The nexus in militant Islam between advocacy and actual savagery is no longer contestable. It has been the subject of too much informed analysis and, more importantly, is an empirically demonstrated fact.
Thus, speaking in Brooklyn, New York, on January 16, 1993, the fiery Islamic cleric Omar Abdel Rahman—the “blind sheik,” as he was known—urged his foot soldiers never to fear being labeled terrorists:
[We] welcome being terrorists. And we do not deny this charge to ourselves. The Qur'an makes it among the means to perform jihad for the sake of Allah, which is to terrorize the enemies of God and our enemies too. . . . Then we must be terrorists, and we must terrorize the enemies of Islam, and frighten them, and disturb them, and shake the earth under their feet.
Only six weeks later, a powerful urea-nitrate bomb would explode in the bowels of the World Trade Center. Although, miraculously, only six people were killed, the jihadists' objective had been hugely ambitious. The bomb was set to detonate at high noon—a time when as many as 130,000 employees, tourists, and everyday Americans gravitated to the teeming lower Manhattan complex—and the plotters hoped the force of the blast would collapse one tower into the other, slaughtering thousands. The device had been planted by the blind sheik's acolytes after months of planning. A key conspirator had calmly explained to a government informant the preceding year that major terrorist operations could not go forward without a purportedly religious edict of approval—a fatwa—from Sheik Omar.
Blind, diabetic, and beset by other maladies, Sheik Omar never fired a shot in the war against the “enemies of God.” He never mixed an explosive compound, never beheaded a single infidel or apostate. As a renowned Quranic scholar, his weapon was merely words. But those words were backed by his prestige in a movement that insists on authoritative words to license deadly deeds. So it was that, upon being sentenced to life imprisonment in 1996, Sheik Omar issued a decree, declaring of Americans that “Muslims everywhere [should] dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.”
One student who heard well was the wealthy Saudi upstart Osama bin Laden, eventually the leader of an international terror network, al Qaeda, whose size and efficacy dwarfed even Sheik Omar's ambitious hopes. Over the next years, bin Laden would issue his own declarations against America, and follow them regularly with murderous deeds. Only days after 9/11, with fires still raging from the finally destroyed twin towers, and the murder toll rising, bin Laden jubilantly explained to the international media that his war on America was fully justified under the authority of the Islamic fatwa issued from prison by the blind sheik.
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With an enemy committed to terrorism, the advocacy of terrorism—the threats, the words—are not mere dogma, or even calls to “action.” They are themselves weapons—weapons of incitement and intimidation, often as effective in achieving their ends as would be firearms and explosives brandished openly.
Nevertheless, even in 2005, and even in the midst of a war against jihadists, it has become necessary to ask whether advocacy of terrorism can be effectively regulated in the United States. Our enemies, after all, swaddle their calls to barbarism in the language of religious duty and political dissent. These lie at the very core of liberty in an enlightened and thriving democratic order. So luminous does free speech shine among our values that it is enshrined in the very first amendment to the Constitution. Early Americans had known doctrinal tyranny. The framers fully understood that if their grand experiment in republican democracy was to flourish, the exchange of ideas prerequisite to an informed citizenry was a necessity.
There is a curious marriage of minds on this point between American absolutism, which is so certain of its capacity to achieve the right ends that it proclaims speech an inviolable good, and American pragmatism, which is certain of nothing so much as its capacity to be wrong. The result is a doctrinaire humility: we go forth assuming as an immutable truth that there are no immutable truths, and therefore that expression must be uninhibited. As Justice Oliver Wendell Holmes, Jr. famously put it in 1919, “the ultimate good desired is better reached by free trade in ideas—[and] the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
But does this self-correcting competition never end? Is everything, ultimately, relative—left forever to be weighed against everything else? Do we so lack confidence (except in the sacrosanct status of speech itself) that we are unable to say with assurance that some things are truly evil, and that advocating them not only fails to serve any socially desirable purpose but guarantees more evil? Must our historical deference to opinion, however noxious, defer as well to a call to arms against innocents, or a call to destroy a form of representative government that protects religious and political freedom? May we not even ban and criminalize the advocacy of militant Islam and its métier, which is the indiscriminate slaughter of civilians?
The timeliness of such questions has been brought into relief by an impressively comprehensive volume, Perilous Times: Free Speech in Wartime,1 by the eminent constitutional scholar Geoffrey R. Stone. Written from the perspective of a committed but generally fair-minded civil libertarian, the study scrutinizes government's historical treatment of the First Amendment during national crises, bringing to the fore collisions of theory against practice.
