A New York Times article on Sunday cites a number of legal experts and scholars who suggest placing limits on the First Amendment in response to Islamic State propaganda.

The article follows remarks by Donald Trump and Hillary Clinton. Both have said the government might work with technology companies to shut down internet websites and social media posting Islamic State propaganda and discussion.

The Times mentions a Bloomberg View article posted in November by Harvard law professor and former Obama administration official Cass R. Sunstein.

Sunstein uses the clear and present test developed under Justices Oliver Wendell Holmes and Louis Brandeis to argue in favor of government censorship.

The doctrine was used during the First World War to curtail speech in opposition to a military draft.

“When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right,” Holmes wrote.

“In free societies, it’s almost always a bad idea to punish speech. But at the very least, the argument for the clear and present danger test is not quite as clear as it once was—and it might not be so well-suited to the present,” Sunstein argues.

On December 15 International law professor Eric Posner suggested “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 provide graduated penalties” for people visiting IS websites. “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.”

The First Amendment unambiguously states “Congress shall make no law…abridging the freedom of speech, or of the press,” including Islamic State propaganda, as reprehensible as it might be. Justice Hugo Black has written of the amendment’s “emphatic command”—the government has absolutely no right to abridge the freedom of speech regardless of content.

The drift toward totalitarian control of speech in the United States follows draconian moves by France to outlaw speech in the wake of the Charlie Hebdo and Paris attacks. Speech the government considers condoning terrorism commands a five-year jail term and a fine of €75,000. Exercising free speech online may result in even more severe penalty—seven years in prison and a €100,000 fine.


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