March 1, 2014

JAMES TARANTO: Chaplinsky vs. Kozinski: “Innocence of Muslims” and the “fighting words” doctrine.

The dubbed line to which Garcia objected would surely qualify as fighting words if uttered as a taunt to a Muslim on the street. But just as surely it does not as part of a movie, even a dishonestly produced movie intended as a provocation.

A necessary condition for the application of the fighting-words doctrine is the tendency “to incite an immediate breach of the peace.” It would be an understatement to say that “Innocence of Muslims” incited a breach of the peace. But it wasn’t an immediate one. In Kozinski’s account, the incitement didn’t even come from the posting on YouTube but from its (surely mischievous) airing on Egyptian television.

The issuance of a fatwa is a further argument against the application of the fighting-words doctrine. The term “fatwa” was little known among non-Muslim Westerners until 1989, when Ayatollah Ruhollah Khomeini pronounced one against Salman Rushdie for “The Satanic Verses.” But “fatwa” is not synonymous with “death threat.” The term refers to any legal decree issued by an Islamic scholar or clergyman. What distinguishes fighting words from merely provocative ones is that the reaction they draw is not premeditated. A fatwa implies a deliberative process, more a plot than a street fight.

To be sure, the Ninth Circuit did not hold that “Innocence of Muslims” is unprotected speech. Judge Kozinski’s reference to “fighting words” was only dictum, which is to say that it was not relevant to the disposition of the case. Judge N.R. Smith didn’t even take up the point in his dissent. Possibly Kozinski meant to use the term only colloquially, in the spirit of the late Christopher Hitchens, whose Slate column was called “Fighting Words” with no implication that its content was constitutionally unprotected.

Still, it carries more weight when a judge uses a legal term of art in an opinion, even only in passing, than when a journalist does so. Whatever one makes of the copyright claims at the heart of Garcia v. Google, it bears noting that defiant and contemptuous words about Islam, or any other religion, are protected by the First Amendment as surely as are those about the American flag.

In law, but not in fact. Because violence works, and our institutions cave before it. May our political class take joy in the incentive system they are creating.