Commentary Magazine

Sticks and Stones?


To the Editor:

Andrew C. McCarthy’s “Free Speech for Terrorists?” [March] discusses at some length my book, Perilous Times: Free Speech in Wartime, and argues that the courts have taken the principle of free speech too far.

As Mr. McCarthy observes, the Supreme Court’s 1969 decision in Brandenburg v. Ohio held that the government cannot constitutionally proscribe even the express advocacy of violence “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But as he himself sees it, “moral clarity” demands that we acknowledge that “some evils are so palpable” that their advocacy simply must be banned. We should not insist that the danger be “imminent” or “likely.” As he asks, what possible constitutional value can there be in “the advocacy of murder” or in “militant Islam’s clarion call to violent jihad”? Why shouldn’t such speech simply be declared unlawful?

These are good and fair questions. And for much of our history, American constitutional law has sided with Mr. McCarthy. How, then, can the First Amendment be reasonably—indeed, properly—understood to protect “free speech for terrorists”?

At the outset, it is important to emphasize that a robust protection of free speech does not have to render government impotent to protect the public safety. Short of proscribing expression, government can and does take many steps to defuse or prevent danger. Most obviously it can prohibit the possession or sale of dangerous weapons, increase the resources available to law enforcement, enhance the penalties for particular crimes, and aggressively arrest and prosecute those who threaten or conspire to commit them. A basic premise of the First Amendment is that the suppression of speech must be a last resort.

In any case, truly dangerous individuals generally do not broadcast their criminal intent. Those who do publicly advocate violence, by contrast, for the most part pose no serious danger to the nation. Their advocacy is usually mere rhetoric, designed to convey depth of passion. It hardly seems sensible to make hyperbole illegal. Of course, a truly dangerous individual might publicly proclaim his criminal intent, but is that so bad? It would mark him as dangerous and make it easy for government to keep watch over him.

But the question remains: is there any reason to accord constitutional protection to speech that expressly advocates the use of force or violence to effect political change? Isn’t such expression a betrayal of the very constitutional system that the First Amendment was intended to promote? What would we lose by outlawing it? The answer, which Mr. McCarthy wrongly dismisses, was provided by Justice Felix Frankfurter, who pointed out that the advocacy of violence is often “coupled” with sharp “criticism of defects in our society.” Thus, there is a serious “public interest . . . in granting freedom to speak their minds even to those who advocate the overthrow of the government by force.” Put differently, unless there is a compelling reason to punish such advocacy, we are better off leaving it alone so that we do not incidentally suppress criticism that it might be good for us to hear—either because it contains some kernel of truth or because it helps us understand our enemies.

Mr. McCarthy might charge that I am evading the issue—that his concern is not with some harmless revolutionary but with “militant Islam’s clarion call to violent jihad.” So, suppose we embraced his “solution” and directly prohibited the express advocacy of “the indiscriminate mass slaughter of civilians.” Does he think that Sheik Omar Abdel Rahman could not have issued his fatwa without resorting to such words? Mr. McCarthy’s proposed rule would have no effect on terrorism; any terrorist worth fearing could easily circumvent it.

In truth, the only way to suppress potentially dangerous advocacy is to prohibit any speech that is intended to incite unlawful conduct. But we have been down that road before. Inquiring into the subjective intent of unpopular or hateful speakers is a slippery business that inevitably leads to the suppression of valuable dissent. Those who say that the United States “got what it deserved on 9/11,” or that “Israel caused the war on terrorism,” or that “Bush is destroying the Middle East for oil” would be vulnerable to criminal prosecution on the charge that they “intend” to inspire terrorist acts. Surely Mr. McCarthy does not want us to return to the days, documented in my book, when the United States prosecuted thousands of dissenters on the premise that their criticisms were “intended” to foster violence. But that is where his way of thinking would take us.

Geoffrey R. Stone

University of Chicago Law School

Chicago, Illinois


To the Editor:

In 1925, Justice Oliver Wendell Holmes said, and in some circles became famous for saying, “if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they shall be given their chance and have their way.” In other words, anything goes, and Holmes did not care how it went—or, giving him the benefit of the doubt, the Constitution did not permit him, as a Supreme Court Justice, to care how it went. This is absurd, but it does state the problem facing Andrew C. McCarthy in his essay, “Free Speech for Terrorists?”

Mr. McCarthy would solve it by insisting that there is a constitutionally significant difference between Communism and militant Islam. Respecting the latter, he says, the “nexus” between “advocacy and actual savagery” is an empirical fact. Thus, if advocacy is savagery, or if speech is the deed, it follows that “advocacy of terrorism can be effectively regulated.” In this way, he avoids the problem that certain liberals—those who treat rights as “trumps”—are unable to solve, namely, how to limit a right. For them, if freedom of speech is a right protected by the Constitution, there is no way to limit it. Mr. McCarthy avoids this problem by, in effect, denying that jihadist speech is speech.

