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12 Nw. J. L. & Soc. Pol'y 1 (2016-2017)

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Copyright 2016 by Northwestern University Pritzker School of Law               Vol. 12, Issue 1 (2016)
Northwestern Journal of Law and Social Policy

  The Terrorist's Veto: Why the First Amendment

       Must Protect Provocative Portrayals of the

                          Prophet Muhammad

                                    Daniel   Ortner'

                                 I.      INTRODUCTION

      On  Wednesday, January 7, 2015, armed gunmen entered the offices of French
satirical magazine  Charlie Hebdo   and killed employees  and  editors of the magazine  in
probable  retaliation for the  publication  of satirical cartoons  depicting  the Prophet
Muhammad.2 The attack on Charlie Hebdo has contributed to the debate over whether
publication of speech that is likely to provoke violent reactions from religious extremists
should be permissible.' Some   have argued that such speech  should be prohibited in order
to prevent  responsive  violence and  terrorism.' Recently, a  school of journalism  dean
argued  in USA  Today  that the publication of cartoons that insult the Prophet Muhammad

1 Daniel Ortner, J.D. BYU Law '15, Law Clerk to Judge Kent A. Jordan, Federal Court of Appeals for the
Third Circuit. With thanks to Professor RonNell Andersen Jones, for her invaluable assistance with this
2 See Josh Levs, Ed Payne & Michael Pearson, A Timeline of the Charlie Hebdo Terror Attack, CNN (Jan.
9, 2015), http://www.cnn.coni2015/01/08/europe/charlie-hebdo-attack-timeline/. See also What Motivated
the Attacks on Charlie Hebdo?, PBS NEWSHOUR EXTRA (Jan. 9, 2015),
' A foiled attack in May 2015 on a Texas cartoon contest by two armed gunmen launched another wave of
debate over the censorship of provocative images. See generally Scott Shane, Texas Attacker Left Trail of
Extremist Ideas on Twitter, N.Y. TIMEs, May 5, 2015,
http://www.nytimes.com/2015/05/06/world/middleeast/isis-texas-muhammad-cartoons.html?_r-0. If
attacks related to the publication of images of the Prophet Muhammad on U.S. soil become even more
common, it is likely that calls to censor/calls for restriction will also intensify. An indication of such
escalation in calls for restriction is the decision of PEN America to give a free speech award to Charlie
Hebdo, which led to sharp criticism and illustrates the continuing intensity of this debate. See Alan Yuhas,
Two Dozen Writers Join Charlie Hebdo PEN Award Protest, GUARDIAN, Apr. 29, 2015,
http://www.theguardian.com/books/2015/apr/29/writers-join-protest-charlie-hebdo-pen-award; see also,
e.g., Rich Lowry, Americans Have a Right to Insult Islam, NAT'L REV. (May 5, 2015, 12:00 AM),
4 See, e.g., Tomas Byrne, Banning Blasphemy: The Repercussions of Religious Offense Under the Right to
Free Speech, TOMAs BYRNE (Jan. 29, 2015), http://www.tomasbyrne.com/blasphemy-may-offensive-laws-
no-place-tolerant-society/; see also Javier E. David, After Paris and Copenhagen, Can Free Speech Learn
to Live with Religion?, CNBC (Feb. 21, 2015, 12:00 PM), http://www.cnbc.com/id/102439946. Garry
Trudeau, the well-known creator of the Doonsbury cartoon series also declared that Charlie Hebdo
wandered into the realm of hate speech, which is illegal in France because it directly incites violence.
Garry Trudeau, The Abuse of Satire, ATLANTIC (Apr. 11, 2015),

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