War of principles: Can free speech exist?

Bel Trew, Friday 21 Sep 2012

As embassies across the Islamic world face new waves of protests against recent offensive cartoons and anti-Islam film, Ahram Online examines global notions of freedom of speech and the legislation guarding it

U.S. embassy
An Egyptian protester with covers his face during clashes with security forces, not shown, near the U.S. embassy in Cairo (Photo: AP)

After a week of waiting for America to take action, Egypt's prosecutor-general on Wednesday announced it had issued arrest warrants for seven US-based Copts and an American pastor over the inflammatory film "Innocence of Muslims."  The eight, which include the film's alleged maker Nakoula Basseley Nakoula, face charges which could see them get the death penalty.

During last week's protests and street fights outside the American embassy in Cairo, protesters expressed frustration at the US for seemingly "doing nothing."

"I don't understand why Obama can't at the very least, apologise for it," Ali Mahmoud, a Salafist academic from Fayoum said, "Members of his own staff were killed – people have died. It should be banned; the director brought to justice."

Friday saw yet another day of violent anti-West protests with 13 dead in Pakistan, as fresh demonstrations kicked off across the Muslim world in response to offensive cartoons of the Prophet Mohammed published in French weekly Charlie Hebdo.

The resounding question in Egypt and across the region is why protect such pointless and slanderous media that has resulted in the needless deaths of close to 50 people.

Calls to reassess free speech legislation

Egypt's Hisham Qandil government demanded last Wednesday that the filmmaker of "The Innocence of Muslims" be prosecuted under international law criminalising actions which cause sectarian strife.

As cracks showed in Egypt-American relations, President Mohamed Morsi himself demanded the US put in place "legal measures."

The Obama administration, in carefully worded statements, condemned the film. US Secretary of State Hilary Clinton went a little further, saying she thought it was "disgusting."

Washington, however, refused to offer an apology for the video. They refrained from stating that making this kind of material was wrong or announcing they would be prosecuting the filmmaker for it.

America's silence coupled with the increasingly violent reactions to the film, sparked a global debate about whether the US, which is protected by arguably the world's most free and open freedom of speech legislation, should put greater restrictions on what they allow to reach the public sphere.

Underlying this debate is how material is classified under ever changing and complex US and international laws.

Commentators contend there is some rationale to the US either altering its own laws or bending to international law, which includes provisos such as "hate speech" which is not criminalised under American law.

The fluidity of free speech

Tamer Nagy Mahmoud, an Egyptian attorney practicing in Washington DC, explained that the First Amendment of the US Constitution protects freedom of expression from any sort of government interference, with a few limited exceptions. Nothing is set in stone, he added, the exceptions are mostly derived from case law not from the constitutional language itself.

Some commentators debated whether "The Innocence of Muslims" was an example of "hate speech" as it, arguably, provoked people to take violent action against US missions in Egypt, Libya, Tunisia and Sudan among others.

The legal definition of "hate speech", however, differs between countries.

Instead of "hate speech", in the US expression can only be prosecuted if "it is intended and likely to produce imminent violence or lawless action," Nagi explains, "Theoretically in America you can have groups like the Klu Klux Klan spewing the most hateful language but unless it fills this criteria, you can't stop them."    

The emphasis in US law is on the immediacy and the likelihood of the reaction to the footage. In this case, it would have been hard to predict that this particular clip would have inspired such a reaction, such as the deaths of four US diplomats in Libya.

German US attorney-at-law David Mueller* who lectures on freedom of speech, explains to Ahram Online, "You cannot make something retroactively criminal. If, at the time the film is made, it is legal, you cannot declare it illegal later.

"Even if serious harm is done, you cannot punish retrospectively – you can ask yourself whether the irresponsible individual could be stopped in the future but still you can't undo what has already been done."

Material can also be banned if it is classified as "obscene" in the US, meaning if it "appeals to average person's interest in sexuality, is patently offensive by the community standards and lacks serious artistic, scientific or political value," Nagy continues.

The fact that "The Innocence of Muslims" is, in terms of copyright, a creative work (however poor), raises further problems for those calling for an embargo.  