As no one needs reminding, such collisions have abounded. The summoning imperative of the First Amendment's free-speech clause—“Congress shall make no law . . . abridging the freedom of speech, or of the press”—is worn as a badge of honor by every American who ever insisted, “I have a right to my opinion.” About it, however, all that can be stated with certainty is that it does not mean what it says. Indeed, in the 214 years since the First Amendment's ratification, Congress has made many laws abridging the liberty to speak and otherwise to express oneself—in some instances, tightly regulating, and even criminalizing, mere words themselves.
Some language is still adjudged so obscene that, notwithstanding today's coarse media environment, it may not be uttered on broadcast television and radio. Extensive “time, place, and manner” regulations minimize public nuisance by restricting commercial advertising. A person whose words disclose classified information is deemed to have committed a grievous felony. And under the newfangled cudgel known as campaign finance reform, speech aimed squarely at political persuasion—that is, the species of expression once regarded as the quintessential, untouchable core of the First Amendment—may now also be constrained.
For a mind as supple as Geoffrey Stone's, this makes for a terrain of unlimited possibilities. In fact, contrary to most constitutional provisions, which have inspired energetic judicial gymnastics to unmoor terms from their original understanding, the free-speech clause, Stone maintains, had no original understanding at all. Far from a concrete doctrine, it was an “aspiration, to be given meaning over time,” prompting Benjamin Franklin himself to quip: “few of us [have any] distinct ideas of its nature and extent.”
The challenge taken up by Stone is to chart history's often precarious voyage toward this “aspiration.” His chosen crucible is wartime. This is a wise decision: the First Amendment is plainly about an individual's right to buck the established order, and in wartime the stakes are highest for both sides. It is then that society most requires cohesion in order to fight effectively and preserve the system on which all liberties depend. And it is also then that the individual is most affected by government's choices and thus most needs a wide berth to criticize them. If one wants to know what free speech really is, the answer lies in how government treats it during an existential crisis.
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For much of our history, Stone relates, the answer has been: not very well. He studies six separate crises: the “half war” with France at the close of the 18th century, the Civil War, World Wars I and II, the cold war, and Vietnam. Stone's history is a thematic one, with two notions hammered at repeatedly. The first is a certain justified cynicism about government. When given an opportunity, a regnant administration is virtually certain to use its wartime powers to suppress not only insurrectionist speech for national-security purposes but mere dissent for political purposes. His second theme is an unshakable faith in the talismanic power of speech itself not simply to educate and improve but, by its own sheer force, to defeat the enemies of freedom. Although there is much in Stone's reasoning with which to disagree, the discussion is engrossing, punctuated with fascinating characters and distinguished throughout by superb writing.
Stone's first target is the Alien and Sedition Acts of 1798, a mixed bag of the sensible and the uncommonly silly that marked the U.S. government's first foray into the crossroads of free expression and national security. History tends to recall these provisions as a single, deplorable package, but that is not entirely accurate.
The Alien Enemies Act, even for Stone, was arguably appropriate—in fact, it still remains the law that in times of declared war, nationals of the enemy may be detained or deported. He disapproves of the companion (and short-lived) “Alien Friends” laws, which both drastically reduced immigration and empowered the executive unilaterally to detain or deport aliens of any nationality. But, as he compellingly shows, the true ignominy attaches to the outlawing of sedition, making it a crime to “write, print, utter, or publish . . . any false, scandalous, and malicious writing” aimed at bringing government officials into disrepute. Not surprisingly, enforcement devolved into criminalization of mere dissent—and often dissent of an inconsequential kind.
Stone next turns to the Civil War, where his discussion centers less on free speech per se than on such matters as the suspension of habeas corpus, declarations of martial law, and the trying of civilians in military courts. These are all areas in which, confronted by the very real possibility of losing the Union, Abraham Lincoln acted decisively, and Stone's consideration of his actions is measured and careful: sympathetic to the exigencies Lincoln faced but critical of the license he claimed.
Stone's most significant contribution to our present inquiry is his description of the seismic shift that occurred over the course of the 20th century in the Supreme Court's rulings concerning restraints on threatening speech. Particularly germane is his explanation of the current state of the law and its rationale, of which he is an enthusiastic adherent.
The modern First Amendment began to take shape in World War I. This was a bleak era for civil liberties, stamped by unprecedented governmental excesses. Championing America's controversial entry into the war, President Woodrow Wilson undertook to rouse public opinion to his side, by, among other things, forming what was in every sense a propaganda ministry and using the criminal law to crush dissent.
