Sunday, October 14, 2012

On Safeguarding the Rights of Idiots and Fools

Dear Mackenzie,

When I was in law school I learned that the constitutional rights of the innocent are often reaffirmed on the backs of bad or guilty people.  Anyone who has ever watched a cop show on television, for example, is familiar with the notion of reading a suspect his “Miranda” rights.

In 1963, Ernesto Miranda was arrested for kidnapping and rape. He was convicted and sentenced to many years in prison. His lawyers appealed. They argued that Mr. Miranda had not been told, among other things, that he had the right to an attorney, so his confession was improperly obtained.  The U.S. Supreme Court agreed and overturned his conviction.

But make no mistake, my sweet daughter. Miranda was guilty as sin of the crimes for which he had been convicted.  He was subsequently retried without the “tainted” confession, convicted, and served many years in prison. Yet Mr. Miranda’s actual guilt or innocence was irrelevant to the Supreme Court. Their job was to protect his constitutional rights, and ours.

One of the most entertaining cases I studied in law school was called Cohen v. California. By the mid 1960’s, people were protesting heavily against the draft and against the Vietnam War. In 1968, Paul Robert Cohen was arrested for wearing a jacket inside a Los Angeles Courthouse bearing the words “Fuck The Draft”. He was convicted of disturbing the peace.  The case wound its way through the court system where the U.S. Supreme Court overturned the conviction, saying it violated Cohen’s First Amendment rights.

Cohen’s attorney at the Supreme Court was the late Melville Nimmer, a well-known constitutional scholar who just happened to be my First Amendment professor at UCLA. One of my favorite memories in school is Professor Nimmer lecturing our class about how he argued that case.

The prosecution’s case had rested on the theory that the words “fuck the draft” were incendiary and had a tendency to provoke others to commit violent acts or to disturb the peace. Professor Nimmer recounted to us that prior to oral argument, he had received strongly worded “advice” from clerks of the various Supreme Court Justices that he was not to use the word “fuck” during oral argument. The Court considered it “demeaning to the institution of the highest court in the land”.  

Professor Nimmer told us that he indeed feared if he said “fuck” during oral argument, some of the justices would hold it against him in deciding the case. As he prepared, however, he worried that although he might not win the case if he insulted the Justices, his position really rode on the notion that the words were constitutionally protected, even in front of the Supreme Court.  As Nimmer put it, though, he was “fucked” either way.

The big day came and Professor Nimmer stood in front of the nine Justices. Before he could utter a single word, apparently one of the Justices cautioned him yet again by welcoming him to the “dignified” and “respected” halls of the Supreme Court.  What to do?

“Good morning Your Honors”, he began. “We are here to talk about the words ‘Fuck the draft’ ”.  He relayed to us that several of the Justices looked shocked as he repeated the phrase several times, but he won the case anyway.  Like in the Miranda case, guaranteeing fundamental freedoms is sometimes messy.

Not too long ago, someone posted on Youtube one of the most offensive short films you’ll ever watch. It’s called “Innocence of Muslims”, and basically the video ridicules Islam generally and defames the prophet Muhammad specifically.

The film is so poorly made that but for the treatment of its subject matter, no one would have seen it or cared.  The quality of the acting, writing, and directing is laughable.  I went on YouTube myself to see what had caused such worldwide attention and anxiety, and initially thought I had stumbled upon a spoof.

Yet the video has gone viral, with more than 20 million views on Youtube alone. It has garnered protests and violence around the world. It has been banned in more than a dozen Muslim countries.  It has escalated hatred of America and the West.

The video and its aftermath are unique in two ways.  First, the actors were apparently not told they were filming an anti-Islam film. No one was given a full script nor was there any reference to Muhammad or to Islam during production. The actors were told they were shooting an action film, and all the religious references were dubbed in by the director/producer during post-production.

Secondly, religious and special interest groups around the world immediately started spinning to serve their own purposes. First we heard that the film was financed by Israeli Zionists bent on defaming Islam.  Then it was reported that the film was instead financed by a group of Egyptian Muslims bent on making the West look bad. Then it came out the film had been financed by an individual crackpot with an axe to grind.  Who really financed the film and why? I don’t know.

It’s neither the first time nor the last that someone will use his or her fundamental rights to wreak havoc. I wish the person or group who made “Innocence of Muslims” had more sense. I wish the author or authors of the film had put their first Amendment rights to better use.  At the very least, I wish they had simply shut (the fuck) up.

Mackenzie, I hope you’ll treasure the fundamental rights that have been bestowed upon us by our founding fathers. They are hard fought and well earned. Yet I also hope that as your grandma used to say, “if you have nothing nice to say, say nothing at all”.

All my everlasting love,


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