Enemies of the State

By Wendy Kaminer

        Last month, by an overwhelming majority, the House of Representatives passed the “Violent Radicalization and Homegrown Terrorism Act,” aimed, in part, at preventing the spread of “extremist” and potentially violent ideologies (in other words, speech.)  The bill does not actually prohibit “violent radicalization.” It establishes a national commission to study the problem and recommend “immediate and long term countermeasures” to violent radicalization (as well as “homegrown terrorism and ideologically based violence.”)  And, it directs the Department of Homeland Security to assist federal, state, local and tribal officials in preventing "violent radicalization" and homegrown terrorism.
        Skepticism about the likelihood of a Congressional commission producing tangible legislative results may soothe concerns about the ultimate effect of this bill on civil liberties.  Some may also take comfort in provisions stressing that measures taken pursuant to the bill should not violate civil liberties and civil rights.  But when Congress identifies a need to combat “extremist beliefs” and demonstrates the will to do so, you can bet that it will soon find a way.  Assertions about the grave dangers posed by particular categories of speech – pornography, “hate” speech, or anti-American rants – are generally preludes to censoring them.
        In fact, we do have a sorry tradition of imprisoning people for political advocacy.  The definition of “violent radicalization” contained in the House bill is alarmingly (though not surprisingly) similar to the language in post World War 1 and World War 11 laws that criminalized advocating the overthrow of the U.S. government.  With the approval of the Supreme Court, these laws were used to imprison members of communist and socialist groups, who did nothing more than talk, publish, and associate with each other. 
        Compare and contrast:

        The Violent Radicalization and Homegrown Terrorism Act defines violent radicalization as “the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.” 
        A New York law, upheld by the Supreme Court in 1925, in Gitlow v New York, banned “criminal anarchy,” defined as “the doctrine that organized government should be overthrown by force or violence, or by assassination ... or by any other unlawful means.  The advocacy of such doctrine either by word of mouth or in writing is a felony.”
        The Smith Act, a federal law upheld by the Supreme Court in 1951, in Dennis v U.S., made it a crime to “knowingly or willfully advocate, abet, advise or teach the duty, necessity, or desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of such government…”
        What these repressive, post war laws share with the current “violent radicalization” bill is the belief in government power to prohibit people from even considering, much less preaching, violence against the state, whether or not they have a demonstrable willingness or ability to act against it violently.  The “Violent Radicalization” bill, for example, encourages the creation of “countermeasures” against speech intended to “facilitate” ideologically based violence.  It also condemns the Internet for aiding in “violent radicalization … by providing access to broad and constant streams of terrorist-related propaganda to United States citizens,” leaving little doubt of Congressional desire, if not intent, to prohibit pure speech.
        The Smith Act and similar laws targeting political speech were discredited in the 1960s, when the Supreme Court changed course and reversed the conviction of a Klan member under an Ohio statute that criminalized advocacy of politically motivated crime, violence, or terrorism.  In Brandenburg v Ohio, the Court enunciated a standard in speech cases that remains in effect today (so far.) It ruled that  “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
        Under this standard, Congress may not criminalize speech merely said to “facilitate” violence – the speech targeted by the “Violent Radicalization” act.  The government may only criminalize speech that incites violence and only when the speech is, in fact, likely to incite violence.  In other words, under the Brandenburg standard, people may not even be prosecuted for intending to cause violence, unless, under the circumstances, they were likely to succeed.
        But Brandenburg was decided in the respite between the red scares and the war on terror, when civil liberties and civil rights movements were ascendent.  The Warren Court’s standard protecting speech may not survive the Roberts Court today.  Free speech is always at risk during wartime, and these days we're primed to feel always at war.

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