Free Speech for Terrorists?, by Andrew C. McCarthy

Free Speech for Terrorists?, by Andrew C. McCarthy

Postby admin » Mon Nov 11, 2013 1:32 am

Free Speech for Terrorists?, by Andrew C. McCarthy

The nexus in militant Islam between advocacy and actual savagery is no longer contestable. It has been the subject of too much informed analysis and, more importantly, is an empirically demonstrated fact.

Thus, speaking in Brooklyn, New York, on January 16, 1993, the fiery Islamic cleric Omar Abdel Rahman—the “blind sheik,” as he was known—urged his foot soldiers never to fear being labeled terrorists:

[We] welcome being terrorists. And we do not deny this charge to ourselves. The Qur'an makes it among the means to perform jihad for the sake of Allah, which is to terrorize the enemies of God and our enemies too. . . . Then we must be terrorists, and we must terrorize the enemies of Islam, and frighten them, and disturb them, and shake the earth under their feet.


Only six weeks later, a powerful urea-nitrate bomb would explode in the bowels of the World Trade Center. Although, miraculously, only six people were killed, the jihadists' objective had been hugely ambitious. The bomb was set to detonate at high noon—a time when as many as 130,000 employees, tourists, and everyday Americans gravitated to the teeming lower Manhattan complex—and the plotters hoped the force of the blast would collapse one tower into the other, slaughtering thousands. The device had been planted by the blind sheik's acolytes after months of planning. A key conspirator had calmly explained to a government informant the preceding year that major terrorist operations could not go forward without a purportedly religious edict of approval—a fatwa—from Sheik Omar.

Blind, diabetic, and beset by other maladies, Sheik Omar never fired a shot in the war against the “enemies of God.” He never mixed an explosive compound, never beheaded a single infidel or apostate. As a renowned Quranic scholar, his weapon was merely words. But those words were backed by his prestige in a movement that insists on authoritative words to license deadly deeds. So it was that, upon being sentenced to life imprisonment in 1996, Sheik Omar issued a decree, declaring of Americans that “Muslims everywhere [should] dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.”

One student who heard well was the wealthy Saudi upstart Osama bin Laden, eventually the leader of an international terror network, al Qaeda, whose size and efficacy dwarfed even Sheik Omar's ambitious hopes. Over the next years, bin Laden would issue his own declarations against America, and follow them regularly with murderous deeds. Only days after 9/11, with fires still raging from the finally destroyed twin towers, and the murder toll rising, bin Laden jubilantly explained to the international media that his war on America was fully justified under the authority of the Islamic fatwa issued from prison by the blind sheik.

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With an enemy committed to terrorism, the advocacy of terrorism—the threats, the words—are not mere dogma, or even calls to “action.” They are themselves weapons—weapons of incitement and intimidation, often as effective in achieving their ends as would be firearms and explosives brandished openly.

Nevertheless, even in 2005, and even in the midst of a war against jihadists, it has become necessary to ask whether advocacy of terrorism can be effectively regulated in the United States. Our enemies, after all, swaddle their calls to barbarism in the language of religious duty and political dissent. These lie at the very core of liberty in an enlightened and thriving democratic order. So luminous does free speech shine among our values that it is enshrined in the very first amendment to the Constitution. Early Americans had known doctrinal tyranny. The framers fully understood that if their grand experiment in republican democracy was to flourish, the exchange of ideas prerequisite to an informed citizenry was a necessity.

There is a curious marriage of minds on this point between American absolutism, which is so certain of its capacity to achieve the right ends that it proclaims speech an inviolable good, and American pragmatism, which is certain of nothing so much as its capacity to be wrong. The result is a doctrinaire humility: we go forth assuming as an immutable truth that there are no immutable truths, and therefore that expression must be uninhibited. As Justice Oliver Wendell Holmes, Jr. famously put it in 1919, “the ultimate good desired is better reached by free trade in ideas—[and] the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

But does this self-correcting competition never end? Is everything, ultimately, relative—left forever to be weighed against everything else? Do we so lack confidence (except in the sacrosanct status of speech itself) that we are unable to say with assurance that some things are truly evil, and that advocating them not only fails to serve any socially desirable purpose but guarantees more evil? Must our historical deference to opinion, however noxious, defer as well to a call to arms against innocents, or a call to destroy a form of representative government that protects religious and political freedom? May we not even ban and criminalize the advocacy of militant Islam and its métier, which is the indiscriminate slaughter of civilians?

The timeliness of such questions has been brought into relief by an impressively comprehensive volume, Perilous Times: Free Speech in Wartime,1 by the eminent constitutional scholar Geoffrey R. Stone. Written from the perspective of a committed but generally fair-minded civil libertarian, the study scrutinizes government's historical treatment of the First Amendment during national crises, bringing to the fore collisions of theory against practice.

As no one needs reminding, such collisions have abounded. The summoning imperative of the First Amendment's free-speech clause—“Congress shall make no law . . . abridging the freedom of speech, or of the press”—is worn as a badge of honor by every American who ever insisted, “I have a right to my opinion.” About it, however, all that can be stated with certainty is that it does not mean what it says. Indeed, in the 214 years since the First Amendment's ratification, Congress has made many laws abridging the liberty to speak and otherwise to express oneself—in some instances, tightly regulating, and even criminalizing, mere words themselves.

Some language is still adjudged so obscene that, notwithstanding today's coarse media environment, it may not be uttered on broadcast television and radio. Extensive “time, place, and manner” regulations minimize public nuisance by restricting commercial advertising. A person whose words disclose classified information is deemed to have committed a grievous felony. And under the newfangled cudgel known as campaign finance reform, speech aimed squarely at political persuasion—that is, the species of expression once regarded as the quintessential, untouchable core of the First Amendment—may now also be constrained.

For a mind as supple as Geoffrey Stone's, this makes for a terrain of unlimited possibilities. In fact, contrary to most constitutional provisions, which have inspired energetic judicial gymnastics to unmoor terms from their original understanding, the free-speech clause, Stone maintains, had no original understanding at all. Far from a concrete doctrine, it was an “aspiration, to be given meaning over time,” prompting Benjamin Franklin himself to quip: “few of us [have any] distinct ideas of its nature and extent.”

The challenge taken up by Stone is to chart history's often precarious voyage toward this “aspiration.” His chosen crucible is wartime. This is a wise decision: the First Amendment is plainly about an individual's right to buck the established order, and in wartime the stakes are highest for both sides. It is then that society most requires cohesion in order to fight effectively and preserve the system on which all liberties depend. And it is also then that the individual is most affected by government's choices and thus most needs a wide berth to criticize them. If one wants to know what free speech really is, the answer lies in how government treats it during an existential crisis.

