When I was in Washington on September 12, the day after the Benghazi attack, I was moderating an NRB panel on free speech, and I made the comment that the tragedy involving the U.S. consulate might result in calls for censorship. To my surprise, however, the Administration soon applied pressure on Google, which owns YouTube, in an attempt to ban an anti-Islamic Internet video that the White House had claimed was responsible for motivating the attack that killed the U.S. Ambassador and three other Americans. It is now clear, however, that two hours after the start of the attack against the U.S. consulate in Benghazi, intelligence emails started to arrive at the White House, the Situation Room, the State Department, and the FBI, alerting them that a terror group, rather than the crude video, had been behind the assault.
The Obama Administration has countered by claiming that in the fog of battle, the whole scene was confusing. Further, as Secretary of State Hillary Clinton noted, real-time Facebook postings by terror groups allegedly claiming responsibility for attempted murders-in-progress at our American consulate don’t count as “evidence.” Though that may be true in after-the-fact court trials, they surely should have been part of the calculus of trying to err on the side of saving lives and enforcing security. Eventually, politicians, pundits and policy experts, not to mention the electorate, will have to sort this all out. Yet the free speech issue remains, and we ignore it at our peril.
What is the First Amendment liberty in the Benghazi incident? Simply this: there was an instant reaction to lambaste the expression that supposedly inflamed extremists who disagree with the expression (let’s call that the fear of “backlash”), rather than just focusing on the extremists with the rocket-launchers who may be looking for any excuse, or no excuse at all, to kill. And while the Supreme Court has developed a “fighting words” doctrine in a related context as an exception to free speech, it has only applied it in face-to-face insult cases, not website videos or similar communications.
The Benghazi situation reminded me of a related corollary to this “backlash” threat to free speech that happened last year, immediately after the tragic shooting in Tucson, AZ. There, Jared Loughner shot and seriously wounded Rep. Gabrielle Giffords (D-AZ) and 18 others, six of whom later died. Some commentators tried to blame conservative websites for supposedly inflaming Loughner. While the law would technically call that an allegation that Internet postings had posed an “incitement” to violence, for comparison sake, let’s call that a fear of “frontlash” – the concern that a certain communication will further inflame persons who supposedly agree with the expression.
It is now clear, though, that Loughner was mentally disturbed and that websites really had nothing to do with the shootings, just as the anti-Muslim video was not the real reason for the Benghazi killings. But in both situations, free speech was a handy ballast that some folks wanted to toss overboard. While the law is fairly clear on what warrants lawful censorship on the grounds of “incitement” (“frontlash”), it is not so legally clear whether a “backlash” threat because of online content can, or should, ever be a reason to suppress otherwise lawful speech. At a time when Islamic extremists have previously used free expression as a reason to kill, murder, and commit mayhem, it is time to declare definitely that we will punish the extremists who are violent, rather than the expression that may upset them. NRB stands ready to make this point, because if we don’t, the Christian message – one that is theologically incompatible with Islam – may be simply viewed as the next expendable ballast on the deck of the American ship of state when terrorists start grumbling.
By Craig Parshall
Senior Vice President & General Counsel, NRB
Director, John Milton Project for Free Speech
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Published: November 1, 2012