The U.S. is a country that reveres freedom of speech, religion, and press as enshrined in the First Amendment to the Constitution. But those values have been tweaked, amended, and even suspended in certain times and under certain circumstances.
Thus, the hallowed right of habeas corpus was suspended during the Civil War and governmental eavesdropping and censorship of mail and the press was the norm during World War II. The task, of course, is to act as narrowly as possible under the circumstances when curbing fundamental rights (admittedly something the country has not always brought off in stellar fashion).
President Obama may prefer not to recognize it as such, but we are in a war to protect the American homeland against a virulent new type of enemy driven by religious zealotry, an uncommon ruthlessness, and possessed of an expertise in the modern communications technology.
ISIS has had enormous success in recruiting new adherents from around the world, including the United States, through its proficient use of social media. Indeed, the advent of social media has fostered an information and networking explosion. Clearly it is in our nation’s interests to somehow stem this information interaction.
In a report titled “ISIS Influence on Web Prompts Second Thoughts on First Amendment,” The New York Times summarized the problem:
It is one of those hallowed precepts in modern constitutional law: Freedom of speech may not be curbed unless it poses a “clear and present danger” – an actual, imminent threat, not the mere advocacy of harmful acts or ideas. But in response to the Islamic State’s success in grooming jihadists over the Internet, some legal scholars are asking whether it is time to reconsider the constitutional line…. What does clear and present danger mean when terrorists are provoking violence over the Internet? Should not the government have a way, they ask, to block messages that facilitate terrorist acts?The existing standard is often illustrated by the classic example of shouting “Fire!” in a crowded theater when there is no hazard. That is not protected speech because it could cause a deadly stampede. But an article praising the merits of causing stampedes, even offering phrases to shout, is not closely enough linked to an imminent, actual threat to be outlawed….
The article quotes NYU law professor Jeremy Waldron regarding the inadequacy of the “clear and present danger” rule: “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”
Also quoted was University of Chicago law professor Eric Posner, who in article for Slate had written, “Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way.” Islamic State’s ability to spread “ideas that lead directly to terrorist attacks,” he said, “calls for new thinking about limits on freedom of speech.”
As would be expected, the presidential campaign has spawned some extravagant suggested solutions. Donald Trump calls for closing off “dangerous Internet sites.” Hillary Clinton similarly says the government should work with host companies to shut down jihadist websites and chat rooms. Given the technology involved, which militates against pinpointing access locations, that would seem a formidable task, to say the least. Yet some experts claim there are limited measures that are feasible.
It remains to be seen whether a way can be found to meaningfully thwart the communications reach of the jihadists. At the same time, we will have to carefully draw lines when employing that technology so as to avoid the “slippery slope” into unnecessary intrusion into the realm of free speech. Plainly, though, the right to the free expression of ideas cannot be allowed to be the end of the inquiry, only its beginning.