The 1st Amendment is not a suicide pact
Union Leader December 6 2006
I MUST HAVE hit a nerve.
In New Hampshire last week, at a dinner hosted by the Nackey 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.”
Since I made those remarks, I’ve heard from 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 Web sites 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.
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. Here are a few baseline principles to consider:
We should be allowed to close down Web sites that recruit suicide bombers and provide instructions to indiscriminately kill civilians by suicide or other means, or advocate killing people from the West or the destruction of Western civilization;
We should propose a Geneva-like convention for fighting terrorism that makes very clear that those who would fight outside the rules of law, those who would use weapons of mass destruction and those who would target civilians are in fact subject to a totally different set of rules that allow us to protect civilization by defeating barbarism before it gains so much strength that it is truly horrendous. A subset of this convention should define the international rules of engagement on what activities will not be protected by free speech claims; and
We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents.