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December 05, 2006

Newt Gingrich On Punishing Pro-Terroriost Speech

That his remarks became the point of such controversy speaks volumes about today's America.

In New Hampshire last week, at a dinner hosted by the Loeb School honoring our 1st-Amendment rights, I called for a serious debate about the 1st Amendment and how terrorists are abusing our rights -- using them as they once used passenger jets -- to threaten and kill Americans.

Here's part of what I said: "Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up [terrorists'] capacity to use the Internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us -- to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us."

Free Speech Is Not an Acceptable Cover for Those Planning to Kill

Since I made those remarks, I've heard from many, many Americans who understand the seriousness of the threat that faces us, Americans who believe as I do that free speech should not be an acceptable cover for people who are planning to kill other people who have inalienable rights of their own.

A small number of others have been quick to demagogue my remarks. Missing from the debate? Any reference to the very real threats that face Americans.

There was no mention of last week's letter from Iranian leader Ahmadinejad that threatens to kill Americans in large numbers if we don't submit to his demands.

There has been little attention drawn to any of the many websites dedicated to training and recruiting terrorists, including a recent one that promises to train terrorists "to use the Internet for the sake of jihad."

No mention of efforts by terrorist groups like Hezbollah to build "franchises" among leftist, anti-globalization groups worldwide, especially in Latin America.

Words as Weapons

The fact is not all speech is permitted under the Constitution. The 1st Amendment does not protect lewd and libelous speech, and it should not -- and cannot in 2006 -- be used as a shield for murderers.

Former federal prosecutor Andy McCarthy put it best: "With an enemy committed to terrorism, the advocacy of terrorism -- the threats, the words -- are not mere dogma, or even calls to 'action.' They are themselves weapons -- weapons of incitement and intimidation, often as effective in achieving their ends as would be firearms and explosives brandished openly."

We need a serious dialogue -- not knee-jerk hysteria -- about the 1st Amendment, what it protects and what it should not protect.


There are several forms of speech that are not constitutionally protected at all -- slander, as Gingrich mentions (although the Supreme Court has carved out a huge safe harbor for otherwise-slanderous false reportage by the media under the "absent malice" standard). Solicitation for murder is not protected speech, nor is conspiracy to commit any crime. Conspiracy is just the verbal agreement that a crime should be committed by one or more of the conspirators -- a wholly verbal transaction which is nonetheless a crime. (Nit: Conspiracy statutes usually require one "overt act" in furtherance of the conspiracy as an element of the crime, but this is just to separate the true conspiracies from people just joking or bullshitting around. It's actually the verbal agreement that's the crime; the "overt act" requirement is just there to insure that the conspirators were truly conspiring, and not just having a "what if" bullshit session).

Also not constitutionally protected -- or at least once not constitutionally protected -- is criminal incitement, agitation that a crime be committed.

Criminal incitement used to be a crime. Not any longer. It's still on the books, but barely ever prosecuted, due to the "clear and present danger" limitation imposed on such laws by the Supreme Court.

The exception to the rule -- that criminal incitement was, in fact, not a crime at all but constitutionally-protected political speech -- was designed as a sop to Communists and anarchists. Communists and anarchists are -- or at least were -- always exhorting each other to vaguely smash the state, or more specifically to dynamite vital machinery of the state, such as banks, railroads, title-deed record offices, and so forth. In fact, you pretty much couldn't really be a Communist at all without talking up such criminal action as a necessary means to bringing about the People's Revolution.

Communists and anarchists complained they were being harrassed and arrested under the pretext of criminal incitement laws; a liberal-ish Court agreed, and restricted any prosecutions to cases where the advocated criminality was both clearly and presently (i.e., immediately) a danger of being actually carried off.

This never made much sense to me. Let's accept that such criminal incitement is well-nigh necessary for communists and anarchists and other violently-inclined malcontents. Why should they be disburdened from laws that are generally applicable to all? Even in the area of freedom of religion, the court has refused to generally grant constitutional protection to otherwise illegal behavior that is an important part of a religion. Indian shamans aren't constiutionally protected against drug laws when they take peyote for dream quests. Christian Scientists can still get hit with child endangerment charges when they allow a sick child to die rather than permitting medical treatment that could easily save him. Santariaists can be nailed for animal cruelty if they sacrifice an animal in a cruel manner. Polygamist Mormons can still be arrested for having multiple wives. And so forth. The general rule, when it comes to religious practices, is that a law is still binding on all, even if it's an important practice to a genuine, bona fide religon.

But when it came to Communists and anarchists, the Court was willing to essentially void a long-standing, and very useful and prudent, law that had been in the world's criminal codes since they people began writing down laws at all. You cannot incite someone else to commit a crime, particularly a crime of violence. Simple rule. Sensible rule. But to spare Communists and anarchists from "harrassment," the rule had to be gutted so that practically no one could be prosecuted for it at all. Unless you're standing before an angry throng of people ready to riot, and plainly urging that specific criminal acts be taken ("Start setting all the cars on fire! Smash the windows of every store you see!"), you basically cannot be prosecuted for criminal incitement.

Why? Such speech is basically pernicious. Is there much political value at all in speech that advocates criminality of a serious sort? Does society gain much from such speech?

And Oliver Wendell Holmes' standard -- that there must be a clear and present danger of criminality erupting due to the speech -- permits a great deal of actual harm. Some inciting speech may not clearly lead to immediate violence, but some less psychologically-stable people may commit acts of violence later due to the speech. Al Sharpton's inciteful demagoguery arguably led to arson and riots, for example.

Even accepting the clear and present danger rule as a necessary and prudent limitation on the state's power to act against those who agitate for unlawful revolution, certainly the words of jihadists satisfy both prongs of the test. Post 9/11, is there any doubt the danger of criminal incitement, and recruiting into terrorist cells, is a clear danger? And the present part is met as well, even if the actual attack occurs after years of planning, because terrorists spend all their time engaging in the crime of conspiracy.

We are not talking about a bunch of beret-wearing graduate students and aging hippies congregating in coffee-house basements to speak vaguely of "destroying the instruments of state control." We are talking about young men of military age and violent disposition discussing real, tangible methods to murder people by the hundreds. Not everything a terrorist does is itself a criminal act -- recruiting someone into your "club" isn't unlawful of itself -- but each and every action they take, and every word they speak, is geared towards furthering a criminal action.

Gingrich notes the "First Amendment is not a suicide pact" (a slight change of the adage that "the constitution is not a suicide pact," i.e., the constitution does not demand that those who would seek to destroy it and the country it binds be permitted to do so). But apperrently there are many people who believe it's just that, and that it is, somehow, crucial to the "marketplace of ideas" and "genius of American governance" that we permit terrorists to recruit, incite, plan, and the like without police intervention.

For those on the left who claim this, let me ask: If the KKK were in a resurgent mode, with lynchings and church burnings and beatings and draggings every few months, would you support the KKK's "right" to agitate, advocate, recruit, and indoctrinate for the express purpose of learnin' blacks, Mexicans, and Jews their place?

With actual human beings being killed every few months as a consequence of this "right"?

I have a feeling most on the left would not.

So why, precisely, does the Muslim KKK get a pass?

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posted by Ace at 11:10 AM

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