It has become increasingly clear that terrorist groups such as ISIS can extend their reach to American territory via the Internet. Using their own websites, Twitter, Facebook, YouTube, and other platforms, they lure young men and women to their mission—without having to risk the capture of foreign agents on U.S. soil. The Americans ensnared in ISIS’s net in turn radicalize others, send money to ISIS, and even carry out attacks.
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—and by this I mean ideas that lead directly to terrorist attacks that kill people. The novelty of this threat calls for new thinking about limits on freedom of speech.
Consider Ali Amin, the subject of a recent article in the New York Times. Lonely and bored, the 17-year-old Virginia resident discovered ISIS online, was gradually drawn into its messianic world, eventually exchanged messages with other supporters and members, and then provided some modest logistical support to ISIS supporters (instructing them how to transfer funds secretly and driving an ISIS recruit to the airport). He was convicted of the crime of material support of terrorism and sentenced to 11 years in prison. Amin did not start out as a jihadi; he was made into one.
So, Eric Posner, what should be done?
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. Such a law would be directed at people like Amin: naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.
The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences. The idea would be to get out the word that looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden. As word spread, people like Amin would be discouraged from searching for ISIS-related websites and perhaps be spared radicalization and draconian punishment for more serious terrorism-related crimes.
Let’s get this straight, then: rather than taking the war directly back to ISIS and eradicating this current incarnation of Islam’s war on the West, or restricting further immigration from Muslim lands, let’s abrogate the First Amendment and thereby turn it into an enumerated “right” of the federal government to pre-emptively monitor all Americans. What could possibly go wrong?
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.
Upgrading the secular priest class? Check!
The obvious problem with this law is that the courts could strike it down under the First Amendment. Under current doctrine, such an anti-propaganda law is unconstitutional because it would interfere with the right of people to receive or read political information—as would proposed laws that would require Internet companies such as Facebook and Twitter to remove ISIS-related propaganda from their websites. The Supreme Court has held that the government can ban political speech only when it poses an immediate threat to public safety, as when an orator encourages a crowd to go on a rampage. Speech that blasts the American constitutional system and praises America’s enemies has been held constitutionally protected time and again.
Surely, there are ways around the Supreme Court…
However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated. We do not currently face a national emergency comparable to a world war, but anti-propaganda laws may nonetheless be warranted because of the unique challenge posed by ISIS’s sophisticated exploitation of modern technology.
But like it or not, the West is engaged in a propaganda war with ISIS. Our own distaste for ISIS’s views should not blind us to the fact that it appeals to thousands of Americans. A narrowly tailored anti-propaganda law that reduced the ranks of homegrown jihadis would not only enhance public safety. It would also protect American Muslims like Ali Amin from the virus of ISIS’s ideology.
“Thousand of Americans,” eh? Gee, I wonder what almost all of them have in common. Let’s ask Ali Amin.
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