The latter end was accomplished by a promiscuous piece of legislation known as the Espionage Act of 1917. As abusive as this proved to be, it was a fraction of what the administration initially sought: Wilson's proposal included a press-censorship provision that would have forbidden publications “useful to the enemy.” As Stone recounts with evident relief, Congress decisively rejected this gambit despite a personal appeal from Wilson that it was “absolutely necessary to the public safety.”
Still, two laws that were ultimately enacted, in dramatically scaled-back form, proved troublesome. A “nonmailability” provision enabled the Postmaster General to halt delivery of opposition press, and, most alarmingly, a “disaffection” law effectively stifled dissent under the cover of protecting military enlistments from “insubordination, disloyalty, mutiny, or refusal of duty.” This was enforced by the Justice Department, with court approval, through the instrument of a “bad tendency” test: if utterances of even veiled protest had any theoretical propensity to depress military performance, conviction was essentially assured.
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Stone does not disclaim the need for appropriate safeguards for military operations, but he argues trenchantly that a government of the people must encourage informed debate of the important issues of the day. In the Wilson years, this principle animated the legendary Learned Hand and two other federal district judges, George Bourquin and Charles Freemont Amidon, to struggle, very much against the grain of the times, for an appropriate balance between free speech and military necessity.
Bourquin's theory called for a close connection between speech and the realistic occurrence of insubordination. This would rule out conviction based on, for example, general statements that the war was being fought for moneyed interests—i.e., statements that plainly were not aimed at depressing enlistment in the military.
Hand took a somewhat different path. Stressing the importance to democracy of debate and dissent, he asserted that words—“the triggers of action”—should not be proscribed in the absence of express advocacy to violate the law. Under this view, regardless of the overall tendency that words might have to inspire various actions—for example, a speech generally criticizing foreign policy might influence a draft-age listener to refrain from enlisting—a speaker who stopped short of urging specific lawless action should not be prosecuted.
These were decidedly minority viewpoints, however. By 1919, the Espionage Act prosecutions of the first “Red Scare”—including one involving the Socialist-party leader Eugene V. Debs—began reaching the Supreme Court. To Stone's chagrin, that tribunal was then “in firmly conservative hands” and not apt “to take a bold stand in favor of those who condemned capitalism and denounced the established order.”
In one such case, Justice Holmes, writing for the unanimous Court, applied the sweeping “bad tendency” test to uphold an Espionage Act conviction. But then he added this statement:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. [emphasis added]
As Stone elucidates, Holmes almost certainly did not intend “clear and present danger” to be in any sense momentous. If he had, the proper course would have been to reverse the conviction and order a new trial under this new standard. Nevertheless, the invocation of “clear and present danger” was historically significant, if only because Holmes had an ego befitting his station in our legal pantheon. When he ultimately did change course, he was too proud to concede the fact (and thereby tacitly admit that his earlier opinions had been wrong). Instead, once finally persuaded of the correctness of “clear and present danger,” he was able to avail himself of a phrase he had used, however vacantly, before.
The most interesting vignette in Stone's book involves this conversion of Holmes from virtual government rubber-stamp to free-speech trailblazer, with no small amount of nudging from his significantly younger friend Learned Hand. Once convinced, Holmes exhibited all the zeal of a convert. Beginning in 1919, with his blazing tribute to the power of truth “to get itself accepted in the competition of the market,” Holmes and his colleague Louis Brandeis authored a series of dissents unfolding the principles of interplay between “proximity and degree.” In a transformation Stone correctly regards as nothing short of amazing, these dissents gradually took on far more grandeur than the majority rulings from which they demurred. Ultimately, the Holmes/Brandeis view carried the day.
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It would, however, be decades before that transformation came to pass. Stone regards this as a desultory epoch for free speech. The fall of France in 1940 begat a reenactment of the Espionage Act—meaning that the provisions would now be enforced in what technically was peacetime—and the eve of World War II also ushered in the Smith Act, one of Stone's banes. This, aside from measures requiring aliens to register and streamlining procedures for their expulsion, also proscribed criminal syndicalism, i.e., the teaching and promotion of terrorism, force, and violence for the purpose of accomplishing political or industrial change.
Postwar, these were key ingredients for the second “Red Scare,” featuring such bête noires of Stone's as Whittaker Chambers, Elizabeth Bentley, the House Un-American Activities Committee, and, of course, Senator Joseph McCarthy. But this period, too, eventually led to a great leap forward, principally thanks to the Supreme Court's review in 1951 of United States v. Dennis.
