Strengthening Constitutional Self-Government

No Left Turns

British imams and the First Amendment

An article in The New York Times talks about Tony Blair’s new plans for attacking Islamist terrorism. According to the Times, "In a 12-point list of measures, Mr. Blair said Britain planned as of today to broaden the grounds for deportation to include ’fostering hatred, advocating violence to further a person’s beliefs or justifying or validating such violence.’" The article misleadingly contends that the "British moves, part of an ongoing debate about the balance between civil liberties and national security, seemed to nudge Britain closer to the hardline attitudes against perceived extremists that emerged in the United States after the Sept. 11, 2001, attacks."

Actually, the American standard for violent speech is much more liberal. In a case that remains the foundation for how courts think about such speech, Brandenburg v. Ohio (1969), the Warren Court overruled many years of precedent and legal tradition and held that advocating violence against a legitimate government or its officials is protected under freedom of speech. According to that decision, speech can only be punished when a person incites someone else to "imminent lawless action" that is likely to happen under the circumstances (for example, telling an angry mob gathered in front of a city hall occupied by officials that "You should string up these infidel dogs right now!"). Until that point, government is powerless to intervene.

So far in the war on terror, the problem of violent advocacy has not mattered much in the US because we have been able to prosecute terrorist cells based on their actions under anti-conspiracy laws. But if the problem of radical imams preaching violence ever surfaces here, American authorities will be powerless to act directly, at least according to the Supreme Court’s current view.

Maybe this is the price we pay for free speech. But contrary to what many Americans might think, this is a new view and it is far from clear that it was the original meaning of the First Amendment.

Discussions - 6 Comments

Does freedom of speech allow one to cry fire in a crowded theater? The answer used to be "No", but Supreme Court decisions in the last generation have overturned so much that for all I know this no longer holds.
In the nasty new post 9/11 world, the US probably needs to clamp down on imams others urging terrorism. We used to call this sort of speech "sedition" and Congress passed a law against it way back when. I propose to forbid as seditious, any speech that encourages the listener violence and illegal acts. And any speech urging the overthrow of the US government. We can have political change by electing anyone we please and passing any laws that can pass the "constitutionality test" at the Supreme Court. But it should be illegal to advocate overthow of the federal government.

Interesting summer reading for me has come via Shelby Foote’s wonderful narrative trilogy of the Civil War. By the way, we lost this great treasure of writing earlier this summer.
Within Volume II, Foote recounts in detail Lincoln’s efforts in dealing with vigilant anti-war rhetoric and groups such as the Copperheads and even some unfriendly newspapers across the country. The Patriot Act pales in comparrison to some of the actions that Lincoln took in efforts to perserve the union.
Lincoln today is, of course, seen as nothing less than one of our greatest presidents.
Revisiting this period time would shed considerable light on matters at hand today.

Any sixth grader in 1947 America would’ve been able to tell you, based on the study of then true and complete American History, that the Founders of this great nation never intended ’Free Speech’ to be so construed as to foster the ’anything goes’ attitudes of libertine America of today. Now, it seems, we are prepared to permit the complete destruction of morality in our culture to acommodate "free speech". (Meaning it’s OK to create and disseminate Porn, regardless of its impact on the traditional Judao/Christian values which have been the foundation of our success as a Democratic Republic.) So, apparently, we now bow at the altar of ’free speech’, while the God mentioned in our Founding Documents is relegated to the heap of ’antiquated victorian’ ideas. Robert Bork has perfectly chronicled the downward spiral of our National Character in his recent article in the Wall Street Journal (Sunday, July 10, 2005), titled "Their Will Be Done" How the Supreme Court Sows Moral Anarchy. As I see it, only an act of God can save America from fulfilling the Proverb: The Nation that forgets God, shall not stand.

Yea, but Friedman is a libertarian, isn’t he? Porn, like everything else, is OK so long as it’s market-driven. And even if it’s morally wrong, God forbid that the evil State should do anything about it.

Hopefully we here in America can learn from Britain’s tragic lesson just how dangerous allowing "free speech" is when it includes inciting violence. The free speech clause was included in the Constitution to allow lawful criticism of the government- small or large changes to be made to the established regime. Any "speech" seeking to abolish the regime the Founders established is not (although sometimes is) protected. Britain learned that the hard way.

Remember the 33rd word.

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