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Thursday, Dec. 27, 2001

According to the Supreme Court's historic 1969 decision in Brandenburg v. United States, the First Amendment protects the right to advocate "the use of force or of law violation" - except in a limited set of cases where it is proven that "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In short, unless the results sought by the speaker are imminent, the speaker, at least in theory, will get off scot-free no matter what havoc his comments might ultimately cause in the future.

Indeed, according to another precedent - the Court's decision in Yates v. United States - preaching the "abstract doctrine of overthrowing organized government by unlawful means" is always protected by the First Amendment. Even if the "abstract doctrine" may someday be translated to concrete action, the speaker cannot be held responsible.

After September 11, should we still live by these legal rules? That is an interesting and difficult question.

Two Kinds of Logic, On a Collision Course

The logic of Brandenburg and Yates separates thought and speech from action (unless that action is so imminent it is certain to be the direct result of the speech). It also separates membership in a violent organization (such as the Ku Klux Klan) from the organization's violence. Finally, it allows individuals to take any abstract position they would like with respect to a particular conflict - even a position advocating the necessity of violence - and argue strenuously for their position, without fearing or facing a penalty.

In the past few months, the U.S. government has employed a very different logic. It has, for example, supported the closure of Hamas' institutions in the West Bank; frozen the assets of both domestic and foreign institutions, including charities with purportedly innocent purposes, that are suspected to be linked to al Qaeda; and shut down Somalia's only Internet provider entirely, again based on claimed links to al Qaeda.

All of these positions and actions have made clear that the government will not hesitate to punish organizations and their members for the organizations' links to violence (or even just connections to other organizations which themselves have links to violence). Moreover, it will do so without worrying much, if at all, about free speech concerns. Nor will it worry about the fates of the organization's non-violent members or, in the case of the Somali Internet provider, its non-violent customers.

Similar logic - equating an organization or country with those who belong to it, and thus imputing their violence to it - has held the Taliban and potentially also Saddam Hussein's government responsible for the acts of terrorists they have harbored and supported. This is essentially the same logic that has been employed by Israel and the U.S. to hold Yasser Arafat responsible for the terrorist acts of Hamas, on the ground that he could not or did not stop those acts. Taken further still, the same logic would inexorably hold organizations' members responsible for violence committed by the organizations, regardless of whether they were involved in it - as if the memberships of organizations in civil society, like those of armies, may always be assumed to act as one.

Which Type of Logic Do We Need Now?

If the government's logic now seems more persuasive than that of Brandenburg and Yates, it is likely because September 11 translated fear into reality, made bin Laden's speeches action, and made the "empty threat" an oxymoron. Moreover, bin Laden and the Taliban were so inextricably intertwined (he gave them so much financial support, and they, in turn, continued to harbor him from the rest of the world), that it makes sense to treat them as one and the same.

The Court has never dealt with anyone like Osama bin Laden before. One need only think of the remarks made in the series of bin Laden videos for which we have seen transcripts, and compare them to the remarks that shaped the Court's free speech doctrines. The latter remarks include, for example, a Klansman's ominous but vague remark that "We're not a revengeant organization but . . . there might have to be some revengeance taken"; World War I speeches encouraging draft dodging and insubordination in the military; and an agreement to "teach the Marxist creed."

The concerns aroused by the anti-war activists, the Marxists, and even the ranting Klansman who spoke at a rally in the waning days of segregation, pale in comparison to the concerns aroused by bin Laden and al Qaeda. Accordingly, as Professor Sanford Levinson persuasively contended in a recent column for this site, the idea that the Supreme Court would surely protect a vocal al Qaeda supporter - even if he or she were a U.S. citizen speaking within the bounds of the U.S. who did not advocate imminent lawless action and instead spoke abstractly about the need for violence - seems naive at best. (Consider our reaction to the "American Taliban").

After all, even the pacifists and Marxists had their convictions affirmed, not reversed by the Court, despite First Amendment challenges - as did draft-card burners in another, more recent case. The idea that al Qaeda supporters would receive better treatment from the Court would be anathema to many citizens, and perhaps to a majority of the Justices too.

The Argument That Speech Advocating Future Violence Should Not Be Protected

Speculating about what the Court might do in an advocacy case following the attacks on September 11 also leads to interesting questions about what it should do: Does the vocal but "abstract" al Qaeda supporter deserve First Amendment protection? Would it betray or vindicate our First Amendment traditions to provide such protection? Is speech that advocates violence at the center of the First Amendment, or at its periphery? These are difficult questions, and one could argue either side.

On one hand, one could see speech that advocates violence as being at the very edge - or perhaps even completely unworthy - of the First Amendment's protections. After all, working out disputes through politics as usual, and not through violence, is the most basic premise of our system. Indeed, the very concept of law is that it provides a way to impose order without vigilantes' violence.

If we knew this intellectually before September 11, now we feel it viscerally. Whatever we may feel that our country stands for, we recognize the violence of terrorism as its opposite. What possible goal, we may ask now, could advocacy of terrorist violence ever serve?

On the other hand, however, we might see speech advocating violence as being at the very core of the First Amendment. Political speech - as opposed to artistic, cultural, or (especially) sexual speech - has always been seen as central to the First Amendment. And speech advocating violence is, in some sense, the most intensely political speech there is.

Such speech is the most threatening to the current order and thus the most likely to attract censorship. It is deeply political in that it takes issue with the government not just at its branch, but at its root. Arguably, it is a test of our system whether we can withstand such speech - and a fault in our system if we cannot.

Moreover, more valuable political speech is often likely to be intertwined with - or mistaken for - advocacy. Accordingly, a legal test that makes it easy to suppress advocacy will also make it easy to suppress important criticism of the government on the pretext that it is tantamount to advocacy.

A weaker advocacy test than Brandenburg's might, for example, allow the government to jail those who have suggested that the United States somehow deserved the September 11 attacks, or those who have criticized the U.S.'s response, both here and in Afghanistan.

After all, at least according to the logic of the day, suggesting the U.S. deserved the attacks, or criticizing the U.S.'s response, could be said to incite future attacks. And inciting future attacks, rather than working to stop them, could be said to be a form of participation in the attacks based on similar logic.

In sum, abandoning Brandenburg's limits has its dangers too. Without Brandenburg's requirement of imminent danger, the prospect of jail time for speech is just a single step of reasoning away. It would be a step that would be very easy to make in the heated climate of the war on terrorism; a step that was made in World War I and that the Supreme Court approved; and a step one could easily envision Attorney General Ashcroft making.

Towards A New Kind Of Logic in Advocacy Cases?

After September 11, it may be the case that we can no longer worry about only imminent threats of violence arising from advocacy. Rather, we may have to pay as much or more attention to long-term threats, as well.

Yet if we abandon the "imminent violence" limitation, we must impose other limitations in its place, to try to ensure that speakers are not easily confused with those who act - and that politics, and political dissent in particular, are not easily equated with violence.

Both kinds of logic - the logic of strict separation between advocacy and violence; and the logic that conflates the truly violent with all who have any connection to them, including those who speak on their behalf - now seem flawed. The former does not protect us enough from violence. Yet the latter may not protect us - and, especially, those we target abroad - sufficiently from our own government.

Is there a way we can do better? That is the challenge for future theorists of domestic and international law, and perhaps also for future courts.

Julie Hilden, a FindLaw columnist, is a freelance writer living in Manhattan. A graduate of Yale Law School, from 1996-99 she practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly.

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