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“No Choice but to Consider Limits on Speech”
So argues Eric Posner in Slate, who claims, “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.”
Really, Eric?
Well, maybe they have, and maybe they haven’t. But I fully agree that ISIS propaganda’s a menace. I’m not discounting it.
Let’s look at his idea of a solution:
… there is something we can do to protect people like Amin from being infected by the ISIS virus by propagandists, many of whom are anonymous and most of whom live in foreign countries. 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.
Okay.
But once you’ve conceded that foreign propaganda — if genuinely dangerous — requires rolling the First Amendment back to the age before Brandenburg v. Ohio, why stop there?
I agree that the United States is drenched in dangerous foreign propaganda. It’s warping people’s minds in ways I could never have conceived. But it’s hardly limited to ISIS, and ISIS, at least, doesn’t yet have nuclear weapons and the ability to deliver them.
If on national security grounds we should ban access to websites that glorify ISIS (and who defines what “glorifying” is?), it’s absolutely intellectually coherent, and surely more urgent, to ban access to websites that glorify or express support for Vladimir Putin. He is — as of now, and to the best of my knowledge — a far greater threat to a greater number of Americans than ISIS, not least because the Kremlin’s propaganda is so much more sophisticated.
Once we’ve settled on eviscerating the First — and there are good national security grounds for doing it, I agree — how do we deal with the precedent it sets? Most Americans truly have no idea that freedom of expression, as they know it now, really only dates back to 1969. A staggering number of the millennials are actively hostile to the underlying principle:
The Pew Research Center found that millennials were the most likely of any age group to agree that government should have the authority to stop people from saying things that offend minorities, while Democrats were nearly twice as likely as Republicans to favor such bans.
The result comes amid a growing campus movement to ban “microaggressions” and create “safe spaces” free from statements deemed offensive to “marginalized” groups, including racial, ethnic and LGBT minorities.
Thirty-five percent of Democrats supported such bans as opposed to 18 percent of Republicans, along with 27 percent of those in “Generation X,” ages 35-50, 24 percent of Baby Boomers, ages 51-69, and 21 percent of those 70 and older.
If we roll back the First — even a little bit — to keep people from looking at dangerous propaganda, what do you expect this generation to do with that legal precedent?
Posner adds, casually,
One worry about such a law is that it would discourage legitimate ISIS-related research by journalists, academics, private security agencies, and the like. But the law could contain broad exemptions for people who can show that they have a legitimate interest in viewing ISIS websites. Press credentials, a track record of legitimate public commentary on blogs and elsewhere, academic affiliations, employment in a security agency, and the like would serve as adequate proof.
So it sounds as if I could get a licence to look at it pretty easily, right? I guess Posner’s not really suggesting that his First Amendment rights be abridged. Nor mine. As long as you’re a member of a credentialed elite, you’d be able to look at foreign propaganda for yourself to decide whether it’s dangerous.
It’s a hell of a dangerous path. As I argued to my friend Mustafa Akyol in 2011 — in Turkey, a mere four years ago — “Once you begin to set legal boundaries on political speech, there is never an end to it.” That was only four years ago.
Here’s what he’s learned since then.
Andrew Wilson identifies four types of Russian propaganda:
- Propaganda as confusion: “The West’s first point of vulnerability is indeed its immediate judgment (or lack of judgment) of events. Its second point of vulnerability is Attention Deficit Disorder. In modern news cycles there is little time to actually think before the cycle moves on. For the mass audience at least, Russian propaganda only has to work until then.”
- Nudge effects: “The second type of Russian propaganda is less about creating confusion and is more about “nudge effects.” It works by finding parties, politicians, and points-of-view that are already sure of their world-view rather than confused, and giving them a nudge—so long as these views are usefully anti-systemic. For this type of Russian propaganda there is no such thing as strange bedfellows. Left or right, nationalist or separatist, jihadist or Islamophobic— all have featured on RT.”
- Propaganda at Home: Mobilizing the Putin Majority: “Russia’s propaganda is Janus-faced; though a metaphor closer to home might be the double-headed Russian eagle. If the point of pluralistic propaganda abroad is to nudge or confuse, domestic propaganda is monopolistic.”
- Alternative realities: “In the world between Russia and the West, not surprisingly perhaps, there is a fourth, hybrid type of propaganda. 89% unanimity is beyond Russia’s reach, there is relative freedom of speech, and rival narratives, both pro-Western and loyalist, already exist. So the purpose of Russian propaganda in the ‘near abroad’ is to create parallel alternative realities. Not just an alternative message, but an alternative reality, with a cast of supporting characters to deliver it. In Russia, the supporting cast is less important, the media itself is now the main event. In the West, Russian propaganda may “nudge” key actors, but it doesn’t create them. In the “near abroad” of other former Soviet states, however, the media message is accompanied by a virtual chorus of pro-Russian parties, politicians, NGOs, and even Churches.”
Number three isn’t our problem, one might argue, but 1-4 really are. Can you think of a better strategy for countering this than rolling back the First?
