Mohammed and the Fighting Words Doctrine

No doubt most lawyers have given some thought to the horrifyingly bad trailer that has resulted in several deaths and a lot of demonstrations, as well as the confusing dispatches from everyone about whether people ought to be allowed to post this sort of thing to YouTube.

While the stupid video is definitely protected by the First Amendment, the Fighting Words Doctrine does get close to the reasons why so many people think it should be bannable. If you mock Mohammed, you’re going to piss off a segment of the Muslim population that is prone to violence. The problem with using the Fighting Words Doctrine to prohibit videos like this is that the Fighting Words Doctrine allows the government to ban speech that would provoke the “average person” to violence, not the average Muslim extremist (a distinction based on religion).

Here’s more on this line of thinking from Boston College law professor Kent Greenfield, and an op-ed in the LA times. Plus, I think The Onion has struck just the right note [really really NSFW].



Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • David

    gotta ban those PBS shows undermining Jesus while you are at. PBS is always putting out some new theory undermining divinity. that YouTube video is poor quality but the facts are basically spot-on about Mohammed. and in most states fighting words doesn’t really have a legal basis in the code.

  • Firstly, I don’t know how any educated person with access to Wikipedia could believe any of the allegations described in the film.

    Secondly, as a Muslim attorney, I am deeply offended by the film. It was of very poor taste and clearly intended to be inflammatory. However, its reality is that it is an insult only upon those who produced it. However, I don’t think anyone seriously thought that it’s anything beyond pure speech and that it’s not protected by the First Amendment.

  • Jeff

    What was the purpose of this article? You could at least tell us what you found “stupid” about the video. I typically enjoy your articles Sam, but this one baffles me.

    Adopting this doctrine would force the government to abandon its love affair with saying “not all Muslims are violent” and lump everyone together as “average persons”. Not to mention that very few people, except those who believe everything that comes out of the White House press office, really believes that this movie was the cause for unrest in the Middle East. It was a coordinated attack, mixing the movie into the discussion should be blamed on the media. The 24-hour news cycle has added to this story, searching for something that wasn’t really there.

    It would help if you understood terrorism and the Middle East a lot better, the lack of substance in this article shows that you don’t. You have been forced to believe that we should “do the right thing” at all costs. That is what terrorist groups rely on. Doing the right thing is our greatest enemy. Restricting this speech no matter how “stupid” you think it is makes us weaker. If anything speech like this exposes extremists for who they are and allows us to identify threats to our security.

    I did a search of Chaplinsky v. New Hampshire (the case that you and Kent Greenfield base your argument on) and found that it was referenced about 1,700 times. It appears that the cases received mostly negative treatment not exactly a great case to rest your hopes to restricting speech.

    • First, I thought I was pretty clear that I do not think the Fighting Words Doctrine does or should apply. If you weren’t sure, click the link to the Onion article I included with approval.

      Second, have you watched the video? It is stupid.

      • Jeff

        I have seen it. I agree it’s really dumb. I also think it’s equally as stupid to blame a trailer of a movie for the terror attacks in Bengazhi.

        A large portion of those we are concerned about pissing off can’t read, or write their own language never mind English. They are fed what to believe by clerics who serve their own interests. So while I’m sure the content of the film might be insulting, I’m equally as sure that most of the clowns causing a ruckus are doing so on blind faith and have not seen the movie and if they have, are clueless as to what they are saying. You’re giving the uneducated masses way too much credit.