Captain Ed offers an uncharacteristically overwrought analysis of Newt Gingrich’s sensible argument that the current threat – jihadists plotting mass-murder in a world where weapons of mass destruction are increasingly accessible – requires a rethinking of First Amendment principles.
The Speaker is right, and the fact that he is treading on this third rail is further indication that he will be formidable as a presidential candidate. Plainly, he understands that the modern threat environment requires going back to first constitutional principles rather than simply accepting the law as sculpted by the Warren Court.
As Judge Bork has often pointed out, as late as the 1942 case of Chaplinsky v. New Hampshire, the Supreme Court unanimously decreed:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [emphasis added]
The contention that speech inciting violence and lawlessness cannot be regulated is a legacy not of the Constitution but of the Warren Court, which held in Brandenberg v. Ohio (1969) that government could not proscribe advocacy of the use of force (or of other violations of law) “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). There is no reason why the current Supreme Court could not reconsider whether Brandenberg is faithful to the original understanding of the First Amendment.
But even if – for argument’s sake – we concede that it is, what was “imminent” in the 1960s was far different from what is imminent with today’s technology. What seemed “likely” before the World Trade Center was built is not the same as what is “likely” now that the World Trade Center no longer exists.
Captain Ed says, “The remedy for bad speech is more speech.” This, effectively, is the Holmesian “marketplace of ideas” trope that is just an excuse for not thinking. If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.
McCain/Feingold says the political speech that was the core of the original First Amendment protection can be regulated. Are you really telling me that we can stop someone from speaking out on behalf of a candidate for public office but we have to allow jihadists to call for mass murder? I don’t think so.