The case involved a lengthy, high-profile prosecution of several members of the American Communist party (CPUSA), a prosecution regarded by Stone as more about convincing Americans that the Truman administration was not soft on Communism than about national security. The heart of the case was criminal syndicalism.
The fact that this crime—starkly narrower than the vague offenses spawned by the Sedition and Espionage Acts—had become the terrain for fighting out the speech-versus-security battle was itself a sign of dramatic progress. Stone, though, does not see it that way, and his objections go to the heart of his theory of free speech. The premise here, adumbrated years earlier by Brandeis, was that one could sensibly segregate the “abstract” proselytizing of a doctrine calling for mass violence from the actual solicitation of such violence. Stone enthusiastically cites Justice Felix Frankfurter (a member of the Dennis Court), who deduced that advocacy of violence is typically “coupled” with “criticism of defects in our society.” Should such advocacy forfeit one's rights at the marketplace? For Stone, as for Frankfurter, the answer is no: “sometimes the rhetoric of revolution is so deeply imbedded in the discourse of dissent” that one cannot “separate the wheat from the chaff.”
That this theory did not prevail in Dennis (in which even Frankfurter voted to uphold the convictions) is a development Stone sees as “snatch[ing] defeat from the jaws of victory.” In a hodgepodge of opinions, none of which commanded a majority, the Court applied what he calls a “discounted” clear-and-present-danger test. Much of its reasoning was lifted from a lower-court opinion by Hand, who had sensibly theorized that the First Amendment did not protect speech that was part of the “provocation to unlawful conduct,” regardless of when that conduct was to occur. Turning then to the Supreme Court's clear-and-present-danger test, Hand concluded that the key question was “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In this case, he wrote, gravity was at its weightiest: a mortal threat against the existing order by “a highly articulated, well contrived . . . organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind.”
For Stone, the “discount” here centers on the immediacy of the threat. He does not see it. For him, the real hero of the piece is the dissenting Justice William O. Douglas, who, while acknowledging the danger of Communism abroad, regarded the movement in this country as a “bogeyman” that had been “thoroughly exposed” and “crippled as a political force.”
Thankfully, in Stone's celebratory recounting, it was the Douglas view that would become ascendant in the late 1950's, when pivotal changes in personnel (including the appointment of Justice William J. Brennan, for whom Stone served as a law clerk in the 1970's) ushered in the extremely speech-friendly Court of Chief Justice Earl Warren. In short order, the Court would hold (in Scales v. United States) that “mere” membership in an organization advocating the violent overthrow of the U.S. government could not be prosecuted, since to do so would pose “a real danger that legitimate political expression or association might be impaired.”
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The free-speech tidal wave peaked in the final period studied by Stone, the era of the Vietnam war and Watergate. Court cases pressed the very limits of the speech-versus-security divide, posing the question whether the value we ascribe to dissent might even justify violations of general laws that do not target speech. Could one permissibly burn a draft card, urinate on a public building, or run naked through the streets in order to “rage against the machine”? The promise of resultant chaos was too much even for the Warren Court, and Stone agrees.
But laws targeting speech itself were another matter entirely. In this regard, the revolution hailed by Stone was completed with the landmark 1969 decision in Brandenberg v. Ohio, involving a prosecution of the Ku Klux Klan for threatening racial violence. Here, instituting “clear and present danger” in its full flower, the Court held that government could not proscribe advocacy of the use of force (or of other violations of law) “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). In the new dispensation, self-preservation would now be left mainly to the marketplace of ideas, and to the belief that most threats would deliquesce in the sunlight of reasoned debate.
And this brings us to the denouement of Stone's survey, an all-too cursory peek at the “war on terror.” It is disappointingly thin, especially as measured against the author's diligent treatment of prior crises. Though he strongly suggests that the Bush administration has run roughshod over civil liberties, his assertions are conclusory and unsupported. They also conspicuously fail to convey the palpable fact—which cries out from the rest of his tour de force—that, by any reasonable standard, contemporary claims about deprivations of freedom pale beside the realities of the administrations of John Adams, Lincoln, Wilson, FDR, and Truman.
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But there is much more to be said about the latitudinarian view held by Stone on the issue of free speech—and hardly by him alone. The first thing is that, whether or not the framers endorsed an “aspirational” First Amendment, as Stone maintains, it is certain that the free-speech clause was never intended to frustrate government's ability to suppress true threats to national security. This is a matter of balance.
