I recently spoke with attorney Mark Rosenberg about the recent international media attention and public outcry over an animated cartoon posted online by the military wing of the political group Hamas, and about why even "psychological warfare" with online video is and should be protected free speech in this country under the First Amendment.
An animated cartoon posted on the Website of the Hamas Qassam Brigades and on YouTube, which was widely broadcast on Israeli television and the international media, was described by the as being "remarkable for the personal and callous nature of the appeal on an issue that has profound emotional resonance for many Israelis." The cartoon showcases the plight of father of an Israeli soldier, who was captured by Gaza militants in June 2006 and still being held hostage today. (Watch the unedited and original cartoon on Youtube here.)
The video uses the real voice of a captured solider — from a previously released "proof of life" video — over a computer-generated animation that shows his father wandering forlorn past billboards showing statements from Israeli leaders promising to free his son.
The website of Hamas' armed wing, which posted the video, said it was intended to pressure Israelis to accept demands for a prisoner swap and warns the Israeli government it could regret not making a deal quickly.
The father of the solider called the video "psychological warfare." The video also created such a backlash that even a senior Hamas figure publicly condemned the insinuations made in it (that the captured Israeli solider would be killed by his organization if their faction's demands weren't met).
Using the example of the Hamas web video, I asked attorney and legal video expert Mark Rosenberg the following:
What charges, if any, could be brought against a person or organization posting such a video online? Invasion of privacy? Obscenity? Harassment?
Protected Political Speech Under the First Amendment?
Mark explains that in the United States, a video like this, although distasteful, would likely be considered protected political speech under the First Amendment. The central figure in Hamas' animated video (the father of the captive solider) is somewhat of a public figure. So that means the speaker (in this case, Hamas) is granted even wider latitude to make its political statement and to use a cartoon version of an individual who is associated with the political issue.
Similarly, Hamas, in addition to being a terrorist group, is a political party which governs Gaza, which would likely give it some greater latitude to speak. "It is thus highly unlikely that the video would be considered a violation of United States law." Says Mark. "This video would most likely be considered protected political speech. It is highly unlikely that criminal claims or civil charges could successfully be brought against the poster in the United States.”
"Unfortunately, under US law, there is not much that could be done." Says Mark. "Then again, that's the beauty of the First Amendment, which is designed to protect unpopular speech just as much as popular speech," and that includes online video – be it hosted here in the U.S. or being watched in the U.S.
But…YouTube is Not the U.S. Government
"On the other hand, if the video was posted on a website like YouTube, it may violate that website's terms and conditions which could lead to the video being removed from the website." Adds Mark. YouTube has a history of removing videos and accounts that it found to be patently offensive, including accounts from hate groups.
"While the United States has vast free speech rights, there are still limits." He says. "Among other things, these limits apply when the speaker is enabling terrorism or other criminal activity through its speech, placing lives in imminent danger such as yelling "fire" in a crowded theatre, or when the target of the speech is a non-public figure.”
For those reasons, YouTube has left the video online, which I believe it should. It's already been proven through the public outcry and international condemnation (and even internal condemnation by Hamas) that exposes the callous nature of organization rather than engender any sympathy to their cause. If YouTube had done otherwise, then they could have opened themselves up to thousands of cases online where all somebody had to do was claim "emotional distress" over seeing themselves in a video, even if they were a public figure, and use that to shut down unpopular political groups in this country.
Free video speech – you bet I'll stick up for that. (Especially for groups that would want me killed.)
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