Na Foreign Policy: Should the United States Ban the Islamic State From Facebook?
If the great fear after 9/11 was terrorism arriving on American shores via airplanes, the great fear after Paris and San Bernardino is that it will come via the Internet. From the U.N. Security Council to Congress to the campaign trail, the last few weeks have seen calls to crack down on incitement to terrorism online: to erase the screeds of al Qaeda propagandists, expunge Islamic State sympathizers from Twitter, and pair federal law enforcement officials and Silicon Valley executives in a quest to extirpate violent radicalism from Twitter and YouTube.
Yet for all of their compelling logic, some calls to digitally disarm extremists run counter to a core precept of the unique American approach to safeguarding freedom of expression and countering pernicious ideas. In the United States, willingness to protect even dangerous speech dates back to Thomas Jefferson, who wrote, “We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasoning.” An early broad ban on incitement, the 1798 Sedition Act, criminalized publishing “false, scandalous, and malicious writing” against the government with the intent to “excite against [Congress and the president] … the hatred” of the people. The act was used brazenly by the ruling Federalists as a political tool to suppress the Democratic-Republican opposition. It was quickly discredited and allowed to expire. After his election, Jefferson pardoned those convicted under its terms.
In modern times, the 1969 Supreme Court case Brandenberg v. Ohio held that the Constitution permits banning incitement to violence only when it is intentional and when the action it exhorts is both imminent and illegal. Since then, absent any of the three elements — intention, imminence, or lawlessness — the speech in question cannot be constitutionally forbidden. The imminence requirement — embodied in the mythic shouting of fire in a crowded theater — has been interpreted to mean that the directive must be targeted, with a likelihood that the admonition to lawlessness will actually be heeded. Under Brandenberg, broad categories of noxious speech — sloganeering at a Ku Klux Klan rally, holocaust denial, or Nazis marching in Skokie, Illinois — are constitutionally protected. This status contrasts sharply with much of the rest of the world, where such speech is subject to government prohibitions.
The United States has been steadfast in refusing to subordinate its broad free speech protections to international norms. In 1992, when the Senate ratified the International Covenant on Civil and Political Rights, the world’s premier human rights treaty, it spelled out areas where the international protocol would be overridden by the U.S. Constitution. Among the most prominent pertained to Article 20 of the covenant which bans “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Believing that this provision violates the First Amendment, the Senate adopted a reservation stating that “Article 20 does not … restrict the right of free speech and association protected by the Constitution and laws of the United States.” In short, while most nations — including such liberal societies as Canada, France, and Germany — accept the Article 20 injunction on incitement to “discrimination, hostility or violence,” the United States has judged it unconstitutional.