Lawyers Rally in Defense of Anti-Muslim Filmmaker

Oct. 5, 2012— -- There was little outcry when the maker of the inflammatory film that mocked the Prophet Mohammed was arrested in California for violating his probation.

The film had ignited anti-American sentiment around the world, left U.S. embassies and consulates on tense alert, and is blamed -- at least partially -- for the deaths of U.S. Ambassador to Libya Christopher Stevens and three other Americans.

Days after that attack, Nakoula Basseley Nakoula, 55, met with probation agents, who determined he violated the terms of his probation.

But the arrest and continued detention without bail of Nakoula, the creator of "Innocence of Muslims," has prompted a growing concern that the maker of the anti-Muslim film may be unfairly targeted for his inflammatory film.

"As someone who has had clients accused of violating conditions of probation, this is not standard operating procedure for these violations. It is relatively rare to see people incarcerated in relatively minor violations," said George Washington University law professor John Turley.

"There were great suspicions raised by the speed and intensity of investigation of the filmmaker. Many people viewed it as something of a pretext investigation," he said. "It seemed obvious to many of us that the administration wanted a picture of this man being handcuffed and put in the back of a cruiser so it would play around the world and in the Arab street."

Nakoula had been convicted in 2010 of a bank fraud case, and according to charges later filled against him, had violated the probation from that case by using an alias, possibly going on the internet, and lying to federal agents.

Nakoula allegedly initially told federal agents that he only wrote the script for the film before admitting to producing it. He also used the alias "Sam Basile" when talking to actors and the media about the film, according to court documents.

He was remanded to jail without bail because of a "lengthy pattern of deception" for using fake identities and was deemed a flight risk who posed "some danger to the community," according to federal Judge Suzanne Segal.

Nakoula's attorneys have been directed by their client not to make statements to the media, saying they are formulating arguments to fight the charges, lawyer Chris Williams said.

Experts concede that the U.S. Department of Probation was within its rights to press charges against Nakoula if they have evidence he violated the terms of his probation. And some dismiss suggestions that Nakoula is being treated unfairly.

"As prosecutors, we can't abuse the law," said Steven Jansen, COO of Association of Prosecuting Attorneys. "We have to uphold it. We have freedom of speech and all of that, so I don't believe that's their intent to go after him because of those areas."

But to some first amendment scholars and advocates, the arrest was a warning flag that Nakoula was possibly being targeted for the content of his free speech.

"We have first amendment protections for our right of free speech, but they are somewhat hollow rights if not protected by an independent judiciary to call government to account," said Gene Policinski, executive director of the First Amendment Center.

"That's what has to happen here. The judge has to fairly evaluate whether this is a back door way to punish him for expressing an opinion that is unpopular in the country," Policinski said.

For some watchdogs of first amendment rights, the way in which the government quickly pursued Nakoula for his probation violations stood out from anything they'd seen in the parole system before.

"With what little I know of parole system, I know it is overworked, overburdened, and moves so slowly. Yet within weeks or days here this man was being held and prosecuted. It is a high profile case, but that's a warning flag. Why so fast? Why so quick?" asked Policinski.

Geoffrey Stone, a constitutional law professor at the University of Chicago, said that Nakoula's attorneys must be looking at whether other convicts who break probation are treated the same way by the U.S. Department of Probation. If Nakoula is being treated differently or more harshly, it could be grounds to argue against the charges.

Segal has not yet set a date for a bond hearing for Nakoula, according to Williams. Until that occurs, Nakoula will be held without bail.

Policinski and others say that Nakoula's case should be watched closely.

"Anytime the government moves against someone who has clearly said something the government doesn't like, there is a requirement for the rest of us to watch that very closely, to see whether it is justified or is a content-based argument that violates the first amendment. We assert our rights, but we also need to protect that," he said.