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For much of our history, Stone relates, the answer has been: not very well. He studies six separate crises: the “half war” with France at the close of the 18th century, the Civil War, World Wars I and II, the cold war, and Vietnam. Stone's history is a thematic one, with two notions hammered at repeatedly. The first is a certain justified cynicism about government. When given an opportunity, a regnant administration is virtually certain to use its wartime powers to suppress not only insurrectionist speech for national-security purposes but mere dissent for political purposes. His second theme is an unshakable faith in the talismanic power of speech itself not simply to educate and improve but, by its own sheer force, to defeat the enemies of freedom. Although there is much in Stone's reasoning with which to disagree, the discussion is engrossing, punctuated with fascinating characters and distinguished throughout by superb writing.

Stone's first target is the Alien and Sedition Acts of 1798, a mixed bag of the sensible and the uncommonly silly that marked the U.S. government's first foray into the crossroads of free expression and national security. History tends to recall these provisions as a single, deplorable package, but that is not entirely accurate.

The Alien Enemies Act, even for Stone, was arguably appropriate—in fact, it still remains the law that in times of declared war, nationals of the enemy may be detained or deported. He disapproves of the companion (and short-lived) “Alien Friends” laws, which both drastically reduced immigration and empowered the executive unilaterally to detain or deport aliens of any nationality. But, as he compellingly shows, the true ignominy attaches to the outlawing of sedition, making it a crime to “write, print, utter, or publish . . . any false, scandalous, and malicious writing” aimed at bringing government officials into disrepute. Not surprisingly, enforcement devolved into criminalization of mere dissent—and often dissent of an inconsequential kind.

Stone next turns to the Civil War, where his discussion centers less on free speech per se than on such matters as the suspension of habeas corpus, declarations of martial law, and the trying of civilians in military courts. These are all areas in which, confronted by the very real possibility of losing the Union, Abraham Lincoln acted decisively, and Stone's consideration of his actions is measured and careful: sympathetic to the exigencies Lincoln faced but critical of the license he claimed.

Stone's most significant contribution to our present inquiry is his description of the seismic shift that occurred over the course of the 20th century in the Supreme Court's rulings concerning restraints on threatening speech. Particularly germane is his explanation of the current state of the law and its rationale, of which he is an enthusiastic adherent.

The modern First Amendment began to take shape in World War I. This was a bleak era for civil liberties, stamped by unprecedented governmental excesses. Championing America's controversial entry into the war, President Woodrow Wilson undertook to rouse public opinion to his side, by, among other things, forming what was in every sense a propaganda ministry and using the criminal law to crush dissent.

The latter end was accomplished by a promiscuous piece of legislation known as the Espionage Act of 1917. As abusive as this proved to be, it was a fraction of what the administration initially sought: Wilson's proposal included a press-censorship provision that would have forbidden publications “useful to the enemy.” As Stone recounts with evident relief, Congress decisively rejected this gambit despite a personal appeal from Wilson that it was “absolutely necessary to the public safety.”

Still, two laws that were ultimately enacted, in dramatically scaled-back form, proved troublesome. A “nonmailability” provision enabled the Postmaster General to halt delivery of opposition press, and, most alarmingly, a “disaffection” law effectively stifled dissent under the cover of protecting military enlistments from “insubordination, disloyalty, mutiny, or refusal of duty.” This was enforced by the Justice Department, with court approval, through the instrument of a “bad tendency” test: if utterances of even veiled protest had any theoretical propensity to depress military performance, conviction was essentially assured.

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Stone does not disclaim the need for appropriate safeguards for military operations, but he argues trenchantly that a government of the people must encourage informed debate of the important issues of the day. In the Wilson years, this principle animated the legendary Learned Hand and two other federal district judges, George Bourquin and Charles Freemont Amidon, to struggle, very much against the grain of the times, for an appropriate balance between free speech and military necessity.

Bourquin's theory called for a close connection between speech and the realistic occurrence of insubordination. This would rule out conviction based on, for example, general statements that the war was being fought for moneyed interests—i.e., statements that plainly were not aimed at depressing enlistment in the military.

Hand took a somewhat different path. Stressing the importance to democracy of debate and dissent, he asserted that words—“the triggers of action”—should not be proscribed in the absence of express advocacy to violate the law. Under this view, regardless of the overall tendency that words might have to inspire various actions—for example, a speech generally criticizing foreign policy might influence a draft-age listener to refrain from enlisting—a speaker who stopped short of urging specific lawless action should not be prosecuted.

These were decidedly minority viewpoints, however. By 1919, the Espionage Act prosecutions of the first “Red Scare”—including one involving the Socialist-party leader Eugene V. Debs—began reaching the Supreme Court. To Stone's chagrin, that tribunal was then “in firmly conservative hands” and not apt “to take a bold stand in favor of those who condemned capitalism and denounced the established order.”

In one such case, Justice Holmes, writing for the unanimous Court, applied the sweeping “bad tendency” test to uphold an Espionage Act conviction. But then he added this statement:

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. [emphasis added]


As Stone elucidates, Holmes almost certainly did not intend “clear and present danger” to be in any sense momentous. If he had, the proper course would have been to reverse the conviction and order a new trial under this new standard. Nevertheless, the invocation of “clear and present danger” was historically significant, if only because Holmes had an ego befitting his station in our legal pantheon. When he ultimately did change course, he was too proud to concede the fact (and thereby tacitly admit that his earlier opinions had been wrong). Instead, once finally persuaded of the correctness of “clear and present danger,” he was able to avail himself of a phrase he had used, however vacantly, before.

The most interesting vignette in Stone's book involves this conversion of Holmes from virtual government rubber-stamp to free-speech trailblazer, with no small amount of nudging from his significantly younger friend Learned Hand. Once convinced, Holmes exhibited all the zeal of a convert. Beginning in 1919, with his blazing tribute to the power of truth “to get itself accepted in the competition of the market,” Holmes and his colleague Louis Brandeis authored a series of dissents unfolding the principles of interplay between “proximity and degree.” In a transformation Stone correctly regards as nothing short of amazing, these dissents gradually took on far more grandeur than the majority rulings from which they demurred. Ultimately, the Holmes/Brandeis view carried the day.

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It would, however, be decades before that transformation came to pass. Stone regards this as a desultory epoch for free speech. The fall of France in 1940 begat a reenactment of the Espionage Act—meaning that the provisions would now be enforced in what technically was peacetime—and the eve of World War II also ushered in the Smith Act, one of Stone's banes. This, aside from measures requiring aliens to register and streamlining procedures for their expulsion, also proscribed criminal syndicalism, i.e., the teaching and promotion of terrorism, force, and violence for the purpose of accomplishing political or industrial change.

Postwar, these were key ingredients for the second “Red Scare,” featuring such bête noires of Stone's as Whittaker Chambers, Elizabeth Bentley, the House Un-American Activities Committee, and, of course, Senator Joseph McCarthy. But this period, too, eventually led to a great leap forward, principally thanks to the Supreme Court's review in 1951 of United States v. Dennis.

