Protecting the First Amendment in the Internet Age

|The Volokh Conspiracy |

The war on Internet free speech—spurred by the use of Internet social media by the Islamic State and other radical groups for disseminating propaganda and for recruitment—is heating up. It's not just the Donald Trumps of the world.**

**In a recent speech in South Carolina, Trump said: "We're losing a lot of people because of the Internet. And we have to do something. We have to go see Bill Gates and a lot of different people that really understand what's happening. We have to talk to them, maybe in certain areas, closing that Internet up in some way. Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people.

It would be easier to deal with if it were. But Democratic presidential candidate Hillary Clinton, too, had her own very Trumpish "close that Internet up" moment recently, at a speech in Washington:

"Resolve means depriving jihadists of virtual territory just as we work to deprive them of actual territory … They are using websites, social media, chat rooms and other platforms to celebrate beheadings, recruit future terrorists, and call for attacks. We should work with host companies to shut them down … [and] to figure out how we disrupt them. … You're going to hear all of the usual complaints, you know, freedom of speech, et cetera. But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we've got to shut off their means of communicating."

Ah, yes—that pesky First Amendment, always getting in the way!

University of Chicago law professor Eric Posner—an occasional guest blogger here on the VC—has now joined their ranks as well, with a more thoughtful (and therefore even more distressing) argument for greater speech curbs (over at Slate.com: "ISIS Gives Us No Choice but to Consider Limits on Speech"). Terrorist groups, he notes, have become increasingly adept at using Internet social media platforms to "lure young men and women to their mission … without having to risk capture on U.S. soil," creating a "radicalization echo chamber" that has "given rise to a historic and unprecedented danger from foreign radicalization and recruitment." Posner then suggests that "there is something we can do to protect people from being infected by the ISIS virus by propagandists":

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. Such a law would be directed at people like Amin: naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.

The idea would be to get out the word that looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden.

As for constitutional objections—"Oh, freedom of speech, freedom of speech …"—Posner says the following:

The obvious problem with this law is that the courts could strike it down under the First Amendment. Under current doctrine, such an anti-propaganda law is unconstitutional because it would interfere with the right of people to receive or read political information-as would proposed laws that would require Internet companies such as Facebook and Twitter to remove ISIS-related propaganda from their websites. The Supreme Court has held that the government can ban political speech only when it poses an immediate threat to public safety, as when an orator encourages a crowd to go on a rampage. Speech that blasts the American constitutional system and praises America's enemies has been held constitutionally protected time and again.

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It's common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits. The pattern in American history-and, in the other democracies as well, even today-is that during times of national emergency, certain limits on speech will be tolerated.

That is a singularly unpersuasive bit of argumentation: I would have thought that our history of tossing people engaged in "dangerous speech" into prison—from newspaper editors of the Jeffersonian persuasion in the 1790s (under the ghastly Alien and Sedition Acts) to socialists and pacifists during World War I, "Nazi sympathizers" during World War II, Communists during the Cold War—is not a proud one, and it does not inspire me to long for the good old days. True, limits on speech have been "tolerated … during times of national emergency," but we look back at them—at least, I look back at them—as deeply misguided, counterproductive and often shameful. The "pattern in American history" may well be that we (and other democracies as well) react with hysteria when threatened—locking Japanese Americans up in internment camps during World War II also comes to mind—but that is precisely why we have a First Amendment, not an exception to it.

Do we really want government agents deciding which Internet sites "glorify, express support for, or provide encouragement for ISIS"? That slope is far too slippery for me. Conspiracy to commit murder or mayhem is already a crime, and if it occurs at these sites, the government can and should take action. But "encouragement" or "support" for radical activities can be far too easily twisted into a prohibition against dissenting viewpoints of a nonviolent character.

And just how is the government going to know who has visited those sites? I suppose we'll have to let them look over our shoulders as we browse the Net—the Chinese seem particularly accomplished at this, and I'm sure they'd be willing to share their surveillance tactics with us.

Posner suggests that "those who regard free speech as fundamental need to consider whether legal principles that arose centuries ago make sense in the age of Snapchat." I decline the invitation. He's correct when he says that "it's common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits." But countering propaganda is one thing—criminalizing the receipt and distribution of that propaganda is another.

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