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Terrorism and the First Amendment

The right way to limit dangerous speech.

Jan 23, 2012, Vol. 17, No. 18 • By GARY SCHMITT
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Paradoxically, the majority in Brandenburg extols free speech, but at the cost of implicitly underestimating the power of speech itself. As al Qaeda and its jihadist allies know all too well, speech educates and can provide an intellectual milieu that, over time and unconnected to any particular acts or specific direction from an organization, elicits the kind of terrorist behavior that the government is legitimately in the business of preventing.

Rather than have the government stretch the meaning of statutes and evidence, Congress and the president should enact a statute that straightforwardly makes it illegal to publish or circulate materials that support, praise, or advocate terrorism as long as we are still formally at war with al Qaeda and its allies. Such a law would not require a return to a more sweeping limit on speech built on past broad notions of sedition. Rather, returning to the “clear and present danger” standard put forward by Justice Holmes in Schenck v. United States (1919) would be sufficient, as long as “present danger” is not understood to mean the far more restrictive “imminent danger.” Sensibly drawn, the measure would provide sufficient leeway for citizens to engage in legitimate journalism and criticism, however harsh, of government policies.

No doubt such a law would be challenged by civil libertarians, but if nothing else it would give the Supreme Court a chance to treat Brandenburg for the anomaly it is—a decision like so many in the Warren Court-era that is more libertarian than necessary under the Constitution and burdens the government unnecessarily in carrying out its duty to protect the lives and property of citizens.

Gary Schmitt is a resident scholar, director of Advanced Strategic Studies, and director of the Program on American Citizenship at the American Enterprise Institute.

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