Had he chosen to confront the issue directly, Mr. McCarthy might have said that the problem exists for absolutist liberals only because they treat civil rights, like freedom of speech and press, as if they were natural rights, the unlimited rights we supposedly “enjoyed” in the “state of nature.” In fact, of course, we did not enjoy them. Without government, natural rights were insecure precisely because there was no entity to regulate and protect them from the war of “every man against every man.” One of the blessings of government is that it can, by due process of law, regulate what we say and print.

But Mr. McCarthy, wisely perhaps, makes his case for regulation in terms that at least some liberals might find congenial, invoking the celebrated jurist Learned Hand. Before Justice Holmes became a free-speech ideologue, he had formulated in 1925 the “clear-and-present-danger” test according to which speech might be regulated. Thirty-one years later, Hand reformulated Holmes’s test; the key question, he said, was “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the evil.” Mr. McCarthy rightly sees the virtue of this rule: it requires the judge to focus on the evil, to accord it the weight it deserves.

The evil in Hand’s day was Stalinism and its friends in the American Communist party. Liberals of that time can perhaps be excused for discounting, if not the evil, then the possibility of its taking hold in the United States. No one, other than a fool or a knave, could discount the threat facing us today from militant Islam.

Walter Berns

American Enterprise Institute

Washington, D.C.


To the Editor:

Andrew C. McCarthy may give the First Amendment more of an encomium than it deserves. The reason “free speech” is “enshrined in the very first amendment to the Constitution” is not that it shines “so luminous . . . among our values” but only that the first two amendments proposed by the first Congress were not ratified. The framers of the Constitution may have “fully understood” the need for an “exchange of ideas” in a democracy, but that did not stop many of them, serving in the first Congress, from enacting the 1798 Sedition Act, which penalized false criticism of the President. That law may be unanimously abominated today, but it was upheld by every Supreme Court Justice, Federalists all, who considered it.

Constitutional restrictions are generally a bad idea. As Alexander Hamilton pointed out, it is unclear why, in a democracy, the people would want to limit their ability to make policy choices or, indeed, how they are able to do so if they remain the sovereign. Constitutional restrictions work best, our history shows, when seen as advice to legislators rather than as judge-enforceable law. The First Amendment in particular—which, as Mr. McCarthy notes, cannot mean what it says in stating that Congress “shall make no law” abridging the freedoms of speech and press—belongs more “in a treatise of ethics than in a constitution of government,” as Hamilton also pointed out. Any failure on our part to protect ourselves from terrorism cannot be attributed to the First Amendment.

Today’s constitutional law of “free speech,” like nearly all of our constitutional law, derives not from the Constitution but from the constitutional revolution—based on the political principles of the 1960’s—worked by the Warren (or, more accurately, Brennan) Court and followed and expanded ever since. Justice Hugo Black purported to adopt the “absolutist” position that the First Amendment prohibits all governmental (state as well as federal) regulation of “speech,” including pictorial pornography and wearing an armband in a grade-school classroom. Most of his colleagues, reluctant to be seen as less liberal, accepted or came close to accepting this position. Thus it came to be in 1969 that the First Amendment (which refers only to “Congress”) was seen to prohibit the state of Ohio from making it a crime to “advocate or teach the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism” for political ends. It made no difference that less than twenty years earlier a similar federal statute (used to convict the leaders of the American Communist Party) was upheld.

There is no good reason why the views of Justice Black and his colleagues of the 1960’s should determine American public policy on terrorism (or anything else) today. The issue should be decided, like all issues in a democracy, by the views of the people.

Lino A. Graglia

University of Texas School of Law

Austin, Texas


To the Editor:

It is a measure of the disorder in First Amendment jurisprudence that the title of Andrew C. McCarthy’s article should end with a question mark. Free speech for terrorists? Freedom to call for the murder of Americans? Common sense replies, “Of course not.” The Supreme Court’s reply, however, has been considerably less forthright; it is not at all clear that the Court would uphold a law enforcing the blanket suppression of terrorist calls for violence. And that disjunction between sensible precaution and the current state of the law suggests that something in First-Amendment doctrine has gone badly askew.

The problem started with the much-admired dissenting opinions, primarily in the 1920’s, of Justices Oliver Wendell Holmes, Jr. and Louis Brandeis. They insisted that courts were the final arbiters of the dangers of advocating violence and lawbreaking. More important, they held that a judgment had to be made concerning each separate episode of such speech. Supreme Court majorities in that era disagreed; the Justices ruled that if a legislature had reasonably defined dangerous categories of speech, advocacy that fell within those categories could be punished. It was apparent then, and is even clearer now, that the majorities were right and that Holmes and Brandeis were wrong.