The case involved a lengthy, high-profile prosecution of several members of the American Communist party (CPUSA), a prosecution regarded by Stone as more about convincing Americans that the Truman administration was not soft on Communism than about national security. The heart of the case was criminal syndicalism.

The fact that this crime—starkly narrower than the vague offenses spawned by the Sedition and Espionage Acts—had become the terrain for fighting out the speech-versus-security battle was itself a sign of dramatic progress. Stone, though, does not see it that way, and his objections go to the heart of his theory of free speech. The premise here, adumbrated years earlier by Brandeis, was that one could sensibly segregate the “abstract” proselytizing of a doctrine calling for mass violence from the actual solicitation of such violence. Stone enthusiastically cites Justice Felix Frankfurter (a member of the Dennis Court), who deduced that advocacy of violence is typically “coupled” with “criticism of defects in our society.” Should such advocacy forfeit one's rights at the marketplace? For Stone, as for Frankfurter, the answer is no: “sometimes the rhetoric of revolution is so deeply imbedded in the discourse of dissent” that one cannot “separate the wheat from the chaff.”

That this theory did not prevail in Dennis (in which even Frankfurter voted to uphold the convictions) is a development Stone sees as “snatch[ing] defeat from the jaws of victory.” In a hodgepodge of opinions, none of which commanded a majority, the Court applied what he calls a “discounted” clear-and-present-danger test. Much of its reasoning was lifted from a lower-court opinion by Hand, who had sensibly theorized that the First Amendment did not protect speech that was part of the “provocation to unlawful conduct,” regardless of when that conduct was to occur. Turning then to the Supreme Court's clear-and-present-danger test, Hand concluded that the key question was “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In this case, he wrote, gravity was at its weightiest: a mortal threat against the existing order by “a highly articulated, well contrived . . . organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind.”

For Stone, the “discount” here centers on the immediacy of the threat. He does not see it. For him, the real hero of the piece is the dissenting Justice William O. Douglas, who, while acknowledging the danger of Communism abroad, regarded the movement in this country as a “bogeyman” that had been “thoroughly exposed” and “crippled as a political force.”

Thankfully, in Stone's celebratory recounting, it was the Douglas view that would become ascendant in the late 1950's, when pivotal changes in personnel (including the appointment of Justice William J. Brennan, for whom Stone served as a law clerk in the 1970's) ushered in the extremely speech-friendly Court of Chief Justice Earl Warren. In short order, the Court would hold (in Scales v. United States) that “mere” membership in an organization advocating the violent overthrow of the U.S. government could not be prosecuted, since to do so would pose “a real danger that legitimate political expression or association might be impaired.”

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The free-speech tidal wave peaked in the final period studied by Stone, the era of the Vietnam war and Watergate. Court cases pressed the very limits of the speech-versus-security divide, posing the question whether the value we ascribe to dissent might even justify violations of general laws that do not target speech. Could one permissibly burn a draft card, urinate on a public building, or run naked through the streets in order to “rage against the machine”? The promise of resultant chaos was too much even for the Warren Court, and Stone agrees.

But laws targeting speech itself were another matter entirely. In this regard, the revolution hailed by Stone was completed with the landmark 1969 decision in Brandenberg v. Ohio, involving a prosecution of the Ku Klux Klan for threatening racial violence. Here, instituting “clear and present danger” in its full flower, the Court held that government could not proscribe advocacy of the use of force (or of other violations of law) “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). In the new dispensation, self-preservation would now be left mainly to the marketplace of ideas, and to the belief that most threats would deliquesce in the sunlight of reasoned debate.

And this brings us to the denouement of Stone's survey, an all-too cursory peek at the “war on terror.” It is disappointingly thin, especially as measured against the author's diligent treatment of prior crises. Though he strongly suggests that the Bush administration has run roughshod over civil liberties, his assertions are conclusory and unsupported. They also conspicuously fail to convey the palpable fact—which cries out from the rest of his tour de force—that, by any reasonable standard, contemporary claims about deprivations of freedom pale beside the realities of the administrations of John Adams, Lincoln, Wilson, FDR, and Truman.

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But there is much more to be said about the latitudinarian view held by Stone on the issue of free speech—and hardly by him alone. The first thing is that, whether or not the framers endorsed an “aspirational” First Amendment, as Stone maintains, it is certain that the free-speech clause was never intended to frustrate government's ability to suppress true threats to national security. This is a matter of balance.

The problem with aspirations is that they are not easily given to balance, being more the stuff of religious fervor than of real-world experience. Those in the thrall of their aspirations tend to see them as unadulterated, undeniable virtues, and to dismiss or disparage on-the-ground facts that besmirch their lofty vision.

In this respect, Stone is more grounded than many a civil-libertarian extremist. Except when it comes to certain not-to-be-questioned incarnations of evil—Joseph McCarthy, the Japanese internment, the Patriot Act, etc.—he is not implacably hostile to government or insensitive to the legitimate demands of national security. But he is, nonetheless, a free-speech ideologue of the aspirational bent. Borrowing language from Learned Hand, his version of the First Amendment “rests upon a ‘skepticism as to all political orthodoxy’ and a belief that ‘there are no impregnable political absolutes’ ”—so that even advocacy of violence must be cut some slack lest some kernel of truth be “chilled” and thereby prevented from coming forward.

Obviously, to say that things were not always thus does not impress Stone; yet it remains the fact. For most of our nation's history, we were confident both about the existence of the universally condemnable and about our ability to discern it without meaningfully short-changing the robust exchange of information on which a functioning democracy depends. Thus, as late as the 1942 case of Chaplinsky v. New Hampshire, the Supreme Court could unanimously decree:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [emphasis added]


In the latter half of the 20th century, this sense of confidence, like much else about the established American order, evaporated under the withering assault of relativism and the self-doubt that inevitably flows from self-loathing. Today, recitations like Stone's of our legacy of speech repression during times of national crisis help to buttress the new adversarial view, lending grist to its premonitory warnings. But unless one is dealing with absolutes—and even by Stone's lights, free speech is not quite an absolute—its relative value is wholly dependent on context, and accurately assessing its value hinges on accurately portraying that context.

After the fact, which is the way history gets written, a threat that has failed to materialize in its full monstrousness never appears as threatening as it may in reality have been. For the ideologue reflecting backward, the luminous virtue of free speech glows ever more incandescent, while curbs imposed to guard against a catastrophe that never happened—particularly when such curbs have resulted in individual episodes of injustice—seem increasingly sinister. The natural propensity is to overstate the importance of the aspiration and undervalue the degree of the threat. It is a propensity to which Stone repeatedly falls prey.

So, too, with the tendency to conflate subjective intentions with objective actions. The impulse to defend individual liberty is admirable, but, since individual liberty is not always society's paramount concern, admirable intentions do not mean its defense is necessarily wise. On the other hand, a necessary war may be partially motivated by selfish desires to profit politically from public good will; but the venality hardly renders the war unnecessary, or taints the measures taken to wage it. In the facile distortion of hindsight, imputed or declared intentions take on outsized significance, particularly among the studiously well-intentioned.

