparison, but even a classic such as Monty Python: Life of Brian was banned in several US towns in 1979 for its “blasphemous” depiction of Christianity. The case here is much stronger. As suggested above, and unlike Life of Brian, this piddling film is not a satire but hate speech, which is also coupled with fighting words. Therefore the film is likely to cause — and has already caused — violence against American citizens. The ratio of Brandenburg v Ohio, 395 US 444 (1969) says that government cannot punish inflammatory speech unless it incites imminent lawless action. The idea that inflammatory speech that leads to violence must be punished is not unlike Oliver Wendell Holmes’ infamous “shouting fire in a theatre.”

The issue here is one of substantive equality versus formal equality in a liberal democratic and secular society for Muslims, who have a set of beliefs and practices that reinforces their collective identity as the other in the grand narrative of the society as a whole. Therefore criminalising hate speech against Muslims as a group may be legitimate classification under US constitutional law without offending the principle contained in the first amendment. Such classifications are routinely made to justify special privileges for racial and sexual minorities in the US. In the case of Muslims, their ethos becomes a demarcator of cultural difference, which a secular liberal system has the inherent flexibility to appreciate under the head of diversity.

The writer is a practising lawyer. He blogs at hhtp://globallegalforum.blogspot.com and his twitter handle is @therealylh