Holmes and Brandeis asked whether particular instances of speech created a “clear and present danger” of lawless action. After much doctrinal wavering, the basic element of that test was adopted in Brandenburg v. Ohio (1969), which overturned the conviction of a Ku Klux Klan leader for inciting racial violence. In an unsigned opinion, a unanimous Court held that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Brandenburg formula requires judges to estimate such matters as the danger posed by an al Qaeda leader’s call for jihad in America, or the mood of a crowd hearing incitement to racial violence. These are tasks for which the judiciary is the least qualified branch of government.

Matters would be improved if the Supreme Court followed the example of its own decisions in Gitlow v. New York (1925), which upheld a conviction for advocating the violent overthrow of the government, and Chaplinsky v. New Hampshire (1942), which upheld a conviction for offensive words likely to cause a breach of the peace. The Gitlow majority said that “when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.” The unanimous Chaplinsky opinion gave the rationale for regulating speech by way of such categories: “[Some] utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth, that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Advocacy of terrorism surely fits that description; what social value is served by the fatwas of a Sheik Omar Abdel Rahman?

Holmes denied the very proposition of Chaplinsky when he wrote that “if in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” He apparently valued free speech so highly that he was willing to see it ended by dictatorship. Only First Amendment voluptuaries, a type of which we have more than a sufficiency, can adopt that position today.

Robert H. Bork

American Enterprise Institute

Washington, D.C.



Andrew C. McCarthy writes:

Geoffrey R. Stone stands second to no one in his mastery of modern First Amendment jurisprudence. Nonetheless, his grasp of modern militant Islam is even more lacking than his appreciation of the Communist threat-–which, as his generally superb book confirms, is badly wanting.

It is difficult to understand how anyone who has been paying attention for the last dozen years could say that “truly dangerous individuals generally do not usually broadcast their criminal intent” or that those who “publicly advocate violence . . . for the most part pose no serious danger to the nation.” In point of fact, truly dangerous individuals—whose victims now number in the thousands—broadcast their criminal intent all the time: issuing fatwas, brazenly calling for suicide bombings, and even videotaping their savage beheadings as a recruitment tool and an intimidation device. Mr. Stone asks, “is that so bad?” I think it is. And I doubt that most people would equate it with “hyperbole” or “mere rhetoric designed to convey depth of passion.”

Free speech is not an end in its own right. It is a vital means to the end of a healthy body politic. Nostrums like “[a] basic premise of the First Amendment is that the suppression of speech must be a last resort” simply beg the question: a last resort against what? As is bound to happen when nostrums crash into reality, it turns out that society has decided there are quite a number of values to which this “last resort” must give way, including comparative trifles like reducing expenditures on political campaigns.

That is because—as Walter Berns, Lino A. Graglia, and Robert H. Bork observe—speech is not an absolute but a question of competing values. What value does the terrorist call to violent jihad bring to our marketplace of ideas? Mr. Stone suggests it may contain “criticism that it might be good for us to hear—either because it contains some kernel of truth or because it helps us understand our enemies.” This entirely discounts the grievous evil posed by speech that we empirically know causes mass murder, while grossly inflating the purported “value” we get in return. Is Mr. Stone really contending that we need to allow Sheik Omar Abdel Rahman to call for slaughter in order to understand him better? Or in order to ensure that we don’t miss some grievance that CAIR or the ACLU may have neglected to bring to our attention?

First Amendment absolutism skews Mr. Stone’s assessment of competing values in other critical ways as well. He argues, for example, that modern free-speech jurisprudence need not “render government impotent to protect the public safety.” But the idea is not merely to avoid “impotence”; it is to be effective in protecting the public safety, which means being able to stop terrorist acts before they happen. The remedies Mr. Stone mentions are plainly inadequate to that task.

True, more money on law enforcement, aggressive prosecutions, and enhanced sentences may enable us to punish severely the terrorist who has successfully carried out his barbaric business. But, as was shown by the progressively more audacious attacks that ensued despite eight years of highly successful prosecutions between the 1993 World Trade Center bombing and the 9/11 suicide hijackings, such measures do little to discourage would-be terrorists, whose ranks swell and whose patent dangerousness increases due largely to the immunity our law has given to militant advocacy.

Disappointingly, Mr. Stone appeals to the last bastion of the absolutist defense—that we should not impose a ban because determined wrong-doers will find ways around it. By that logic, we might as well repeal the criminal law in its entirety. After all, though it discourages crime, punishes it, and makes it more challenging to commit, criminal law has proved spectacularly incapable of eradicating wrongdoing.

