By Erik Eckholm
Dec. 27, 2015
It is one of the most hallowed precepts in modern constitutional law: Freedom of speech may not be curbed unless it poses a “clear and present danger” — an actual, imminent threat, not the mere advocacy of harmful acts or ideas. But in response to the Islamic State’s success in grooming jihadists over the Internet, some legal scholars are asking whether it is time to reconsider that constitutional line.
Appeals for a tougher response to the Islamic State’s online recruiting efforts have, not surprisingly, emerged from the political realm. Donald J. Trump said the government should call on Bill Gates and others to somehow close off dangerous Internet sites, and called First Amendment concerns foolish.
Hillary Clinton said the government should work with host companies to shut jihadist websites and chat rooms. That would be constitutional if voluntary, legal experts say, but not if the government exerted pressure on private firms to cooperate in censorship.
Some security experts called on YouTube to ban videos of lectures by Anwar al-Awlaki, which helped radicalize the attackers in San Bernardino, Calif., and many others.
Recently, though, a few legal scholars, too, have engaged in what others call First Amendment heresy. What does clear and present danger mean when terrorists are provoking violence over the Internet? Should not the government have a way, they ask, to block messages that facilitate terrorist acts?
The existing standard is often illustrated by the classic example of shouting “Fire!” in a crowded theater when there is no hazard. That is not protected speech because it could cause a deadly stampede. But an article praising the merits of causing stampedes, even offering phrases to shout, is not closely enough linked to an imminent, actual threat to be outlawed. In November, Cass R. Sunstein, a Harvard law professor and former Obama administration official, broached the subject in an article on Bloomberg View. He called the clear and present danger test “the greatest American contribution to the theory and practice of free speech.” In view of the Islamic State’s successful use of the Internet to nurture terrorists, he said, “it’s worth asking whether that test may be ripe for reconsideration.”