ISIS, Fear, and the Freedom of Speech

In recent weeks, two of the legal scholars I most admire -- Cass Sunstein and Eric Posner -- have independently called for possible limitations on the scope of First Amendment protection in light of the dangers posed to the United States by online radicalization messages directed at Americans.

Although I certainly understand the concerns driving these suggestions, it is essential that we resist the temptation to restrict our most fundamental freedoms in moment of panic. This is not to say that our nation's security is not important or that preventing terrorist attacks is not a critical goal. But it is to say that this is not an appropriate way to protect ourselves.

At the core of these concerns is the fear that if ISIS supporters are free to encourage others to join their ranks and to launch terrorist attacks against the United States, we will be less safe than if we could make it a crime for individuals to promote such messages. This is a credible fear. But a credible fear is not a sufficient justification for jettisoning hard-bought constitutional rights.

We have a long history in the United States of compromising our First Amendment freedoms in the face of perceived danger and then later recognizing that we had overreacted, often with dire consequences for individual freedom and for our democracy.

Less than a decade after we adopted the First Amendment, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press," Congress enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the President, the Congress, or the government of the United States. The purported justification for the legislation was fear of a possible war with France, then the world's leading military power. The rationale was that, if citizens could criticize the government, then the government would be less able to protect the nation in time of war.

The war never came, but government officials relentlessly prosecuted their critics, in no small part in an unsuccessful effort to retain their power in the 1800 elections. In later years, Congress repealed the Act, the government released those who had been convicted under it, and the Supreme Court declared that the Sedition Act of 1798 had in fact been unconstitutional.

A similar situation arose during World War I, when the federal government enacted first the Espionage Act of 1917 and then the Sedition Act of 1918. As interpreted and applied, these laws once again made it a crime for any person to criticize the government, the war, the draft, the military, or the flag of the United States. In another episode driven by fear, some 2,000 Americans were prosecuted, convicted, and sentenced to prison terms for as long as ten or twenty years for doing nothing more than questioning the morality, wisdom or legality of government policy during the war.

Once again, after all the dust settled, those who were convicted were released from prison and pardoned, and the government eventually acknowledged that its actions had been driven by an illegitimate combination of panic and political expediency. Although the Supreme Court upheld the constitutionality these prosecutions and convictions at the time, in later years the Court recognized that they had violated the First Amendment.

More recently, during the 1950s Red Scare and the era of McCarthyism, government at the federal, state and local levels all prosecuted, blacklisted, and jailed tens of thousands of Americans because they had once been members of the Communist Party, or affiliated organizations. The premise of these prosecutions was that these individuals were disloyal and posed a threat to the security of the United States because the Communist Party advocated the violent overthrow of government.

Once again, with the passage of time, the nation came to the realization that it had panicked and that it had wrongly persecuted these individuals without justification. And once again, the Supreme Court, which had initially upheld these prosecutions and blacklists, later came to its senses and declared these actions unconstitutional.

Finally in 1969, in its landmark decision in as Brandenburg v. Ohio, the Supreme Court, building upon the powerful dissenting opinions in the earlier eras of Justices Oliver Wendell Holmes and Louis Brandeis, declared in no uncertain terms that in the United States the government cannot constitutionally punish individuals for expressing their views, even when those views call for the use of violence, unless the government can demonstrate that such speech is likely to trigger imminent violence. Short of that, the Court held, the only proper response, even to expression we fear and despise is not suppression, but counter-speech. Of course, this is not without risk, but the price of freedom is always a degree of risk.

Given our grim history in periods of perceived or real crisis, and given how long it has taken us to attain the wisdom and insight we have gained through painful national experience, this is definitely not the time to turn back the clock and to revert to long discredited doctrines that served us so poorly in the past. The temptation is certainly understandable, but the better part of wisdom is not to toss away our hard-bought freedoms in the absence of truly compelling necessity.

This holds true, by the way, not only for free speech, but for all of our freedoms. Once we discard our free speech rights, what is to keep us from then discarding other rights as well? Suppose, for example, some nut-case politician were to call for the internment of all Muslim Americans? After all, better be safe than sorry.

Of course, we already did the equivalent of this during World War II, when the United States interned 120,000 persons of Japanese descent, two-thirds of whom were American citizens, men, women, and children. In one of the most tragic decisions in American history, the Supreme Court, in the midst of the war, upheld the constitutionality of this program. In later years, the United States government formally apologized for this travesty and provided restitution to those whose lives had been devastated by this painful example of wartime panic.

The long and short of it is this: In the free speech arena, we have struggled for more than two hundred years to get to the right place. We should not throw that wisdom away in a panic. If we do, we will once again deeply -- and rightly -- regret our actions.