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Of stone's two recurring historical themes, the first (to repeat) is that, in times of crisis, the political branches can always be relied on to mobilize themselves toward reductions in individual liberty. This is generally true, but Stone neglects the dynamic nature of the ensuing and by-now familiar cycle. At the start, the frightened public is generally supportive, but it becomes steadily less so if the anticipated harm does not come to pass. Analogously, the courts generally give the President and Congress a wide berth while the crisis endures, but typically reduce this deference, often substantially, in the aftermath.

Over the longer term, too, the cycle is far from static, though Stone, against the weight of overwhelming evidence, sometimes suggests otherwise. For example, in the sedition cases, judges rigged convictions by virtually compelling juries to conclude that statements of mere opinion could be actionably “false” and “malicious.” Drawing corroboration from lapses he perceives in subsequent crises, Stone worries that courts cannot ever be trusted to vindicate civil liberties. But that is a strange argument to be making today, when the Supreme Court has opened the federal courts to alien enemy combatants captured overseas in wartime, vesting persons heretofore considered bereft of any constitutional protections with a right to challenge a commonsense and centuries-old law of war stating that enemy captives may be detained until the cessation of hostilities.

In truth, as Chief Justice William H. Rehnquist demonstrated in All the Laws but One (1998), the cycle described here is dynamic and, insofar as civil liberties are concerned, quite progressive. The courts, by nature, may come late to the game, but they do ultimately address curtailments of liberty. That this is of little consolation to those individuals whose rights were trammeled does not erase the significance of the phenomenon. Over time, courts inexorably set the bar higher and higher against government regulation.

Stone has many criticisms of the Supreme Court's performance in the early 20th century, but even he does not claim that what he sees as the complaisant tribunal of 1919 would have countenanced the shenanigans of 1798 by the Adams administration. And he positively lauds the Warren Court for having, in his view, corrected the wayward precedents of prior times. Given this trajectory, Stone's fears—particularly insofar as he sees the present war on terror as a gloomy recession—are seriously overwrought.

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Stone's second recurrent theme is the power of free speech to win out over the enemies of freedom. For most civil libertarians, this is indeed an article of faith: not only is free speech itself the best antidote to peril, it is superior to any weapon of war. Thus Stone buys wholly into Justice Hugo Black's absolute conviction that Communists could safely be permitted to preach the need for violent overthrow of the government because (in Black's words) “free speech will preserve, not destroy, the nation” (emphasis in the original).

Taking a proper historical view, however, one might state the proposition differently: doctrinaire civil libertarians can always be relied on, no matter what the crisis, to minimize the danger faced by the nation. In the real world, moreover, free speech can only produce its vaunted corrective effects if it has both the inclination and the time to work. The problem is that it often does not.

Today's marketplace of ideas, for example, has been notably reluctant to engage even the subject of Islamofascism and the threat it poses to our institutions and our liberties. Nor does that marketplace strike one as a very effective weapon for bringing suicide murderers to heel, let alone for militating against electronically beamed fatwas capable of unleashing weapons of untold destructive power before other ideas have a meaningful opportunity to compete and persuade. A half-century before the advent of such technology, no less a free-speech icon than Learned Hand, soberly considering the Communist threat, found it cold comfort that violent insurrection might await a moment when “success seems possible.” And Hand did not figure on militant Islam.

There is also a tendency of libertarians to discount danger out of their innate cynicism about government. Since crises provide government with the necessary justification to curtail freedoms, libertarians naturally reason that a crisis may not be authentic—the powers-that-be have manufactured it, or at the very least drastically overstated it. Nowhere is this propensity more clearly on display than in Stone's miniaturizing of the Communist threat. Apart from a few fleeting references to some “information revealed in the 1990's” that “suggests” the fears of a profound threat to subvert the United States government were “not unfounded,” the Red Scares and the cold war signify, for Stone, “hysteria” plain and simple.

His choice of terms here is symptomatic. The CPUSA, Stone grudgingly and blandly admits, was tied to “international Communism”—a euphemism for a ruthless tyranny, the Soviet Union, which for decades enslaved half the world, murdering tens of millions. In classic understatement, Stone stipulates that the CPUSA engaged in some espionage. But this does not remotely begin to tell the story. The top-secret decryptions known as the “Venona Project,” which Stone fails expressly to discuss although they were first disclosed nearly a decade ago, have confirmed beyond cavil that the U.S. was riven with Soviet spies—hundreds of them, several of whom were highly placed in the governments of FDR and Truman.

Sweeping all this under the rug, Stone festoons the scene with discredited leftist orthodoxy. “[S]hort, pudgy” Whittaker Chambers is unfavorably contrasted with the “tall, handsome, and elegant” Alger Hiss, who was the student and law clerk, respectively, of Stone's heroes Frankfurter and Holmes. Stone can bring himself only to say that “Hiss was convicted of perjury”—not that the perjury was about his being a Soviet spy, much less that Venona has confirmed Hiss as a traitor. Here too are lushly reprised the old hidebound attacks against Joseph McCarthy, next to equally hidebound paeans of praise to the likes of Harry Dexter White, the “bold thinker” who was the “principal architect of the International Monetary Fund.” Projecting the image of a decent man harassed literally to death by wild-eyed right-wingers, Stone lamely drops a footnote relating that “[a]ccording to some researchers, White was indeed a spy.”2

One is left wondering how, with Venona now having exposed the fatuity of Justice Douglas's dismissal of American Communism as a “bugbear,” Stone could so blithely second Douglas's galactic miscalculation. One also wonders what Douglas might have made of militant Islam—a force much less successfully infiltrated into the American fabric than the Communists were, but from which a mere nineteen jihadists managed in one fell swoop to rip the heart out of the U.S. financial center, attack its military headquarters, cripple the airline industry, cause untold billions in damage, kill 3,000 people, and precipitate a shooting war.

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Without security, there is no liberty at all. The fact that government is made up of human beings, and that human beings are certain occasionally to abuse any powers given them, is surely a rationale for narrowing those grants of power; but not for eradicating them, or reducing them to a quantity that fails to protect or even to take account of the higher interest that impelled the grant in the first place. Individual abuses of dissent are bad, but undermining the framework that ensures the right to dissent is immeasurably worse. This, as Holmes intuited, is supposed to be a matter of degree.

Moral clarity, moreover, postulates that some evils are so palpable we need not further test them in the marketplace. There are relatively few of them, but they do exist and we need not fear we are wrong about them. Such recognition is critical to the functioning of a healthy society, and declaring an end to discussion of any conceivable value they may have is very far from declaring a tyrannical power to end discussion of any topic disfavored by government. Do we really need additional ideological thrust-and-parry to know, for example, that the advocacy of genocide, or rape, or the indiscriminate mass slaughter of civilians is condemnable under any and all circumstances?

