The Innocence of Facebook

         9/20/12

Aside from the opportunity it affords me to make use of the word “kerfuffle,” I am reluctant to write an essay about the kerfuffle surrounding the film Innocence of Muslims—or, I should say, surrounding its YouTube trailer, since as far as I can tell nobody has seen the actual film.  I have watched the offending clip, and there is little to say about it.  Aside from the fact that its creator doesn’t think very highly of Muslims, it was nearly impossible to understand.  As far as the art of satire is concerned, to say that it makes Daniel Tosh look like Aristophanes would be an understatement.

I am similarly loath to take sides between the producers of an amateurish piece of crap and the people who were so incensed by the amateurish piece of crap that they deemed it necessary to make things explode more or less at random.  My position on the somewhat less than epic struggle between the forces of radical Islam and the forces of mouthbreathing American Christian Fundamentalism remains what it has always been: that every last warrior in both factions has my full-hearted permission to retire to an island and martyr one another down to the last man, while I and the rest of the sane people watch with bemused indifference from the newly secure vantage point of the real world in the 21^st century. 

What I have no readily apparent choice but to do, however, is take issue with the terms of the debate as constructed by the mortifyingly high number of people on the internet who seem genuinely to have no idea what the law is or how it works.  In the nearly six years now that I have been writing The 1585, my close friends have repeatedly asked me why I bother arguing with stupid people.  Every time, the question has struck me as rather like asking why dog owners bother teaching their dogs not to shit in the house—the lone inaptness being that, while dog owners are free to get rid of their dogs, I am regrettably compelled to continue living in the same country as stupid people.

As there are varying degrees of stupidity, the following will be divided into two sections: responses to people who have absolutely no idea what they’re talking about, and responses to people who have at least some idea what they’re talking about but are still wrong.  Let us begin with the former, the sooner to be finished with them.

I have more than once been obliged to clarify exactly what “Freedom of Speech” does or does not mean, and for more than one reason.  Usually, this falls along the lines of pointing out that the First Amendment doesn’t mean people aren’t allowed to be mad at you for what you say, only that the government is not allowed to arrest you.  I was sufficiently cheesed by having even to point this out, so try to imagine my mood now that I find myself having to re-explain the second part of it—i.e., whatever person, consortium, or developmentally disabled marmoset made Innocence of Muslims is indisputably lacking in intellect, common decency, and (perhaps most of all) cinematic acumen, but equally indisputably has not broken the law.

By “the law,” I of course mean the law as it stands in the United States, the country in which this elusive hybrid of Torquemada and Ed Wood now resides.  I point this out because different countries have different laws, a building block of elementary-school social studies apparently lost on a plurality of the people I’ve been fortunate enough to observe weighing in on the matter.  We’ll start there. 

Firstly, “Freedom of Speech” is not an ethical principle; it is an American law.  Regardless of which “side” you’re on, if you are making use of this phrase, you are of necessity not discussing what is “okay” or “not okay” for human beings in general to do, but merely what is or is not legal for them to do in the United States.  I suppose I should long ago have stopped being surprised by the extent to which the general populace simply does not understand how assorted very basic things work, but here we are once again.  To recap: the U.S. Constitution is not the Planetary Moral Code, but merely a list of rules about what the U.S. Government may or may not do in the areas over which it has dominion.  The extent to which even fairly well educated American adults seem not to understand this is legitimately troubling, and as far as examples of accidental Americentrism go, it may well be the most dangerous (in terms of pure comic value, it comes a close second to the numerous instances one sees of well-meaning liberals obliviously referring to Black people in other countries as “African-Americans”). 

As a rule, it is vital never to confuse arguments of ethics with those of legality (to employ an example I have used before, drinking a beer two days before your twenty-first birthday is illegal but not wrong, and betraying the confidence of a friend is wrong but not illegal).  To wit, when you say that something is protected by the First Amendment, you are not necessarily saying that you like or agree with it.  You are stating a fact about the law, no differently than if you’d pointed out that the highway speed limit in New York State is 65 miles an hour (a fact that absolutely no-one likes, but which remains the law nonetheless).    

The innumerable Facebookers and comment-threaders proclaiming that this Sam Bacile, or whatever his name is, has “abused” his right to Free Speech are talking nonsense on the order of square circles.  He has exercised it in a shockingly stupid fashion—much as, say, a man who accidentally shoots himself while drunkenly cleaning his own loaded gun has done with his Second Amendment rights—but by definition, a right cannot be “abused.”  The only party to the agreement who is capable of “crossing the line” where the First Amendment is concerned is the government, not the people.  Likewise, those referring to Free Speech as a “privilege” are factually wrong.  Privileges can be taken away; rights cannot.  Something cannot simultaneously be a right and a privilege—either it is one, or it is the other.