The problem with aspirations is that they are not easily given to balance, being more the stuff of religious fervor than of real-world experience. Those in the thrall of their aspirations tend to see them as unadulterated, undeniable virtues, and to dismiss or disparage on-the-ground facts that besmirch their lofty vision.
In this respect, Stone is more grounded than many a civil-libertarian extremist. Except when it comes to certain not-to-be-questioned incarnations of evil—Joseph McCarthy, the Japanese internment, the Patriot Act, etc.—he is not implacably hostile to government or insensitive to the legitimate demands of national security. But he is, nonetheless, a free-speech ideologue of the aspirational bent. Borrowing language from Learned Hand, his version of the First Amendment “rests upon a ‘skepticism as to all political orthodoxy’ and a belief that ‘there are no impregnable political absolutes’ ”—so that even advocacy of violence must be cut some slack lest some kernel of truth be “chilled” and thereby prevented from coming forward.
Obviously, to say that things were not always thus does not impress Stone; yet it remains the fact. For most of our nation's history, we were confident both about the existence of the universally condemnable and about our ability to discern it without meaningfully short-changing the robust exchange of information on which a functioning democracy depends. Thus, as late as the 1942 case of Chaplinsky v. New Hampshire, the Supreme Court could unanimously decree:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [emphasis added]
In the latter half of the 20th century, this sense of confidence, like much else about the established American order, evaporated under the withering assault of relativism and the self-doubt that inevitably flows from self-loathing. Today, recitations like Stone's of our legacy of speech repression during times of national crisis help to buttress the new adversarial view, lending grist to its premonitory warnings. But unless one is dealing with absolutes—and even by Stone's lights, free speech is not quite an absolute—its relative value is wholly dependent on context, and accurately assessing its value hinges on accurately portraying that context.
After the fact, which is the way history gets written, a threat that has failed to materialize in its full monstrousness never appears as threatening as it may in reality have been. For the ideologue reflecting backward, the luminous virtue of free speech glows ever more incandescent, while curbs imposed to guard against a catastrophe that never happened—particularly when such curbs have resulted in individual episodes of injustice—seem increasingly sinister. The natural propensity is to overstate the importance of the aspiration and undervalue the degree of the threat. It is a propensity to which Stone repeatedly falls prey.
So, too, with the tendency to conflate subjective intentions with objective actions. The impulse to defend individual liberty is admirable, but, since individual liberty is not always society's paramount concern, admirable intentions do not mean its defense is necessarily wise. On the other hand, a necessary war may be partially motivated by selfish desires to profit politically from public good will; but the venality hardly renders the war unnecessary, or taints the measures taken to wage it. In the facile distortion of hindsight, imputed or declared intentions take on outsized significance, particularly among the studiously well-intentioned.
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Of stone's two recurring historical themes, the first (to repeat) is that, in times of crisis, the political branches can always be relied on to mobilize themselves toward reductions in individual liberty. This is generally true, but Stone neglects the dynamic nature of the ensuing and by-now familiar cycle. At the start, the frightened public is generally supportive, but it becomes steadily less so if the anticipated harm does not come to pass. Analogously, the courts generally give the President and Congress a wide berth while the crisis endures, but typically reduce this deference, often substantially, in the aftermath.
Over the longer term, too, the cycle is far from static, though Stone, against the weight of overwhelming evidence, sometimes suggests otherwise. For example, in the sedition cases, judges rigged convictions by virtually compelling juries to conclude that statements of mere opinion could be actionably “false” and “malicious.” Drawing corroboration from lapses he perceives in subsequent crises, Stone worries that courts cannot ever be trusted to vindicate civil liberties. But that is a strange argument to be making today, when the Supreme Court has opened the federal courts to alien enemy combatants captured overseas in wartime, vesting persons heretofore considered bereft of any constitutional protections with a right to challenge a commonsense and centuries-old law of war stating that enemy captives may be detained until the cessation of hostilities.
In truth, as Chief Justice William H. Rehnquist demonstrated in All the Laws but One (1998), the cycle described here is dynamic and, insofar as civil liberties are concerned, quite progressive. The courts, by nature, may come late to the game, but they do ultimately address curtailments of liberty. That this is of little consolation to those individuals whose rights were trammeled does not erase the significance of the phenomenon. Over time, courts inexorably set the bar higher and higher against government regulation.