Anxiety over “chilling effects” is the most curious and overwrought of all concerns. Is it realistic to believe that we would actually lose the benefit of any idea worthy of the name were we to ban the advocacy of terrorism? Al Qaeda, its precursors, and its facilitators have been aggressively prosecuted in this country for over a decade—and are now targets of military operations and seizures of assets. Far from having chilled dissent, this enterprise has produced an alphabet soup of Islamic support organizations, many of which brazenly insist that terrorism, especially in Iraq or against Israel, is merely a form of resistance; relentless and fearless protest from the likes of the ACLU, Amnesty International, and Human Rights Watch; and an entertainment industry (as well as a political cohort) that cannot bestow enough plaudits on Michael Moore. Exactly what meaningful dissent will we miss if we proscribe the advocacy of murder, or of militant Islam's clarion call to violent jihad?

There are practical issues to be considered here as well. Prior to the 9/11 attacks, no terror organization in the world had been responsible for the slaughter of more Americans than the Iranian-backed Hizballah. Although its atrocities have been exhaustively documented, what has been little appreciated is the catalyzing role played by speech, especially broadcast advocacy, in its deadliness.

In an eye-opening new book, Beacon of Hatred,3 Avi Jorisch chronicles al-Manar (“The Beacon”), the international television outlet of Hizballah. Launched in 1991, this has become the go-to station for news in much of the Islamic world, and the first choice of many viewers in times of tumult. Al-Manar reaches a daily worldwide audience often to fifteen million viewers, nearly the same number as the combined shares of America's top cable television news outlets.

But it is not simply news that one finds there. Al-Manar is a sedulous propaganda machine, designed to foment violence against Israel and the United States and meant, as one of its officials unabashedly told Jorisch, to “help people on the way to committing what you call in the West a suicide mission.” Nor is this “help” faceless: Hizballah Secretary General Hassan Nasrallah himself frequently appears, calling for “death to America.”

The CD-ROM accompanying Jorisch's book contains a spellbinding series of video clips. It has long been known that in the new media age, technologies undreamed of by the CPUSA have spread militant Islam like wildfire. The blind sheik's “sermons,” threaded with authoritative commands to violence, were widely distributed even while he was still nestled in Egypt. They and similar recordings were found among the belongings of jihadists tied to the 1993 bombing of the World Trade Center and other terrorist plots. Bin Laden, Ayman al-Zawahiri, and the Jordanian terror maestro Abu Musab al-Zarqawi have followed suit, videotaping instruction-laced diatribes (and beastly beheadings) for even broader international dissemination by streaming Internet and tapes delivered to outlets in the Arabic press.4

_____________


Citing Al-Manar's “incitement of terrorist activity,” the State Department announced on December 17, 2004, that the station had been added to its Terrorism Exclusion List (TEL). The practical legal consequences of this are sparse. It merely permits the government to deport any alien contributing to the venture; it has no real effect on foreign backers who are not present here. It also leaves untouched the station's Washington bureau chief, who is an American citizen.

Still, the move, at least temporarily, has had a desirable shaming effect: Intelsat and Globe Cast, respectively Barbados- and French-owned satellite providers, have removed al-Manar from their menu offerings, which means the station is no longer available in the U.S. Globe Cast was no doubt influenced by the French government's decision to ban al-Manar for violating its hate-speech laws. As for American companies, any prospective boycott by them is wholly voluntary: al-Manar can be back in business in the U.S. the minute it gets a willing carrier.

The shutdown of al-Manar here would be compulsory and permanent rather than voluntary and tenuous if the State Department were to take the more meaningful step of designating it as a foreign terrorist organization, or if the Treasury Department were to add al-Manar to its list of specially designated global terrorist organizations.5 Such designations would lay the legal groundwork for freezing al-Manar's assets, barring financial transactions with it, and rendering liable for U.S. prosecution anyone anywhere who provided material support to the station.

Given that this is no “abstraction”—terrorists are in fact killing Americans and energetically scheming to kill more—one would think such steps would be straightforward. But they are not. Al-Manar is not just any organization supporting terrorism, like a charitable front or a money exchange. It is a media outlet. Therefore, civil libertarians are mobilizing, insisting that the station's advocacy of barbarism is simply speech, purportedly making its special contribution to the great marketplace of ideas.

Instinctively sensing a chill First Amendment wind, Reporters Without Borders has protested that the U.S. is foolishly equating anti-Semitism with actual terrorism and that, under the modest step taken by the State Department, working journalists may be in danger of being branded terrorists. In a testimonial to the alchemic power of speech to cure all of our ills, Slate's Jack Shafer invoked the Sedition Act of 1798, insisting that to ban the station would only increase Hizballah's standing, nullify America's ability to preach openness to “embattled Iraqis,” and enact an unconstitutional restraint on speech “when there is no clear and present danger to the citizenry.”

Closing in a manner that might have brought a smile to Geoffrey Stone's face, Shafer effuses:

In suppressing al-Manar's message, the government is saying that it shall determine what the public can be trusted to know. Not even during the cold war, when the Soviet Union dedicated itself to the West's destruction, did the government block a sworn enemy's message from reaching us. . . . However vile and propagandistic Hizballah's TV station may be, my sense is that it's only one of the administration's targets. The other is you.


This, of course, is ludicrous. In tone, substance, and exhortation to immediate violence, Soviet media messages never resembled militant Islam's. Besides, the United States did seek to block the Communist message to the extent that it involved advocacy of violent overthrow by members of the CPUSA. Finally, there is not a scintilla of basis for the belief that targeting Hizballah's speech would be the first step in rolling back the civil liberties of Americans.

_____________


Stone and those who think like him are wrong. The point of a market is a free exchange. Terrorism perverts the very concept: seeking to compel acceptance not by persuasion but by fear, it is an exchange at the point of a gun. When it fails to win such acceptance, it does not go back to the drawing board to develop a better message or write a better book. It kills, massively. Why then should government hesitate either to ban al-Manar or to use every legal tool in its arsenal, including criminal prosecution, to convey in the strongest terms that the advocacy of terrorism in this day and age is entitled to no First Amendment protection?

What can deprive us of proper dissent, as Stone himself demonstrates, are laws that permit government to suppress dissent itself. Narrow laws that target exhortations toward violent conduct and lawlessness do no such thing. Inevitably, there is a weighing to be done, but it is a straightforward one. On one side of the ledger is the right of a good and lawful people, committed to liberty and tolerant of dissent to a degree unknown in the history of the world, not to be subjected to intimidation; on the other side is the right of purveyors of murder to pretend that there may be a shred of helpful “message” in their savagery. This is a contest?

