No, ISIS Isn’t Worth Sacrificing the First Amendment Over

by , December 31, 2015

The War on Terror has been atrocious for civil liberties in America. Yet, as (my former boss) Matt Welch noted in the LA Times on Wednesday, for all of our declining freedom post-9/11, compared to France’s response to their recent terrorist tragedy “our document is far less pliable and far more subject to robust judicial defense.” That is to say, it could be – and could have been – worse.

But America’s principles should be why we hold the nation to such a high standard, not give it a pass for good intentions and high-minded ideals. We say we’re for free speech, so we should mean it. Unfortunately, as we bomb and invade, so we sometimes violate free speech. For most of our history, we’ve managed to at least be better than the rest of the world when it comes to allowing free expression.

Some people are just itching to remedy that. This includes presidential candidates Hillary Clinton and Donald Trump, among others.

This is not a new idea. Over at the Intercept, Glenn Greenwald has a refresher course on how common this attitude of “oh, THAT old thing” is when it comes to elected officials and/or presidential candidates, pundits, and law professors speaking about freedom of speech.

Greenwald argues that a decade ago, however, this argument had much less mainstream acceptance in spite of the George W. Bush administration’s civil liberties-smooshing path of destruction. Since then, there are progressive burbles of hate for American free speech; usually based on the basic idea that “Europe good, America bad. America be like Europe” or for the dangerously nebulous “hate speech” concept and how America should embrace it.

Now, however, we have a more hawk-friendly argument for censorship, this one published in Bloomberg and Slate.

Professor Eric Posner is the one who brought this back with a vengeance. And in my anecdotal experience, his December 15 Slate piece does not seem to have gotten much positive attention. Plenty of negative responses rolled in, however, including the always dependable (on speech matters) Ken White at Popehat.com.

Though it may not be getting anywhere, Posner’s atrocious logic should be smothered in its #slatepitches cradle. It is – ironically – a deeply dangerous idea, but nobody will be calling the feds on him for being stupid, and shortsighted, and childishly trusting of government.

Posner has a habit of this, anyway. And he may have had a point back in 2012 when he argued that the rest of the world doesn’t value free speech to the extent that the US does. But that doesn’t translate to his 2015 argument that because people can freely advocate for terrorism, and some people may translate that into action, “the novelty of this threat calls for new thinking about limits on freedom of speech.”

(Aren’t we sick of this yet? Haven’t we given up enough rights yet? And why are some people willing to do just about anything to prevent terrorism except for stop going to war?)

Is it just ISIS that is so novel? Not Al-Qaeda? Not Timothy McVeigh? Not the original World Trade Center bombers in 1993? Why exactly is ISIS top of the list, and the game-changer? Certainly you can always argue that new enemy number one is different for one reason or another. But any suggestion that they are worse than any other previous threat for Americans at home in particular seems to be completely baseless. Yes, ISIS is good at the Internet. So are 14-year-olds on 4chan. We have to deal with that like adults.

Though Posner and his ilk are also correct that freedom of speech was not always as sacred in America, they are wrong to wish for fewer protections than decisions like 1969’s Brandenburg v. Ohio gave the American people. That was the unanimous decision that declared the free speech test was twofold: if it was legal, it had to not "directed at inciting or producing imminent lawless action" and it must not be "likely to incite or produce such action." Turns out that offers a lot of protection to a lot of nasty people.

Not to mention protection for the rest of us. Free speech is the only type of speech that contains multitudes. Protected under its umbrella is racism, rudeness, philosophy, humor, literature, and protest. For all we know of government – particularly in wartime, and darn if this war on terror doesn’t keep going – the last thing it should be trusted with is sussing out which types of speech warrant protection, and which do not. As Greenwald notes, this kind of hysteria gave us World War One’s criminalization of antiwar protests, Japanese internment during World war II, and the worst of McCarthyism in the ‘50s. Attempts to police speech and protect also gave us programs like COINTELPRO in the ‘60s and ‘70s which more subtly strangled and sabotaged speech. (And such programs exist in other forms today. Or sometimes websites like Antiwar are investigated by feds for years. etc. etc.)

And as I mentioned last column, the Internet is a perfect excuse for politicians to crack down on speech. Somehow it doesn’t sound as charged as banning books or censoring movies to people like Trump or H. Clinton to suggest that the Internet is just a little too free, or that encryption is too dangerous. But it’s the same principle and very similar in practice, and these kinds of suggestions should disqualify a candidate for public office. (They don’t.)

Posner is in some ways worse than this, because he sounds more thinky, and less like a grandparent who doesn’t understand kids and their Internet. Yet  he has no real idea how extreme he is. He compares ISIS sites to child porn, in that we outlaw even looking at such things. He suggests gradually increasing penalties under this law that would “make 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. “

It was only last February that many hawks were grandstanding about how it was vital to watch ISIS beheading videos. Their violence was the kind you had to see to believe, and to rally yourself into war. We all had to face the reality of this new threat by watching the videos. That sure sounds like it would be criminal in Posner’s legal la-la land. Middle East scholars, journalists, and advocates would all likely be breaking the law if they wished to study ISIS and its propaganda. And that is merely based on the most literal reading of Posner’s would-be legislation.

It’s completely absurd that this needs saying, but clearly it does: restricting freedom of speech – even if it were possible – is a terrible idea. Yes, ISIS is frightening. They kill, enslave, rape, and invade. It’s okay to be frightened of them even from the relative safety of the United States. But fear is one thing, and happily handing over rights is another. Posner seems to have been mostly mocked and dismissed so far, but we would be wise to echo Welch’s tone in his LA Times piece. We’ve done better than we might have with speech in America, but there’s no reason to relax and assume that the Posners of the word will never get a toehold in public policy.

Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.

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