Charles Schenck wrote his thoughts on brochures and stuffed them into the hands and mailboxes of young American men called upon by their country to enter World War I. The United States was not offering an invitation; it was an order. It was that conscription that riled Schenck, then the Secretary for the Socialist Party of America, in 1918. He distributed these leaflets full of phrases all too familiar to anyone who dropped by near Zuccotti Park: Assert your rights. You aren't a slave.
Schenck viewed this conscripted army as a profiteering mission: money men gaining more capital on the backs of the non-connected. He also found the measure strictly unlawful. The Thirteenth Amendment didn't just outlaw slavery, it abolished all forms of involuntary servitude. Schenck, comfortable with his use of the Constitution's First Amendment freedom of speech guarantee, handed out his fliers backed by a certainty that what he was doing was lawful, just, and righteous. But that backing had been taken away a year earlier.
The Espionage Act of 1917, signed into law by President Woodrow Wilson, was a catch-all for any activities that could be considered anti-American while the country was at war. As the U.S. drove further into Europe, an amendment to the law was passed that broadened what acts could be considered "anti-American." The Sedition Act outlawed the ability to:
Utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag ... of the United States into contempt, scorn, contumely, or disrepute.
And with that, Mr. Schenck was off to the hoosegow.
Schenck's appeal eventually reached the Supreme Court in 1919, where it was upheld by a unanimous decision. Schenck continued to rot in prison because his words caused a "clear and present danger" to the welfare of the United States, a violation of the Sedition Act. In the opinion, Justice Oliver Wendell Holmes, Jr. famously outlined the parameters under which freedom of speech is not protected by law:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
This law was later appealed and altered, first in Whitney v. California (1927), where the "clear and present danger" test was amended to the less scary "bad tendency" test. It was shuttered all together with 1969's Brandenburg v. Ohio ruling, where such behavior is illegal only if the speech can incite a riot before the proper authorities arrive on the scene.
But when the internet has widened the scope of the theater's walls to encompass the planet, what can we do when zealots recklessly scream "FIRE" hoping to watch it all burn?
The Innocence of Muslims is not a film. To say so would be insulting to every other film ever conceived, shot, and/or completed. This is a commercial for starting a riot. It is a poorly formed, terribly executed embodiment of hate speech. It is, by any measure, screaming "FIRE!" in a crowded theater. But this is not an isolated incident. This is yet another volley in an ever-quickening ping-pong match played out by small, extremist minority groups while millions – possibly billions – look on, fretting about the consequences. The players themselves, however, face no special repercussions.
Not the E-list actors who took a quick buck to take part in this clusterfuck of a production whose script must have stunk from miles away, nor the sound man who decided to mic everything from thirty feet away. Not the voice-over actors brought in to dub even more incendiary, hateful dialogue to leave no doubts about what this film was about. Not the anti-Muslim crusaders who purportedly produced and consulted on the film when they weren't busy executing check fraud, mass-producing angel dust, or handing out pamphlets of vile intolerance to children.
No. All they do is Serve.
Halfway across the world, a right-wing, conservative, religious-based television network takes the film off of YouTube, dubs it in Arabic, and uses it as an example of America's general feelings for Muslims. They play this ad nauseum until they get the response they feel the film deserves. It is, not coincidentally, the desired effect of those who made the film was achieved, but maybe not exactly how it was planned. Four Americans, including three State Department officials and the U.S. Ambassador to Libya, were murdered. Chris Stevens is only the sixth U.S. Ambassador killed in the line of duty.
"Americans" hear the story, see the photos, watch the video, and can't believe that Those People got so riled up over a silly movie. How can they be taken seriously? Why do we have to suffer because of their problem? All we did was make a silly video. It's free speech! Don't they understand our rights?
"Muslims" can't understand why Those People can't leave their prophet alone. Why can't they just respect our beliefs? Why must they depict a sacred man in our religion as a raping, pillaging, murderous bi-sexual? Why must they continually attack that which we hold dear? Why don't we just continually respond in kind?
So great swaths of people sit in the middle, our eyes darting left to right, right to left. We clutch at signs of apologies. We mourn the dead. But mostly, we watch, because what can we do? Where can we go? We're locked in this theater, and regardless of what language we scream, no "FIRE!" will make the zealots and the murders unlock the theater's doors. Even as we burn along with it.