by Grania Spingies
Jerry called my attention to an article written in Slate by Eric Posner, professor at the University of Chicago Law School: “ISIS Gives Us No Choice but to Consider Limits on Speech“. Posner argues that in light of the recent trend of disaffected and naive youths enticed into joining ISIS, criminal sanctions should be applied to those trying to access websites with pro-ISIS content.
As disturbing and tragic as these stories are, it isn’t quite the tsunami of defection that some media outlets and Donald Trump would have you believe. The biggest estimates put it at around 250 Americans (out of 318.9 million, which comes to 0.0000783% ) and 430-440 British (out of 64.1 million). Even at double those figures, the number of people leaving to become jihadis in Syria is infinitesimally small.
Nevertheless, Professor Posner suggests that there should be this:
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. [My emphasis.]
I’m neither an American citizen nor a lawyer (and I don’t even watch pretend-lawyers on TV), but it seems to me that Posner’s is a deeply unconstitutional and illiberal suggestion.
One of the paragraphs that leapt out at me was one in which he argues that protections could be allowed for “legitimate” interest:
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.
But that doesn’t really reassure me much: it doesn’t give much protection to the average human being whether they be Joe Citizen, let alone Jamilla Immigrant who may just be rubber-necking, taking a look out of curiosity and horrified fascination. The average person does not have press credentials or employment in a security agency; and I’m not even sure what a track record of legitimate public commentary would look like. But that lack doesn’t make a convincing case for making criminals of ordinary people looking up websites out of curiosity—even websites run by appalling human beings. ISIS is almost universally loathed and condemned. Why would it be necessary for a liberal society, in which support for such a group is statistically non-existent, to threaten and criminalise its own people for looking at the “wrong” things, or reading the “wrong” kind of website?
I’m not trying to argue that one could find anything useful or even educational on such websites. But there doesn’t have to be. That absence does not provide much support for the Ban It! team’s claim that it should be considered criminal for someone with an internet connection to look at such material, let alone how banning it would be of benefit society. I can, however, think of how it could be harmful to society to allow government agencies to start threatening private individuals for reading the wrong sort of stuff.
Interestingly, Donald Trump agrees with Posner. That alone should give us pause.
A few years ago, Christopher Hitchens participated in a rousing debate in Canada on the subject of state censorship. It’s a short speech I find myself returning to again and again over the years whenever someone suggests that it would be better for everyone if the publication of certain things were banned and if people were not permitted to access to certain images, texts or ideas:
“Every time you silence somebody you make yourself a prisoner of your own action because you deny yourself the right to hear something.”
“Who’s going to decide…. or to determine in advance what the harmful consequences are going to be that we know enough about in advance to prevent? To whom would you give this job? To whom are you going to award the task of being the censor?”
The point here is not that there might be anything salubrious on pro-ISIS websites. It is surely quite the reverse. But what better way of proving it than letting people see the horror for themselves if they so choose?
Hitchens’s full speech here: (do yourself a favor and watch it; it’s a classic of rhetoric and eloquence):
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Recommended reading: Ken White (criminal defense lawyer and blogger at Popehat): “Three Generations of a Hackneyed Apologia for Censorship Are Enough“, a very worthwhile examination on the limits of free speech, the relevant U.S case law on the subject and why quoting Judge Oliver Wendell Holmes on the “shouting fire in a theater” analogy is not a smart choice. [JAC: I’ve just read this and it’s an excellent piece, well worth the time invested.]
Postscript: I see that Ken White has also read Posner’s article and has written about it, rather more colorfully and comprehensively than I. Do give it a read as well.
I would challenge the idea that it would even be effective to block access. Forbidden fruit is all the sweeter; I’d be surprised if the Streisand Effect didn’t drive more people to search for ways to access the banned materials.
That is indeed an excellent point. I seem to recall efforts to ‘protect’ the CSS code used to scramble DVD’s, there was some ‘secret number’ which ended up all over the web, on T-shirts, etc.
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Excellent points all. And let’s not forget the Streisand Effect.
Plus there’s yet another problem. You tell me not to draw Mohammad or burn an American flag or else — and that “or else” includes legal sanctions and/or violent retaliation — and guess what I’ve now got a moral obligation to do?
Oops, I missed that c0nc0rdance got to Barbara first.
People who don’t read people are the unluckiest people in the world.
–A demonstration of the abiding strength of the Effect!
On the one hand, I guess I am encouraged; I expected this sooner after 9/11.
