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Jailing of ‘Innocence of Muslims’ creator raises free speech worries

Published: Thursday, Oct. 4, 2012 8:28 a.m. CDT

LOS ANGELES (MCT) — As rioting over the anti-Islam film “Innocence of Muslims” spread across the Muslim world, President Barack Obama and Secretary of State Hillary Rodham Clinton both deplored the film’s message but defended the free speech rights of its creators. In Clinton’s words: “We do not stop individual citizens from expressing their views, no matter how distasteful they may be.”

But now one of the film’s creators, Nakoula Basseley Nakoula, is sitting in jail in downtown Los Angeles. He faces two years in prison for allegedly violating the terms of his probation through his actions surrounding the film’s production. News of his arrest and detention has been widely covered around the world, causing some to worry about the perception that the United States was punishing Nakoula because of the content of his movie.

Government officials maintained that Nakoula was back in custody not because of the impact of the movie, which portrays the Prophet Muhammad as a womanizer and a child molester, but because he had used aliases in producing the film and lied to probation officers.

Nakoula, who was on a type of probation known in the federal system as supervised release, served time in prison for a 2010 conviction for taking out bank and credit cards under a myriad of fake identities. He now faces eight charges of probation violation. The allegations include making false statements to authorities about the film — claiming his role was limited to writing the script — and denying he used the alias “Sam Bacile.”

Authorities say they have proof Nakoula’s role in the movie was “much more expansive” than that of a writer and that Nakoula could face new criminal charges for lying to federal officials.

Probation officials are recommending a two-year prison term for Nakoula, despite a guideline range of four to 10 months.

A federal judge ordered him held in protective custody without bail, saying he is a flight risk and poses “some danger to the community.”

Some legal experts said the government was on firm legal footing and had little choice but to enforce the terms of Nakoula’s probation once he came onto their radar.

Those on probation don’t have the same rights as the average citizen, and authorities have wide discretion over their behavior, the experts said. The U.S. Supreme Court has upheld speech restrictions as part of probation in specific cases. Nakoula was barred from using computers or the Internet without permission from his probation officer, though he has not been accused of violating those terms.

“Everything that has happened to him is really consistent with the way the probation office might act if he were doing a film about kittens,” said Kenneth P. White, a former federal prosecutor who is now a partner in the Los Angeles firm Brown, White & Newhouse.

But others question whether Nakoula’s notoriety — and the global political fallout over the contents of the film — is placing more scrutiny on the filmmaker and prompting federal officials to be harsher with him.

“Certainly the sequence of events looks very much as though this man has been arrested and held on account of his producing a film,” said Michael W. McConnell, a former judge on the U.S. Court of Appeals for the 10th Circuit who now directs the Stanford Constitutional Law Center. “It sends exactly the wrong message abroad, because when people are becoming violent to try to pressure the U.S. to violate someone’s constitutional rights, we ought to be going out of our way to make it clear that we will not accede to that kind of pressure.”

Nakoula’s court hearing after his arrest Thursday was anything but a routine probation violation proceeding.

The public was allowed to watch only through a video feed in a separate courthouse blocks away, and U.S. marshals kept the media away from the courtroom. Robert Dugdale, the criminal division chief for the U.S. attorney in Los Angeles, personally handled Nakoula’s hearing, contending misrepresentations by Nakoula had caused “real harm” to those who signed on to work on the film. Vehicles marked “Homeland Security” closed off a stretch of Main Street as Nakoula was whisked away to the federal lockup after the hearing.

News of Nakoula’s arrest prompted some critics to charge that the probation violation was a thinly veiled punishment for the film’s message. A Wall Street Journal editorial called his detention a “first amendment affront,” saying that even speech that “causes the White House headaches abroad” is still constitutionally protected. George Washington University law professor Jonathan Turley wrote on his blog that the case “raises obvious concerns that the Administration is again defending free speech while quietly moving to punish those who cause religious strife.”

In an interview, Turley, a criminal defense attorney who has represented high-profile terrorism suspects accused of violent speech, said the charges against Nakoula had “common elements of pretextual charges.” He said the government could have been hoping that putting Nakoula behind bars would appease those incensed by the film.

He said the arrest could send the wrong message to the public: “Even if you have a right to say something, the government can still choose to punish you on other grounds.”

Neither Nakoula’s attorneys nor the U.S. attorney’s office would comment for this article.

But legal experts said they anticipate Nakoula’s defense will attempt to show Nakoula is being punished for what was said in the film.

“His attorney is going to make the pitch that the government is trying to censor this guy,” said Ellen Barry, a veteran criminal defense attorney and a former federal public defender who regularly handles probation violation cases. “The government’s argument is going to be, this is exactly the same conduct he was convicted of — he’s moving in that direction, make him stop.”

Eugene Volokh, a UCLA law professor and a vocal free speech advocate, wrote on his widely read blog in the early days of the uproar over “Innocence of Muslims” in defense of protections for blasphemous speech. Even so, he said actions against Nakoula do not illustrate a clear case of targeting someone on First Amendment grounds.

“I think it’s interesting enough that people should be asking questions,” he said. “It’s not obvious what the answer is.”

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