Could the "fighting words" exception to the 1st Amendment apply to the Innocence of Muslims video?

It seems to me that the video which is causing so much unrest in the Muslim world could be considered to fall under the “fighting words” exception to the 1st Amendment. It seems clear to me that the entire purpose of his video was to cause conflict, as is evident by his tricking the actors and production staff into participating by presenting the film as something of a more neutral topic It is my understanding that they are looking into charging the producer and cause of the defamatory film, Nakoula Basseley Nakoula, with violating his parole by using the internet. Couldn’t they also arrest him for creating the video?

IIRC, the fighting words doctrine was overturned.

BTW, honest question: Did he really trick the actors, or did he just not tell them anything more than their acting parts required?

Almost certainly not.

Forget the First Amendment. Let’s say that your idea is correct – the video falls within the exception to the First Amendment known as “fighting words,” based on the reasoning in Chaplinsky v. New Hampshire.

So the First Amendment is not, let’s say, available to the filmmaker as a defense.

Now, for what crime do you contend he should be arrested?

It hasn’t been overturned, but subsequent decisions have narrowed it considerably. Just recently, in Synder v. Phelps, the Supreme Court upheld Westboro Baptist Church’s practice of protesting military funerals by pointing out that the soldiers’ death were met with approval by God, because the military accepts gay soldiers and God Hates Fags.

If those are not fighting words, it’s hard to see how the video is.

I doubt it. In Street v. New York:

Key words being ‘mere offensiveness’. It would really be a waste of the court’s time.

And shouldn’t this be in Great Debates? I’ll notify a mod for you.

It is my understanding they are looking into charging the producer because the “film” was a scam to bilk investors out of money and part of his conditions of parole was limited Internet access. Not for the content of the film.

Thanks. I wasn’t sure which one to put it in.

I’m confused. How does the fighting words exception normally work, then? What crime would the Westboro Baptist Church have committed, assuming said narrowing did not happen?

IANAL, but as I understand it, the scenario imagined in the “fighting words” doctrine is something like this: one drunk picks a fight with another in a bar. The guy who picks the fight doesn’t get to sue the other guy for assault, because he brought the attack upon himself. Seeing as how the victims in this case had nothing whatsoever to do with the offensive statements, I don’t see how the “fighting words” doctrine is at all relevant.

Sorry, but it looks like the killers are simply going to have to take responsability for their own damned actions.

From Wikipedia:

It seems that because of the pervasive right of free speech, it takes a lot to convince the court that an offense is incitement or fighting words. “Very specific” seems to be the key. If you tell your audience standing in front of you to “burn down the bank”, you are inciting a riot - a specific group to perform a specific act. If you tell another drunk “You’re an ****** and a *******” then you are committing no crime, but you are obviously in no position to sue if they hit you.

Wikipedia mentions Rav V. City of St Paul, and it was overturned because the law prohibited “speech that arouses anger…” on vrious grounds. That’s a little over-broad - “arouses anger” is the goal of a lot of free speech.

Similarly, “God hates fags” may be incredibly offensive, especially at a funeral for a fallen soldier, but - it is a generalized statement, it is not aimed at provoking any specific person. (they are not trying to goad the family to attack them (that’s just a side effect) they are trying to explain why the soldier died, which is preaching and their right.

Big T has it right - what crime would one commit by creating and making available offensive material?

Fighting words may be his defence if you sue the guy that punched your lights out in a drunken brawl, but words alone will not get you charged in the bar fight.

That does not negate the basic facts - the guy is allegedly a Coptic Egyptian immigrated to the USA. He knew exactly how the picture would be received by Muslims. Alegedly he completely re-dubbed the dialog of what the actors thought was some harmeless desert-sheik adventure romance that did not even mention Mohammed. The fact that he dubbed in the offending dialog suggests he knew even your typical Hollywood wannabe would have trouble with the final product.

So basically, yes, he did do the equivalent of calling someone a fag and an asshole in a bar. It’s just that that’s his right, for better or worse, under US law.

He’s in the same position as the Charlie Hebdo magazine in France. They have the right legally to publish incredibly offensive pictures of Mohammed; should they be surprised at the reaction? (Especially after the Danish cartoons?)

it’s one thing to be legally liable for results, it’s another thing to be morally responsible.

