By publicly naming person behind anti-Muslim film, federal officials commit appalling abuse of power

On dit quelquefois: “Le sens commun est fort rare.”
People sometimes say: “Common sense is quite rare.”
–Voltaire, “Common Sense” (1765)

U.S. federal officials have reportedly identified by name the person behind the making of the film entitled “The Innocence of Muslims”, which has caused outrage in various Muslim countries.

By doing so, they have in effect condemned the individual involved to a high risk of being killed by Muslim extremists. This they have done with no due process of law. They were not required to make the individual’s name public.

While the film has been condemned as abominable and highly inflammatory by Secretary of State Hillary Clinton and others, as far as we know it was produced under the protection of the First Amendment to the Constitution of the United States, which protects freedom of speech.

It is clear that the film should never have been made. It seems to have been deliberately inflammatory.

Nonetheless, even if it is conceivable that the person behind the film is not protected by the First Amendment, certainly he was entitled to his day in court, and just as certainly it was wrong, morally and perhaps also legally, to name him publicly without bringing any charges, thereby exposing him to a very high risk of assassination.

Moreover, there is the question of what law, if any, officials may have thought he violated in making the movie, which could have given rise to federal officials conducting an investigation and making his identity public.

We live in an age where, as Mitt Romney has just proved in his incredibly inappropriate criticism of statements from Benghazi by State Department officials, people don’t always think before they open their mouths.

But federal officials should think before they put a man’s life in danger for actions that appear to be protected by the First Amendment.

There is a need for greater understanding and acceptance on both sides of this debate.

There may be an argument to be made for some form of very limited legislation in the United States that would prohibit actions intentionally undertaken, not to provoke debate and discussion, but rather to inflame religous sentiments and engender religious violence. Something like this exists in Europe. This would be the equivalent to Oliver Wendell Holmes’ famous dictum that freedom of speech does not give someone a right to shout “Fire!” in a crowded theater. This is a tricky area, however, and a slippery slope in terms of curtailing freedom of speech. Any statute would have to withstand a challenge before the Supreme Court.

On the other side, returning to Voltaire, those outraged by the film would do well to read Voltaire, the Encyclopedists, and the other authors of the 18th century Enlightenment, in order to understand better the differences between Church and State in Western countries, the right to free speech which was forged through the French and the American revolutions of the 18th century, and the right to freedom of religion which received a great boost through the 16th century Reformation and the Thirty Years’ War in the 17th century.

These values are important to Western Civilization, and are now enshrined in the international law of human rights.  They also deserve respect. 

Understanding is a two-way street.

Again, the publication of the name of the person behind the film by federal officials represented an appalling abuse of power, by individuals seemingly oblivious to the consequences of what they were doing, in a case which would appear to involve the exercise of First Amendment rights under the U.S. Constitution.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.