The “Innocence of Muslims” case marked the first time in the United States in nearly a century that a man was imprisoned over the hostile reaction to his speech. The precedent for that had already been set with the Koran burnings and the Mohammed cartoons, but for the first time the United States acted on the concept that the outcome of speech determines its protected nature.
That is the important point that Nathaniel Sugarman makes in his article on the UN assault on the American Bill of Rights
Resolution 16/18 calls for criminalization of “incitement to imminent violence based on religion or belief,” and it “condemns… any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence.” At first glance, this language does not seem restrictive; even in the U.S., incitement is not a protected form of speech. The issue is the respective ways in which the U.S. and the OIC define “incitement.” U.S. Courts use a content-based test to determine whether speech is incitement.
Brandenburg, which is still the law, ruled that in order for speech to be unprotected as incitement, the speech must (1) intend to produce imminent lawless action, and must be (2) likely to produce such action. In other words, there is both a subjective and objective prong, both concerning the speech itself. By contrast, the OIC endorses a “test of consequences,” which punishes speech based not on its content, but based on the result. This is a completely subjective test, and fails to consider the words uttered by the speaker, focusing only on the reaction of others. How would this play out in practice? Violence claimed to be in response to cartoons of Muhammad, could, under the OIC’s definition, retroactively define the cartoons as incitement.
What this really does is make Muslim violence into the arbiters of what legal and illegal speech is, retroactively. Hate crimes have already moved us all too close to adopting a standard in which the perception of speech determines its legality, but the Islamic effort moves us beyond mere perception into consequence, acting as a kind of Felony Murder rule for speech in which the actions of a hostile third party in antagonism to that speech, rather than in cooperation with it, determines its legality. And all that is needed to suppress any speech is for a hostile and violent reaction to take place in its aftermath.
Speech then becomes subject to mob rule and terrorism becomes the determinant of permissible and impermissible speech.