Stone has many criticisms of the Supreme Court's performance in the early 20th century, but even he does not claim that what he sees as the complaisant tribunal of 1919 would have countenanced the shenanigans of 1798 by the Adams administration. And he positively lauds the Warren Court for having, in his view, corrected the wayward precedents of prior times. Given this trajectory, Stone's fears—particularly insofar as he sees the present war on terror as a gloomy recession—are seriously overwrought.
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Stone's second recurrent theme is the power of free speech to win out over the enemies of freedom. For most civil libertarians, this is indeed an article of faith: not only is free speech itself the best antidote to peril, it is superior to any weapon of war. Thus Stone buys wholly into Justice Hugo Black's absolute conviction that Communists could safely be permitted to preach the need for violent overthrow of the government because (in Black's words) “free speech will preserve, not destroy, the nation” (emphasis in the original).
Taking a proper historical view, however, one might state the proposition differently: doctrinaire civil libertarians can always be relied on, no matter what the crisis, to minimize the danger faced by the nation. In the real world, moreover, free speech can only produce its vaunted corrective effects if it has both the inclination and the time to work. The problem is that it often does not.
Today's marketplace of ideas, for example, has been notably reluctant to engage even the subject of Islamofascism and the threat it poses to our institutions and our liberties. Nor does that marketplace strike one as a very effective weapon for bringing suicide murderers to heel, let alone for militating against electronically beamed fatwas capable of unleashing weapons of untold destructive power before other ideas have a meaningful opportunity to compete and persuade. A half-century before the advent of such technology, no less a free-speech icon than Learned Hand, soberly considering the Communist threat, found it cold comfort that violent insurrection might await a moment when “success seems possible.” And Hand did not figure on militant Islam.
There is also a tendency of libertarians to discount danger out of their innate cynicism about government. Since crises provide government with the necessary justification to curtail freedoms, libertarians naturally reason that a crisis may not be authentic—the powers-that-be have manufactured it, or at the very least drastically overstated it. Nowhere is this propensity more clearly on display than in Stone's miniaturizing of the Communist threat. Apart from a few fleeting references to some “information revealed in the 1990's” that “suggests” the fears of a profound threat to subvert the United States government were “not unfounded,” the Red Scares and the cold war signify, for Stone, “hysteria” plain and simple.
His choice of terms here is symptomatic. The CPUSA, Stone grudgingly and blandly admits, was tied to “international Communism”—a euphemism for a ruthless tyranny, the Soviet Union, which for decades enslaved half the world, murdering tens of millions. In classic understatement, Stone stipulates that the CPUSA engaged in some espionage. But this does not remotely begin to tell the story. The top-secret decryptions known as the “Venona Project,” which Stone fails expressly to discuss although they were first disclosed nearly a decade ago, have confirmed beyond cavil that the U.S. was riven with Soviet spies—hundreds of them, several of whom were highly placed in the governments of FDR and Truman.
Sweeping all this under the rug, Stone festoons the scene with discredited leftist orthodoxy. “[S]hort, pudgy” Whittaker Chambers is unfavorably contrasted with the “tall, handsome, and elegant” Alger Hiss, who was the student and law clerk, respectively, of Stone's heroes Frankfurter and Holmes. Stone can bring himself only to say that “Hiss was convicted of perjury”—not that the perjury was about his being a Soviet spy, much less that Venona has confirmed Hiss as a traitor. Here too are lushly reprised the old hidebound attacks against Joseph McCarthy, next to equally hidebound paeans of praise to the likes of Harry Dexter White, the “bold thinker” who was the “principal architect of the International Monetary Fund.” Projecting the image of a decent man harassed literally to death by wild-eyed right-wingers, Stone lamely drops a footnote relating that “[a]ccording to some researchers, White was indeed a spy.”2
One is left wondering how, with Venona now having exposed the fatuity of Justice Douglas's dismissal of American Communism as a “bugbear,” Stone could so blithely second Douglas's galactic miscalculation. One also wonders what Douglas might have made of militant Islam—a force much less successfully infiltrated into the American fabric than the Communists were, but from which a mere nineteen jihadists managed in one fell swoop to rip the heart out of the U.S. financial center, attack its military headquarters, cripple the airline industry, cause untold billions in damage, kill 3,000 people, and precipitate a shooting war.
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Without security, there is no liberty at all. The fact that government is made up of human beings, and that human beings are certain occasionally to abuse any powers given them, is surely a rationale for narrowing those grants of power; but not for eradicating them, or reducing them to a quantity that fails to protect or even to take account of the higher interest that impelled the grant in the first place. Individual abuses of dissent are bad, but undermining the framework that ensures the right to dissent is immeasurably worse. This, as Holmes intuited, is supposed to be a matter of degree.
