January 7, 2016, marked the first anniversary of the killings at the Charlie Hebdo office in Paris. Terrorists struck in that city once again last November, killing 130 people and wounding a great many more. Then, just a few weeks ago, husband and wife terrorists struck in this country, killing 14 and injuring 22 in San Bernardino.
The terrorist organizations that sponsor or conduct such acts employ sophisticated communications technology. Do our principles of free speech play into the hands of the terrorists? Should we reconsider whether certain kinds of speech should be subject to punishment?
During the 20th century, the Supreme Court struggled with the question of when the government may punish words. In a 1919 case called Schenck v. United States, the issue was whether the distribution of flyers urging draft resistance went too far. The Court said that it did, at least in time of war. Justice Holmes wrote a dissenting opinion in which he coined the phrase “clear and present danger” to explain the circumstances when the government may punish speech. He illustrated the point by saying that the right of free speech “would not protect a man falsely shouting fire in a crowded theater and causing a panic.” Ten years later, Justice Holmes wrote, again in dissent, that the Constitution protects “freedom for the thought that you hate.”
In 1969, in Brandenburg v Ohio, the Supreme Court fully embraced what Holmes had written. Advocacy in the abstract in not enough, the Court ruled, because it does not incite “imminent lawless action.” The word “imminent” leaves little or no room for a balancing of interests or risks; it means “about to happen.”
The use of 21st century technology in furtherance of terrorism has expanded the concept of “speech” beyond anything Justice Holmes could have imagined. Facebook, Telegram, Twitter – these and other social media provide platforms that enable terrorist groups to recruit volunteers and promote violence over a communications network that knows no geographic boundaries. As President Obama said in his State of the Union Address, they use the Internet to poison the minds of individuals inside our country. Free speech, in their hands, is a weapon.
The President also spoke of the importance of protecting an “open Internet,” and of course it would be difficult, if not impossible, to control Internet speech even if we wanted to. That does not necessarily mean we are completely powerless to address the problem. Should the First Amendment protect the “republishing” of calls to join violent jihad and murder innocent people? In former times it wasn’t so easy to pass on a message, and you usually had to do so one person at a time. Today, you can “Forward” to an unlimited number of people with a single click.
One way to look at this is to reject out of hand any suggestion that we should curb our nearly limitless right of free speech just because ISIS, Al Qaeda, and other extremist groups take advantage of it. Such an absolutist approach has an immediate appeal – why should we give in to these criminals?
On the other hand, restricting our ability to deal with real threats unless they are “imminent” somehow doesn’t seem like the only way to preserve essential freedoms. As Harvard Law School Professor Cass Sunstein has written, such words as “clear and present danger” and “imminent lawless action” may be ill-suited to 21st century conditions.
James Madison left no record of just what he intended when he wrote the First Amendment words “Congress shall make no law … abridging the freedom of speech, or of the press.” The Supreme Court has been left to its own devices, and for at least the last 50 years it has been uncompromising in its protection of free speech. As one example, in 1989 the Court ruled, in Texas v. Johnson, that burning an American flag is a form of protected speech. As another, in the 2011 Snyder v. Phelps case, the Court upheld the right of members of the Westboro Baptist Church to picket a soldier’s funeral from a public sidewalk, carrying homophobic, anti-American placards. These and other speech cases make it unlikely that Schenk’s conviction would hold up today.
Yet, if Madison’s words are understood to mean that the United States is completely powerless to deal with terrorist organizations’ use of today’s communications technology to promote death and destruction, then it may be time to reconsider the requirement that the peril created by such speech be “imminent.” The risks of not doing so may be more than we can afford to take.