A hateful idiot makes a nasty video about Islam and posts it on Youtube. Predictably enough, similar things having happened a number of times over the last few years, murderous violence breaks out in some Muslim countries as a consequence. (Unusually, there have been Western victims this time.) Predictably too, some people have been calling for speech “insulting” others’ religious feelings to be banned and punished. My intuitions―and, I suppose, those of most of my readers―are vehemently opposed to any such bans. Sure it’s impolite and stupid to insult people. But, even putting to one side the (important) fact that one person’s insult is another’s critique, insults and stupidity are a price that we agree to pay for free speech.
But here’s a question. I think we all endorse, in principle, Justice Holmes’s famous dictum, in Schenck v. United States, 249 U.S. 47, at 52 (1919), that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But how is the anti-Islam video different from the false cry of “fire”? It can’t be the veracity of that video, since it is not actually, “true” in the sense of relating provable facts. I doubt that it can be that the video presents opinions as opposed to false statements of fact, because, at least by the accounts I have seen, it presents itself as making statements of fact about the prophet Muhammad―though of course it not really possible, without inventing time travel, to strictly distinguish factual claims from opinion in such a matter. Nor is the distinction in the predictability of the consequences of making the movie and shouting fire in a theatre―it was, in fact, foreseeable that the movie would cause violent riots. Nor is the argument that that sort of consequence is somehow so wrong that we should deem it unforeseeable even though it really isn’t very convincing. Of course it is wrong for people to respond with murderous violence―all the more so against innocents―when their feelings are hurt. But it is also wrong for people to panic, even when there is a fire in a theatre. In a perfect world, there would be no senseless riots―but people would also evacuate burning theatres in an orderly fashion. We know that the world is, in fact, imperfect, and the law should account for that. I am missing something?
I certainly hope that I am. I am not willing to give up on my intuition about the impressibility of censoring insults. Nor am I inclined to give up on my intuition that Justice Holmes was right. What gives?