Two problems with Posner’s idea. First, who determines what a legitimate interest is? The line between professional journalist and blogger is thinner than ever. Might not a blogger have an interest? And what about our informed citizenry? Even as a voter, non-publishing, non-policy making, shouldn’t I be informed about our enemies? Or should I just rely on officially-sanctioned information sources? We’ve seen how well that works.
Second, to expand on what Hitchens (and I) says, once we admit that the government (which is to say bureaucrats and our feckless Congress) can decide what is a legitimate area of interest for the average citizen, where will it end? Will Congress restrict access to contraception and abortion information? To pro- or anti-global warming sites? To news sources that it doesn’t like? And if it can do that, can’t it also prevent such information from being published at all in the US?
This is exactly why we have a First Amendment, and why our Constitution sits above statute law, to prevent the citizenry from panicking, and breaching each other’s rights.
You would expect, maybe, a law professor to have a broader view on such issues. But law professors are just people, too, like the ones who would decide what is legitimate information for citizens to have. If a law professor can calmly talk about censorship, then we can be sure we can’t trust people to actually implement it.
One additional point: Implicit in this censorship is the government’s authority to monitor ALL online activity, or else how would they know? So much for the presumption of innocence.
Posner does allow for a blogger. But it makes no exception for people who primarily read websites and essentially suggests that the onus is on the anyone reading the internet to prove that their intentions are “legitimate”.
That is a problem as far as I am concerned.
~ Grania
I am always a bit surprised whenever I hear this speech in that Hitchen’s makes a mistake in his quote from ‘A Man For All Seasons’. That particular quote isn’t from the courtroom scene, arguing with Cromwell, but rather from a much earlier scene when he is having a debate with his son-in-law.
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Thought we had covered all of this at least in the U.S. back about 1798, or I should say John Adams did it for us with the Alien and Sedition Act. Who needs history if you are Donald Trump.
This has been a recurring malady in American history. The Alien And Sedition Acts were one iteration. The first and second Red Scares (with the “Palmer raids” of the first, the blacklists of the second) were others.
Yes, Palmer was the equivalent to the next Red hater McCarthy and was in position to do something about it as Attorney General. However the Sedition Act is more appropriate to the current free speech issue. With this one Adams was actually able to fine and imprison citizens for things they said or published that the President did not like. Also helped to ensure that Adams was a one term pres.
I agree entirely with Grania. Also, it is depressing to read what Posner, a law school professor at a prestigious university, had to say on this.
1) How low an opinion of human beings in general Posner’s position seems to assume.
2) History is replete with examples of how censorship did not achieve what its proponents intended and caused other problems. The old adage of trying the same thing over and over again expecting it to work though it never has comes to mind.
3) I can’t think of a better way to discredit ISIS than for people to see what are, do and say. Apparently statistics support my hypothesis.
4) I can’t think of a better way to expose people who we might want to keep an eye on in the interests of public safety than to allow uninhibited access to ISIS propaganda and then take note of who attempts to join up.
5) The Christopher Hitchens free speech speech should be spread as far and wide as possible. Off hand I can’t think of anybody who has said it better than he does in that speech.
Agreed. I have heard this speech many times and listened to it again. I wish more people would listen to it.
An extraordinarily bad idea Posner has.
I see what you did there. 🙂
His is also a little people argument. He says it’s okay for me, as a blo**er with a history of writing about this stuff, to access it, although presumably it’s possible I’d have to prove that to authorities. However, would I be able to provide links for my readers to source material – or would they just have to take my word for it?
Would I be able to re-produce a tw**t of a recruiter, or provide extensive quotes from ‘Inspire’ and ‘Dabiq’ (al-Qaeda’s and DAESH’s on-line magazines), or would that be too much for their tender eyes. My judgment is that my readers are perfectly capable of making their own assessments of the material – am I allowed to make that decision? What qualifies me to make that decision? Who the hell am I to think I should be able to decide what others can read? But apparently as a blo**er with a history of writing negatively about Islamist terrorism, I’ve proven myself “acceptable.”
Will people who comment on my bl*g be okay if they have a history of opposing terrorism there, and will new commenters have to provide a Certificate of Acceptable Thought and Opinion before I release them from moderation?
Perhaps high schools could provide these certificates as part of the education process, following a suitable adjustment to the curriculum.
Is high school too late? Better provide recordings to be played to each foetus in the womb.
I’m not sure this is going to work.
