09.20.12

Should YouTube Have Taken Down Incendiary Anti-Muslim Video?

The White House asked, and Google said no. But in the Internet era, writes Floyd Abrams, the gatekeepers who protect freedom of speech are changing.

Last week, the White House asked Google to take down the anti-Islamic video Innocence of Muslims, which had been posted to YouTube and triggered deadly protests throughout the Muslim world. Google refused, citing its own guidelines regarding hate speech (though it later took down the video in Egypt and Libya, due to what it called the “very difficult situation” in those countries).

Was Google right to reject the White House’s request? And should the White House have asked in the first place? Regarding the second question, there are two inarguable points to make at the outset.

The first is that the film, which was made in the United States, is plainly protected by the First Amendment. In fact, the First Amendment protects much harsher criticism than that. Alone in the world, we protect what is usually referred to as “hate speech”—speech ridiculing, mocking, or demeaning deeply-held religious beliefs.

As far back as 1940, the Supreme Court heard a case involving an attack on the Roman Catholic Church as a “harlot” that had brought Nazism into being. The court concluded that while critics of one religion or another tend to resort “to exaggeration, to vilification,” and to “false statement,” the freedom to express those views “are, in the long run, essential to enlightened opinion and right conduct.”

Second, just because we protect speech like Innocence of Muslims doesn’t mean that the people who engage in such speech are not properly subject to public criticism, including by those in government. When the Supreme Court permitted Nazis to march in Skokie, Ill., in 1977, public officials—and everyone else—remained free to denounce them.

Of course, what speech may reasonably be viewed as “offensive” is itself often a subject of debate. When New York City Mayor Rudolph Giuliani denounced an art museum’s exhibit that used provocative—and to many people, offensive—religious imagery, he was on safe ground. But when he sought to cut off the museum’s funding and expel it from its premises, he moved into far more dangerous territory, as the judges who rebuked him made sure he understood.

Where things start to get thorny is when government officials, confronted with what they view as expression that threatens national security, ask the press—or anyone else—to refrain from that expression.

Just because we protect speech like “Innocence of Muslims” doesn’t mean that the people who engage in such speech are not properly subject to public criticism.

This can be proper, as when Defense Secretary Robert Gates urged the controversial pastor Terry Jones not to burn a Quran on the anniversary of Sept. 11, as Jones had threatened to do. But when then-president George W. Bush urged The New York Times not to reveal that the government was engaged in warrantless wiretapping of American citizens, citing national-security threats, there was good reason for the Times to have rejected that request, especially since it related to government conduct that may well have been illegal.

(It doesn’t help when the government official in question implicitly condones the suppression of speech, as former president Jimmy Carter did following the fatwa against Salman Rushdie for writing The Satanic Verses. While Carter criticized the threats and said Rushdie’s “First Amendment freedoms are important,” he rather serenely balanced that statement with expressions of concern about the book’s “direct insult to those millions of Moslems whose sacred beliefs have been violated.” Contrast that with Secretary of State Hillary Clinton’s response to the most recent flare-up, in which she both dismissed the film as “insulting” and stated that there was “no justification, none at all, for responding to this video with violence.”)

In the end, the hardest question is, What are the responsibilities of those who provide content on the Internet?

When the administration asked Google, which owns YouTube, to review its “terms of use” to determine if the film should continue to be made publicly available, it was playing a role any administration would have attempted. When Google declined (at least in the United States), it acted as I believe most newspapers, and probably all large Internet players, would have.

But would the answer had been the same if the film had been of Pastor Jones burning a Quran? I am not so sure. Would it have been the same if, say, two more American consulates had been burned to the ground and similar turmoil and loss of life was predicted elsewhere? Remember that in 2005 and 2006, almost all American newspapers declined to print the Danish cartoons of Muhammad for fear of the consequences, even though they were highly newsworthy.

Our great newspapers make these painful decisions all the time, and do not always agree on them. The New York Times declined to publish the Danish cartoons; The Philadelphia Inquirer published them. But our papers are great in good part because they offer edited publications based on ever-changing decisions about what is deemed fit to print. The Internet is great for the opposite reasons: its dedication to not deciding what is worthy of publication and what is not; its free-for-all nature. Of course, the same thing that makes the Internet so breathtakingly indispensable has also made it a home to child pornography, Nazi speech, and terrorist communications.

Since the First Amendment bars almost any imposed limit on what may be carried (in this country, at least), the choice ultimately rests with Google. It and other new media entities will be faced with repeated decisions as to where to publish what.

It would be a disgrace if First Amendment principles were ignored by American publishers because foreign audiences with little or no knowledge of freedom of expression were angered by works of art such as Rushdie’s The Satanic Verses.

But the decision as to when to refrain from sending a film such as Innocence of Muslims into other countries is more difficult. The presumption should always be to live by our free expression principles. Yet where violence is near certain and foreign nations refuse to protect free expression, the decision Google made is understandable, if deeply regrettable.