The First Amendment, Great Art, and a Shitty YouTube Video

I love my Constitution. I love it so much I'd defend it to the death. I'd defend it from my brothers and sisters in arms in the military that I served in for over twenty years. I'd defend it against my fellow citizens. And I'd defend it against online trolls and people who just don't get it. Right now, I feel the urge to defend it from people who don't seem to realize its even in danger.

I'm a hack writer, a wannabe author. My emphasis is on that part of the First Amendment that says we have freedom of speech and the press. Remember that? Maybe I should post it here, just for a reminder.

Detail of photo By Robin klein (Own work)  [CC BY-SA 3.0 (], via Wikimedia Commons

Detail of photo By Robin klein (Own work) [CC BY-SA 3.0 (], via Wikimedia Commons

The First Amendment is not reserved for newspapers, books, and political candidates. The First Amendment applies to the best and the worst arguments, good art and hackneyed commercial bunk. It hasn't always been honored, nor evenly applied. Right now I fear we're entering a period in which there are two Constitutions, one we rely on for our own rights, and one we ball up and toss into the wastebasket when it comes to others. I'll use a couple egregious examples in art as an easy comparison.

Innocence of Muslims

Still from movie The Innocence of Muslims by Nakoula Basseley Nakoula

Still from movie The Innocence of Muslims by Nakoula Basseley Nakoula

Remember Benghazi? WAIT! Don't run away. I'm not going to attack Hillary Clinton's role in the deaths of several would-be rescuers or the ambassador. That's a whole other hot potato I just don't want to get into here. The reason I bring up Benghazi at all is to remind everyone about one of the silliest, most critically panned religious movies of all time. No, I'm not talking about Kirk Cameron's Saving Christmas. I'm talking about Innocence of Muslims, by Nakoula Basseley Nakoula. This video was so badly crafted that my first viewing of it left me literally laughing out loud with tears in my eyes. The whole thing is a few actors with barely high school pageant level makeup and costumes filmed in front of a green screen. To make it worse, the actors lines were dubbed over with different lines so that their lips often didn't match the words they were speaking. All of this barely distracts from some truly gawd awful dialogue and story making. It's just badly done. Worse, Mr. Nakoula was sued by one actress for contract breach. And he was already on probation for other fraud charges. So he's not a saint, and his movie sucked. The trailer alone sparked outraged violence in several Muslim majority countries. As bad as anything I've ever written might have been, at least I never did that. Understand, this was a time of general unrest in the area, and this trailer was probably just the spark that lit the fuse.

A reasonable response by those in the west, and particularly in the country who enshrines freedom of speech and press in the very first Constitutional Amendment to our Constitution, would be to castigate fools who are whipped into a violent frenzy by a person, no matter how foolish, exercising that right in the USA. But rather than shake a finger at the rioters, people across the globe, including a good many here in the USA, damned the movie as a provocation to violence. Yes, many in the press themselves, Like Tim Wu of the New Republic,  movie makers, and politicians, happily jumped on the bandwagon to say that one should not insult the religion of others, and that there should be limits to what is said in the interest of preserving peace.

Kuala Lumpur, 21/09/2012. Malaysian Muslim demonstrators march towards the US embassy against an anti-Islam film, "Innocence of Muslims" and the publication of caricature of the Holy Prophet Muhammad..Pic FIRDAUS LATIF -Wiki Commons

Kuala Lumpur, 21/09/2012. Malaysian Muslim demonstrators march towards the US embassy against an anti-Islam film, "Innocence of Muslims" and the publication of caricature of the Holy Prophet Muhammad..Pic FIRDAUS LATIF -Wiki Commons

But it gets worse. For all the finger wagging and foolishness of the public and press, our own government went a step further and then some. On September 11, 2012, the anniversary of the 9-11 WTC attacks, the US embassy in Libya was attacked by heavily armed Muslim militants in a preplanned action. The ambassador, J. Christopher Stevens, State Department information management officer Sean Smith, and Navy Seals, Glen Doherty and Tyrone S. Woods, were killed. The reasons are political and religious and have been hotly debated. But before the investigation was even complete, Hillary Clinton, President Obama, and others in government were blaming this ridiculous little movie, or at least referring to it as a possible reason for the violence. 

