09/18/2012 06:11 pm ET Updated Nov 18, 2012

Is the Anti-Muhammad Film Constitutionally Unprotected 'Fighting Words'?

As the violent protests against the United States spread throughout the Middle East over an amateurish anti-Muhammad film, profound cultural and legal differences over the freedom of expression have come to the fore. In most countries in the Middle East, blasphemy is a crime and the government often operates as censor. So a pervasive assumption there is that the video could not have been produced and distributed without the approval and support of the U.S. government.

The United States, in contrast, is more protective of speech than any country in the world. Our free speech tradition is so dedicated to, in the words of the Supreme Court, "uninhibited, robust and wide open" debate, that we are accustomed to looking the other way when those on the ignorant fringe spew vile and hateful opinions. And we understand that the government is not typically in the business of choosing what people can and cannot say.

So despite a host of disagreements over how to respond to the protests, Americans seem to agree that the film is completely protected by the First Amendment. Mitt Romney noted that "under the 1st Amendment, people are allowed to do what they feel they want to do." Secretary of State Hillary Clinton explained that "we do not stop individual citizens from expressing their views no matter how distasteful they may be." Yale law professor Jack Balkin said in The Atlantic that the film is "totally protected by the First Amendment."

Is there any wiggle room?

Anyone who has spent more than a few minutes thinking about the freedom of expression knows that not all speech merits constitutional protection, and the history of the Supreme Court's First Amendment jurisprudence is a travelogue of the border between protected and unprotected speech. Obscenity, perjury, threats, criminal conspiracy, securities fraud, and libel of private individuals are categories of speech the regulation of which does not raise serious constitutional problems. The government can also constitutionally punish those who incite others to lawlessness, as long as the the speaker intends to incite, and the law breaking is imminent. A speaker whipping a mob into a lynching frenzy can be held accountable for the acts of the mob.

None of these exceptions to First Amendment coverage is applicable to the film. Incitement is the closest fit of these, but there is no reason to suspect that the filmmakers intended viewers to break the law.

But there is an additional category of unprotected speech -- so called "fighting words." Seventy years ago, in Chaplinksy v. New Hampshire, the Supreme Court upheld the conviction of a man who had yelled abuse at his local police chief. The Court issued a now-famous description of "low value" speech, including "insulting or 'fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Court reasoned that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

So we could call this the "yo' mama" exception to the First Amendment. If a speaker voices an epithet "likely to provoke the average person to retaliation, and thereby cause a breach of the peace," then it can be constitutionally punished.

This is probably the best argument for some kind of regulation of the anti-Muhammad film in question. Certainly many of the world's 1.5 billion Muslims find the film deeply offensive, and some have reacted violently. The violence of the protests cannot be excused and should be condemned, of course. But the doctrine does not ask whether the violence is reasonable, only if it is the likely reaction of the "average" person.

But using the fighting words doctrine to regulate the film would raise a number of serious concerns. The Court made clear in the 1992 case R.A.V. v City of St. Paul that the government could not pick and choose which fighting words could be punished on the basis of the government's viewpoint as to which such epithets were worse than others. So the government could enact a general ban on fighting words, but not one aimed at protecting Muslims from offensive speech, for example, or even all people from offense based on religion.

Another concern would be how courts would decide whether the "average" person would respond with violence. If the consideration of the "average" response is infected with a focus on the "actual" response -- as it seems to have been in Chaplinsky itself -- then there is a real risk that the doctrine ends up tilting toward punishing offensive speech aimed at those who tend toward violence. Meanwhile, offensive speech aimed at the meek or powerless would be protected, since hearers would not likely respond violently. That would be an awkward outcome indeed.

This situation makes obvious something that is often ignored when we discuss our laudable First Amendment tradition. When we protect vile and ignorant speech like this film, it is not a cost-free social choice. Speech has effects, sometimes dire. The system works best when the freedom to speak is exercised with a sense of personal responsibility toward those who will be affected by it. When a speaker ignores those effects, it is cowardly to hide behind the First Amendment, even though it is within his rights to do so.