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WHILE most of us would agree that religious fundamentalists, foreign and domestic, sometimes do serious harm to our society, there are other kinds of fundamentalists who are also dangerous: I refer to legal fundamentalists.

More precisely, the tranche of lawyers, academicians, journalists and publishers who, over the years, have developed into First Amendment fundamentalists and have become a powerful influence on our government. Currently, they appear to have persuaded our attorney general that the amendment bars him from taking action against Inspire magazine, published on the Internet by Al Qaeda in the Arabian Peninsula.

The organization is a sworn enemy of the United States, and its web publication is available throughout the land. The online magazine proclaims its goals of providing inspiration and justification to inflict harm on the United States as well as Britain, France and other countries, by killing its citizens, preferably in large numbers. It encourages its readers to engage in attacks.
Photo
Credit Mike McQuade

The magazine has given instructions for building car bombs as well as pressure-cooker bombs using material from a kitchen or a hardware store. Those instructions were followed to the letter by the Tsarnaev brothers, who murdered three and sent 264 to hospitals in the 2013 Boston Marathon bombing.

It also — in its issue this past Christmas Eve — shared a new bomb recipe aimed at bringing down civilian airliners. According to Inspire, the new bomb would not be detected by the Transportation Security Administration metal detectors, only potentially by sniffer machines. But even if detected, the bomb probably wouldn’t be discovered, the publication says, without probing into orifices that a T.S.A. officer might be reluctant to visit.

In Britain, possession of the online magazine is a crime. Is this publication protected by our First Amendment? Not on your life!

In 1791, our forebears, anxious lest the new government adopt some of the restrictions that had been imposed by the king, adopted a basic commandment barring the government from making any law “abridging the freedom of speech.”

Does that mean what it says? Obviously not, because we have adopted many laws abridging speech, such as in cases of child porn, perjury, false representation, libel and slander, criminal conspiracy, etc. The list is substantial. When it comes to political speech, how do we distinguish the good speech from the bad? We look to bedrock principles.

For example, threats are not protected because they provide no social value. The idea behind the First Amendment, wrote the founders, was that the citizens be free to criticize their government. And over the next several centuries, our courts have developed a great body of law refining and expanding that concept. In the area of national security and politics, there are no wrong ideas, and free speech is indispensable to the disclosure of truth.

The most recent and most expansive Supreme Court decision on protected speech in the context of national security was the Brandenburg case in 1969, which struck down an Ohio law that criminalized advocacy of crime, violence or terrorism as a means of accomplishing political reform. The statute was unconstitutional, the court said, because political speech is protected unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Because this Ohio statute did not adequately distinguish between abstract advocacy versus true incitement to imminent action, the conviction of Clarence Brandenburg, a Ku Klux Klan leader, was reversed.

In looking at the question of what speech is protected and what is not, courts have always looked to context. For example, every Supreme Court decision on this subject recognizes war as an exception to the First Amendment, even though the Constitution says no such thing. The classic example cited by the older cases is recognition of the government’s unfettered right, in time of war, to ban the publication of information revealing the sailing dates of troop transports. Ten years after Brandenburg, a district judge in the United States v. Progressive case enjoined the publication of classified nuclear bomb formulas. The court found that times had changed, war was no longer limited to foot soldiers who travel to battle sites on troop transports, and even though it was not clear that a reader would imminently “build a hydrogen bomb in the basement,” the scope of the danger overwhelmed the imminence factor.

The balancing act was succinctly explained by Robert W. Warren, the district court chief judge who, when referring to Patrick Henry’s famous liberty-or-death choice, explained, “in the short run, one cannot enjoy freedom of speech, freedom to worship, freedom of the press unless one first enjoys the freedom to live.”

The balancing test must look at what is real. The measurement of imminence changes when we are talking about detonating a nuclear bomb in New York City as opposed to an unlicensed rally blocking the Brooklyn Bridge.

The federal government should move decisively to block Inspire on the web. It is criminal incitement that has produced lawless action, and no sentient judge would today say otherwise.

It is one thing for Attorney General Eric H. Holder Jr. to excuse the journalist James Risen from revealing a book source, and quite another to permit virulent enemies to recruit, train and support those who would destroy our country. If we sanction this kind of so-called freedom, we risk horrible consequences. The Paris bombing is small stuff compared with what would happen if our civilian airline system were crippled. I fear that in response to more terrorism, we would see repression on a terrifying scale.

Martin London,

of counsel to the law firm

Paul, Weiss, Rifkind, Wharton & Garrison,

has litigated First Amendment issues.