Either militant advocacy should be permitted in principle or it should not. The discussion is not advanced a wit by the observation that criminalizing an evil will not eliminate it. Making it more difficult, and thus less likely, would be a dramatic improvement.

Finally, my essay argued that free-speech absolutists fail to appreciate the inexorable refinement over time of our society’s balancing of the tension between civil liberties and national security. By closing with the slippery-slope argument that my own modest proposal would bring us right back to the shameful prosecutions under the Alien and Sedition and Espionage Acts, Mr. Stone proves my point. But his charge is specious.

The flaw in those laws, as Mr. Stone compellingly explains in his book, is that they criminalized dissent. To the contrary, I have proposed narrowly tailored laws that target militant Islam’s advocacy of violent jihad. To argue, as Mr. Stone now does, that such laws would imperil people who asserted that the U.S. “‘got what it deserved on 9/11,’ or that ‘Israel caused the war on terrorism,’ or that ‘Bush is destroying the Middle East for oil’” is fatuous. The criminal law does not punish culpable intent in a vacuum; it punishes culpable intent coupled with the conduct the law proscribes. One may not be prosecuted for advocating violence without advocating violence.

Turning now to Walter Berns, I find myself in agreement with much of his theorizing. But the disagreements he registers with me do not appear to be directed at the essay I actually wrote. Thus, Mr. Berns attributes to me the notion that if we define a type of speech (advocacy) as something other than speech (savagery), it somehow ceases to be speech, thereby allowing us to regulate it.

That is simply not my argument. While I acknowledged that speech could in some instances be thought of as a verbal “act,” the entire premise of my essay is that advocacy is speech, but that this does not mean it may not be constrained. As Lino A. Graglia notes in his letter, I expressly contended that the First Amendment does not mean what it literally says (that is, an airtight proscription of regulation). I did, as Mr. Berns notes, invoke Learned Hand. But my point was to illustrate not only that the absolutists are wrong about the proper understanding of the free-speech guarantee but that advocacy may comfortably be banned even under the First Amendment as they have misinterpreted it.

Nor did I maintain that there is a “constitutionally significant difference between Communism and militant Islam.” It was perfectly appropriate to criminalize Communist advocacy of the violent overthrow of government, and I was most critical of the tendency among doctrinaire civil libertarians to minimize the Communist threat. But if there is no constitutional difference, there is a factual difference. Militant Islam poses an even greater clear and present danger than Communism did. If, as I believe, there was a case for barring advocacy in the earlier context, there is an even better case for barring advocacy in the present one.

Lino A. Graglia’s apparent absolutism is the polar opposite of Geoffrey R. Stone’s, and to me it is not much more attractive. Even if I did not think it doctrinally unwise, the hour is way too late to be gainsaying the irreducible core of minority rights to which our society is and has always been committed.

But I do think it unwise. Free expression is a luminous value—and even if I am guilty of rhetorical excess, we would value it no less had it been enshrined in the Third rather than the First Amendment. Furthermore, to observe that the First Amendment obviously does not mean exactly what it says is hardly grounds for saying it means nothing of an inviolable nature or would be better understood as merely hortatory.

Where I part company with Mr. Stone is in the perilous lengths he would go to protect dissent. I thoroughly agree with him, however, in positing that there is a right to dissent. The Sedition Act prosecutions were an abomination because they eviscerated that right. Whether or not the Act itself violated the First Amendment—as I, like Mr. Stone, think it did—is a matter of objective fact. I do not see why Mr. Graglia should be any more impressed by the Federalist Supreme Court’s approval of the law than he would be of, say, the Warren Court’s condemnation of it. Indeed, this bleak episode stands as a caution against what Mr. Graglia seems to be arguing for: the treatment of constitutional guarantees as if they were advisory. Without the mandate of law, without courts to enforce them, those protections would be certain to be swept aside when majorities found it expedient to do so.

I wholeheartedly agree with Mr. Graglia that the Warren Court went overboard, and that we need not embrace a First Amendment jurisprudence that leaves us vulnerable to terrorist attack. But while, as he says, all issues in a democracy should be decided by the views of the people, the American people have decided, in their fundamental law, that a core of free speech cannot be overridden by the majority—which means it must be protected by the courts. The challenge, of course, is to identify what that finite core is and to protect it—but only it.

On this score, I believe Robert H. Bork has the best of the argument. There are well-established categories of speech (such as advocacy of violence) that do not advance the exposition of ideas and the search for truth. Within those parameters, the people’s democratic representatives ought to be able to regulate expression. To be sure, there is a role for the courts, but it is limited to ensuring that any regulation is confined to those narrow categories. It should not extend to assessing the likelihood that a particular episode of speech, within one of those categories, will result in the harm against which the regulation was designed to protect us.

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