In 2006 — years before ISIS replaced al Qaeda as the New and Unprecedentedly Evil Villain — Newt Gingrich gave a speech in New Hampshire in which, as he put it afterward, he “called for a serious debate about the First Amendment and how terrorists are abusing our rights — using them as they once used passenger jets — to threaten and kill Americans.” In that speech, Gingrich argued:
Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up (terrorists’) capacity to use the internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us — to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us.
In a follow-up article titled “The First Amendment is Not a Suicide Pact,” Gingrich went even further, arguing that terrorists should be “subject to a totally different set of rules,” and called for an international convention to decide “on what activities will not be protected by free speech claims.”
To make his case, Gingrich cited a 2005 Commentary article by the extremist former prosecutor Andrew McCarthy, titled “Free Speech for Terrorists?,” the central premise of which was that “the free-speech clause was never intended to frustrate government’s ability to suppress true threats to national security.” In general, McCarthy argued, we must say that “some things are truly evil,” and “that advocating them not only fails to serve any socially desirable purpose but guarantees more evil.” Thus, the U.S. government must “convey in the strongest terms that the advocacy of terrorism in this day and age is entitled to no First Amendment protection.”
Back then — just nine years ago — Gingrich’s anti-free-speech remarks were, for the most part, quickly dismissed as unworthy of serious debate. Even National Review, which employs McCarthy, included Gingrich’s anti-free speech proposal on its 2011 list of the bad ideas the former speaker has espoused in his career. In 2006, I argued that the Gingrich/McCarthy desire to alter the First Amendment to fight The Terrorists was extremist even when judged by the increasingly radical standards of the Bush/Cheney war on terror, which by that point had already imprisoned Americans arrested on U.S. soil with no due process and no access to lawyers. With rare exception, Gingrich’s desire to abridge free speech rights in the name of fighting terrorism was dismissed as a fringe idea.
Fast forward to 2015, where the aging al Qaeda brand has become decisively less scary and ISIS has been unveiled as the new never-before-seen menace. There are now once again calls for restrictions on the First Amendment’s free speech protections, but they come not from far-right radicals in universally discredited neocon journals, but rather from the most mainstream voices, as highlighted this week by the New York Times.
The NYT article notes that “in response to the Islamic State’s success in grooming jihadists over the internet, some legal scholars are asking whether it is time to reconsider” the long-standing “constitutional line” that “freedom of speech may not be curbed unless it poses a ‘clear and present danger’ — an actual, imminent threat, not the mere advocacy of harmful acts or ideas.”
The NYT cites two recent articles, one in Bloomberg by long-time Obama adviser Cass Sunstein and the other in Slate by law professor Eric Posner, that suggested limitations on the First Amendment in order to fight ISIS. It describes growing calls to ban the YouTube lectures and sermons of Anwar al Awlaki, the American cleric whom the U.S. assassinated by drone in 2011 (and then, two weeks later, killed his 16-year-old American son). It also notes that the desire to restrict the internet as a means of fighting ISIS has seeped into the leadership of both parties: Donald Trump said the “internet should be closed up” to ISIS, while “Hillary Clinton said the government should work with host companies to shut jihadist websites and chat rooms,” a plan that would be unconstitutional “if the government exerted pressure on private firms to cooperate in censorship.”
All of these proposals take direct aim at a core constitutional principle that for decades has defined the First Amendment’s free speech protections. That speech cannot be banned even if it constitutes advocacy of violence has a long history in the U.S., but was firmly entrenched in the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, about which I’ve written many times. The Brandenburg ruling “overturned the criminal conviction of a Ku Klux Klan leader who had threatened violence against political officials in a speech.” Even more important was the law that the Brandenburg court invalided as unconstitutional:
The KKK leader in Brandenburg was convicted under an Ohio statute that made it a crime to “advocate … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and/or to “voluntarily assemble with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” The Court struck down the statute on the ground that it “purports to punish mere advocacy” and thus “sweeps within its condemnation speech which our Constitution has immunized from governmental control.” The Court ruled that “except where such advocacy is directed to inciting or producing imminent lawless action” — meaning conduct such as standing outside someone’s house with an angry mob and urging them to burn the house down that moment — “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force” (emphasis added).
The First Amendment bars the U.S. government from banning or punishing speech even if that speech advocates “the duty, necessity, or propriety of unlawful methods of terrorism.” And that’s exactly how it should be.
