FAN 28.1 (First Amendment News) — The First Amendment in the Era of ISIS

This is beyond anything we’ve seen.

                                  — Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.'”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

imagesRecruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” — Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“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 of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” — Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

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1 Response

  1. Jordan says:

    “Imminent” lawless violence? “War”? Perhaps the latter under international law (with a “belligerent” or “insurgent”).