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SPOTLIGHT
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Walking the fine free-speech line

Published on -10/16/2012, 10:15 AM

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There's nothing in the First Amendment that says we have to like Mark Basseley Youssef. Or Nakoula Basseley Nakoula. Or Sam Bacile. Or Nicola Bacily.

Those names all appear to apply to the same person, the man behind production of the controversial, crudely done video that has angered Muslims worldwide.

But the 45 words of the First Amendment do require that we protect Youssef's rights, under whatever name, to express views and hold opinions that others find offensive without fear of being silenced or targeted by the government.

And with much of the world operating under a very different concept -- and often under different laws -- regarding the scope of free-speech protection, we need to keep in mind that what happens here to unpopular speakers can easily be misunderstood elsewhere by the unknowing, or distorted by the dictatorial.

In Youssef's case, the novice filmmaker is also a convicted criminal, having pleaded "no contest" in 2010 to a credit-card fraud charge involving the use of fake names. He was sentenced to 21 months in prison, but was released on parole in June 2011 with conditions barring him from accessing the Internet without approval and from using any name other than his legal name.

The video, "Innocence of Muslims" portrays Islam's revered Prophet Muhammad as a religious fraud and sexual deviant. Youssef was arrested last month and charged with lying to federal investigators who in the wake of fatal rioting overseas were looking into production of the video. Prosecutors claim Youssef applied for a passport under one name, applied for a driver's license under another name, and used a third name in connection with the video.

On Oct. 10, Youssef denied violating his probation conditions. He's being held without bail because officials fear he'll flee the U.S., in part to hide from Muslim extremists who have vowed to kill him for his blasphemy.

If prosecutors can prove in court that Youssef is Nakoula is Bacile or Bacily, the situation would seem fairly straightforward. He violated terms of parole. Back to jail.

But like the very Middle East conflict into which the man has thrust himself, little is "straightforward" about this situation, including his legal predicament and its implications for free expression in the U.S.

Youssef's prosecution for violating parole conditions seems to have moved extraordinarily quickly in comparison to the usual pace in such cases. Some claim the White House is pushing the case "through the back door" to do what it cannot do openly: punish Youssef for producing a film that U.S. Secretary of State Hillary Clinton called "disgusting and reprehensible."

As for Youssef's potential violations, such prosecutions take place every day. If federal officials had not reacted, it's likely critics would be attacking them for doing nothing.

But bearing the gold standard of free speech internationally also means special obligations for the United States. What some may see as a procedural response to a parolee's misstep may instead echo worldwide as mere subterfuge for circumventing our basic freedoms.

U.S. District Judge Christina Snyder has scheduled an evidentiary hearing for Nov. 9 as the next step in Youssef's saga. The judge is walking a fine line. Move too quickly and the matter will be seen as appeasement to those who want Youssef kept in jail and as a repudiation of centuries of U.S. free-speech protection. Move too slowly and Youssef likely remains jailed -- with the same effect.

The challenge for Judge Snyder and for prosecutors is to keep the process moving, as transparently as possible, and to separate the parole issues from the political ones. Holding bigoted religious views is indeed reprehensible -- but not illegal. If the government wants to prosecute Youssef on a charge of deliberately and directly inciting violence with his video -- if proven, one of the few, very narrow legal restrictions on free speech -- it should do so, and make its case in public.

The First Amendment is not a shield for lawbreakers, but it is one against government officials who would use the letter of the law to void the shelter of its 45 words.

Gene Policinski is senior vice president and executive director of the Washington-based First Amendment Center. gpolicinski@fac.org

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