As far as the Supreme Court is concerned, the advocacy of modern terrorism could comfortably be banned without undue introspection and with simple reference to the moral clarity of the ruling in Chaplinsky. All that is required is to apply “clear and present danger” to the world as it is today, not as it existed in 1798, 1865, 1919, 1951, or 1969. To the extent that we need to factor in the imminence of a threat, Learned Hand's formula, “the gravity of the ‘evil’ discounted by its improbability,” should serve us well. The evil here could not be graver, and it is beyond calculations of probability—this enemy has killed repeatedly, and promises to kill anew.

In America's bumptious, bounteous marketplace, there are no limits on words as the building blocks of ideas, or on ideas as the legitimate instruments of persuasion. Terror has no place in such discourse. It is the function of law to express our society's judgments. Ours should be simple and humane: words that kill are not words we need abide.

_______________

Notes:

1 Norton, 730 pp., $35.00.

2 White was outed by Venona as a Soviet operative who secured high-level government positions for at least eleven other spies (also identified in Venona), while promoting a multi-billion-dollar loan package for Stalin. See John Earl Haynes and Harvey Klehr, Venona: Decoding Soviet Espionage in America (2002).

3 Washington Institute for Near East Policy, 105 pp. plus CD-ROM, $24.95 (paper). Jorisch is a colleague of mine at the Foundation for the Defense of Democracies.

4 Terrorists are known to use covert messages embedded in videos. Al-Manar broadcasts may well contain such coded communications, providing, as Jorisch observes, “a way for Hizballah's terrorist ‘generals’ to command their ‘troops’ in the field, for example, sleeper cells in the United States and elsewhere.”

5 These moves have been urged by a number of groups united in a Coalition Against Terrorist Media, with which both Jorisch and I are affiliated.

About the Author: Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.
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Re: Free Speech for Terrorists?, by Andrew C. McCarthy

Postby admin » Mon Nov 11, 2013 1:36 am

Sticks and Stones?
by American Enterprise Institute

06.01.05 -

Commentary Magazine
Foreign and Defense Policy

To the Editor:

Andrew C. McCarthy’s “Free Speech for Terrorists?” [March] discusses at some length my book, Perilous Times: Free Speech in Wartime, and argues that the courts have taken the principle of free speech too far.

As Mr. McCarthy observes, the Supreme Court’s 1969 decision in Brandenburg v. Ohio held that the government cannot constitutionally proscribe even the express advocacy of violence “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But as he himself sees it, “moral clarity” demands that we acknowledge that “some evils are so palpable” that their advocacy simply must be banned. We should not insist that the danger be “imminent” or “likely.” As he asks, what possible constitutional value can there be in “the advocacy of murder” or in “militant Islam’s clarion call to violent jihad”? Why shouldn’t such speech simply be declared unlawful?

These are good and fair questions. And for much of our history, American constitutional law has sided with Mr. McCarthy. How, then, can the First Amendment be reasonably—indeed, properly—understood to protect “free speech for terrorists”?

At the outset, it is important to emphasize that a robust protection of free speech does not have to render government impotent to protect the public safety. Short of proscribing expression, government can and does take many steps to defuse or prevent danger. Most obviously it can prohibit the possession or sale of dangerous weapons, increase the resources available to law enforcement, enhance the penalties for particular crimes, and aggressively arrest and prosecute those who threaten or conspire to commit them. A basic premise of the First Amendment is that the suppression of speech must be a last resort.

In any case, truly dangerous individuals generally do not broadcast their criminal intent. Those who do publicly advocate violence, by contrast, for the most part pose no serious danger to the nation. Their advocacy is usually mere rhetoric, designed to convey depth of passion. It hardly seems sensible to make hyperbole illegal. Of course, a truly dangerous individual might publicly proclaim his criminal intent, but is that so bad? It would mark him as dangerous and make it easy for government to keep watch over him.

But the question remains: is there any reason to accord constitutional protection to speech that expressly advocates the use of force or violence to effect political change? Isn’t such expression a betrayal of the very constitutional system that the First Amendment was intended to promote? What would we lose by outlawing it? The answer, which Mr. McCarthy wrongly dismisses, was provided by Justice Felix Frankfurter, who pointed out that the advocacy of violence is often “coupled” with sharp “criticism of defects in our society.” Thus, there is a serious “public interest . . . in granting freedom to speak their minds even to those who advocate the overthrow of the government by force.” Put differently, unless there is a compelling reason to punish such advocacy, we are better off leaving it alone so that we do not incidentally suppress criticism that it might be good for us to hear—either because it contains some kernel of truth or because it helps us understand our enemies.

Mr. McCarthy might charge that I am evading the issue—that his concern is not with some harmless revolutionary but with “militant Islam’s clarion call to violent jihad.” So, suppose we embraced his “solution” and directly prohibited the express advocacy of “the indiscriminate mass slaughter of civilians.” Does he think that Sheik Omar Abdel Rahman could not have issued his fatwa without resorting to such words? Mr. McCarthy’s proposed rule would have no effect on terrorism; any terrorist worth fearing could easily circumvent it.

In truth, the only way to suppress potentially dangerous advocacy is to prohibit any speech that is intended to incite unlawful conduct. But we have been down that road before. Inquiring into the subjective intent of unpopular or hateful speakers is a slippery business that inevitably leads to the suppression of valuable dissent. Those who say that the United States “got what it deserved on 9/11,” or that “Israel caused the war on terrorism,” or that “Bush is destroying the Middle East for oil” would be vulnerable to criminal prosecution on the charge that they “intend” to inspire terrorist acts. Surely Mr. McCarthy does not want us to return to the days, documented in my book, when the United States prosecuted thousands of dissenters on the premise that their criticisms were “intended” to foster violence. But that is where his way of thinking would take us.

Geoffrey R. Stone

University of Chicago Law School

Chicago, Illinois

____________________________________________________


To the Editor:

In 1925, Justice Oliver Wendell Holmes said, and in some circles became famous for saying, “if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they shall be given their chance and have their way.” In other words, anything goes, and Holmes did not care how it went—or, giving him the benefit of the doubt, the Constitution did not permit him, as a Supreme Court Justice, to care how it went. This is absurd, but it does state the problem facing Andrew C. McCarthy in his essay, “Free Speech for Terrorists?”

Mr. McCarthy would solve it by insisting that there is a constitutionally significant difference between Communism and militant Islam. Respecting the latter, he says, the “nexus” between “advocacy and actual savagery” is an empirical fact. Thus, if advocacy is savagery, or if speech is the deed, it follows that “advocacy of terrorism can be effectively regulated.” In this way, he avoids the problem that certain liberals—those who treat rights as “trumps”—are unable to solve, namely, how to limit a right. For them, if freedom of speech is a right protected by the Constitution, there is no way to limit it. Mr. McCarthy avoids this problem by, in effect, denying that jihadist speech is speech.

