As the credit card fraudster now being called Mark Basseley Youssef went back to federal court today to deny probation violation charges in connection with his Youtube mini-movie ridiculing Muhammad, most talk about the possible need to create a first amendment to the First Amendment—outlawing homicidally provocative blasphemy—has died down, at least in the U.S. But the incident has provided a reminding, if not teaching moment for Americans at least, about just how radical, historically and internationally, our commitment to free expression is.
We often talk as if freedom of speech were most fundamental in the realm of politics. But it's more complicated than that. Freedom not only to dissent from but to insult what others hold sacred—to belittle and besmirch their creed—is a corollary, however seldom exercised in public, of the freedom both of speech and from an establishment of religion. Part of our European, even our Anglo-Saxon heritage is a long tradition of executing men and women for their insufficient loyalty not only to the sovereign but to the faith that presided over his or her coronation. To question one was to question the other. The divine right of kings was equally threatened by challenges to either divinity or the realm.
We Americans broke from that tradition at our nation's birth. We have the legal right not only to burn the flag and ridicule all public officials, but to insult all religions and their sacraments, saints and symbols. Many in the world cannot understand this and will never accept it, and among them an incited handful can always be counted on to wreak vengeance on the iconoclast as they perceive it to be. And that is exactly the very practical reason why creating a blasphemy exception to the First Amendment, even if it were possible to do, would be no solution to anything.
Thanks to the smartphone and its camera, video editing software and the Internet, creating a "movie" of some kind about anything and showing it to the world is within the budget and competence of millions if not billions of people touched by 21st Century technology. Youssef launched "The Innocence of Muslims" from the United States, but he could have done so from any nation in the world. He did so for reasons yet unknown, but Al Quaeda itself or similar collectives wedded to destruction above all could have done the same thing precisely to keep extremists inflamed and wreaking havoc. And the U.S. would always be blamed, even if our dialed down First Amendment allowed us to round up and imprison disrespecters of religion the way we did with war critics nearly a hundred years ago.
But that is not to say that no laws could address what Youssef did. His movie production was possible only by duping actors—having them recite lines ridiculing and defaming a certain fictional character and later, without their knowledge or consent, dubbing in Muhammad's name in place of the character's. Had Yousseff told the actors how their words would be altered he probably would have had to rely on animation—and then he'd have to dupe the animators. This species of fraud does not appear to be a crime in California, but comparable misrepresentations are. Penal Code Section 532, subdivision (a) provides, for example,
Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.
What Youssef did has exposed his actors to criminal retaliation. A civil lawsuit might try to recover from him the expenses they have incurred going into hiding, but for the future, one who employs or contracts with another to provide a product or service which he or she then alters with the foreseeable consequence of exposing the employee or contractor to criminal retaliation should probably have some share in the punishment of that crime if and when it occurs. Such a law would no more infringe the First Amendment than does PC 532 (a).