Slippery slope: what happens when al-Shabaab, Boko Haram or al-Qaeda commit an atrocity on US soil? x
Aye, lass, ’tis. 🙂
Under the First Amendment, such speech can be prohibited only if it presents a clear and present danger of imminent lawless conduct. Also, even if it met this test, the restriction would be unconstitutionally overbroad in that it would foreclose access to those engaged in academic study and to those engaged in polemical argument against jihadism.
I’m in full support of you two and oppose Posner’s suggestion.
Though I would quibble in that blocking access to foreigners’ speech on a foreign website is not necessarily going to be a free speech violation. It would still violate the first amendment, however, because it abridges our right to freedom of the press.
Either way, Posner is wrong-headed on this one. However he’s a smart guy and has changed his mind on policy and legal issues before, so hopefully some big brains can bring him around on this one too.
Not certain, but you may be mistaking Eric Posner for Richard Posner, the Seventh Circuit Court of Appeals judge and a lecturer at UC law school. The latter has demonstrated a willingness to change his mind on issues — the need for economic regulations in light of the 2008 economic collapse and same-sex marriage among them.
I was, thanks for the correction.
They’re father and son. Posner père is the one who marches to the beat of his own drummer. Some might argue — and Ronald Regan, the president who appointed him to the bench, would likely be among them — that Posner Sr.’s drummer plays in the polyrhythmic beats of an Art Blakey. 🙂
… er, I mean “Reagan.” (Don’t want to confuse him with his Treasury Secretary or Lear’s middle daughter.)
Eric Posner is the son of Richard Posner, the judge. I wonder what he thinks of his son’s essay.
As my dad used to say, who censors the censors?
Your dad was Juvenal? You look really good for your age. 🙂
Colnago80, I dunno if it came up here, but I did like, ‘Without free speech, how would we know who the arseholes are?’ x
Here’s Hitch rejecting (no, dissecting and then atomizing) the idea that preventing people from shouting fire in a crowded theater demonstrates the need to place limits on free speech.
(It starts around 7 minutes in.)
Two very important words have been left out of the Oliver Wendell Holmes quote relative to crowded theaters. That’s the words erroneously and knowingly
Yeah. Schenck was a terrible outcome, but that doesn’t necessarily invalidate the (now hackneyed) “fire in a crowded theater” standard.
I also seem to constantly come beck to Hitchens’ incredible speech. I wish I could deliver as eloquent a challenge to the detractors of free speech. I wish I could be able to convice them that freedom of speech is the freedom to hear and freedom to have our steadfast beliefs challenged.
The problem is that they don’t see themselves (mostly) as detractors of free speech, but of bad speech. They don’t think about the fact that beauty is in the eye of the beholder, or, in this case, the legislator, and that we have elections every two years.
For that matter, even a manifestly wicked source might convey useful information. First is information about themselves… reading ISIS propaganda tells us who we are up against. But even beyond that, we might learn about atrocities our own government is engaging in from sources we otherwise hate. Just because *they* are evil doesn’t mean that everything they say will be false. If ISIS or some other bad source had revealed Abu Ghraib, for example, the information conveyed would not be false just because they said it. In essence, the whole point of free speech is to let everyone have their say and then we can sort out whom to believe. The only alternative is appointing someone to tell us what to believe, and no one is so free of an agenda that they can be trusted to do that.
I fear that Eric Posner’s horrifying recommendations could become fact in a Trump or Cruz administration.
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“…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.”
That sounds to me distressingly like the language used by North Korea for imprisoning a religious pastor recently. The pastor was accused of:
“Harming the dignity of the supreme leadership.
Trying to use religion to destroy the North Korean system.
Disseminating negative propaganda about the country to overseas Koreans.”
Censorship always seems like a fine idea to the ones currently in power. And it always signals an inherent weakness that I think people catch on to.
The odious ideas of ISIS should be combated by Free Speech.
And what would one do about *malicious drive throughs*? It is trivial to create a web page that redirects to another page. So one could put up fuzzy cats or whatever (even nothing visible at all) and redirect to ISIS. Would the person landing on ISIS still get charged? What if it is via malware or other things? How much responsibility is required? Who has the burden of proof if intention is the concern? What about web crawlers? Will those who run search engines be liable if they index ISIS sites?
(I suppose some of these matters already have precedent from other sorts of “illegal content”, but I’d sure be interested to hear what these are if anyone knows.)