Movie Camera at Kolb Studios, Grand Canyon, AZ - author's collection

Movie Camera at Kolb Studios, Grand Canyon, AZ - author's collection

We also need to understand that this is a fairly volatile situation and it is in response not to United States policy, not to obviously the administration, not to the American people. It is in response to a video, a film that we have judged to be reprehensible and disgusting. That in no way justifies any violent reaction to it, but this is not a case of protests directed at the United States writ large or at U.S. policy. This is in response to a video that is offensive to Muslims. - Press Briefing by Press Secretary Jay Carney Sep 14, 2012
I condemn in the strongest terms the attack on our mission in Benghazi today. . . . The United States deplores any intentional effort to denigrate the religious beliefs of others. Our commitment to religious tolerance goes back to the very beginning of our nation. But let me be clear: There is never any justification for violent acts of this kind. - Hillary Rodham Clinton, Secretary of State, Sep 11, 2012

Whether the Secretary of State believed the attacks were caused by the ridiculous YouTube trailer of a terrible movie is beside the point. More importantly, it was the Director's absolute right to express those views, no matter how odious they were to the viewers, and no matter how much the Secretary or anyone else "deplored" them. To their credit, Secretary Carney stated that the US would not stifle free speech in response, and both President Obama and Secretary Clinton repeatedly emphasized that offense at the movie did not justify violence. But our government went out of its way to harass and investigate the filmmaker, eventually leading to his probation being revoked and his being sent to prison, anyway. Let's be clear here. No one was concerned about his film making prior to this horrific event. He was not under investigation. Nobody would even have noticed such a badly made joke of a movie except perhaps to laugh at it on a "worst of the internet" type review.

Suddenly the full force of the entire US Government criminal investigations was brought to bear against this hateful and silly little man. His guilt was preordained. First they asked that YouTube review the video to see if it violated their TOS. It didn't.  Despite months of investigation, no one in the US government dug up an adequate reason to imprison or deport this man. So they settled for revoking his parole. He violated a provision prohibiting him from accessing his computer. (He was on probation for using a computer to commit bank fraud, hence the "no computer" rule.) But he didn't use a computer to commit fraud this time, but to merely upload his own video trailer to YouTube as so many of us have. Yes, it technically violated his probation. So his crime was to utilize his full freedom of speech in a way that Secretary Clinton and others just didn't like. He didn't kill anyone. He was not responsible for the deaths in Libya. Even if it had not been found that this particular video had not played a role in the violence in Benghazi, even if it had been the touchstone to their madness as Radio Host Bill Press insisted, it was not his fault, nor his responsibility. Period. The end. He did not tell anyone to commit a crime nor do anything which should have resulted in a crime. When people are so offended and angry over something someone said, or presented in a video, or some piece of art, or even a protest intended to anger, that they commit murder, they- and they alone- are responsible for their violent acts. No matter what people in other countries might think of our First Amendment Rights.

Today, Mr. Nakoula is out of jail. He says he doesn't hold the actions of our government against Mr. Obama. He's less forgiving of then Secretary Clinton. The 9th Circuit Court of Appeals reversed an earlier decision to take the video down. The original film can legally remain on YouTube.  And you can find it there still. 

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film... In doing so, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar. - Garcia v Google, 9th Circuit Court of Appeals

And the court went further, chastising the previous court, but also sending a message to all of us, that our First Amendment Rights are not subject to the approval of courts and angry mobs.

This is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement. First we issued an order that prohibited the public from seeing a highly controversial film that pertained to an ongoing global news story of immense public interest. Then we ordered that the public could see it only if edited to exclude a particular scene, thereby conditioning freedom of expression on a judicially sanctioned change in the message expressed. We did this primarily because persons or groups offended by the film's message made a threat - in the form of a fatwa - against everyone connected with the film. By suppressing protected speech in response to such a threat, we imposed a prior restraint on speech in violation of the First Amendment and undermined the free exchange of ideas that is central to our democracy and that separates us from those who condone violence in response to offensive speech. - Garcia v Google, 9th Circuit Court of Appeals, Amended Order

This case, then, was handled very poorly early on, but ended as well as could be expected thanks to the 9th Circuit Court of Appeals and YouTube's stance on freedom of speech.

Birth of a Nation

A long time ago, in a country that could be ours, there was a video made about a political action group and social club. They had great fun at their club, dancing, singing, drinking beer, waving flags... all the stuff Americans like. This group was enormous. It was so popular elected officials and famous movie stars participated in their parades. The Ku Klux Klan was all the rage. And they had a movie every bit as popular in its time as Star Wars was in its. It was called, the Birth of A Nation. The movie proved popular enough to help them shore up their flagging membership and return to their previous ascendancy. The writer of the movie finagled a screening at the White House. Democratic President Woodrow Wilson was both said to have approved of the film's accuracy, and to disprove of the film. I guess politics haven't changed much in the interim. 