Creative expression and defamation

"Art, humour and satire are always covered," Mueller explains, "you may not agree with the film but the US does not judge for bad taste." In fact, you can get away with a lot more if the expression occurs in an artistic context.

Groups, unsuccessfully, have attempted to get the 1987 photographic work "Piss Christ" showing a crucifix immersed in urine and "The Holy Virgin Mary", which depicted close-ups of female genitalia from porn magazines, banned. Even Jesus wearing a nappy during the 2003 "Jerry Springer – the Opera" was not sufficient enough to have the film taken off the BBC schedule. The artistic nature of the material protected them under international law.

The eight facing arrest in Egypt are being charged with spreading false information among other accusations. It could be argued that the video defames Egyptian Muslims, who are portrayed as raging mobs burning Christian homes and the Prophet himself, who is painted as a womanizer, homosexual and child abuser.

Defamation in the US can only be proven if the action was done "with actual malice and knowledge of falsehood", Nagy explains, which, some might argue, fits the film's content. 

Nevertheless, in both European and US courts of law, only individuals not classes of people can file damages to personal reputation, Mueller further explained.

In other words, Egypt's 80 million Muslims cannot sue the filmmaker for collectively damaging their reputation under US law.

Neither is it possible to file a defamation lawsuit on behalf of someone else. Consequently the only figure who would be able to effectively file a suit against the film would be the Prophet Mohammed himself.

A threat to national security

The final, and perhaps most widely discussed, impetus to restrict expression concerns  national security – a point many commentators have raised in the wake of the ongoing violence, particularly now that French diplomatic buildings could face a similar beating.

Temple University international law professor Peter Spiro pointed out on legal blog Opinio Juris, for "structural and functional reasons" it does not make a lot of sense to allow the irresponsible act of an individual seriously compromise national foreign relations, or threaten the safety of hundreds.

How democratic is it, he argued, if the "peace of the Whole [is] left to the disposal of the Part?"

Speaking to Ahram Online, Spiro elaborated.

"There are contexts in which constitutional rights have been circumscribed in the face of foreign relations imperatives," he explains, "Yes it's a 'slippery slope' but you can say that about pretty much any constraint on speech."

As it stands, even with protesters launching rocket-propel grenades at the US mission in Libya, the American government cannot act.

For the Obama administration to seek a court-sanctioned prior restraint on a form of public expression, "it must be an expression which would surely result in direct, immediate and irreparable harm to the national security of the United States," Nagy says, "for example, if a newspaper were to print US military plans for a war that is about to start."

Nagy speculates that it would be hard for the litigators to prove the violence was so imminent as a result of the "Innocence of Muslim" clips.

Is free speech culturally specific?

The ongoing video debacle has shed light on the cultural relativity of the free speech debate. As Mueller illustrates, "under German law, the filmmaker could arguably be prosecuted, as there is a German clause saying that 'bashing a religious group or belief is punishable under criminal law.'"

In addition, under German Police Law, the authorities could prevent the film from being shown in the street, Muller adds.

Germany's dark history of the Holocaust has meant that certain restrictions, not present in US law, apply, even if it appears to contradict universal ethics of freedom of speech.

For example Adolf Hitler's Mein Kampf cannot be published in Germany, "as the government believes it will incite people, this is a very Germanic view and is only understandable in the context of German history," Mueller explains.

Some groups have been campaigning to have the treatise published with a contextual commentary, as this would better match Germany's overall attitudes towards freedom of expression. However, as it stands, the authorities have banned the book from physically entering the country and being accessed online.

Problems occur when these differences in legislation and legal definitions clash.

Egyptian legal stance on freedom of speech

In Egypt, the bottom line is that the video would be illegal. "Although Egypt's 1971 Constitution protects freedom of expression generally – the articles are subject to law," Nagy explains.

On the long (and fairly vague) list of banned activities enshrined in Egypt's penal code is "insulting a religion or ethnic group" and "anything that is inconsistent with public morals."

There is legal precedent of groups successfully suing a foreigner because the action is deemed to be illegal in the country of the litigator, Mueller says, however, they have to prove there was "minimal contact."

"To bring a foreigner to an Egyptian court there needs to be some kind of contact between the person who is sued and the venue where he is sued (Egypt) – the fact that the film was made in the US makes this very difficult."  Mueller explains.