Published in General
Sounds like the leadership of our own left, learned by osmosis from the old KGB perhaps? Is there any remedy other than truth? And of course actually paying attention.
Sounds like the leadership of the American left? Who exactly?
What is our pain threshold? How many US casualties are we willing to sustain before we change our most basic freedoms? For context, at least 1% of the US population died in the Revolutionary War and 2% died in the Civil War to preserve those freedoms. Are we about to fold because 14 died in San Bernardino?
There will be no such thing as rolling it back just a little bit.
The foreign propaganda is a ruse for eliminating talk radio and what few areas of media/culture are still sympathetic to limited government.
Those pushing this monstrous idea can just wait a generation or so. The republicans are doing a fine job of putting out the brush fires of limited government.
The Vietnam War Peace movements were funded and supported by the USSR, through the GRU and KGB. The recipients of the training/support were none other than what is known as the American Left.
Did you really think that John Kerry would be able to meet with the N.Vietnamese in Paris without some sort of introduction (or an American go-between?)
Throw in Ted Kennedy’s request for the USSR to intervene on behalf of the Democratic Party in the 1984 Presidential Election and one comes to the inescapable conclusion that the American Left had the USSR on speed-dial.
Bravo to you, Claire, for taking the essential first step which is to attack the premise that abridging speech will protect freedom. We will never be free from the superficial attraction that speech limitation offers, so your kind of vigilance is always required.
I find the quote below (emphasis added) revealing:
The political purpose of the Left’s successful, long-running campaign to control the campuses is laid bare in those highlights. This is what we’ve seen played out recently in well publicized campus protests over the wearing of sombreros and other Halloween costumes, and with professors demanding “muscle” to suppress student journalists from covering events taking place in public.
What these events teach us that any abridgment of speech that’s achieved will be applied through the Left’s political filters, synchronized to the Left’s political priorities, and ultimately will benefit the Left’s political agenda.
What are we going to do when Xinhua becomes as sophisticated as RT and AJ+? I frequently see the latter two linked and liked on Facebook.
The only answer is to win in the arena of ideas.
Rules for radicals. The regulatory Tsar, Sunstein, the nudger in chief. Those who promote false narratives, which is all of the leadership of the Democratic party and media elite, as far as I can tell. The incessant hollywood productions, teachers, academic elite portrayal of those same false narratives about racism, the origins of poverty and wealth, the nature of our own history, the need for national regulatory oversight of everything. Frankly they all live in and promote an alternative reality, and if we weakened the first amendment we know a number of false narratives they’d use and not against ISIS.
Posner’s argument is one that ignores the moral agency on anyone not elite (or at least elite enough). His depiction of Ali Amin, “Amin did not start out as a jihadi; he was made into one” explicitly denies that Amin chose to do things in support of evil by his own free will.
Amin was, of course, removed from the battlefield for the next 10 years or so.
I’ll go with the non-elitist answer. Leave the Jihadi websites up and use them for target identification and removal.
When our elites demonstrate their seriousness by actively seeking the prosecution of people who gave aid and comfort to the enemy and now inhabit the halls of power in the US <cough, John Kerry, cough>or even a willingness to prosecute the immediate former Secretary of State for violations of Executive Order 13526 and 18 U.S.C Sec. 793(f) then, maybe, I’ll listen.
Just kidding – I won’t go for free speech abridgement even then.
Sure looks like it.
This is — or should be obvious — but the best, surest way to counter the potential of ISIS propaganda to do harm is to kill, defeat, and discredit the Islamism and what it stands for.
That, unfortunately, is long, difficult task.
I wouldn’t dream of it. I think Brandenburg v. Ohio is one of the greatest achievements of American history. We’re the only country — ever, in history — to have made freedom of expression not only an abstract ideal, but a real thing, on the ground. We managed to survive and win the Cold War despite it. We managed to get through all the years since September 11 without nibbling away at modern First Amendment jurisprudence. It would be nothing short of insane to consider unraveling it because of a terrorist threat.
That said, I think foreign propaganda is a real danger, and we need to give serious thought to a strategy for combatting it. The Internet age is different. The modern media environment is different. I don’t have any good ideas, but I’m sure Posner’s is a bad one — and I’m growingly worried about the future of the First Amendment.
Yes, absolutely. I was wondering what you meant in a contemporary context.
The Brandenburg v Ohio two-pronged test (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action” would certainly support shutting down ISIS or other jihadi web-sites if the sites were subject to U.S. jurisdiction. Prohibiting participation by individuals on U.S soil on a foreign web-site that could be shut-down if in the U.S. is not too much of a reach.
“Slippery slope” arguments are not valid if a limiting principle can be articulated. Brandenburg’s two tests, with violent added to “lawless action” would be such a principle.
This is the prescription right here.
Who is it on the right that is bringing the truth or fighting to stop siphoning funds to those who wish to destroy free speech?
