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Home of the brave? Law professor says freedom to read is too dangerous!

Live from ISIS is so scary that we should think really hard about gutting the First Amendment. 

In true Slate Pitch form, the website has posted an anti-First Amendment screed by law professor Eric Posner, in which he argues that we should “[c]onsider 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 could exempt “journalists, academics, private security agencies, and the like,” Posner reassures us. The punishments for unlawfully accessing public information the government does not like would range from “a warning letter from the government” to fines and “prison sentences,” to escalate in severity with each commission of an ISIS-related thought crime. 

Woefully, Posner writes, the pesky First Amendment interferes with such a plan. Courts have repeatedly held that the First protects our right to access “[s]peech that blasts the American constitutional system and praises America’s enemies.” 


So what to do about this obnoxious history of judicial rigidity when it comes to free speech and the freedom to read? Posner suggests we turn back the clock, to a time before the 1960s, when “people could be punished for engaging in dangerous speech.” Ah, the good old days.

Reminiscing, he cites the prosecution of World War One draft resisters, Nazi sympathizers during World War Two, and even Confederate sympathizers during the Civil War. But he forgot to mention that before the Supreme Court’s revolution on expanding speech rights, anti-speech laws were mostly used to crack down on domestic dissent that had nothing to do with support for any foreign “enemy.” 

The ACLU was founded in response to such attacks, primarily on union and worker speech:

In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing US entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Imagine that. Laws passed to deal with a wartime enemy were used to crush domestic dissent and corral American popular opinion.

How could we make sure a law banning certain kinds of reading wouldn’t bleed out into criminalizing dissent, as similar anti-speech and censorship laws always have in US history? Posner suggests it’s easy: “A simple balancing test would permit laws to target dangerous speech that does not advance public debate.”

Right. Because determining what “does not advance public debate” is simple as pie, and not at all subject to wild fluctuation depending on who makes the determination. That’s totally not the kind of insane “balancing test” the First Amendment was designed to foreclose.

While offensive to the spirit of open societies and impractical on its face, Posner’s argument ultimately fails because it plays right into ISIS’ hands. The US should consider rolling back the clock on decades of pro-speech precedent, Posner says, because “the West is engaged in a propaganda war with ISIS.”

So his approach to this propaganda war is to fight it badly?

It’s hard to imagine how limiting speech rights—as ISIS does in the territory under its control—does anything other than bolster ISIS’ credibility as a threat so severe and existential that it requires authoritarian limits on core civil liberties at home. I can just imagine the ISIS propagandists laughing and joking about how they scared America so badly that it lit its most precious core values on fire.

Reading what you want: too dangerous in a world with ISIS. Besides being offensive to freedom loving people everywhere, it’s hard to imagine a more counterproductive message if your goal is to win a propaganda war. Instead of appearing tough and serious, it’s the equivalent of crying “uncle!” and hiding under your bed. 

© 2023 ACLU of Massachusetts.