This movie was cinematically a masterpiece and historically a gawdawful joke. This was not The Innocence of Muslims, but it created every bit as much animosity.  Did the Director get investigated, threatened with deportation, and have his parole revoked? No. Did the US President and other officials comment on the violence and the terribleness of the movie? Yep, sure did. This is one of the more interesting cases for direct comparison to Nakoula Bassely Nakoula's awful movie. 

Lillian Gish in a still from The Birth of a Nation

Lillian Gish in a still from The Birth of a Nation

Unlike Innocence, Birth of a Nation featured a cast of talented and beloved stars, not least of which was Lillian Gish who had starred in a number of films with the same Director, D.W. Griffith. Griffith, unlike Nakoula, was hailed as a genius, and he was. He told stories with the narrative power of a novelist. He helped mold Gish, an incredible talent, to be the award winner she eventually became. Griffith's seminal work was beyond a doubt, Birth of A Nation. Not only did it gross millions of dollars at a time when movies that made a few hundred thousand were considered smash hits, but it garnered critical acclaim as well. Griffith is generally credited with inventing or promoting so many progresses in film technology, that it changed the face of movie production. 

Like Nakoula, Griffith was tarred as a racist, and like Nakoula, it's probable that at least some of the criticism was valid. Griffith's choice to use some black actors, and some white people in blackface to represent the slaves and freemen in his movie were just the delicious cherry on the top of this delectable morsel of historical revisionism and racist fabulism. In Griffith's Civil War, Lincoln declares war on the South without the opening volley at Fort Sumter, but even so, Lincoln is not the enemy. Griffith was politically astute enough to realize that his American audience in 1915 would not cotton to having one of the most beloved presidents of all time slandered. His Lincoln even pardons an unjustly accused father of a KKK member. Nakoula could have learned from this treatment, and made Muhammed the lovable father figure in a nation of rogues like Griffith did, and possibly have avoided at least the ire of the western sympathizers with Islamic outrage, if not the outrage of the Islamic world itself. It worked for Griffith. 

Mulatto maid and lover - Still from The Birth of a Nation by D.W. Griffith

Mulatto maid and lover - Still from The Birth of a Nation by D.W. Griffith

Griffith may or may not have believed the version of historical events that he presented on screen, but he was masterful at presenting it in public. Much of the population in the US was receptive to it. Again, an interesting parallel with Nakoula who appealed to a conservative, anti-Muslim audience. Unfortunately for Nakoula, his video was seen by a wider audience who were less receptive, and there was no friend of the First Amendment in the White House to protect him. More intolerable than Griffith's fast and loose playing with the historical record, was his presentation of such strongly negative black stereotypes that today's audience would scarcely believe they were part of a major motion picture. The black men in his movies leer at women, stalk them, and pivotally, at least one attempts to rape one, the white female family member of the hero of the movie. Where Griffith veers from terrible, but generally believed, stereotypes into ludicrously hamfisted fairy tales, is when he depicts black freemen shoving whites off the sidewalk, preventing whites from voting while stuffing their own ballots in the boxes, and behaving like ill mannered country bumpkins in Congress, where they eat chicken and put their bare feet on the tables. That there were only sixteen black congressmen elected throughout the Reconstruction is ignored, as is the earlier laws making their election or even voting illegal. He lets his imagination carry him away as the authorities in his Reconstruction Era South make KKK costumes illegal and arrest a man for the crime of possessing one. What, really? Yes, really. That anyone could ever have believed such antics actually occurred would be hilarious, if it weren't so damnably true. Not true that those things happened, but true that fools by the thousands believed it happened. It became part of the American psyche, repeated as if common knowledge. What happened when Griffith retold history, is what everyone fears will happen when the revisionists have their day... the lie becomes more believable than the truth.

It isn't as if no one saw it coming or tried to prevent it. The NAACP tried to get the film censored or banned, without success. When that failed, they set about educating the public.  They also staged protests, and even the first national boycott of a film which went a good deal better for them. Griffith, for his part, is said to have been livid that they were trying to censor his free speech. In that, he was right. It was his right to produce and direct the film. It was his right to have it viewed by any who wanted to see it. It was the right of everyone who wanted to see it to view the film. And people did. (It was the most popular movie of all time until the release of Gone With The Wind decades later.) No one was under any obligation to give it a venue though, and several towns outright banned it to prevent race riots. Banning films is not American. It's not Constitutional. It did work, however, to prevent the kinds of violence that erupted in cities and towns like Boston, where blacks rioted against the film, and whites physically assaulted blacks either inspired by the film, or in retaliation against black rioting, depending on who you are citing. The NAACP's efforts to educate the public and organize boycotts, however, are the highlight of American civic life. At the time, the picketing seemed to have no real effect. Despite letters to the editors, pamphleteering, and daily appearances at theaters showing the film, the lines to attend stretched round the block and movie goers paid an average of more than $2 a ticket! The movie was a social touchstone of the times. Before you decry the worthlessness of education, though, consider the reception of Birth of a Nation in more modern times. While the carnival barker-like atmosphere surrounding the original showing, (they bused in hundreds of KKK night riders for the opening and performed parades for screenings) helped propel it past complaints about its racism and historical inaccuracies at the time, educating the public has resulted in a modern revulsion at the film and what it stands for. 

