It is one of the most 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 jihadis over the Internet, some legal scholars are asking whether it is time to reconsider that constitutional line.
Appeals for a tougher response to the Islamic State’s online recruiting efforts have, not surprisingly, emerged from the political realm. Donald Trump said the government should call on Bill Gates and others to somehow close off dangerous Internet sites, and called First Amendment concerns foolish.
Hillary Clinton said the government should work with host companies to shut jihadi websites and chat rooms. That would be constitutional if voluntary, legal experts say, but not if the government exerted pressure on private firms to cooperate in censorship.
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Some security experts called on YouTube to ban videos of lectures by Anwar al-Awlaki, which helped radicalize the attackers in San Bernardino, Calif., and elsewhere.
Recently, though, a few legal scholars, too, have engaged in what others call First Amendment heresy. 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. In November, Cass R. Sunstein, a Harvard law professor and former Obama administration official, broached the subject in an article on Bloomberg View. He called the clear and present danger test “the greatest American contribution to the theory and practice of free speech.”
In view of the Islamic State’s successful use of the Internet to nurture terrorists, he said, “it’s worth asking whether that test may be ripe for reconsideration.”
A more forceful case and a legislative proposal were put forth by Eric Posner, a professor of law at the University of Chicago, in an article for Slate. “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,” Posner wrote.
The 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.”
Posner supported urging companies like Facebook and YouTube to crack down on propaganda by the Islamic State, which is also known as ISIS or ISIL, but said that could never be fully effective.
He proposed passing a law to deter potential consumers from viewing dangerous sites. While the law would apply to all Internet users, his goal, admittedly limited, is to head off the radicalization of those he described as “naive people” who research the Islamic State out of curiosity, “rather than sophisticated terrorists.”
His proposal would make it illegal to go onto websites that glorify the Islamic State or support its recruitment, or to distribute links to such sites. He would impose graduated penalties, starting with a warning letter, then fines or prison for repeat offenders, to convey that “looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden.”
David G. Post, a former professor of constitutional law who is a senior fellow at the Open Technology Institute of the New America Foundation in Washington, was one of many legal experts to condemn Posner’s idea.
“I think it is a slippery slope,” Post said in an interview. In a law blog, The Volokh Conspiracy, he wrote that efforts to suppress radical views “can be far too easily twisted into a prohibition against dissenting viewpoints.”
Geoffrey R. Stone, an expert on constitutional law at the University of Chicago, said in an interview that Posner and Sunstein “have been provocative, which is what academics do.”
”But I think they are wrong,” he added. “We’ve learned over 200 years of history that what seems like a sensible approach in the heat of the moment, in terms of restricting speech, is highly likely to be a bad judgment.”
He said the Sedition Act of 1798, which outlawed false statements about the government, was used by the Federalists to persecute their opponents, the supporters of Thomas Jefferson.
The idea of a clear and present danger test was introduced by Justice Oliver Wendell Holmes in a 1919 opinion, Schenck v. United States, but it would be a half-century before it achieved today’s sharply protective constitutional meaning. In Schenck, in fact, Holmes and a unanimous court upheld the conviction of someone who advocated draft resistance during World War I.
But later that year, Holmes wrote a dissent that laid the groundwork for stronger protections of speech. In the case, Abrams v. United States, a divided court upheld convictions for distributing leaflets opposing America’s participation in the war and its efforts to counter the Russian Revolution. Holmes, in a dissent joined by Justice Louis Brandeis, wrote that the fiery pamphlets had posed no specific risk, adding, “We should be eternally vigilant against attempts to check the expression of opinions that we loathe.”
Still, it was not until 1969, in the landmark case Brandenburg v. Ohio, overturning the conviction of a Ku Klux Klan member, that the Supreme Court established the current meaning of clear and present danger. It ruled that the government could not punish inflammatory speech unless the speech was likely to incite “imminent lawless action.”
Posner, in an interview, acknowledged that his views were not widely shared in the legal community. But the modern meaning of the First Amendment, he said, reflects hundreds of years of legal thinking and trade-offs, and “we should rethink those trade-offs as technology and society changes.”
Jeremy Waldron, a professor of legal philosophy at New York University, has raised questions about the protection of hate speech under the First Amendment.
“I argued, in the adjacent area of hate speech, that the clear and present danger test is inadequate,” Waldron said in an interview. “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”
Waldron’s book “The Harm in Hate Speech” was published in 2012. In the United States, he said, “it was greeted with mostly uniform hostility.” But some European countries, he noted, are comfortable with stronger controls on incendiary speech.
All these legal experts, including Posner, agree that if today’s Supreme Court considered his proposed law, it would be struck down. But if more Americans who were indoctrinated by jihadi videos engage in terrorist attacks, they also agree, the court’s thinking could change.
“Five years from now, who knows?” Stone said. “You can imagine a scenario in which things get so terrible that you start watering down the protections.”
“I don’t think we’re anywhere near that point now,” he said.