Free Speech in an Age of Terror

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A widely
misunderstood and under-appreciated aspect of the First Amendment’s
free speech guaranty was reaffirmed earlier this month by a federal
jury in Idaho. At the same time, however, the principle was being
undermined by some of the nation’s premier charitable foundations.
The issue? Protection of speech that advocates violence, including
violence against the very system of constitutional government
that brings us the First Amendment.

In terms
of the never-ending battle for free speech, it’s always the hardest
sell – protecting speech that’s often violent, subversive, revolutionary.
And yet it’s precisely the kind of speech where the First Amendment
plays its most important role.

After seven
days of deliberations, the jury acquitted Sami Omar Al-Hussayen,
a 34-year-old Muslim Saudi graduate student at the University
of Idaho, of charges that he provided “expert advice or assistance”
to terrorist organizations by operating websites and e-mail discussion
groups that advocated what lead prosecutor Kim Lindquist termed
“extreme jihad.”

Boise federal
prosecutors had brought the case under a controversial provision
of the US Patriot Act that broadened a Clinton-era prohibition
against lending assistance to causes designated by the federal
government as “foreign terrorist organizations.” To support their
contention that Al-Hussayen had assisted a terrorist conspiracy,
prosecutors pulled several examples of inflammatory speech from
Al-Hussayen’s otherwise mundane collection of Muslim-themed websites
and discussion groups. These included his redistribution of four
fatwas issued by radical clerics offering religious justifications
for “martyrdom attacks” and his hyperlinks to a Hamas-affiliated
website.

But the prosecutors
ran up against the First Amendment. As US District Judge Edward
Lodge instructed the jury, the Constitution protects expression
of beliefs “even if those beliefs advocate the use of force or
violation of law, unless the speech is directed to inciting or
producing imminent lawless action.”

Civil liberties
and legal communities widely viewed this case as a terrorism-era
test of the free speech protections first articulated in a McCarthy-era
Supreme Court opinion; that ruling protected the right of public
university professor Paul Sweezy, a self-styled “classical Marxist,”
to argue that the capitalist system would collapse when confronted
by violence on the part of those seeking to create a “truly human
society.”

This protection
was broadened and clarified in 1969 when the court, in a case
involving pro-violence rhetoric at a Klan rally, held that speech-restrictive
legislation had to be limited to “advocacy [that] is directed
to inciting or producing imminent lawless action and is likely
to incite or produce such action.”

In this age
of terrorism, it is not “classical Marxists” but fundamentalist
religious radicals – and those who disseminate their sermons
and writings – who are increasingly targeted by such viewpoint-based
prosecutions. And like the anti-Communist purges of the ’50s,
these government actions are inspiring similar private sector
purges.   

The media
reported last month that nine prominent universities, including
Harvard and most of the rest of the Ivy League, plus Stanford,
MIT, and the University of Chicago, have protested new language
in Ford Foundation grant applications that requires the applicant
to neither “promote or engage in violence, terrorism, bigotry,
or the destruction of any state,” nor “make subgrants to any entity
that engaged in these activities.” The universities are rightly
concerned that signing such a condition would force them to eliminate
political dissidents and, as a consequence, free-wheeling discussion
of controversial views – from the nation’s campuses.

Ironically,
these universities helped pave the way for both the Ford Foundation
restrictions they protest and the government’s current attack
on disfavored advocacy. In recent decades, each of these universities
(as well as numerous others) has adopted speech codes that punish
students and faculty for engaging in “hate speech.”

These codes
sharply curtail discussion of race, gender, and other hot-button
issues by characterizing expression of certain views as acts of
“harassment” that create a “hostile environment” for women and
minorities. Such blurring of the line between protected advocacy
and illegal acts undermines the very free speech principles that
the universities now defend.

This blurring
is becoming more common in an era in which US Attorney General
John Ashcroft has equated criticism of American anti-terrorism
initiatives with giving aid and comfort to the enemy. Even the
American Civil Liberties Union, which prides itself on its support
for even the most offensive and unpopular speech, did not immediately
reject Ford’s demand when it was asked to sign a version of the
antiterror and antibigotry pledge as a condition for receipt of
$2.3 million in Ford grants. The ACLU, which actively opposed
the government’s prosecution of Al-Hussayen, is reportedly working
on crafting a policy covering private foundations and other organizations
that curb such advocacy.

Meanwhile,
other foundations are joining Ford in adding similar restrictions
to their grants: some, like Rockefeller, mimic Ford by targeting
a broad range of constitutionally protected advocacy, while others,
such as MacArthur, target more narrowly defined and illegal activity
rather than mere advocacy.

Explaining
his own vote to acquit Al-Hussayen, juror John Steger told the
Boise Spokesman-Review: “The part that surprised me was when I
read the First Amendment instructions. I was surprised to learn
that people could say whatever they want – providing it would
not cause imminent action.” Juror Steger is surely not alone at
being surprised at the breadth and vitality of American freedom
of speech. One can only hope that this vitality will survive the
war on terror.

July 19,
2004

Harvey
A. Silverglate [send
him mail
], co-author of The
Shadow University
, is an attorney with Boston's
Good & Cormier. This article, from the Boston
Globe
, is reprinted with permission.

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