Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic,  Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.”

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

“The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.“

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.

It was obscene to show Prince, a HOMOSEXUAL person though a sheet, as to show his siluette while his guitar showed a very phalic symbol coming from his below-midriff section.  I am very offended and I would preffer not to have showed it to my 4 children who love football.  One of them has opened to be a quarterback and now he will turn out gay.  I am actually considering to check him for HIV.  Thanks CBS for turning my son GAY.
…
The part of his act in particular that comes to mind it when they pull up a big sheet and his shadow is cast upon it.  He is holding a guitar and in the shadow it looks as though he has a large penis with pitchfork on the end.  It was not only profane it was sadistic!
…
During Prince’s rendition of Purple Rain, which I think is a really great song, there seemed to be a shadow puppet of his (penis).  The sheet? that was the backdrop seemed to be (stained?) with something (semen?) My children were watching and now I have to explain to them what a wet spot is on a cum covered sheet. Thanks CBS.
…
I find it highly unacceptable to have a family watching sporting event only to find Prince stroking, manipulating and fondleing his guitar being the curtain.  This image only made him look extremely large which made the rest of us feel small, and unable to preform this evening.

We were walking back to Manhattan over the Brooklyn Bridge, and the sky could not have been more ominous. There’s a metaphor in this picture, but it’s so heavyhanded that I”d be embarrassed to name it even.

• For Shame of Doing Wrong, Yo La Tengo
• Rockin’ Chair, Louis Armstrong
• $1000 Wedding, Gram Parsons
• The Man’s Too Strong, Dire Straits
• It Makes No DIfference, The Band
• The Music Never Stopped, Grateful Dead
• Miles and Miles of Texas, Asleep at the Wheel
• Scarecrow, Beck
• Lullaby of Birdland, Sarah Vaughn
• Elderly Woman Behind the Counter, Pearl Jam

“Perhaps he found what he came for, but the odds are huge that he didn’t. He was an old, sick, and very troubled man, and the illusion of peace and contentment was not enough for him – not even when his friends came up from Cuba and played bullfight with him in the Tram. So finally, and for what he must have thought the best of reasons, he ended it with a shotgun.”

Hunter’s older works seem as fresh today as then. He reinvented journalism, no small feat. But it was his Cassandra-like understanding of American culture that is most relevant today. He made bold predictions, and it’s hard to look around today and argue that he was wrong.

Hunter also had a huge sense of generosity that was surprising, and then wasn’t when you thought about it. His ‘letters’ books show him to be a prolific and thoughtful letter writer, both to friends or enemies, and he put as much thought into his letters as his books.

He was also a great writer in a strictly formal sense. And it pained him to not be taken as seriously as he took his own craft.
I’m reminded of a piece in the Great Shark Hunt (and also might have been in …Campaign Trail, I forget), but it comes back to me now. I’ll type it out – perhaps I’ll learn something. Hunter used to type out pages of the Great Gatsby to get a feel for Fitzgerald’s rhythm.

In the context of journalism, here, we are dealing with a new kind of “lead” – the Symbiotic Trapazoid Quote. The Columbia Journalism Review will never sanction it; at least not until the current editor dies of brain syphillis, and probably not even then.

What?

Do we have a libel suit on our hands?

Probably not, I think, because of nobody in his right mind would take a thing like that seriously – and especially not that gang of senile hags who run the Columbia Journalism Review, who have gone to great lengths in every issue during the past year or so to stress, very heavily, that nothing I say should be taken seriously.

“Those who can, do. Those who can’t, teach.” George Bernard Shaw sais that, for good or ill, and I only mention it here because I’m pretty goddamn tired of being screeched at by waterheads. Professors are a sour lot, in general, but professors of journalism are especially rancid in their outlook because they have to wake up every morning and be reminded once again of a world they’ll never know.

THUMP! Against the door. Another goddamn newspaper, another cruel accusation. THUMP! Day after day, it never ends. … Hiss at the alarm clock, suck up the headlines along with a beaker of warm Drano then off to the morning class. … To teach Journalism: Circulation, Distribution, Headline Counting and the classical Pyramid Lead.

Jesus, let’s not forget that last one. Mastery of the Pyramid Lead has sustained more lame yoyos than either Congress or the Peacetime Army. Five generations of American journalists have clung to that petrified tit and when the deal went down in 1972 their ranks were so solid that 71% of the newspapers in this country endorsed Richard Nixon for a second term in the white house.

It’s hard not to smile at his prescient recognition of the dangers of hackery. The stench from the Armstrong Williams / JimmyJeff Gannon / Etc. cloud must’ve been unbearable to him. Yesterday’s waterheads are now on the government payroll.

Hunter mused on mortality often, so there will be no lack of prophetic quotes will surface in the coming days. And many colorful eulogies.

In his own eulogy of Lionel Olay, whom he christened “The Ultimate Freelancer,” Hunter (a title which might more accurately describe himself) wrote:

“I don’t even know where he’s buried, but what the hell? The important thing was where he lived.”

Hunter lived in America and we’re all much better for it.

Selah.