Ever heard the reference to yelling fire in a crowded theater? That comes from the Schenck case, where Justice Oliver Wendell Holmes ruled that speech can be regulated when it presents a "clear and present danger" of serious public harm -- in other words, you can't just say anything you want if a lot of people might get hurt. While the Schenck test has evolved into the risk of imminent lawless action, the metaphor lives on as a powerful example of the dangers of reckless speech in volatile situations, and the law's ability to respond while still protecting our own cherished First Amendment rights.
We face another important moment now with the anti-Mohammed video, and the rioting and acts of terrorism that have followed. No matter how offensive speech may be, such actions are never justified, and of course local leaders can manipulate crowds for their own purposes, but that misses the point. Globalization and the telecommunications revolution have fundamentally changed the way information moves throughout the planet since the Schenck days. Our notions of proximity, distance, even imminence must be re-examined. Reckless or inflammatory words can be uttered ten feet away, or ten thousand miles away, and the distinction is meaningless: YouTube and Twitter mean they are heard, felt and responded to on the other end of the globe instantaneously.
This is particularly dangerous when cultures vigorously protecting speech don't prohibit speech deeply offensive to those of other cultures, as with the video. They simply can't understand why we allow such speech, and all too easily believe we are therefore complicit in its message. Globalization means it is just not enough to explain in terms that make sense to us, why we protect speech so vigorously in the US when its effects are felt immediately and dramatically in other cultures with a very different approach. Our explanations don't translate nearly as well as our digital communications do.
When every major Western liberal democracy except ours regulates certain forms of racist and hate-mongering speech, we can no longer simply assert that our approach is a non-negotiable liberal value. Others have made different choices yet respect the same value. In the United Kingdom, for example, speech aimed at expressing hatred towards other groups on the basis of ethnic, national or racial differences is punishable by fines, imprisonment or both. Professor Jeremy Waldron has recently argued that it is time for the US to re-think its position on hate speech, and that a well-conceived hate speech law could protect the human dignity of minority groups while still respecting our fundamental freedom of expression. The anti-Mohammed video reminds us that such a law should be crafted not only to protect the human dignity of our own fellow-citizens, but the human dignity of communities outside ours borders that are nevertheless intimately affected by our media in this digital age. Globalization means we cannot assume the limits of our concern -- and our responsibility -- stop at our territorial boundaries.
Closer to home, our Supreme Court has ruled that "fighting words" -- low-value speech calculated to incite the "average person" to retaliation -- could be constitutionally regulated. As Professor Kent Greenfield has recently suggested, such a doctrine could be applied to cases like the anti-Mohammed video. The key would be extending the scope of our doctrine to include fighting words aimed at people outside our borders. Congress or the courts should clearly indicate by law that our 'fighting words' doctrine includes speech aimed at people outside the US through the Internet.
The Schenck case also reminds us of the risks of overregulating speech in a national crisis. Holmes and his decision have been roundly -- and justly -- criticized for prohibiting peaceful anti-draft leafleting by mail in a time of war. While the importance of free speech to our society cannot be overemphasized and the risks posed by limiting it are serious, we must remember that we already limit speech in the ways I've mentioned. Globalization requires us to go farther and re-think how we both protect speech and prevent harm in a shrinking planet. We do not have to punish the perpetrators of such speech - simply blocking reckless or inciting speech itself is remedy enough, and sends the necessary signal to the Muslim world -- or whichever community is the next target -- that we recognize the harm in crude, offensive and inflammatory speech that moves beyond our territory through cyberspace. We can take a few small steps to extend our own doctrines in ways that recognize our own new global reality without doing violence to our cherished principles. At a minimum, we have to work much, much harder to justify our society's particular choice when it is costing others (and ourselves) so much. We simply can't afford to protect those yelling "Fire!" in a crowded planet.