President Mohamed Morsi’s first response to the anti-Islam Youtube video credited with inciting local protests was to direct the Egyptian Embassy in Washington DC to take legal action against the film and its makers.

While the directive has been applauded by Morsi’s home audience, little can possibly come of it as the US cannot legally prosecute someone solely on the content of his speech.

At issue is the now-infamous “Innocence of Muslims” video, a less-than-amateur production with no redeeming artistic or intellectual qualities.

The video’s producer allegedly lied to the cast about his name and the nature of the project, then crudely dubbed references to Islam over their scripted lines.

It has been reported that he also lied to the media about his name, nationality, job, age and role in the film’s production. While the video is billed as a trailer, it’s unclear as to whether there is an actual movie or whether that too is a lie.

I’m not a lawyer and thus can’t say whether this video meets the legal definition of hate speech, but to my mind it is exactly that.

All evidence thus far indicates it was made solely to insult and inflame Muslims and blame it on other parties, and that the producer knew full well what the potential consequences would be for himself and others.

While freedom of expression is a bedrock of the United States, it is often debated what actually constitutes free speech and where the boundaries lie.

The core principle is enshrined in the US Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It is a broad statement, based on a ‘marketplace of ideas’ where people have the right to publicly evaluate and debate all arguments and issues.

Thomas Jefferson, one of the authors of the US Constitution, said at his presidential inauguration in 1801, “Error of opinion may be tolerated where reason is left free to combat it.”

That said, speech is not without limits, even in the US. In several landmark cases, the US Supreme Court recognized the potential damage certain types of speech can cause and how far the government can go in regulating that speech.
As it turns out, not very far.    

In Schenck vs the United States (1919), the court unanimously established the “clear and present danger” test.

The issue in this World War I-era case was whether Charles Schenck had the right to encourage people to break the law by refusing military conscription.

Viewing Schenck’s speech as harming America’s wartime efforts, Justice Oliver Wendall Holmes wrote, “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 that they will bring about the substantive evils that Congress has a right to prevent.”

Under that standard, the maker of “Innocence of Muslims” might have been criminally liable, if prosecutors successfully proved that the video willfully put Americans and US interests in danger.

The Schenck case, however, was the last time the Supreme Court upheld a criminal conviction for speech. Ever since, it has become even harder to prosecute inflammatory speech.

In six cases dealing specifically with hate speech since 1949, the Supreme Court has consistently ruled on the side of the speaker, prohibiting the government from prosecuting someone for their words and ideas.

The “clear and present danger” standard was overturned with the 1969 case Brandenburg v. Ohio.

A member of the Ku Klux Klan, a racist organization that advocated discrimination and often instigated violence against black people, was arrested for a speech calling for the overthrow of the government.

The Supreme Court unanimously overturned the Klansman’s conviction, writing that the First Amendment did not allow a state to prohibit “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The current “imminent lawless action” standard makes it virtually impossible to prosecute the producer of the “Innocence of Muslims.”

It is not enough that the producer knew his video would likely cause protests across the Muslim world; after all, protests can and should be peaceful.

Unless you can prove the producer deliberately incited Egyptian protesters to breach the US embassy grounds or called for militant Islamists to murder the US ambassador to Libya, he cannot be prosecuted for making the video.

Does this mean the video producer cannot be brought to trial? Well, even if his speech is protected, fraud and misrepresentation are not.

Cast members who feel they have been put in danger by the “Innocence of Muslims” video are already talking about suing the producer.

US authorities are looking into whether the person alleged to be the producer, who reportedly was previously convicted of bank fraud, has violated the terms of his parole.

That is small comfort for those who want to see the video maker punished for insulting Islam.

So how do you combat hate speech? Not with government regulation. In the marketplace of ideas, you respond with a stronger message of tolerance, respect and reason.

The most prominent and vocal hate organization in the US right now is Fred Phelps’ Westboro Baptist Church (WBC), a small group of so-called Christians who claim that any calamity ― from natural disasters to oil spills to a soldier killed in war ― is due to God’s wrath.

The WBC’s hatred is spread far and wide; among the things they preach against are Muslims, Jews, the media, homosexuality, Republican and Democratic politicians and celebrities — essentially anyone who does not adhere to their narrow, selective interpretation of Christianity.

Among their most controversial activities, WBC members peacefully picket military funerals with signs reading “Thank God for dead soldiers,” and “God blew up the troops.”

Authorities at the local, state and federal levels passed laws to keep this group from intruding on a family’s private moments, and one family sued the group for intentional emotional distress.

The case Snyder v. Phelps et al went all the way to the Supreme Court, which in 2011 affirmed the WBC’s right to picket funerals. In an 8-1 ruling, the court announced, “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

In response to Westboro’s messages of hate, a group of motorcycle riders formed the Patriot Guard Riders to keep the funerals from being disrupted.

Following the church’s own picket schedule, the Riders turn out in far larger numbers and stand peacefully in front of the protestors with flags to shield funeral-goers from the sight of the picket signs.

It is a beautiful example of using the right to free speech to combat those who abuse that very same right. et

 For more coverage on the embassy protests, visit www.egypttoday.com