Rather than try to link you to his blog, I will republish a post he put on the internet which is long but very thoughtful. I would only quarrel with his reference to majority of blogees, Hah he only has a handful of readers!
Terror and the Constitution
Last year the New York Times published my op-ed in which I criticized our government for failing to block transmission of an Al Qaeda internet magazine that not only inspired terror attacks on U.S. soil, it gave explicit instructions on how to build bombs to kill people on the ground and in the air. The Tsarnaev brothers who murdered three people and sent 264 others to the hospital in the 2013 Boston Marathon bomb learned the recipe for their deadly device from that online magazine. I pointed out that, contrary to the ravings of a tranche of publishers’ lawyers and some academicians, (whom I referred to as ”First Amendment Fundamentalists”), the Amendment does not protect all speech. It doesn’t protect libel, contempt, conspiracy, threats, and a long list of other stuff, including, by general agreement, publishing things such as troop movements in time of war.
Forget “originalism”, the decision as to what kind of speech falls under the protection of the First Amendment is a balancing act that our institutions have engaged in since 1787, and the center has shifted to and fro ever since. On the extreme end of the measuring stick, but a few years after the ratification of the Constitution, Congress passed the restrictive Alien and Sedition Acts that criminalized criticism of the government, a restriction so onerous it was later abandoned. In 1940, the Congress outlawed advocating the violent overthrow of the government and the Court upheld the statute. But as the mood of the country changed, the Court gradually but significantly expanded the breadth of the First Amendment so that only terror speech that could be prosecuted was that which is “directed to inciting imminent lawless action and is likely to incite or produce such action.” That balance was struck in 1969, when the only “Islamic threat” in the news was the former Cassius Clay.
I suggest that i) even under the 1969 test, the online material inciting “lone wolf” terrorism is criminal, and ii) the Court would today move the balance point so as to expand the government’s ability to inhibit and prosecute terror incitement.
While the majority of my blogees who sent me notes were in agreement with my view, the Times published only three letters on the subject, all critical of my piece.
So today we mourn 49 dead (and pull for the 50 more in the hospital), all at the hands a killer the Times describes as “a gunman who was inspired by radical material he found online” and “who praised the Boston Marathon bombers.” And President Obama says he recognizes that, “One of the biggest challenges we are going to have is “this kind of propaganda …that you see generated on the internet.” Shame on his speech writers. “Propaganda” is a weasel word for “incitement.”
So, Mr. President, what is our government doing about it? The campaign against guns is admirable but it is a side show. While our government has actually killed a U.S citizen living abroad who inspired others to harm us, we nevertheless permit this kind of incitement on the web because some lawyers think radical Islamic lunatics have the Constitutional right to incite and encourage mass murder?
My 2015 op-ed conclusions were that the balancing test must consider today’s realities of the harm wrought by incitement speech. I feared that if we don’t act to restrict that speech, we risked “horrible consequences”, including that continued acts of great-impact terror would lead to “repression on a terrifying scale.”