A striking difference between the United States and many of its European allies when it comes to domestic-based terrorism is the level of protected speech in the United States. As I point out in Safety, Liberty and Islamist Terrorism, European states often have laws on their books that prohibit the promotion or glorification of terrorism, or that ban using the internet to publish information about building bombs and the like. In contrast, since the U.S. Supreme Court ruling Brandenburg v. Ohio (1969), the First Amendment has been read as prohibiting the criminalization of inflammatory speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
But yesterday, the federal government issued an indictment against one Emerson Begolly, a U.S. citizen who has been active in posting materials on the Ansar al-Mujahideen English Forum, urging readers at times to carry out violent acts against Americans, civilian planes, financial institutions, police stations, synagogues, trains, etc. However, the terrorist advocacy was a general one and not targeted at anyone in particular or in support of any specific plot. Begolly also posted a link to a site that contained a manual for making explosives but did so with only the warning that those downloading the material should keep it off their hard drive, use software to keep their identities secret, and “use extreme caution” should they try their hand at “attempting anything mentioned” in the manual. But here too, the U.S. statute that prohibits the distribution of information on explosive devices appears to require that it be done with intent that the information will be used for the commission of a crime or knowledge that such information will be so used.
Now, common sense suggests Begolly’s postings should be indictable offenses, and perhaps the Justice Department has decided to use the case as a means to test the limits on just how broadly these statutes can be read. But, ultimately, it might also provide the Roberts Court an opportunity to revisit a precedent set by the Warren Court that took the “clear and present danger” test set forth by Justice Holmes back in 1919—itself a significant liberalization of First Amendment “free speech” cases—and put it on steroids. As we have discovered since 9/11, words can be weapons and it is dubious that the founding generation that ratified the First Amendment had protecting such speech in mind.