By Emily Chertoff –
“Sam Bacile” and Terry Jones may be hateful, but they are not, as far as we know, criminals. The impulse to argue that repeat offender Jones in particular has somehow overstepped a line and, as commenters across the web have put it, “shouted fire in a crowded theater,” is tempting and understandable, both as an emotional response and as an intellectual one. From a distance, the line between protected speech and incitement seems blurry.
To clarify the legal status of both men’s speech, I called Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School.
As people try to puzzle out whether there is any legal action possible against either the filmmaker or Terry Jones, two ideas keep coming up. One is that the film and the promotion of the film are protected speech, and one is that this has somehow crossed a line, and that either the film itself or Jones’s promotion of it constitute something akin to that famous example of “yelling fire in a crowded theater.” What’s the line between protected speech, even hate speech, and speech that’s not protected?
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