TheHammer wrote:I think Brandenburg was probably right for the time it was handed down, and some of it still certainly has merit. However I think it is probably in need of an update given the modern world we live in, and the speed at which information can disseminate to all corners of the globe. Such a ruling might put much less emphasis on "imminence" and instead focus on intent and likeliness to incite or produce lawless action.
For example, if I am not allowed to shout "Fire" in a crowded movie theatre, would I then not be accountable if I recorded myself shouting "Fire!" and set it up to play at random times inside a theatre? Because that's essentially what you have here. It wasn't "imminent" when I first said it, and but because technology allows such things to be kept indefinitely, that speech lives on forever.
I do think you need to walk a very fine line. Someone merely taking offense at any point current or later about something spoken/written is not enough of a standard to say that speech should be restricted. It should be clear that the producer of any form of speech is in fact intentionally seeking to incite violence, rather than having it show up as a consequence even if the violence was foreseeable. To not do so would allow threats of violence to curtail any form of unpopular speech and would in fact be counter to the very notion of free speech. For example, I don't think you'd want someone to be held liable for advocating for gay marriage just because some crackpot said they'd kill a bunch of people if they didn't stop talking about it.
That being said, I think that in this instance, given the behavior of the producers involved you might have the case that the sole reason for this film was in fact to incite violence. Its not as clear cut as say them posting a youtube video saying that "muslims are evil and should be killed", but its not that far below.
I think the point where this argument falls on it's face is that in 1969, there was already both the equipment to transmit your recording across the globe, as well as to record it for later use. Technology has made this capability more democratic, and cheaper, but it's not new. If you shout "fire" in a crowded theater, or cause "fire" to be shouted in a crowded theater, that's one thing. If someone else uses your recording of shouting "fire" in a crowded theater, is it still your fault?
In 1969 this capability was as you say much more expensive, much larger and complex to operate, and for the most part in the hands of responsible professionals. The idea that cowards could knowingly create a video of themselves for the sole purpose of inciting violence, and then near instantly be seen all across the entire world where that violence is then carried out might not have occured to them. And chances are, if the elder generation of the 60's is anything like the elder generation of today they probably didn't entirely understand 60's level technology well enough to begin with.
Regardless of that speculation, I think the term "imminence" is rather vague to say the least and should require more clarification. Is it a day? An Hour? A year? What are the statue of limitations there? The very fact that we are all having a debate as to what would qualify is proof enough of that. In any event, I would have to believe that intent and likeliness of violent action should bear greater importance than the actual timing of said violence being carried out.
As to your notion about someone else using my recording of "shouting fire" in a crowded theatre, again you have to go back to the intent of the producer of the speech. Was the recording used without my knowledge or permission? Or did I create the recording and distribute it of my own will in the hopes that someone would
use it in a crowded theatre? In one instance its not my fault, but in the second it most certainly would be. I don't believe anyone in this case is suggesting that the producers of the film had no intention of it being released.
By your standard, we have a violence veto. Anything I say that could cause someone to commit violence, at any time, anywhere, would be cause for censorship. Denying the existence of God? Advocating the existence of one idea of God over another? Denying the Holocaust? Saying the Holocaust happened? Denying that man landed on the Moon? Arguing about the limits of First Amendment speech?
What the film-maker did was deplorable, and immoral, but should not be considered illegal.
I believe you missed the third paragraph of my post wher I specifically addressed the concept of a "violence veto". For emphasis, it should be clear that the intent of the speaker is solely to provoke violence and that the speech has no additional value. Its not enough that knowing a particular unpopular speech would probably provoke violence, it should be shown that it was also your intention that violence would happen. The concept of "fighting words" has made its way through the courts before and likely will again.
To use one of your examples, denying the moon landing strictly to provoke a conflict is different than denying it because you actually believe it. As a second example, calling someone's mom fat because you wish to provoke you would be different than saying she was fat because you truly believed it, even if in both cases you were to end up in a fight with the person whose mother you insulted.
That being said, in ambiguous circumstances, one should always err on the side of free speech, but in this case there is evidence that the goal of the film producers was in fact to produce violence. They went out of their way
to make it as imflamatory as possible. As current laws are written and interpreted you are likely correct that it might not be "illegal" in the larger sense, but it probably should be. I'd have more sympathy for the crazy preacher burning the Koran because he believed it to be "evil" than a chickenshit movie producer doing it with the intention of inciting riots.