10 years ago I spent a single Saturday afternoon watching on my computer a (self-selected) double bill of D.W. Griffith’s “Birth of a Nation” and Leni Riefenstahl’s “Triumph of the Will”.
From the former, I learned some things about the anatomy of racism I did not previously know, and from the latter I finally understood a statement I had read in 1965 that had puzzled me for 40 years “Only Hitler matched their power over crowds.[‘their’ referring to the Beatles-JLH]”
I am genuinely better informed for having seen both.
(Both films are on the Internet Movie Archive which has a full copy of almost every now-public domain movie every made including some minor clasics from the 1950s.)
I can’t imagine what sort of world would criminalize my viewing of these films.
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It is perfectly legal to shout ‘fire’ in a crowded theater if there really IS a fire!!!
And both films have, in the long run of history, been more important for their technical advances than for their subject-matter. Birth of a Nation, in particular (and notwithstanding its odious glorification of the Klan), first established modern film grammar, iterations of which can be found playing at our cineplexes (and art houses) today.
How so, Ken, on ‘Birth of a Nation’ and its influence on modern film grammar? Genuine question. I’ve seen it and was both repelled and enthralled.
Parenthetically, I have just wondered whether the title had any influence on Victor Serge’s early leftist pro-Russian revolution novel ‘Birth of Our Power’. Unanswerable, I suppose.
You can find a pretty good introduction to the subject here, Dermot.
Things like the “establishing” shot (long shot, full shot, close-up), editing to the action, shot composition (especially mise en scène). We are so accustomed to these things in modern movies that they are nearly invisible to us now (which is why you probably didn’t even notice them), but most of them were innovations by Griffith.
Not sure if that link came through. Try this.
Or cut & paste: http://www.nettonet.org/Nettonet/Film%20Program/history/Griffith.htm
That’s why it’s so hard to see what Griffith did. If you hadn’t seen all the films leading up to him, you’d think it was just normal film making.
I can’t think of a good modern example right now, but many very creative innovators were, as it were, on the wrong side of history. They are easy to criticize and condemn in hindsight, and often they are not fully appreciated for their true contributions because of the politics.
Is the figure of 430-440 British Muslims fighting for ISIS really insignificant?
Given the nature of ISIS and its activities, and the suicidal risk involved, it’s utterly bizarre and horrifying that ANYONE who grew up in a civilized Western country would want to go and fight for them. We are talking about people who grew up in a civilized country, with a good education, without poverty or persecution.
So what are the numbers? There are 2.7 million British Muslims, so less than 500,000 are in the target demographic for ISIS recruitment. That means around 1 in 1000 have been successfully recruited and are fighting for ISIS.
That’s pretty shocking to me. 1 in 1000 people want to go and participate in that bloodthirsty rape, murder, and pillage; to be members of a group that explicitly seeks to destroy the civilization that they grew up in.
Trump claimed that there are more British Muslims fighting for ISIS than enrolled in the British armed forces. It’s one of the few things that he got right. A recent Guardian article sought to debunk this claim, but it actually supports it. By cherry-picking the data, they end up with a slightly lower estimate for the number fighting for ISIS – but of course the fundamentally shocking fact is that the numbers are roughly similar.
http://www.theguardian.com/news/reality-check/2015/dec/11/donald-trump-needs-check-facts-british-muslims-isis
There are always people who don’t react how you would expect. You wonder how anyone from Britain could become a jihadi. However, by the same token, how could anyone become a thief, burglar, rapist, paedophile, or murderer? Whig or Tory? Determinist or free will advocate? Or anything else any of us can think of.
Whatever has caused it, it’s not one thing, but a combination of factors over a lifetime. I doubt anyone really understands why, including the people who do it.
And, of course the fact that 1 in 1000 are actually prepared to take the suicidal risk of going to fight for ISIS reflects vastly greater numbers of British Muslims with deeply troubling opinions.
http://www.thereligionofpeace.com/pages/opinion-polls.htm
To be clear, I’m not for a moment suggesting that the solution to any of this is censorship.
But I don’t agree with Grania’s minimization of the problem when she says:
“…it isn’t quite the tsunami of defection that some media outlets and Donald Trump would have you believe”
I think a “tsunami of defection” is an apt description of the betrayal of Western liberal values shown in opinion polls of British Muslims. Frighteningly large numbers appear to sympathize with terrorism, favor Sharia law, oppose free speech, etc. The fact that relatively few are yet quite insane enough to actually want to go and fight in Syria is cold comfort.
