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Hal Licino

The First Amendment Quagmire of Online Videos

Sep 24 2012, 10:26 AM by

If not seen in context to the worldwide agony it has caused, The Innocence of Muslims is an outright ridiculous 14-minute video that mostly consists of fanboy-level lousy acting amidst greenscreen desert scenes so amateurishly implemented that in most cases the characters seem to walk a few yards above the level of the sand. The lethal protests that this low budget piece of junk has wrought in the Islamic world need not be recounted here, but let it suffice to summarize the reaction as being among the Obama Administration’s most severe foreign policy challenges. The irony is that the U.S. government had absolutely nothing to do with it, as it was entirely the brainchild of an agenda-thumping anti-Islamic fanatic named Nakoula Basseley Nakoula, but that is no consolation to the families who are now mourning their dead.
Uploading a Video Doesn’t Require White House Approval
With the current near-saturation penetration of the internet in all Islamic countries it is difficult to believe that there are sufficient Muslims who fail to grasp that the essential procedures of uploading a YouTube video do not require direct vetting from the White House: any internet user can place a video on the site of wholly innocent content such as their puppy cuddling with a kitten; or can post any measure of content that is patently offensive to any racial or religious group. A precursory search of hot-button terms will produce nearly endless lists of videos repugnant to any sane human being, including many which manage to insult Islam to a far greater degree than the one that has triggered all this tribulation. The precise reasons why Nakoula’s cheap little video was selected by the mobs as the one to spark such worldwide outrage may never be understood, but it may have been inevitable that something noxious and repulsive was going to be pulled off YouTube at some point and cause a wholly disproportionate backlash, so Nakoula may just have drawn the winning (or losing) ticket.
Yelling Fire in a Crowded Theatre
The video and its reaction has led to endless editorializing about free speech’s pros and cons, but the bottom line inevitably ends up being whether or not internet content is subject to First Amendment protection and where to draw the line, if there even is one. Supreme Court Justice Oliver Wendell Holmes Jr. famously mused about falsely shouting fire in a crowded theatre almost a century ago, and concluded that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”
Britain Banned Videos of City Council Politicians
Unfortunately the definition of that danger is extremely difficult to codify, especially across national and cultural borders. As Americans accustomed to satirical skewering of political leaders it might seem absurd for Thailand to have repeatedly blocked YouTube because of a video their government believed was insulting to King Bhumibol Adulyadej. Acting to ban internet videos is not a practice limited to Third World nations, as the British government has repeatedly moved to remove videos even when they do not include clearly inflammatory content, including one of a politician doing little more than challenging Liverpool City Council. Precedent has been clearly established that justifies Islamic nations to demand that the U.S. government call on YouTube to take down Nakoula’s detestable video (which it did) and when the site refuses (which it also did), there literally is not much more that can be done.

Many observers have called for YouTube to moderate content prior to placement to ensure that copyrighted content does not find its way online rather than waiting for a DMCA takedown. However, when the moderation involves First Amendment determinations, the path becomes foggier: Is it free or hate speech to term a theological figure a pederast? Scientology’s Fishman Affidavit does just that in reference to Jesus Christ, and there are plenty of YouTube videos on this topic that have not caused Embassies to be burned. Whether this question will be definitively settled, at least in our lifetimes, is difficult to determine.

Posted in Social Media, Current Events, Tech Editorial

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