Free Speech for Terrorists?

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This article is much too long to post entirely, so I am sure you all thank me for not doing so.

Thoughtful and thought provoking, I think you will appreciate.

Free Speech for Terrorists?

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. .A0.A0. 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.

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.

http://www.commentarymagazine.com/article.asp?aid=11903029_1

[Auburn85 432]

The ACLU would probably be content with the US being blown into an oblivian, just so those terrorists had privacy rights and the right to write harmful letters:poke:

Those terrorist in the 93 WTC explosion shouldn't have been able to even write letters. Or it shouldn't have gotten that far. They should have scanned the letter 1st.

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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?

[Piglet 0]

Personally, it ain't the words of the frothy-mouthed towelheads that bother me. It's the bombs and bullets.

Lettin' em shoot their mouths off in public is good. It gives our surveillance agencies a clue on who to watch closely. "Do we so lack confidence" that we're afraid people will reject freedom and run and hug terrorists if we let them talk?

[Tigermike 3,053]

Personally, it ain't the words of the frothy-mouthed towelheads that bother me. It's the bombs and bullets.

Lettin' em shoot their mouths off in public is good. It gives our surveillance agencies a clue on who to watch closely.  "Do we so lack confidence" that we're afraid people will reject freedom and run and hug terrorists if we let them talk?

149894[/snapback]

It's shooting off of the mouth of their "preachers" that cause most of them to turn to terrorism. In the United States we think highly of the right of free speech. If you know that these "preachers of hate and terror", are spewing their rhetoric, should they be stopped? Should they be jailed because of their teachings and preaching? Would it just be "the frothy-mouthed towelheads" or possibly the idiot anti gay preacher in Kansas as well?

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 governmentchoices 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.

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.

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.

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.

[Auburn85 432]

Shooting and bombing doesn't bring in the recruits. They preach hate of democracy.

[Piglet 0]

Should they be jailed because of their teachings and preaching?  Would it just be "the frothy-mouthed towelheads" or possibly the idiot anti gay preacher in Kansas as well?   

My point exactly. First they get their foot in the door getting the most unpopular people--the ones who advocate terrorism. Then they come after people who speak out on the gay agenda, because that might lead someone to commit a "hate crime". Then they take out the environmentalists, because listening to them might influence someone to commit "ecoterrorism." Depending on who's in power, they'll either jail the abortionists or the antiabortion protestors. And before you know it, political correctness is not just a bad idea--it's the law.

Any tinpot dictator can give free speech to people who agree with him. It's giving it to the idiots, the discontents and the wrongheaded that makes America a beacon of light.