Members of the National Association for the Advancement of Colored People picket under the marquee of the Republic Movie Theatre against race discrimination featured in the movie, The Birth of a Nation. They carry signs asking for a ban on hate films. Flushing, New York, October 20, 1947. Image courtesy of © CORBIS.

Members of the National Association for the Advancement of Colored People picket under the marquee of the Republic Movie Theatre against race discrimination featured in the movie, The Birth of a Nation. They carry signs asking for a ban on hate films. Flushing, New York, October 20, 1947. Image courtesy of © CORBIS.

When the film was screened in the White House, many took this as an endorsement of the film, though it has been said the president didn't even know what the film was about, and that it as sold to him by a college friend, the author of the book on which the movie was based on the strength of its cinematic acheivement. Some historians say President Woodrow Wilson most likely did not say

It is like writing history with lightning, and my only regret is that it is all so terribly true. - apocryphal

They regard this as an advertising invention of the filmmaker and the book's author, or possibly a luck misquote by a newspaper after the fact. Perhaps he did say it, but if so, he apparently had a change of heart as he later said,

... he strongly disapproved the showing of this "unfortunate production." - J.P. Tumulty to T.C. Thacher, April 28, 1915, ibid.

Wilson has been demonstrated to have had a poor showing when it comes to racial matters in other cases, so it is easy to see why so many were quick to believe the claims of the filmmakers. But if he later denounced it, we can't say for certaint that he ever did. One thing he did not do is try to censor it, or use his authority to investigate or silence the filmmaker. And before you say, "Oh yeah, but no one died for this film" I would point out that a newspaper of the time reported a case of a stabbing which they attributed to the movie, not to mention all the riots resulting in broken bones and arrests. If there were no deaths, it was by sheer accident of good fortune, not a more tender concern for the free speech rights of filmmakers of the time. I don't think it's fair to claim he was a standard bearer for free speech. He may well have liked the movie, and its message, if not for the violence and backlash it unleashed. We can fairly say though, he did the First Amendment no damage in dealing with the matter. 

Small Differences, Big Difference

So was the matter of the First Amendment better dealt with in this case than in the previous one? I think so.

There seemed to be two small differences that really made all the difference in how the matter was resolved. It wasn't the size of the audience, the cost of production, the skill of the director, the talent of the actress, nor even the reaction of the audiences.

The first difference was already mentioned. Nakouli was borrowing directly from a religious text, the Q'ran. While this is what is said to have incited the red hot hatred of many in the Middle East and Islamic world, in a more general sense, it is also what prevented more liberal people from coming to his defense. There is a sense among many that one may not question or criticize the religious views of others, even if they make no sense, even if they are not shared by the majority, even if they are in fact hateful, backward, ignorant, and dangerous. Religion is a no-go zone for debate. Many nations still have apostacy and blasphemy laws. Leaving your religion, or speaking against any religion, sometimes even just saying one does not believe in that religion, is enough to get the offender arrested, jailed, even executed. The only countries with official and active apostacy laws, currently, are Muslim dominant countries. That doesn't mean such strictures don't exist in a de facto manner elsewhere. People often act on social rules that aren't necessarily related to law. And one rule is, you don't mess with other people's religions. When I was a kid, a common saying was, "There are three things you don't discuss at the dinner table, politics, religion, and sports." The idea was, those three things could start an unseemly fight. The concept that there are things you mustn't talk about, mustn't criticize, because grown folks can't handle it, is a gag we fit ourselves with. We must be free to discuss, debate, and critique all concepts, lest we end up agreeing with heinous ideas or actions through silence. Just as Woodrow Wilson was assumed to have endorsed The Birth of a Nation, so we might be assumed to agree with Nazis marching in Skokie, or Donald Trump saying Mexico is sending her rapists, or Hillary Clinton saying a video caused the death of three people, or Jill Stein's suggestion that the FDA is "bought" by pharmaceutical companies. It's tempting to stay above the fray and not risk public opprobrium, but by avoiding risk, we also avoid the opportunity for change, or understanding. You avoid my anger, but you also avoid gaining my agreement. You can't win a fight you won't fight.

