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].


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