There are millions of people in the world who believe and argue that the U.S. has been supporting tyranny and bringing violence to predominantly Muslim countries for decades as a means of dominating that region, and that return violence is not only justifiable but necessary to stop it (just as there are millions of Westerners who believe and argue that they must bring more violence to the countries of that region). In particular, it’s astonishing to watch Americans — whose favorite political debate is deciding which country should be bombed next or which individuals should be next assassinated — propose changes to the First Amendment to make it a crime for others to justify (not engage in, but merely justify) the use of violence in what they argue is valid self-defense.
Abusing the force of law to silence legitimately expressed views — by criminalizing the advocates of one side of that debate — is as direct an attack on core free speech rights as anything that can be imagined (to understand how extremist the proposal is, see Ken White’s response to Posner’s article). Trying to dictate which views can and cannot be expressed on the internet, aside from being futile, is the modern-day hallmark of an authoritarian. Throughout its history, the U.S. has suffered far greater harm from overwrought authoritarians acting in the name of security than it has external threats; the tyrannical impulses that drove the Alien and Sedition Acts, World War I prosecutions of anti-war dissidents, the internment of Japanese-Americans, and McCarthyism did at least as much damage to the U.S. as any foreign adversary.
Above all, this has been the core lesson of the “War on Terror”: The greatest threats to Western countries have come from those seeking to limit rights in the name of fighting terrorism, not the terrorists themselves. There is no more compelling example than those who now explicitly advocate Newt Gingrich’s 2006 idea of formally restricting the First Amendment.
For the reasons I set forth here, no human beings or human institutions should ever be trusted to promulgate lists of Prohibited Ideas and Viewpoints. But even if you are someone who yearns for such lists, it should be immediately obvious that your dream of prohibiting ideas is utterly futile, particularly in the digital age (so predictably, the killing of Awlaki did not silence his ideas but rather, as the NYT reports, “enhanced the appeal of his message to many admirers, who view him as a martyr”). And, just by the way, there is still not a single example of a terrorist attack carried out on U.S. soil by anyone radicalized by ISIS’ social media campaign (contrary to initial reports, the San Bernardino attackers were inspired by the message of Awlaki and al Qaeda, not ISIS); this is the threat that some individuals are now invoking to dismantle a core protection of the First Amendment?
What makes all of this especially ironic is that not even a year has elapsed since the Western world congratulated itself for its flamboyant street celebration of free speech in the wake of the Charlie Hebdo murders. Remember all that? Yet now, explicitly advocating new restrictions on free speech and internet freedom is the norm.
It is essential to note that, for many years, the U.S. and other Western governments have been abridging free speech rights in the name of terrorism. They’ve already repeatedly prosecuted people — almost always Muslims, of course — for the ideas they have expressed on the internet and elsewhere. Those abridgments have already been severe when the villain was al Qaeda; now that it’s ISIS, these attacks on free speech are intensifying throughout the West.
But there is a difference between violating constitutional rights, as those cases have done, and formally restricting them, as people like Sunstein and Posner are now agitating to do. Guaranteeing free speech rights is one of the things that the U.S., relative to the rest of the world, still does well (not perfectly, but well). It is not an exaggeration to say that the people now plotting how to exploit terrorism fears in order to formally restrict rights of free expression themselves pose a clear and present danger to the U.S. (Sunstein previously proposed that the U.S. government “cognitively infiltrate” the internet by sending teams of covert agents into “chat rooms, online social networks, or even real-space groups” to discredit what he regards as false conspiracy theories, as well as pay so-called “independent” credible voices to bolster the government’s messaging). And as far as “hate speech” goes: there are few things more “hateful” than wanting to imprison one’s fellow citizens for expressing prohibited political ideas.
I certainly don’t think their right to espouse these dangerous ideas ought to be suppressed or punished. The solution to their dangerous ideas is to confront and refute them, not outlaw them. But it is vital to recognize the danger they and their ideas entail. We’ve been told for years that The Terrorists “hate our freedoms,” yet we cannot seem to rid ourselves of those who think the solution is to voluntarily abolish those freedoms ourselves.
Top photo: Members of a joint military honor guard stand watch over the Bill of Rights at the National Archives Rotunda in Washington, Dec. 15, 1991.