In the contemporary context we’ve seen oil exporting nations financially supporting the fringe groups trying to ban hydraulic fracturing the U.S. Example: Denton Texas.
It is, and the Russia problem is even worse. Reagan’s insight was that we could win the first Cold War through strategic competition in technologies where the US had the advantage. Russia’s insight seems to be that it has a strategic advantage in propaganda. And it does, given record high levels of public mistrust in our own government and a kind of political polarization that we really haven’t seen since the Civil War.
The American left is (broadly speaking) willing to believe any calumny against America; the American right is (broadly speaking) willing to believe any calumny against the American Left (and by implication our own government). So they’re working with a large amount of American self-hatred — and they’re just outspending us.
I am an extreme supporter of free speech in almost all circumstances. But ISIS recruitment messages on the internet should be treated the same as kiddie porn. It should be illegal to post it, and illegal to look at it (at least intentionally).
Claire, you cannot post a message on the internet soliciting a contract killer to carry out a “hit” for you. Why should ISIS be able to recruit killers to carry out a “hit” on random infidels?
Threats and direct solicitations to violence have never been protected by the First Amendment, and I’m just fine with that. R.A.V. vs. St. Paul.
Claire, the term you are looking for is 5th generation warfare.
The 4th generation war of capital structures, assets, and physically destructive technology (weapons) is over. President Reagan rightly gets credit for it and the deal was closed in the first gulf war.
Our enemies are more cunning than we credit them. The new front is economic and cultural warfare. Most frustrating is that we:
a) Refuse to fight
b) Actively pursue strategies that weaken us to this threat.
For further resources I recommend Kevin Freeman’s work. He is a good friend and I am a member of the founder’s class of NSIC that he created with Oklahoma Weslyan University.
Unless you are a political party that views its political rivals as terrorists. To the extent that the Left wants to use ISIL celebrating media outlets as a ruse to get at the real threat to the US–Conservative media–it is one of convenience. Conveniently there is this entity, which every Democrat with any weight told us during the Bush era was not a threat to us, which is now to be taken “seriously.”
Can I give a slight quibble here? It’s not that we refuse to fight. Half of our population has gleefully joined the fight….on the other side. Half of the people who would call themselves Americans have decided that America is guilty and not worthy of survival as it was founded. They have joined the barbarians at the gate and are opening that gate letting them in.
Well, here’s a question – rather than make it a crime, what if you simply denied Internet access to the Jihadi websites? As described here it seems technically feasible (I know, I know; boo, hiss! Breitbart) and foreign actors, particularly terrorists, do not in fact have First Amendment protections.
This way you shut down the vast majority of the sources of propaganda instead of policing American citizen’s viewing of information.
That’s precisely what Brandenburg struck down — Ohio’s criminal syndicalism statute. The statute was enacted in 1919 in response to the threat of Bolshevism and anarchism. It proscribed “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
It has to be imminent lawless action. In other words, however shocking and appalling I find it that we have members of Ricochet who say they’d welcome a military coup, it’s protected. If you get rid of the word “imminent,” I don’t see how it would be.
But that’s not quite what Posner’s suggesting. Given the impossibility of shutting sites not under our jurisdiction down, he’s suggesting that looking at “ISIS-related websites” be criminalized. In other words, not banning the book, but banning the reading of it. In his scheme, those who could prove they have a “legitimate interest” in studying or reporting on ISIS would be permitted to look at them: In other words, people like me would be allowed some kind of exemption; but people who couldn’t prove they were “journalists, academics or security experts” would not be allowed to learn more about the enemy — which would make it impossible for them to evaluate any claims that this “qualified elite” made about that enemy, not to mention what they’re being told by the government about it being, say, “the JV team.”
Good quibble. My response is that 1/10th of America might understand the concept of 5th generation warfare.
I don’t agree that half our population has gleefully joined the fight when they aren’t aware or don’t acknowledge war is being waged on us and what is the nature of contemporary warfare.
That’s fair. I would agree that many people who are actively attacking Western Civilization have no clue that they are actually attacking Western Civilization. They might call it exacting social justice or correcting historical wrongs, but you are right that they don’t understand fully what they are doing.
What dismays me is that all these groups are in double digits, starting with 18% of Republicans and 24% of my age cohort.
Far more. This is the part that makes me nuts: Not all, but some of them run circles around us — and they know us much, much better than we do them.
I was speaking in terms of the victims on the defensive side – us.
We’re still dealing with the threat of 4th generation warfare. Now we’ve also got 5th generation.
We’re already being force-fed the idea that one person’s dismay over a point of view or situation is enough to eliminate it – without allowing the facts to unfold – the silencing or bullying of the cake baker, the college Dean, police officers, the court clerk, the rise of the Black Lives Matter movement (akin to the panthers), etc. I agree with the idea posted that ISIS should not be able to post dangerous recruitment propaganda – it is akin to kiddie porn. We went after the same during WWII with the communist ideology – are we not at war here? It is their biggest tool in the box.