Geoffrey Stone: What You Can't Say Will Hurt You
ON Aug. 5, Prime Minister Tony Blair of Britain announced his intention to carry out a series of new antiterrorism measures, including deporting foreign nationals who justify the use of "violence to further a person's beliefs"; authorizing the denaturalization of British citizens who engage in "extremism"; and legislating a new "offense of condoning or glorifying terrorism."
After the July 7 bombings in London, it is understandable that Mr. Blair would want to deal firmly with those who incite violence. Although the loss of life and property caused by the Sept. 11 attacks far exceeded that in London, the United States was at least spared the constitutional dilemma of having to deal with a situation in which people in the United States encouraged American citizens to take part in the violence. But suppose that had been the case on Sept. 11, or suppose such a situation were to arise in the future. Would we respond any differently than the British?
The United States has a long and unfortunate history of overreacting to the fears and anxieties of wartime and excessively restricting the freedom of speech. This was so, for example, in 1798, when the United States was on the verge of war with France, and during the First World War. In both instances, the United States made it unlawful for any person to criticize the president, Congress or the government. Of course, Mr. Blair is not calling for such a far-reaching ban on seditious utterance. Rather, he is targeting only speech that glorifies or justifies acts of terrorism. On its face, this seems sensible.
But as Supreme Court Justice Felix Frankfurter noted in 1951, speech that extols political violence is often "coupled" with sharp "criticism of defects in our society." For that reason, Justice Frankfurter said, there is an important public interest "in granting freedom to speak their minds" even to those who advocate the use of force to bring about political change. A democratic society must protect itself against violent attack, but it cannot do so by preventing its citizens from hearing even sinister criticism that defends the use of violence.
The Supreme Court recognized this as early as the Second World War. In the early 1940's, the American government instituted a series of denaturalization proceedings against foreign-born German-Americans who supported Nazi doctrines or were active in the German-American Bund, a pro-Nazi group. The Supreme Court held that these actions were unconstitutional, explaining that an individual cannot be denaturalized for making "sinister-sounding" statements. The court sharply distinguished between radical dissent, which is protected by the First Amendment, and "exhortation calling for present violent action which creates a clear and present danger," which is not.
This conclusion was the fruit of a bitter American experience: the ferocious Red Scare of 1919-1920 had already amply demonstrated the dangers of the kind of open-ended approach Mr. Blair proposes.
In the spring of 1919, radical groups began calling for a communist upheaval in the United States. On April 29, a bomb arrived at the office of the Seattle mayor, whose city was embroiled in a violent labor confrontation. The following day, a bomb exploded at the home of a former United States senator in Atlanta, injuring two people. Two days later, 34 bombs were discovered in the mail system in New York.
They were addressed to Attorney General A. Mitchell Palmer, Supreme Court Justice Oliver Wendell Holmes, John D. Rockefeller and other prominent Americans. Newspapers across the nation warned that these events were mere "dress rehearsals" for what was to come. ...
As Judge Learned Hand explained more than 80 years ago, political or religious agitation, by the very "passions it arouses," may "stimulate men to the violation of law." But to equate such agitation with express incitement to violent action, he insisted, is to disregard an elemental "safeguard of free government." Mr. Blair should consider Judge Hand's conclusion, which was that the distinction between express incitement of law violation and mere glorification or justification of such action "is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom."