An Op-Ed by Sarah Chayes in The Los Angeles Times, ‘Innocence of Muslims’ doesn’t meet free-speech test sets forth the standard by which freedom of speech dies in this country:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. “The most stringent protection,” he wrote on behalf of a unanimous court, “would not protect a man in falsely shouting fire in a theater and causing a panic.” …

In Afghanistan, and in all of the Arab nations in transition, an extremist fringe is brawling for power with a more pluralistic majority. Radicals pounce on any pretext to play on religious feeling….  By providing extremists in Libya and elsewhere such an opportunity, the makers of “Innocence of Muslims” were playing into their hands.

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”

Empowering the people who start fires to determine what we can and cannot say is how freedom of speech dies in this country.

We already are pretty far down that path.

Update: Sarah Chayes, author of the piece in question, emails:

Dear Prof. Jacobson:

Just for the sake of precision, could you put the accurate headline for my LA Times piece on your blog? I never said “Innocence of Muslims” doesn’t meet First Amendment standards, I said it may not. As you doubtless know, authors don’t get to write their own headlines, and the LA Times has corrected it, so it now reads as a question. In the print version it was “free speech or incitement?”

For the record,the headline the LA Times now has on it’s website is NOT the original headline. I accurately quoted what originally was on the LA Times website.