Professor Eric Posner argued in Slate magazine that restricting speech on the Internet may be a viable, and perhaps a necessary option for addressing present day terrorism concerns.
To his credit, Prof. Posner even outlines what a law could look like. This article will look at the theory of censoring the Internet to mitigate terrorism concerns and also the proposed outline of a law.
I mostly agree with the facts as Prof. Posner states them in his article. Radical terrorism is a serious concern. Radical terrorists do recruit from the Internet — including the use of many popular social media sites. Radical terrorists are recruiting Americans from the Internet.
One problem I have with how the problem is characterized by Prof. Posner is that he makes this seem like something that has just happened for the first time. When in fact radical terrorists have used the Internet as a recruitment tool for years, and most likely did not start with ISIL. Al Queda used the Internet as a recruiting tool for most likely 10 years or more.1 I think it is imperative to at acknowledge the United States and the world have been dealing with online terrorist recruiting for a decade, and to take the events or non-events into account into the later analysis.
Other than the historical context, I agree with the facts as laid out by Prof. Posner.
This is where things get interesting. To stop this threat Prof. Posner suggests criminalizing websites that endorse or support radical terrorism. He argues:
“Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. Such a law would be directed at … naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.
“The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences.”2
To be sure, radicalized terrorism is a real threat, but such severe restrictions on free speech are not justified.
Laws that apply to speech, if not content neutral, need to be narrowly tailored in order to avoid legitimate speech being regulated. If a law is not narrowly tailored, it is called “overbroad.”3 And the proposed law by Prof. Posner is unconstitutionally overbroad.
This raises the question about which websites the proposed law would apply to.
One area of analysis in determining if this potential law would be overbroad is determining which websites it would affect. I am not really sure what it means to “access websites that glorify, express support for, or provide encouragement” to radicalized terrorists. As such, I have no clue how the proposed law would be applied.
An example used by Prof. Posner in his article is radicalized terrorists recruiting via the micro-blogging website Twitter. He cites a study George Washington University where Twitter and other social media websites are being used by radical terrorists to “lure” young Muslim-Americans into the radicalized terrorism camp.
Does this mean that social media, where only a part (most likely a very small part), will be criminalized because the sites potentially provide access to, support for radicalized terrorism. If this proposed law would apply to content distributors and not just content creators much of the Internet could be shutdown: Reddit, Facebook, Message Boards, and messenger apps (such as WhatsApp). If so, much of the internet could potentially be closed and a lot of legitimate speech would be lost.
It is helpful to remember the rule: “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”4
I am sure there are better ways to prevent online terrorist recruitment than mass criminalization of online speech.
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- See Daniel Schorn, Terrorists Take Recruitment Efforts Online, CBS News, Mar. 02, 2007, available at: http://www.cbsnews.com/news/terrorists-take-recruitment-efforts-online/; see also Andrew Dornbierer, How al-Qaeda Recruits Online, The Diplomat, Sept. 13, 2011, available at: http://thediplomat.com/2011/09/how-al-qaeda-recruits-online/.
- Eric Posner, ISIS Gives Us No Choice but to Consider Limits on Speech, Slate, Dec. 15, 2015, available at: http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/12/isis_s_online_radicalization_efforts_present_an_unprecedented_danger.html.
- “The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 US 234, 244 (2002).
- Watts v. United States, 394 US 705, 712 (1969) (Douglas, J. concurring).