The second seeming small difference is the willingness of both government actors and the public to take the argument into the courts. President Woodrow Wilson did not use the film as a scapegoat for a larger problem. The film got lucky in that it wasn't seen as a conveniently small target for a really big mallet. This matter never went to court because the federal government never took it to court. The NAACP tried to get The Birth of a Nation banned, preferring to go directly to legislators and film boards after losing their only court filing before the Los Angeles premiere. Success in the courts would have been unlikely even if they had persisted, given the large number of the judiciary who also screened the film. Trying to get the Director thrown in jail would likely have met with even less success. After all, this director, unlike Nakouli, was not a recent immigrant nor a bank fraudster. He was a respected filmmaker with a successful career. But importantly, no one even saw this as a reasonable thing to attempt. Griffith was angry that his film might be silenced. Imagine how much angrier he might have been if he had been called a terrorist and threatened with prison time, investigated by the Secretary of State, IRS, and the FBI, and had his filmmaking equipment confiscated. Yet the small time crappy video maker with a tenth of Griffith's budget faced all of this. This is what happens when our elected officials seek to appease not only our most vocal critics within the USA, but angry voices in other countries who do not have our First Amendment rights, and do not respect them, by silencing us.

The difference, was us.

Courtroom on 2nd Floor of Tombstone Court House National Park - author's collection

Courtroom on 2nd Floor of Tombstone Court House National Park - author's collection

There's a danger of letting the First Amendment slide, even just a little, even now and then. It's not that one Director might go to jail unfairly (he did, after all, violate his probation). The danger is, one less crappy film might not get seen, or even made in the first place. One less view won't be heard. One less perspective will be lost. Islam does have some things that need critiquing. So does Christianity. So does any set of ideals. The Birth of a Nation was terribly biased and not accurate, but many southern Americans did get a raw deal, and the KKK represented something to them, something powerful. You don't change that by pretending those thoughts and feelings don't exist. Seeing that terrible movie, or any other, just might get people really talking about why slavery was wrong, and then how some of the Reconstruction was damaging to the south. While we run around pointing fingers and telling people they "have no right to say" whatever they are saying, we forget they do indeed have that right, and so do we. But we have it only so long as Nakoula Basseley Nakoula and D.W. Griffith, The Westboro Baptist Church, and even a bunch of hateful Nazis have it. It's a freedom that only works if we share it... even, or mostly, with the people we least want to hear from. You don't defeat bad ideas by silencing people who express them. You defeat them by expressing better ideas.

Recently, the parents of several groups of people have made headlines by speaking out. There were the mothers of the slain black men and women, the parents of several fallen police officers, the mother of one of the murdered men in Benghazi, and the parents of an Army Captain who died in the war in Afghanistan. All these parents making their voices heard have faced backlash, hateful comments online and in the media, questions about their motives, and rumors and innuendo if not outright smears of their reputations. People accuse them of using their dead children to sell a narrative, or get their way, somehow. Well, I'm not going to claim that's not what they're doing. I'm going to ask you why they shouldn't do that? When John Walsh used the death of his son as the impetus to speak out for missing children, did we criticize him? When Meghan's Law was passed, did we say her father should shut up? When the shirtwaist factory fire took the lives of all those little girls, did we suggest their mothers were only using their deaths to get better work conditions for children? Instead of asking why they are speaking out after their losses, why not ask why others are not? These parents, mothers and fathers, are US citizens. They are exercising their First Amendment right to speak out. Some of them have endorsed specific candidates. Others have chosen not to. Why question their presence on the campaign stage or late night television show? After all, they have more motivation than do any of us to have their say. I can't imagine having so much to say, so much hurt and anger, and no voice with which to vent it. Yet we welcome movie stars, singers, news pundits, and career politician to their 15 minutes to spout whatever view their pollsters have told them is trending this week... and we seem to think that makes sense. I think it's backwards. We should have more moms and dads of American citizens on those stages. We should hear from more parents, more everyday citizens, on the issues. Hand the microphone to the kid in the crowd, or the granny listening at home, or the crazy people picketing outside, or the guy or gal who had to work and can't attend your political show, and let them speak, and argue, and debate, and critique. It's free, after all. It costs us nothing, at most a little time. It cost Army Captain Humayun Khan and  Ambassador John Christopher Stevens a good deal more. We should try to make their sacrifice worthwhile. Let's share some free speech

Arlington National Cemetary, VA -photo from Wikipedia

Arlington National Cemetary, VA -photo from Wikipedia