The Terrorist's Veto: Why the First Amendment Must Protect Provocative Portrayals of the Prophet Muhammad

This article analyzes why the Government should not be able to proscribe the publication or republication of provocative media, even when there is reason to believe that the publication could potentially lead to violence and reprisals against soldiers, diplomats, or citizens. This article will consider the various exemptions to the First Amendment which allow for the government to regulate or restrict certain types of unprotected speech. While there are many similarities between justifications for these doctrines and those that would justify preventing provocative speech such as images of Muhammad, the differences are even more significant and show why it would be unwise to allow the restriction of such provocative speech. Most significantly, every single category of unprotected speech has something intrinsic in the speech or the intent of speaker which makes the speech less valuable in some way. In contrast, punishing provocative and otherwise fully protected speech solely because of the reaction it engenders would be an anomaly because it would impose speech restriction purely for extrinsic reasons. It would be a terrorist’s veto allowing those opposed to an idea the ability to suppress its expression through threats of violence. Such a veto would offend the core First Amendment principle that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Just as the heckler’s veto which the Supreme Court has repeatedly rejected, such a terrorist’s veto is impermissible under the First Amendment.