Arrest Martin Scorsese.

There’s plenty that could be said about Sarah Chayes’ column in the LA Times today, which is gaining substantial negative traction on Twitter. I just want to hone in, though, on her central argument and quickly expose its absurdity.

She tries to present it as a purely legal case for why the anti-Islamic film that caused so much trouble last week is not protected speech under the First Amendment, but you can tell by the tone and the fact that she has tried so hard to present this counter-intuitive case that she also endorses it; she thinks its producers should face legal consequences.

Her key claim arrives in this section:

The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.

She goes on to complete this conditional by insisting that, as a matter of empirical fact, the anti-Islamic film clearly was intent on inciting violence given the crassness of its creators, and its incitement of violence was likely and imminent given the speed with which these things spread and given Middle Eastern attitudes towards blasphemy. So the standard for punishing speech is met.

Which would be fine, if not for the fact that a standard that broad and contingent on the bad acts of others could ensure that all sorts of speech is retroactively or pre-emptively criminalised.

I mean, imagine it were true (maybe it is) that sociologists and psychologists now know enough about the effects of mass media and the workings of unstable minds that whenever a film is released depicting an assassination plot, some nut somewhere will indeed, most probably, become a copy-cat once they see it. That seems perfectly plausible. So the film could easily end up being the ’cause’ of a real-world murder, and given this knowledge, the standard Chayes espouses is almost met. The only condition left is the murky one of ‘intent’, and it’s easy to imagine a prosecutor arguing that if a filmmaker knew that his film would most likely inspire copycats, he must have in some sense ‘intended’ it to when he nevertheless ploughed on with his art-work.

And that means, yes, that Martin Scorsese and Robert De Niro could at minimum be sitting in a courtroom merely for making that iconic character of American cinema: Travis Bickle. Taxi Driver ‘inspired‘ an assassination attempt. Let’s hear Chayes explain why any such standard she toys with wouldn’t end up suppressing all sorts of reasonable speech.

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