California- The global flare-up among sections of Muslim populations in response to the outrageous video denigrating their faith has led many to wonder why the US government could not just go ahead and ban the video. The difficulty, as President Obama explained clearly enough in his recent address to the UN General Assembly, lies in the constitutionally guaranteed right to free speech by the First Amendment.

The US stands virtually alone in defending the near absolute right of everyone to speak freely without the risk of their speech being muffled. Barring some exceptions limited to speech that is lewd and obscene, profane, or libelous, and consists of insulting or fighting words, all of which fall in the realm of unprotected speech, there is nothing one cannot freely utter without fear of being prosecuted, jailed or executed.

As Justice Brandeis, interpreting what the Founding Fathers and framers of the Constitution believed, in Whitney v. California noted: “….freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth…” When faced with noxious and toxic speech, Brandeis famously held that “the remedy to be applied is more speech, not enforced silence.”

In a similar vein, Alexander Meiklejohn, a First Amendment scholar, when testifying in 1955 at a Senate Judiciary Committee meeting on the Constitution, averred, “The dangers to our safety arising from political suppression are always greater than the dangers to that safety arising from political freedom.” Freedom, he noted, is “the experimental faith by which we Americans have undertaken to live.”

Current court rulings, and those in earlier decades, show how the justices have broached even the restriction of the so-called unprotected speech involving lewdness, libel, and fighting words with great caution. The Court has elected to limit the unprotected speech exception and sought to apply it very narrowly to avoid muffling speech.

Child pornography is one exception where restriction has generally been favored. But on most other types of speech, the inclination has been to err on the side of freedom of expression.

In judging spoken or written words, court opinions have sought to reject or dilute the notion of balancing the “social costs and benefits of speech” as a basis for determining its eligibility for protection. Even the clear and present danger test has been rejected by some on the court, as seen in the opinion expressed by Justice Hugo Black that the said test “should have no place in the interpretation of the First Amendment.”

Other justices have gone on to suggest that the danger linked to speech has to be imminent to qualify for restriction. Planting bad ideas, by itself, has found less support as something worthy of restriction.

More recently, Justice Roberts in an April 2010 ruling, held the free-floating test for First Amendment coverage (i.e. protection) as “startling and dangerous.” Remarkably, this transformed stance has occurred even in the face of fears generated by international and domestic extremism and terrorism.

While the growing instances of speech-incited violence in countries and populations across the globe could be expected to have generated support for counteractive measures by those off or on the bench, the fervor to oppose restriction has not waned.

To First Amendment believers, there is a legitimate case for treading carefully around the imminence qualifier. The post-video debate in the US (about whether the anti-Islam video was the cause of subsequent anti-US demonstrations and violence or whether these were pre-planned terrorist acts) illustrates the problem in prosecuting or banning the hateful video or punishing its maker.

In the marketplace of ideas promoting which was the framers’ intention underlying First Amendment, there is little room for exclusion. As Chief Justice Rehnquist noted in a decision handed down on Feb 28, 1988, “In the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.” Even if “spoken out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”

But to opponents of harmful and hurtful speech which virtually promises an outbreak of violence, the court’s and American system’s reluctance to proactively or retroactively curtail speech remains an eyesore. If the right of a country to own a nuclear weapon can be restricted because it could potentially harm the world, why is there reluctance to restrict incendiary speech or a video version of speech which potentially or actually can trigger a tense global situation, and what makes such speech less worthy of pre-emptive action and restriction?

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Note from Neera Kuckreja Sohoni: Much of the opinions and examples cited in this essay draw from the book ‘Figures of Speech – First Amendment Heroes and Villains’ by William Bennett Turner, Polipoint Press, Sausalito, CA, 2011.

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