Moral clarity, moreover, postulates that some evils are so palpable we need not further test them in the marketplace. There are relatively few of them, but they do exist and we need not fear we are wrong about them. Such recognition is critical to the functioning of a healthy society, and declaring an end to discussion of any conceivable value they may have is very far from declaring a tyrannical power to end discussion of any topic disfavored by government. Do we really need additional ideological thrust-and-parry to know, for example, that the advocacy of genocide, or rape, or the indiscriminate mass slaughter of civilians is condemnable under any and all circumstances?
Anxiety over “chilling effects” is the most curious and overwrought of all concerns. Is it realistic to believe that we would actually lose the benefit of any idea worthy of the name were we to ban the advocacy of terrorism? Al Qaeda, its precursors, and its facilitators have been aggressively prosecuted in this country for over a decade—and are now targets of military operations and seizures of assets. Far from having chilled dissent, this enterprise has produced an alphabet soup of Islamic support organizations, many of which brazenly insist that terrorism, especially in Iraq or against Israel, is merely a form of resistance; relentless and fearless protest from the likes of the ACLU, Amnesty International, and Human Rights Watch; and an entertainment industry (as well as a political cohort) that cannot bestow enough plaudits on Michael Moore. Exactly what meaningful dissent will we miss if we proscribe the advocacy of murder, or of militant Islam's clarion call to violent jihad?
There are practical issues to be considered here as well. Prior to the 9/11 attacks, no terror organization in the world had been responsible for the slaughter of more Americans than the Iranian-backed Hizballah. Although its atrocities have been exhaustively documented, what has been little appreciated is the catalyzing role played by speech, especially broadcast advocacy, in its deadliness.
In an eye-opening new book, Beacon of Hatred,3 Avi Jorisch chronicles al-Manar (“The Beacon”), the international television outlet of Hizballah. Launched in 1991, this has become the go-to station for news in much of the Islamic world, and the first choice of many viewers in times of tumult. Al-Manar reaches a daily worldwide audience often to fifteen million viewers, nearly the same number as the combined shares of America's top cable television news outlets.
But it is not simply news that one finds there. Al-Manar is a sedulous propaganda machine, designed to foment violence against Israel and the United States and meant, as one of its officials unabashedly told Jorisch, to “help people on the way to committing what you call in the West a suicide mission.” Nor is this “help” faceless: Hizballah Secretary General Hassan Nasrallah himself frequently appears, calling for “death to America.”
The CD-ROM accompanying Jorisch's book contains a spellbinding series of video clips. It has long been known that in the new media age, technologies undreamed of by the CPUSA have spread militant Islam like wildfire. The blind sheik's “sermons,” threaded with authoritative commands to violence, were widely distributed even while he was still nestled in Egypt. They and similar recordings were found among the belongings of jihadists tied to the 1993 bombing of the World Trade Center and other terrorist plots. Bin Laden, Ayman al-Zawahiri, and the Jordanian terror maestro Abu Musab al-Zarqawi have followed suit, videotaping instruction-laced diatribes (and beastly beheadings) for even broader international dissemination by streaming Internet and tapes delivered to outlets in the Arabic press.4
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Citing Al-Manar's “incitement of terrorist activity,” the State Department announced on December 17, 2004, that the station had been added to its Terrorism Exclusion List (TEL). The practical legal consequences of this are sparse. It merely permits the government to deport any alien contributing to the venture; it has no real effect on foreign backers who are not present here. It also leaves untouched the station's Washington bureau chief, who is an American citizen.
Still, the move, at least temporarily, has had a desirable shaming effect: Intelsat and Globe Cast, respectively Barbados- and French-owned satellite providers, have removed al-Manar from their menu offerings, which means the station is no longer available in the U.S. Globe Cast was no doubt influenced by the French government's decision to ban al-Manar for violating its hate-speech laws. As for American companies, any prospective boycott by them is wholly voluntary: al-Manar can be back in business in the U.S. the minute it gets a willing carrier.
The shutdown of al-Manar here would be compulsory and permanent rather than voluntary and tenuous if the State Department were to take the more meaningful step of designating it as a foreign terrorist organization, or if the Treasury Department were to add al-Manar to its list of specially designated global terrorist organizations.5 Such designations would lay the legal groundwork for freezing al-Manar's assets, barring financial transactions with it, and rendering liable for U.S. prosecution anyone anywhere who provided material support to the station.