Proving this contact is where it becomes hazy. Even if the film is clearly targeted towards Egyptians, Mueller continues, the director would have had to have deliberately bought the clip to Egypt or for example, publically screened it on Egyptian soil to prove that it affected people here.

However, should the filmmaker, who is an Egyptian Copt living in southern California, still retain his Egyptian citizenship, Nagy adds, then despite being based abroad and committing a legal act in his host country, he remains generally under the jurisdiction of Egyptian law here. 

Morsi's move and the web

The internet further complicates the matter.  Legislation is inherently tied to geographical boundaries: you must obey the laws of the territory you are in.The online world is an unfettered, unregulated, territorially unbound global meeting place where contradicting legislation and ideas meet and clash.

An offensive video posted in America can easily reach the computer screen of an Egyptian in Egypt and have a direct effect on the viewer, which is a form of contact. As a result, courts across the world, Nagy explains, are constantly re-defining and qualifying legal language in regard to online content.

The film, however, would be banned in Egypt under Egyptian law, Nagy adds. The Egyptian executive branch "has the power to ban any publication or work of art that is coming from abroad from being circulated or from entering Egypt."  An example is Rushdie's contentious novel, The Satanic Verses.

This means, President Morsi and his cabinet have the power to ensure the inflammatory movie is neither physically available nor accessible online in Egypt: an option Morsi has not explored despite calling on the US to "take decisive action."

Google and YouTube in Egypt corroborated this fact to Ahram Online: "where we have launched YouTube locally and we are notified that a video is illegal in that country, we will restrict access to it after a thorough review."

"YouTube… in Egypt, it does have its own domain, " Google affirms, explaining that this means that provided it could be proved that the clip is illegal under Egyptian law (which it is) YouTube and Google would make it impossible for anyone to access the video from an Egyptian IP address.

Google International themselves are under no obligation to restrict access in America as the "Innocence of Muslims" is "clearly within our Community Guidelines" which regulates the website. The guidelines list specific criteria (such as hate speech or sexually explicit content) the YouTube community use to flag a video. A "flagged" clip is consequently reviewed and if it breaks the regulations, taken down.

Despite this, Google went beyond its own guidelines to restrict access to the clips in the countries where it is illegal "such as India and Indonesia as well as Libya and Egypt."

It temporarily blocked the original trailer and exact duplicates in Egypt due to the "very difficult situation" in the country not because the Egyptian government requested that they do. 

This throws a very different light on recent events, as it is in fact up to Egypt's president, in this instance, to ban the film, which Morsi has as yet not done.

In America, it is a lot harder to remove the video from the Internet. One of the actors, American Cindy Lee Garcia who claims the script she saw referenced neither Muslims or Prophet Mohammed, lost her lawsuit Thursday when the judge rejected a request to force YouTube to take down the trailer. YouTube has also separately refused to take it down.

Redefining approaches to free speech

Freedom of speech legislation is vague in its complexities. Merely classifying statements of expression is hard enough let alone prosecuting those responsible.

The ability to disseminate material with ease across international borders via the internet without knowledge or control over who accesses it, only confounds the issue.

The internet has become a forum for the war of principles, highlighting the cultural relativity of freedom. When these etymological battles reach the streets and violence erupts, the need to react to the consequences of the inflammatory material can result in countries backtracking on principles.

As Spiro comments, "There is the risk of 'heckler's veto'… the violence and instability on the other side of the balance is obviously serious and immediate."

When news broke Charlie Hebdo had printed the inflammatory cartoons, the French Foreign Ministry announced, Wednesday, it would close embassies and schools in 20 countries worldwide, preempting the hostile reaction America had recently suffered.

The French government, in order to protect the initial expression of freedom by allowing the publication of anti-Islam images, has now had to, hypocritically, rein in expression by banning protests about both the film and the caricatures.

As countries bandy court cases and law suits across borders, is the answer to localise the internet to restrict these interactions? Alternatively, do you create global catch-alls to trammel up the consequences of "offensive" speech in general? Or ultimately are we condemned to reactively bow to the heckler's veto, forever?

*The interviewee's name has been changed due to the sensitivity of the subject

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