I am also not a lawyer, and I had the same impression as Diceman - the “fighting words” rule means that if I punch a guy who has come at me with “fighting words,” then that is something that I can use to get out of a charge of assault. I was on a jury one time where this was a pertinent factor.

Is there an exception to the First Amendment having to do with fighting words? One that would let police charge a person for a crime based on what he said?

I don’t know if you’ve seen any of the movie trailer. I’ve seen a short clip, and that clip was very very badly dubbed, not to mention very very badly acted - I can well believe these were naive wannabe actors who bought the cover story that this was a preliminary shoot for a movie about life in Egypt thousands of years ago.

What no one seems to know (outside of the people directly involved) is who the sources of the voices are. They might have been fooled by being asked to read just one line at a time, maybe out of order, so they never knew the plot - or they might have been willing participants.

From my viewing, it appeared the actors originally had different lines and the “Muhammed” and “Islam” words were dubbed in later, but by the same actors. The producers probably just handed each actor a page of re-dubs to record and they wouldn’t know where in the movie the lines would go.

The first amendment obviously is not a law, it’s a right. Governments in the US can pass laws limiting speech, demonstrations, etc. but they may not violate this right except in carefully notes exceptions. You can, for example, require demonstrators with offensive signs to stay a certain distance away from a funeral or an abortion clinic, you can require large disruptive protests and marches to get permits - but you cannot make it impossible for citizens to proclaim their message, such as by banning protests entirely or denying them permits unreasonably.

The problem with fighting words is that they need to be specific. Calling one person in front of you names is pretty specific. Saying “out of 80 million Egyptians, a few hundred are going to be so upset they become violent” is not specific enough - just as saying to your audience at a meeting “burn down that bank over there” is incitement for a specific group to do a specific act, and a criminal offence (inciting a riot) while saying “we should rise up and overthrow our government” on the internet, to the world in general, is not specific enough.

Otherwise, how do you distinguish between free speech and fighting words? If I find someone somewhere who claims to be violently offended or says your speech drove them to violence - then you can be charged? Follow that path and then pretty soon anyone the government want to charge can be targetted as a rabble rouser.

That’s why there is “Freedom of Speech”.

NPR had an interview with a law professor last week, which I will try to summarize from memory.

Fighting words have to be not only specific, but they have to be local and immediate. You can’t incite to riot at a distance at an unspecified time (there was also some discussion of whether this rule might eventually have to change due to instant communications world-wide, but it hasn’t changed yet).

So if you are standing in front of a crowd and in your speech you urge them to riot and do property damage, that would (or at least could) be an exception to the first amendment right of free speech.

But if you posted the exact same speech in a video on YouTube, it would not, because you don’t know who, if anyone, will ever watch it, nor when.

At least, that’s how I understood it from the interview.
Roddy

I guess my question is about whether the government can restrict you from using fighting words. If I go up to a person and angrily tell him the specifics of how I’m going to kick his ass, those are clearly “fighting words,” right?

I know that if this person then punches me, he can use the “fighting words” as a defense against assault charges.

What I’m asking is whether the government has laws, or could pass laws, against the saying the words in the first place. If a policeman was standing there as I said that, could I be charged with a crime?

I’m well aware of fighting words as a defense of assault charges; I’m not aware that the fighting words themselves could be illegal.

I was under the impression that there was a difference between inciting immediate or imminent violence where you are playing off heated emotions at the spur of the moment and simply making offensive comments that the hearer/reader/viewer then has a chance to cool off from and make a levelheaded decision. It seems, to my untrained mind, that the film falls more into #2. Muslims who viewed it obviously had a few moments to calm down and think about what they wanted to do about the video. They weren’t in a big crowd overcome by a “fight or flight” instinct.

Yeah, that’s pretty close to what I was trying to say; you said it better.
Roddy

At least one of the Actors is suing the producers and trying to get the film pulled.

Its going to depend on what exactly was in the contract she signed, and there doesn’t seem to be any info on that. More here:

Moved to Great Debates.

Colibri
General Questions Moderator