Given that this is no “abstraction”—terrorists are in fact killing Americans and energetically scheming to kill more—one would think such steps would be straightforward. But they are not. Al-Manar is not just any organization supporting terrorism, like a charitable front or a money exchange. It is a media outlet. Therefore, civil libertarians are mobilizing, insisting that the station's advocacy of barbarism is simply speech, purportedly making its special contribution to the great marketplace of ideas.
Instinctively sensing a chill First Amendment wind, Reporters Without Borders has protested that the U.S. is foolishly equating anti-Semitism with actual terrorism and that, under the modest step taken by the State Department, working journalists may be in danger of being branded terrorists. In a testimonial to the alchemic power of speech to cure all of our ills, Slate's Jack Shafer invoked the Sedition Act of 1798, insisting that to ban the station would only increase Hizballah's standing, nullify America's ability to preach openness to “embattled Iraqis,” and enact an unconstitutional restraint on speech “when there is no clear and present danger to the citizenry.”
Closing in a manner that might have brought a smile to Geoffrey Stone's face, Shafer effuses:
In suppressing al-Manar's message, the government is saying that it shall determine what the public can be trusted to know. Not even during the cold war, when the Soviet Union dedicated itself to the West's destruction, did the government block a sworn enemy's message from reaching us. . . . However vile and propagandistic Hizballah's TV station may be, my sense is that it's only one of the administration's targets. The other is you.
This, of course, is ludicrous. In tone, substance, and exhortation to immediate violence, Soviet media messages never resembled militant Islam's. Besides, the United States did seek to block the Communist message to the extent that it involved advocacy of violent overthrow by members of the CPUSA. Finally, there is not a scintilla of basis for the belief that targeting Hizballah's speech would be the first step in rolling back the civil liberties of Americans.
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Stone and those who think like him are wrong. The point of a market is a free exchange. Terrorism perverts the very concept: seeking to compel acceptance not by persuasion but by fear, it is an exchange at the point of a gun. When it fails to win such acceptance, it does not go back to the drawing board to develop a better message or write a better book. It kills, massively. Why then should government hesitate either to ban al-Manar or to use every legal tool in its arsenal, including criminal prosecution, to convey in the strongest terms that the advocacy of terrorism in this day and age is entitled to no First Amendment protection?
What can deprive us of proper dissent, as Stone himself demonstrates, are laws that permit government to suppress dissent itself. Narrow laws that target exhortations toward violent conduct and lawlessness do no such thing. Inevitably, there is a weighing to be done, but it is a straightforward one. On one side of the ledger is the right of a good and lawful people, committed to liberty and tolerant of dissent to a degree unknown in the history of the world, not to be subjected to intimidation; on the other side is the right of purveyors of murder to pretend that there may be a shred of helpful “message” in their savagery. This is a contest?
As far as the Supreme Court is concerned, the advocacy of modern terrorism could comfortably be banned without undue introspection and with simple reference to the moral clarity of the ruling in Chaplinsky. All that is required is to apply “clear and present danger” to the world as it is today, not as it existed in 1798, 1865, 1919, 1951, or 1969. To the extent that we need to factor in the imminence of a threat, Learned Hand's formula, “the gravity of the ‘evil’ discounted by its improbability,” should serve us well. The evil here could not be graver, and it is beyond calculations of probability—this enemy has killed repeatedly, and promises to kill anew.
In America's bumptious, bounteous marketplace, there are no limits on words as the building blocks of ideas, or on ideas as the legitimate instruments of persuasion. Terror has no place in such discourse. It is the function of law to express our society's judgments. Ours should be simple and humane: words that kill are not words we need abide.
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1 Norton, 730 pp., $35.00.
2 White was outed by Venona as a Soviet operative who secured high-level government positions for at least eleven other spies (also identified in Venona), while promoting a multi-billion-dollar loan package for Stalin. See John Earl Haynes and Harvey Klehr, Venona: Decoding Soviet Espionage in America (2002).
3 Washington Institute for Near East Policy, 105 pp. plus CD-ROM, $24.95 (paper). Jorisch is a colleague of mine at the Foundation for the Defense of Democracies.
4 Terrorists are known to use covert messages embedded in videos. Al-Manar broadcasts may well contain such coded communications, providing, as Jorisch observes, “a way for Hizballah's terrorist ‘generals’ to command their ‘troops’ in the field, for example, sleeper cells in the United States and elsewhere.”
5 These moves have been urged by a number of groups united in a Coalition Against Terrorist Media, with which both Jorisch and I are affiliated.
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