Had he chosen to confront the issue directly, Mr. McCarthy might have said that the problem exists for absolutist liberals only because they treat civil rights, like freedom of speech and press, as if they were natural rights, the unlimited rights we supposedly “enjoyed” in the “state of nature.” In fact, of course, we did not enjoy them. Without government, natural rights were insecure precisely because there was no entity to regulate and protect them from the war of “every man against every man.” One of the blessings of government is that it can, by due process of law, regulate what we say and print.

But Mr. McCarthy, wisely perhaps, makes his case for regulation in terms that at least some liberals might find congenial, invoking the celebrated jurist Learned Hand. Before Justice Holmes became a free-speech ideologue, he had formulated in 1925 the “clear-and-present-danger” test according to which speech might be regulated. Thirty-one years later, Hand reformulated Holmes’s test; the key question, he said, was “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the evil.” Mr. McCarthy rightly sees the virtue of this rule: it requires the judge to focus on the evil, to accord it the weight it deserves.

The evil in Hand’s day was Stalinism and its friends in the American Communist party. Liberals of that time can perhaps be excused for discounting, if not the evil, then the possibility of its taking hold in the United States. No one, other than a fool or a knave, could discount the threat facing us today from militant Islam.

Walter Berns

American Enterprise Institute

Washington, D.C.

____________________________________________________

To the Editor:

Andrew C. McCarthy may give the First Amendment more of an encomium than it deserves. The reason “free speech” is “enshrined in the very first amendment to the Constitution” is not that it shines “so luminous . . . among our values” but only that the first two amendments proposed by the first Congress were not ratified. The framers of the Constitution may have “fully understood” the need for an “exchange of ideas” in a democracy, but that did not stop many of them, serving in the first Congress, from enacting the 1798 Sedition Act, which penalized false criticism of the President. That law may be unanimously abominated today, but it was upheld by every Supreme Court Justice, Federalists all, who considered it.

Constitutional restrictions are generally a bad idea. As Alexander Hamilton pointed out, it is unclear why, in a democracy, the people would want to limit their ability to make policy choices or, indeed, how they are able to do so if they remain the sovereign. Constitutional restrictions work best, our history shows, when seen as advice to legislators rather than as judge-enforceable law. The First Amendment in particular—which, as Mr. McCarthy notes, cannot mean what it says in stating that Congress “shall make no law” abridging the freedoms of speech and press—belongs more “in a treatise of ethics than in a constitution of government,” as Hamilton also pointed out. Any failure on our part to protect ourselves from terrorism cannot be attributed to the First Amendment.

Today’s constitutional law of “free speech,” like nearly all of our constitutional law, derives not from the Constitution but from the constitutional revolution—based on the political principles of the 1960’s—worked by the Warren (or, more accurately, Brennan) Court and followed and expanded ever since. Justice Hugo Black purported to adopt the “absolutist” position that the First Amendment prohibits all governmental (state as well as federal) regulation of “speech,” including pictorial pornography and wearing an armband in a grade-school classroom. Most of his colleagues, reluctant to be seen as less liberal, accepted or came close to accepting this position. Thus it came to be in 1969 that the First Amendment (which refers only to “Congress”) was seen to prohibit the state of Ohio from making it a crime to “advocate or teach the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism” for political ends. It made no difference that less than twenty years earlier a similar federal statute (used to convict the leaders of the American Communist Party) was upheld.

There is no good reason why the views of Justice Black and his colleagues of the 1960’s should determine American public policy on terrorism (or anything else) today. The issue should be decided, like all issues in a democracy, by the views of the people.

Lino A. Graglia

University of Texas School of Law

Austin, Texas

____________________________________________________

To the Editor:

It is a measure of the disorder in First Amendment jurisprudence that the title of Andrew C. McCarthy’s article should end with a question mark. Free speech for terrorists? Freedom to call for the murder of Americans? Common sense replies, “Of course not.” The Supreme Court’s reply, however, has been considerably less forthright; it is not at all clear that the Court would uphold a law enforcing the blanket suppression of terrorist calls for violence. And that disjunction between sensible precaution and the current state of the law suggests that something in First-Amendment doctrine has gone badly askew.

The problem started with the much-admired dissenting opinions, primarily in the 1920’s, of Justices Oliver Wendell Holmes, Jr. and Louis Brandeis. They insisted that courts were the final arbiters of the dangers of advocating violence and lawbreaking. More important, they held that a judgment had to be made concerning each separate episode of such speech. Supreme Court majorities in that era disagreed; the Justices ruled that if a legislature had reasonably defined dangerous categories of speech, advocacy that fell within those categories could be punished. It was apparent then, and is even clearer now, that the majorities were right and that Holmes and Brandeis were wrong.

Holmes and Brandeis asked whether particular instances of speech created a “clear and present danger” of lawless action. After much doctrinal wavering, the basic element of that test was adopted in Brandenburg v. Ohio (1969), which overturned the conviction of a Ku Klux Klan leader for inciting racial violence. In an unsigned opinion, a unanimous Court held that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Brandenburg formula requires judges to estimate such matters as the danger posed by an al Qaeda leader’s call for jihad in America, or the mood of a crowd hearing incitement to racial violence. These are tasks for which the judiciary is the least qualified branch of government.

Matters would be improved if the Supreme Court followed the example of its own decisions in Gitlow v. New York (1925), which upheld a conviction for advocating the violent overthrow of the government, and Chaplinsky v. New Hampshire (1942), which upheld a conviction for offensive words likely to cause a breach of the peace. The Gitlow majority said that “when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.” The unanimous Chaplinsky opinion gave the rationale for regulating speech by way of such categories: “[Some] utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth, that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Advocacy of terrorism surely fits that description; what social value is served by the fatwas of a Sheik Omar Abdel Rahman?

Holmes denied the very proposition of Chaplinsky when he wrote that “if in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” He apparently valued free speech so highly that he was willing to see it ended by dictatorship. Only First Amendment voluptuaries, a type of which we have more than a sufficiency, can adopt that position today.

Robert H. Bork

American Enterprise Institute

Washington, D.C.

____________________________________________________

Andrew C. McCarthy writes:

Geoffrey R. Stone stands second to no one in his mastery of modern First Amendment jurisprudence. Nonetheless, his grasp of modern militant Islam is even more lacking than his appreciation of the Communist threat-–which, as his generally superb book confirms, is badly wanting.

It is difficult to understand how anyone who has been paying attention for the last dozen years could say that “truly dangerous individuals generally do not usually broadcast their criminal intent” or that those who “publicly advocate violence . . . for the most part pose no serious danger to the nation.” In point of fact, truly dangerous individuals—whose victims now number in the thousands—broadcast their criminal intent all the time: issuing fatwas, brazenly calling for suicide bombings, and even videotaping their savage beheadings as a recruitment tool and an intimidation device. Mr. Stone asks, “is that so bad?” I think it is. And I doubt that most people would equate it with “hyperbole” or “mere rhetoric designed to convey depth of passion.”