I don’t think anyone stupid enough to make accusations of “hiding behind the Constitution because you hate Muslims” reads this website, but just in case, so much for them:  the Constitution cannot be “hidden behind.”  Something that can be hidden behind can also be gotten around, and the Constitution cannot—certainly not by the people, and hopefully not by the government.  To the countless commenters I have seen make remarks along the lines of “I am all for Freedom of Speech, but this guy has abused it and he should be punished,” I must ask—since you seem to be making a point of saying “punished” rather than “arrested”—what do you mean by “punished,” if not “arrested?”  Spanked by his parents?  Your position is literally nonsense.  Saying “I am all for Free Speech, but this guy should be punished” is absolutely no different from saying “I am a strict vegetarian, but I am eating a steak right now.” 

The preceding reductio, I’m afraid, was not entirely ad absurdum.  A great many denizens of the web seem genuinely to be hazy on the fact that getting in trouble with the government as an adult does not work the same way as getting in trouble with your parents when you’re a kid.  Your parents can punish you simply for being “bad,” even if the offense was something they hadn’t yet taken the time to inform you was prohibited.  The government cannot.  All my bulk sighs at the necessity of explaining this to adults, but absolutely everything you can be arrested for (in this country, and in most civilized ones, if not in all) is written down somewhere.  If it isn’t, you can’t be arrested for it, and when a new law is enacted, the people who “broke” it beforehand (you will note that “broke” is in vehemently sardonic quotation marks) cannot be retroactively arrested.  To employ an example the internet will understand, this is why, when someone invents a new drug, it is legal until the government gets around to making a law against it (there cannot be a blanket law against “drugs,” just as there cannot be a blanket law against “bad stuff”).

It is a dark day for the literate when responding to calls for someone to be arrested by inquiring what law he has broken should be dismissed as “hate speech.”  Forgive me.  I was under the impression that you had to break the law to be arrested.  I must have nodded off in civics class on the day that Professor Facebook explained how the entirety of the legal code could be straightarmed directly into the crapper in order to permit arresting someone for being a big meany.  I hereby humbly recommend that the construction “I am all for Freedom of Speech, but…” be promoted above “I’m not racist, but…” as the nonpareil of indicators that the rest of the sentence will be stupid. 

Mercifully—for us, if not altogether towards them—we have now dispensed with the people who have absolutely no idea what they’re talking about.  Onward now to those who have at least some idea what they’re talking about.

Those among the faction clamoring for an arrest who have attained the minimum level of acclimation to an adult worldview—in other words, they realize that “legal” and “illegal” are not exact synonyms for “nice” and “mean”—argue that the film falls under one or more of the several exceptions to the Free Speech clause that have been enshrined over the years in U.S. law.  They are quite right that the Supreme Court has, from time to time, established such exceptions (the power of public schools to enact dress codes, for example).  The two most notable limitations placed on Free Speech, and those most commonly brought up in connection with the offending film, are Schenck v. United States, popularly known as the “yelling fire in a crowded theater” decision, and Chaplinsky v. New Hampshire, aka the “fighting words” decision. 

With no shred of irony, I applaud those who have been arguing along these lines for at least bothering to conduct some research into the ins and outs of the law, as this is more than I can say for most of the people I see running their fingers on the web.  They are, however, wrong.

In both of these cases—and indeed in every limitation in the United States of the right of adults to communicate with other adults—the radix malorum is “imminence.”  Despite the superior fame of the former phrase, Schenck’s “clear and present danger” rationale was scaled back to “imminent lawless action” by 1969’s Brandenburg v. Ohio.  The “fighting words” business from Chaplinsky is essentially a rounding out of the criminality of assault, extending the illegality of causing someone to “apprehend imminent physical harm” to saying to their face something that would leave them no choice but to kick your ass (the phrase that inspired the decision, if you’re wondering, was “You’re a damned fascist,” but “Your wife’s a whore” would do just as well, etc.).  The fine line here is perhaps best demonstrated by the fact that those bowtied Nation of Islam chaps you sometimes see spouting off about Jews or “the white man” on soapboxes in Chicago are obliged to stay on the soapbox, out of your path, and stare off into space—if they climbed down off the soapbox, blocked your way, and said the same things to your face, they would be breaking the law. 

