ISIS’s online radicalization efforts present an unprecedented danger.

ISIS Gives Us No Choice but to Consider Limits on Speech

ISIS Gives Us No Choice but to Consider Limits on Speech

Eric Posner weighs in.
Dec. 15 2015 5:37 PM

ISIS Gives Us No Choice but to Consider Limits on Speech

America faces unprecedented danger from the group’s online radicalization tactics.

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The Supreme Court has held that the government can ban political speech only when it poses an immediate threat to public safety.

Photo by David Evison/Shutterstock

It has become increasingly clear that terrorist groups such as ISIS can extend their reach to American territory via the Internet. Using their own websites, Twitter, Facebook, YouTube, and other platforms, they lure young men and women to their mission—without having to risk the capture of foreign agents on U.S. soil. The Americans ensnared in ISIS’s net in turn radicalize others, send money to ISIS, and even carry out attacks.

Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way—and by this I mean ideas that lead directly to terrorist attacks that kill people. The novelty of this threat calls for new thinking about limits on freedom of speech.

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What can we do? Proposals that Internet companies “shut down” dangerous communications have been met with howls of laughter from Silicon Valley. It’s easy for determined jihadis to replace shuttered websites with new ones and hard for Internet companies to keep track of billions of communications. Using the law to force Facebook and Twitter to do more to block ISIS propaganda would make sense but also falls short of what is needed. No approach is perfect, but there is a way to deal with these problems.

Consider Ali Amin, the subject of a recent article in the New York Times. Lonely and bored, the 17-year-old Virginia resident discovered ISIS online, was gradually drawn into its messianic world, eventually exchanged messages with other supporters and members, and then provided some modest logistical support to ISIS supporters (instructing them how to transfer funds secretly and driving an ISIS recruit to the airport). He was convicted of the crime of material support of terrorism and sentenced to 11 years in prison. Amin did not start out as a jihadi; he was made into one.

Researchers at George Washington University identified 300 U.S-based ISIS sympathizers who use Twitter and other social media to lure Muslim Americans into the arms of ISIS. These American citizens and residents—themselves the fruit of the recruiting efforts of foreign ISIS members as well as of other Americans—frequently use a graduated approach so as to avoid alarming people who are merely curious about Islam:

In one case the seemingly naïve individual posted general questions about religion, to which ISIS supporters quickly responded in a calm and authoritative manner. After a few weeks, the accounts of hardened ISIS supporters slowly introduced increasingly ardent views into the conversation. The new recruit was then invited to continue [conversing] privately, often via Twitter’s Direct Message feature or on other private messaging platforms such as surespot.
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But there is something we can do to protect people like Amin from being infected by the ISIS virus by propagandists, many of whom are anonymous and most of whom live in foreign countries. Consider 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 would be directed at people like Amin: naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.

The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences. The idea would be to get out the word that looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden. As word spread, people like Amin would be discouraged from searching for ISIS-related websites and perhaps be spared radicalization and draconian punishment for more serious terrorism-related crimes.

The law would not deter sophisticated terrorists who send one another encrypted messages. That’s not its point. ISIS seeks to recruit Americans on American soil; in order to recruit from the public, it obviously cannot act secretly. It must instead broadcast widely and rely on surrogates to broadcast widely, in order to reach an audience of nonradicalized Muslims. This is a vulnerability. When people discover ISIS websites and circulate them by Twitter, Facebook, and other public websites, those people often disclose their identities. Many are too naïve to use pseudonyms; others reveal their identities to their ISPs, which can be forced to cough them up to police. Teenagers who are curious about ISIS but not yet committed to it are unlikely to use complicated encryption technologies to mask their identities from ISPs. Laws directed at this behavior would make a dent in recruitment, and hence in homegrown radicalism, even if they do not solve other problems.

One worry about such a law is that it would discourage legitimate ISIS-related research by journalists, academics, private security agencies, and the like. But the law could contain broad exemptions for people who can show that they have a legitimate interest in viewing ISIS websites. Press credentials, a track record of legitimate public commentary on blogs and elsewhere, academic affiliations, employment in a security agency, and the like would serve as adequate proof.

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The obvious problem with this law is that the courts could strike it down under the First Amendment. Under current doctrine, such an anti-propaganda law is unconstitutional because it would interfere with the right of people to receive or read political information—as would proposed laws that would require Internet companies such as Facebook and Twitter to remove ISIS-related propaganda from their websites. The Supreme Court has held that the government can ban political speech only when it poses an immediate threat to public safety, as when an orator encourages a crowd to go on a rampage. Speech that blasts the American constitutional system and praises America’s enemies has been held constitutionally protected time and again.

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

We do not currently face a national emergency comparable to a world war, but anti-propaganda laws may nonetheless be warranted because of the unique challenge posed by ISIS’s sophisticated exploitation of modern technology. In the old days, radicals handed out crudely mimeographed leaflets at street corners. Today, the Internet makes possible the constant circulation of captivating videos, vivid images, and extremist text, creating a “radicalization echo chamber.” It is the change in technology, more than the change in the nature of foreign threats, that has given rise to a historic and unprecedented danger from foreign radicalization and recruitment.

The major justification for freedom of speech is the marketplace of ideas—the claim that if people can say whatever they want, the best ideas will flourish. But just what is it that we can learn from ISIS? The social value of beheading apostates? The finer points of crucifixion? Those who regard free speech as fundamental need to consider whether legal principles that arose centuries ago make sense in the age of Snapchat. It is possible, as Cass Sunstein has explained in Bloomberg View, to modify the current test for free speech violations so as to advance public safety without throwing out important protections for dissent. A simple balancing test would permit laws to target dangerous speech that does not advance public debate.

It’s possible that the propaganda threat from radical Islam will peter out on its own. Many Internet companies already censor pro-ISIS websites and accounts—which they can do because the First Amendment does not require private companies to protect the speech of their customers. And law enforcement authorities have used the material support statute aggressively, as in the case of Amin, to crack down on anyone who takes a step beyond mere advocacy. My colleague Geoffrey Stone has argued that the U.S. government has usually overreacted to foreign threats by cracking down on civil liberties, hurting people who would never have caused harm. During World War I, for example, the government punished dissenters who merely criticized the war and were not spreading German propaganda or trying to recruit agents. If Stone is right, we should be careful to avoid overreacting again.

But like it or not, the West is engaged in a propaganda war with ISIS. Our own distaste for ISIS’s views should not blind us to the fact that it appeals to thousands of Americans. A narrowly tailored anti-propaganda law that reduced the ranks of homegrown jihadis would not only enhance public safety. It would also protect American Muslims like Ali Amin from the virus of ISIS’s ideology.

Correction, Dec. 16, 2015: This article misstated that countries at war should try to counter propaganda that could give rise to a “third column.” It's a fifth column. (Return.)