I’m always curious as to how some security service (CIA/NSA/FBI/GCHQ/CIS/BND etc)algorithm can identify a terrorist website anyway. If ISIS called one of their sites http://www.popularwoodworking.net how would the government spies detect it? If I use an offshore proxy to access it how can the government spies detect that? If I use encryption? If I use non-tracking offshore search engines? The fact that the government agencies can not point to a single case where their electronic spying has revealed any terrorist plot at all while at the same time major terrorist hits have occurred in several countries just indicates how worthless all the spying actually is. They couldn’t even detect the Paris massacre in advance even though the perpetrators didn’t even use encrypted communications. How will Posner catch me?
Prof Posner is clueless about all this stuff. He just doesn’t like people being able to say and hear stuff he personally doesn’t like but hasn’t thought through any of the implications. It’s always intriguing to this non-american to see how many americans are willing to toss their much-vaunted constitution on the scrap heap when it supports something they personally dislike.
Since this isn’t the main recruitment channel, friends (and to a lesser degree family) are, at least according to the security police here in Sweden, Posner’s suggestion sounds unwarranted.
In fact it sounds counterproductive, as Grania notes, ” it could be harmful to society to allow government agencies to start threatening private individuals”.
You know what this type of reflexive, “common sense”, counterfactual reasoning reminds me of!? The suggestion that game playing leads to violence. That too is false I think, as I understand it, it is socialization towards violence that is the root cause in both cases.
The way to moot it is likely the usual slog: free speech, education, and lots and lots of LOL. “Daesh” means roughly “[we who are] whipped”, and a mad ‘daesh’ to the 72 heavenly harlots/virgins is inherently fun stuff!
For “fun stuff” replace with “funny material”.
Two notes on the film that Christopher Hitchens admires “A Man for All Seasons”
1) There is a suspicion among some biographers that while the younger Thomas More indeed had relatively enlightened views about law and liberty, he had abandoned these and become far more reactionary by the time that he came to oppose England’s separation from the Roman Catholic church. As such, “Man for All Seasons” at best projects the more sympathetic younger More into a later period of his life in a way that is anachronistic.
The recent novel and TV drama “Wolf Hall” portrays More much less sympathetically.
2) The scene that Christopher Hitchens describes starting at 8:00 in the video is NOT a conversation between Thomas More and a sinister Machiavellian prosecutor, but between More and his son-in-law.
(This is an understandable error if you haven’t seen the film in a long time. I’ve had few false memories of beloved films myself.)
Mission creep is the most certain outcome of such a law. Today we make it illegal to view ISIS websites. But they aren’t the only ones killing people. Any site that promotes violent crime should be illegal to view. Sites glorifying serial and mass killers should be right out. And any site that gives you information about how to make bombs. I’m looking at you MythBusters. And surely the KKK is promoting wickedness so we should add them to the no-watch list. And I think a lot of the right wing anti-government types are seditious and dangerous too, so they should be right out.
It’s the queen of bad ideas, and just shows again what shameless and irrational [1] little cowards everyone becomes when something scary happens. Shame shame on everyone who pees in their pants in the face of terrorism, and pox on anyone who would hurt other people and diminish our civilization (curbing free speech, torture, etc.) out of such craven fear.
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[1] even including 9/11 in the states you are still 145 times more likely to die in your car, and 585 times as likely to die of some other random accident than to be killed by a terrorist.
“Ignorance is bliss!” No, it isn’t! Keeping people ignorant promotes stupid decision making, if such people even can make decisions. Since such decisions affect not only the one(s) making them, we all suffer from the ignorance and uninformed nature of a few. A viable democracy depends on an educated, relatively informed citizenry. When some of us must bury our heads in the sand to feel secure and pass laws to insure same, all of us are threatened. We must know what is going on in order to make comparatively right choices.
With all respect to Jerry some strange ideas come out of the University of Chicago esp its Law School and Economics Dept.
What a comprehensively stupid idea.
Even IF the spooks trawling everybody’s internet usage [now what’s wrong with that?] could identify some individual looking at the forbidden websites [just once? consistently? how could one tell?] surely it would make far more sense to keep an eye on them in case they’re proto-terrorists than charge them with thoughtcrime and thereby (a) tip their hand and (b) confirm to those individuals that the corrupt western authorities are truly their enemy.
Quite aside from the potential for it to go wrong and criminalise curious teenagers and maybe just people who clicked on a phony spam link…
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