Keeping to the windy side of the law here, in short, hinges on the fact that they are not making you hear them.  You are free to keep walking if you don’t like what they’re saying, just as you are free to change the channel if you don’t like what someone on TV is saying.  Prosecuting Sam Bacile or banning Innocence of Muslims under Schenck or Chaplinksy would depend on the difficult-to-swallow notion that people are powerless to avoid entering a theater or watching a YouTube clip.  If you choose to go see a movie, you would have a hard time arguing that the filmmaker has assaulted you.  (It bears mentioning, however, that it would not be a violation of the First Amendment if YouTube decided simply to take down the clip, since YouTube is a private company, not the government, and the right of Free Expression does not oblige private organizations to afford you a forum for it.  If YouTube can take down the video of your family barbeque because a copyrighted song can be heard for ten seconds in the background, then they’d doubtless be treading on safe ground here as well.)

Brandenburg v. Ohio, by the way, concerned a KKK rally at which violence was being advocated by the heads of that organization to the members of that organization, and the Supreme Court still ended up ruling that the speech was protected—on the grounds that violence was being called for hypothetically at some unspecified point in the future, rather than right away.  It would be difficult to argue that, if being a terrorist and preaching violence directly to your own terrorist followers is protected speech, somehow making a movie that is likely to piss off terrorists is not.  

To argue this, we would have to accept that any expression of disrespect towards Islam, delivered in any context, no matter how indirectly, is more likely to result in “imminent lawless action” than the head of the KKK convening an in-person meeting of the KKK in order to stir up the KKK.  In other words, it would be dependent on the assumption that Muslims are incapable of controlling themselves—an assertion even more offensive than the documentary itself.  There is also the not inconsiderable detail that the “lawless actions” allegedly incited by the film are taking place halfway around the world, where U.S. laws do not apply anyway.

To my white-faced astonishment, after bringing up these points in a recent Facebook flamefest, I was snippily accused by one participant of “getting all technical.”  What, I shudder to think, would this fellow prefer the justice system to be, if not technical?  Approximate?  Loosey-goosey?  Chill?  If you are one of these people who apparently considers it an inconvenience that the law is precise, reflect for a moment on what a considerably greater inconvenience it would be if the law were not precise. 

I owe a debt of gratitude to Hezbollah leader Sheik Hassan Nasrallah and other Muslim bigwigs who have recently called for an international law banning expressions of disrespect towards any religion.  Not because I agree with them, of course, but because the absurdity of the proposed statute conveniently highlights the strength of my argument.  Presumably, the Facebook Multicultural Police would be opposed to such a law—after all, they want to be free to continue to mock American Conservative Christianity (as do I).  I shall put it to them, then: if you think there should be “some kind of law” to ensure that “something or other” can be done to the fellow who made Innocence of Muslims, how exactly would you phrase this law so as to effectively criminalize the things you are against without also criminalizing any or all or the things you are for?

If by some chance you do find yourself equipped to sort this out, please swing by my apartment at your earliest possible convenience, as I have a goodly mess of babies and bathwater that needs sorting out, not to mention pounds of flesh and drops of blood. 

Like most liberal intellectuals, I struggled to sit through even the fourteen interminable minutes of the Innocence of Muslims trailer, but heartily enjoyed Bill Maher’s Religulous.  Pursuant to this, I endorse the latter film by rewarding it with my moviegoing dollar and praising it in speech, and condemn the former film by withholding from it my moviegoing dollar and disparaging it in speech.  Whether I wish there were some kind of law that could ban Bacile’s film while leaving Maher’s in peace is a moot point, just as it is a moot point whether I wish there were some form of weather that could render every day sunny without killing all the plants.  Some have suggested differentiating based on whether the film “incites violence,” but it shouldn’t even need pointing out that all this would do is encourage violence: if you don’t like a movie, just smash something and claim it was because of the movie, and boom, the movie you didn’t like is now illegal and its director in jail.  The fact that American Fundamentalist Christians would salivate at the prospect of bringing this fate to bear on a majority of Hollywood’s output should be more than enough to give even the Commissioner of the Multiculturalism Police pause.  Should he use that pause to steal away to the rooftop and ignite the “perfect government” signal, he will be waiting up there a good while—as perfect governments, like costumed superheroes, are a childish fantasy.

To those who would thoughtfully amend the statute to criminalize only those films and filmmakers that “intend to incite violence,” my response is simpler: as soon as the government acquires the ability to read minds, I am leaving, and I shan’t be back. 

In closing, let me assure you that I absolutely agree that, in terms of karma if not law, something nasty ought by rights to happen to this Sam Bacile.  Since I’ve already explained why this something nasty can and must not be the government’s purview, I suggest the people who have been so put out by the film collaborate on a documentary entitled Innocence of Sam Bacile—which, despite your own best efforts to take this right away from yourselves, you are still allowed to do.  Or, I suppose, the numerous actors who were allegedly lied to during production of the film could just sue him, since civil suits and criminal offenses are two entirely different matters.  If nothing else, such an effort would drastically reduce unemployment, since it would likely take triple the amount of process servers currently at work in the whole of the country to find him.