Is It Time to Limit the First Amendment?

Never before have we had such pervasive reach into the masses of impressionable individuals, many accessed during a period of young raging hormones and self-doubt, their ethnicity and faith rejected by society around them, facing dire economic prospects and ready to make THE commitment to redefine it all. Social media, targeting Websites and manipulative digital communications reach into every nook and cranny of our population. Rather than address that social media with powerful alternatives that reject the messages of hate promulgated by ISIS and its ilk, there are a growing group of American legal scholars who believe that it’s time to reexamine the limits of free speech. And yes, there have always been limits on free speech.

It’s a scary thought, but we have been here before. Back in 1919, the U.S. Supreme Court reviewed a conviction of Socialist Party defendants, vocally opposed to conscription required by Congress for World War I (“conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917”). Writing for the Court, famed jurist Oliver Wendell Holmes, upheld the conviction in Schenk vs. United States (240 U.S. 47), saying in part: “[The] character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” (Emphasis added).

The current focus is, of course, try to limit ISIS’ powerful and current digital reach. “Appeals for a tougher response to the Islamic State’s online recruiting efforts have, not surprisingly, emerged from the political realm. Donald J. Trump said the government should call on Bill Gates and others to somehow close off dangerous Internet sites, and called First Amendment concerns foolish.

“Hillary Clinton said the government should work with host companies to shut jihadist websites and chat rooms. That would be constitutional if voluntary, legal experts say, but not if the government exerted pressure on private firms to cooperate in censorship.

“Some security experts called on YouTube to ban videos of lectures by Anwar al-Awlaki, which helped radicalize the attackers in San Bernardino, Calif., and many others.

“Recently, though, a few legal scholars, too, have engaged in what others call First Amendment heresy. What does clear and present danger mean when terrorists are provoking violence over the Internet? Should not the government have a way, they ask, to block messages that facilitate terrorist acts?...

“In November, Cass R. Sunstein, a Harvard law professor and former Obama administration official, broached the subject in an article on Bloomberg View. He called the clear and present danger test ‘the greatest American contribution to the theory and practice of free speech.’ In view of the Islamic State’s successful use of the Internet to nurture terrorists, he said, ‘it’s worth asking whether that test may be ripe for reconsideration.’

“A more forceful case and a legislative proposal were put forth by Eric Posner, a professor of law at the University of Chicago, in an article for Slate. ‘Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way,’ Mr. Posner wrote. The Islamic State’s ability to spread ‘ideas that lead directly to terrorist attacks,’ he said, “calls for new thinking about limits on freedom of speech.’

“Mr. Posner supported urging companies like Facebook and YouTube to crack down on propaganda by the Islamic State, which is also known as ISIS or ISIL, but said that could never be fully effective. He proposed, in addition, passing a law to deter potential consumers from viewing dangerous sites. While the law would apply to all Internet users, his goal, admittedly limited, is to head off the radicalization of those he described as ‘naïve people’ who research the Islamic State out of curiosity, ‘rather than sophisticated terrorists.’

“His proposal would make it illegal to go onto websites that glorify the Islamic State or support its recruitment, or to distribute links to such sites. He would impose graduated penalties, starting with a warning letter, then fines or prison for repeat offenders, to convey that ‘looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden.’” New York Times, December 27^th.

My law professors drilled into my head that extreme cases almost always make bad law. And yet, we are reading carefully constructed scholarly articles, from both sides of the aisle, arguing for severe limitations on people looking at ISIS Websites, etc. If such a law were in place, for example, it would make U.S. government operatives that much more obvious as participants in chat rooms. For people like me, who frequently write about issues around the containment of ISIS, it would make such investigative efforts illegal. And rather importantly, it would draw a firm line in the sand when even our Congress has refused to issue a declaration of war (or anything comparable) against ISIS. Fortunately, I am not alone is rejecting such handcuffs on the First Amendment.

“David G. Post, a former professor of constitutional law who is a senior fellow at the Open Technology Institute of the New America Foundation in Washington, was one of many legal experts to condemn Mr. Posner’s idea.

“‘I think it is a slippery slope,’ Mr. Post said in an interview. In a law blog, The Volokh Conspiracy, he wrote that efforts to suppress radical views ‘can be far too easily twisted into a prohibition against dissenting viewpoints.’

“Geoffrey R. Stone, an expert on constitutional law at the University of Chicago, said in an interview that Mr. Posner and Mr. Sunstein ‘have been provocative, which is what academics do…. But I think they are wrong,’ he added. ‘We’ve learned over 200 years of history that what seems like a sensible approach in the heat of the moment, in terms of restricting speech, is highly likely to be a bad judgment.’.. He said the Sedition Act of 1798, which outlawed false statements about the government, was used by the Federalists to persecute their opponents, the supporters of Thomas Jefferson.” NY Times.

Indeed, even Justice Holmes seemed to have second thoughts, a year after his opinion in Schenk. “[In 1920], Justice Holmes wrote a dissent that laid the groundwork for stronger protections of speech. In the case, Abrams v. United States, a divided court upheld convictions for distributing leaflets opposing America’s participation in the war and its efforts to counter the Russian Revolution. Justice Holmes, in a dissent joined by Justice Louis Brandeis, wrote that the fiery pamphlets had posed no specific risk, adding, ‘We should be eternally vigilant against attempts to check the expression of opinions that we loathe.’

“Still, it was not until 1969, in the landmark case Brandenburg v. Ohio, overturning the conviction of a Ku Klux Klan member, that the Supreme Court established the current meaning of clear and present danger. It ruled that the government could not punish inflammatory speech unless the speech was likely to incite ‘imminent lawless action.’” NY Times.

There’s no parallel scholarly groundswell for a rather obvious limitation on the Second Amendment, although there is clear and convincing evidence that the pervasiveness of guns, particularly assault weapons and oversized magazines, offer a clear and present danger of imminent lawless action against hundreds of innocent victims in the country every year. Where are the arguments that sacrificing or reducing our most fundamental First Amendment rights is a victory we should hate to give to ISIS? Why are we stronger if we choose to be more like them?

I’m Peter Dekom, and I will go down kicking and screaming before I let our government further limit our First Amendment rights in a way that gives ISIS a clear victory against us.