Free speech is not an end in its own right. It is a vital means to the end of a healthy body politic. Nostrums like “[a] basic premise of the First Amendment is that the suppression of speech must be a last resort” simply beg the question: a last resort against what? As is bound to happen when nostrums crash into reality, it turns out that society has decided there are quite a number of values to which this “last resort” must give way, including comparative trifles like reducing expenditures on political campaigns.

That is because—as Walter Berns, Lino A. Graglia, and Robert H. Bork observe—speech is not an absolute but a question of competing values. What value does the terrorist call to violent jihad bring to our marketplace of ideas? Mr. Stone suggests it may contain “criticism that it might be good for us to hear—either because it contains some kernel of truth or because it helps us understand our enemies.” This entirely discounts the grievous evil posed by speech that we empirically know causes mass murder, while grossly inflating the purported “value” we get in return. Is Mr. Stone really contending that we need to allow Sheik Omar Abdel Rahman to call for slaughter in order to understand him better? Or in order to ensure that we don’t miss some grievance that CAIR or the ACLU may have neglected to bring to our attention?

First Amendment absolutism skews Mr. Stone’s assessment of competing values in other critical ways as well. He argues, for example, that modern free-speech jurisprudence need not “render government impotent to protect the public safety.” But the idea is not merely to avoid “impotence”; it is to be effective in protecting the public safety, which means being able to stop terrorist acts before they happen. The remedies Mr. Stone mentions are plainly inadequate to that task.

True, more money on law enforcement, aggressive prosecutions, and enhanced sentences may enable us to punish severely the terrorist who has successfully carried out his barbaric business. But, as was shown by the progressively more audacious attacks that ensued despite eight years of highly successful prosecutions between the 1993 World Trade Center bombing and the 9/11 suicide hijackings, such measures do little to discourage would-be terrorists, whose ranks swell and whose patent dangerousness increases due largely to the immunity our law has given to militant advocacy.

Disappointingly, Mr. Stone appeals to the last bastion of the absolutist defense—that we should not impose a ban because determined wrong-doers will find ways around it. By that logic, we might as well repeal the criminal law in its entirety. After all, though it discourages crime, punishes it, and makes it more challenging to commit, criminal law has proved spectacularly incapable of eradicating wrongdoing.

Either militant advocacy should be permitted in principle or it should not. The discussion is not advanced a wit by the observation that criminalizing an evil will not eliminate it. Making it more difficult, and thus less likely, would be a dramatic improvement.

Finally, my essay argued that free-speech absolutists fail to appreciate the inexorable refinement over time of our society’s balancing of the tension between civil liberties and national security. By closing with the slippery-slope argument that my own modest proposal would bring us right back to the shameful prosecutions under the Alien and Sedition and Espionage Acts, Mr. Stone proves my point. But his charge is specious.

The flaw in those laws, as Mr. Stone compellingly explains in his book, is that they criminalized dissent. To the contrary, I have proposed narrowly tailored laws that target militant Islam’s advocacy of violent jihad. To argue, as Mr. Stone now does, that such laws would imperil people who asserted that the U.S. “‘got what it deserved on 9/11,’ or that ‘Israel caused the war on terrorism,’ or that ‘Bush is destroying the Middle East for oil’” is fatuous. The criminal law does not punish culpable intent in a vacuum; it punishes culpable intent coupled with the conduct the law proscribes. One may not be prosecuted for advocating violence without advocating violence.

Turning now to Walter Berns, I find myself in agreement with much of his theorizing. But the disagreements he registers with me do not appear to be directed at the essay I actually wrote. Thus, Mr. Berns attributes to me the notion that if we define a type of speech (advocacy) as something other than speech (savagery), it somehow ceases to be speech, thereby allowing us to regulate it.

That is simply not my argument. While I acknowledged that speech could in some instances be thought of as a verbal “act,” the entire premise of my essay is that advocacy is speech, but that this does not mean it may not be constrained. As Lino A. Graglia notes in his letter, I expressly contended that the First Amendment does not mean what it literally says (that is, an airtight proscription of regulation). I did, as Mr. Berns notes, invoke Learned Hand. But my point was to illustrate not only that the absolutists are wrong about the proper understanding of the free-speech guarantee but that advocacy may comfortably be banned even under the First Amendment as they have misinterpreted it.

Nor did I maintain that there is a “constitutionally significant difference between Communism and militant Islam.” It was perfectly appropriate to criminalize Communist advocacy of the violent overthrow of government, and I was most critical of the tendency among doctrinaire civil libertarians to minimize the Communist threat. But if there is no constitutional difference, there is a factual difference. Militant Islam poses an even greater clear and present danger than Communism did. If, as I believe, there was a case for barring advocacy in the earlier context, there is an even better case for barring advocacy in the present one.

Lino A. Graglia’s apparent absolutism is the polar opposite of Geoffrey R. Stone’s, and to me it is not much more attractive. Even if I did not think it doctrinally unwise, the hour is way too late to be gainsaying the irreducible core of minority rights to which our society is and has always been committed.

But I do think it unwise. Free expression is a luminous value—and even if I am guilty of rhetorical excess, we would value it no less had it been enshrined in the Third rather than the First Amendment. Furthermore, to observe that the First Amendment obviously does not mean exactly what it says is hardly grounds for saying it means nothing of an inviolable nature or would be better understood as merely hortatory.

Where I part company with Mr. Stone is in the perilous lengths he would go to protect dissent. I thoroughly agree with him, however, in positing that there is a right to dissent. The Sedition Act prosecutions were an abomination because they eviscerated that right. Whether or not the Act itself violated the First Amendment—as I, like Mr. Stone, think it did—is a matter of objective fact. I do not see why Mr. Graglia should be any more impressed by the Federalist Supreme Court’s approval of the law than he would be of, say, the Warren Court’s condemnation of it. Indeed, this bleak episode stands as a caution against what Mr. Graglia seems to be arguing for: the treatment of constitutional guarantees as if they were advisory. Without the mandate of law, without courts to enforce them, those protections would be certain to be swept aside when majorities found it expedient to do so.

I wholeheartedly agree with Mr. Graglia that the Warren Court went overboard, and that we need not embrace a First Amendment jurisprudence that leaves us vulnerable to terrorist attack. But while, as he says, all issues in a democracy should be decided by the views of the people, the American people have decided, in their fundamental law, that a core of free speech cannot be overridden by the majority—which means it must be protected by the courts. The challenge, of course, is to identify what that finite core is and to protect it—but only it.

On this score, I believe Robert H. Bork has the best of the argument. There are well-established categories of speech (such as advocacy of violence) that do not advance the exposition of ideas and the search for truth. Within those parameters, the people’s democratic representatives ought to be able to regulate expression. To be sure, there is a role for the courts, but it is limited to ensuring that any regulation is confined to those narrow categories. It should not extend to assessing the likelihood that a particular episode of speech, within one of those categories, will result in the harm against which the regulation was designed to protect us.
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