A version of this op-ed appears in print

on January 24, 2015,

on page A19 of the New York edition

with the headline:

Why Tolerate Terrorist Publications?.

Why Tolerate Terrorist Publications?,
NYT,
JAN 23, 2015,
https://www.nytimes.com/2015/01/24/
opinion/why-tolerate-terrorist-publications.html

Let’s Give Up on the Constitution

December 30, 2012

The New York Times

By LOUIS MICHAEL SEIDMAN

Washington

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Louis Michael Seidman,

a professor of constitutional law

at Georgetown University,

is the author of the forthcoming book

“On Constitutional Disobedience.”

Let’s Give Up on the Constitution,
NYT,
30.12.2012,
http://www.nytimes.com/2012/12/31/
opinion/lets-give-up-on-the-constitution.html

The First Amendment, Upside Down

June 27, 2011

The New York Times

The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy. The opinion written by Chief Justice John Roberts Jr. in Monday’s 5-to-4 decision shows again the conservative majority’s contempt for campaign finance laws that aim to provide some balance to the unlimited amounts of money flooding the political system.

In the Citizens United case, the court ruled that the government may not ban corporations, unions and other moneyed institutions from spending in political campaigns. The Arizona decision is a companion to that destructive landmark ruling. It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.

Arizona’s campaign finance law provided a set amount of money in initial public support for candidates who opted into its financing system, depending on the type of election. If a candidate faced a rival who opted out, the state would match the spending of the privately financed candidate and independent groups supporting him, up to triple the initial amount. Once that limit is reached, the publicly financed candidate receives no other public funds and is barred from using private contributions, no matter how much more the privately financed candidate spends.

Chief Justice Roberts found that this mechanism “imposes a substantial burden” on the free speech rights of candidates and independent groups because it penalized them when their spending triggered additional money for a candidate who opted into the public program. The court turns the First Amendment on its head. It denies the actual effect of the Arizona law, which is not to limit spending but to increase it with public funds. The state program expands political speech by giving all candidates, not just the wealthy, a chance to run — while allowing privately financed candidates to spend as much as they want.

Justice Elena Kagan, writing in dissent, dissects the court’s willful misunderstanding of the result. Rather than a restriction on speech, she says, the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and produces more political speech.” Those challenging the law, she wrote, demanded — and have now won — the right to “quash others’ speech” so they could have “the field to themselves.” She explained that the matching funds program — unlike a lump sum grant to candidates — sensibly adjusted the amount disbursed so that it was neither too little money to attract candidates nor too large a drain on public coffers.

Arizona’s system was a response to a history of terrible corruption in the state’s politics. Rather than seeing the law as a way to control corruption, the court struck it down as a limit on the right of wealthy candidates and independent groups to speak louder than others.

The ruling left in place other public financing systems without such trigger provisions, including public financing for presidential elections. It shows, however, how little the court cares about the interest of citizens in Arizona or elsewhere in keeping their electoral politics clean.

The First Amendment, Upside Down,
NYT,
27.6.2011,
https://www.nytimes.com/2011/06/28/
opinion/28tue1.html

A Bruise on the First Amendment

June 21, 2010

The New York Times

Forty-three years ago, when the nation lived in fear of Communist sympathizers and saboteurs, the Supreme Court said that even the need for national defense could not reduce the First Amendment rights of those associating with American Communists.

On Monday, in the first case since the Sept. 11, 2001, attacks to test free speech against the demands of national security in the age of terrorism, the ideals of an earlier time were eroded and free speech lost. By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.

The case was not about sending money to terrorist organizations or serving as their liaison, activities that are clearly and properly illegal. And it did not stop people from simply saying they support the goals of groups like Hamas or Al Qaeda, as long as they are not actually working with those groups. But it could have a serious impact on lawyers, journalists or academics who represent or study terrorist groups.

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing legitimacy to a terror group was really a crime, he wrote, then it should also be a crime to independently legitimize a terror group through speech, which it is not. Never before, he said, had the court criminalized a form of speech on these kinds of grounds, noting with particular derision the notion that peaceful assistance buys negotiating time for an opponent to achieve bad ends.

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit. Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources. The F.B.I. has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support.

There remains a reasonable way of resolving these disputes. Justice Breyer proposed a standard that would criminalize this kind of speech or association “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Because he was unable to persuade a majority on the court, Congress needs to enact this standard into law.

A Bruise on the First Amendment,
NYT,
21.6.2010,
https://www.nytimes.com/2010/06/22/
opinion/22tue1.html