Does Rand Paul Really Want to Imprison People for Attending Speeches?

Several commenters have wondered why no one here* has noted Rand Paul's troubling remarks on The Sean Hannity Show last Thursday. Speaking for myself, I did not want to say anything until I heard the full context of his comments, beyond the 38-second clip cited by Think Progress, New York Times columnist Paul Krugman, and other leftish critics in the last day or two. Having listened to more of the interview (which is available in its entirety on Hannity's website to "insiders" who plunk down $1.95, plus $5.95 a month until you remember to cancel your membership), I can't say it makes the Kentucky senator, whose principled criticism of the PATRIOT Act I praised a in my column yesterday, look much better. Hannity asked Paul about Senate Majority Leader Harry Reid's comments on his attempt to restrict the government's access to gun records under the PATRIOT Act. Reid suggested that Paul's gun-record amendment would help terrorists obtain weapons, and he mentioned the 2009 shooting spree at Fort Hood. Here is how the conversation went after that (emphasis added):

Paul: The Fort Hood shooting occurred with the PATRIOT Act, and so you have to ask yourself, "How did we fail?"…People…were mentioning that this man was either unstable or was radicalized to a radical form of Islam; people knew that….We need to target our resources towards people who would attack us and not spend time searching and patting down sick people at the airport.

Hannity: You see, now you've set yourself up to be called a bigot because now you want to profile people at the airport. You can't win, Rand. I mean, they've got an answer for everything. 

Paul: But here's the thing, Sean: I'm not for profiling people on the color of their skin or on their religion. But I would take into account where they've been traveling and perhaps you might indirectly have to take into account whether or not they've been going to radical political speeches by religious leaders. It wouldn't be that they are Islamic. But if someone is attending speeches from someone who is promoting the violent overthrow of our government, that's really an offense that we should be going after. They should be deported or put in prison. 

Hannity (sarcastically): Now, wait a minute. You would profile a Yemeni exchange student over a 6-month-old baby being patted down at the airport? I mean, that's outrageous.

Paul: Well, here's the other point: I don't want them looking at all 100 million gun records. But I do want them going after, for example, let's say we have 100,000 exchange students from the Middle East; I want to know where they are, how long they've been here, whether they've overstayed their welcome, whether they're in school. And I would rather devote resources to that I would patting down 6-year-old American kids at the airport.

Hannity: You know what that's called?

Paul: I call it prioritizing.

Hannity: No, it's called common sense.

At that point Hannity moved on to Medicare.

Paul starts out making a defensible point: that if the government is going to screen passengers at the airport, it should focus its attention on people who seem especially likely to pose a threat, as opposed to little old ladies and preschoolers. And yes, if you knew that a particular traveler was a huge fan of Anwar al-Awlaki, you might want to scrutinize him a little more closely than a businessman from Peoria. But Paul goes completely off the rails when he suggests that merely attending "radical political speeches" is "an offense that we should be going after," one that justifies deporting or even imprisoning someone. (On what charge?) That does not sound like the same man who the day before insisted that we can "capture terrorists and protect our liberties at the same time" and who the day before that challenged conservatives and progressives by declaring that "if we do not protect the entire Bill of Rights, we are not going to have any of it." It's not surprising that Hannity did not press Paul for an explanation, but Paul had a chance to clarify his position and did not. You would think that a self-identified defender of civil liberties who goes on a nationally distributed radio show and hears himself suggesting that people should be imprisoned for attending speeches would be in a hurry to explain that is not what he really meant.

*Addendum: While I was busy transcribing Hannity's show, Mike Riggs was busy emailing Rand's office, asking for an explanation.

Update: Commenter Zach notes that Paul had this to say on today's Mandy Connell Show, which is carried by WHAS in Louisville: 

It is against the law to promote the violent overthrow of the U.S. government. It's against the law to promote violence against the president. We put people in jail for promoting violence through words against the president…and…for promoting violent overthrow….That's not a protected form of speech….

I was talking about what you would use…in order to target and in order to get a warrant….What I don't want is the PATRIOT Act trolling through everyone's records and saying if you go to a political speech or a political rally I disagree with, we're going to throw you out of the country….

Let's say that the police or the FBI or the CIA is investigating a group in Pakistan, and that group in Pakistan has made 25 phone calls to somebody in the United States. That to me is a warning sign, and probably enough to get a warrant. Say they also find that person is going to a radical Islamicist who is promoting the violent overthrow [of the U.S. government] and promoting the planting of IEDs to kill our soldiers. I think that is another warning sign that that person is a potential terrorist. Then I think you go to a judge and ask for a warrant.

The ultimate result could be deportation. We also have a lower standard for deportation than we do for…U.S. citizens. U.S. citizens cannot be kicked out of the country. But if you're visiting…here on a student visa, you have to report periodically to the authorities where you are, that you're in school; you can be deported if you're not in school when you said you were in school….Sixteen of the 19 hijackers were here on a student visa; they should have been deported because they were not following the rules….

All I'm saying is that attending a rally where you call for the violent overthrow of the United States—one, it's against the law to say that, but attending the rally would be supportive evidence for a judge. 

Paul has managed to construct a clarification that is alarming as well as reassuring. Instead of saying that he misspoke, he seems to defend the idea that people should be imprisoned for advocating violence. But in the 1969 case Brandenburg v. Ohio, the Supreme Court ruled that the First Amendment prohibits the government from criminalizing "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." That test is very hard to meet in practice, and an anti-American speech by a radical imam is unlikely to qualify unless his listeners immediately go out to plant bombs. In any case, people who merely listen to the speech have not committed any conceivable offense by doing so.

Paul does seem to disavow that idea, saying people should not be deported (or imprisoned, presumably) simply for attending speeches. Rather, he says such evidence, together with other information, might be the basis for a warrant application in a terrorism case. It's not clear whether he means an arrest warrant or a search warrant, but the suggestion as he now explains it seems unobjectionable, though inconsistent with what he said on Hannity's show. It is hard to tell exactly what he meant to say, since in both interviews he conflates several different scenarios, including airport screening, search warrants, deportation for violating student visa rules, and both listening to and giving radical, violence-promoting speeches. But at least he has made it clear that he does not favor punishing people for exercising their First Amendment rights. I think.