Feldman: Should the Internet age change free speech?

In 2010, Supreme Court Justice Stephen Breyer casually

In 2010, Supreme Court Justice Stephen Breyer casually suggested our free-speech laws might have to be changed in the era of instant global communications. "Today," writes Noah Feldman, "in the wake of attacks on U.S. embassies and the killing of a U.S. ambassador and three other Americans in Libya, Breyer's offhand observations need to be taken seriously." (Credit: Illustration by Peter Kuper)

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It was almost a Sister Souljah moment when Barack Obama appeared before the United Nations last week and insisted that the new democracies of the Arab world should adopt strict free-speech laws. From the standpoint of the democratically elected, Islamically oriented politicians who dominate the constitutional processes in Egypt and Tunisia, the president's suggestion must have seemed preposterous.

They are not alone. The vast majority of countries around the globe have laws that prohibit hate speech. And even if the anti-Islamic film "Innocence of Muslims," which has sparked protests throughout the Arab world, would not have violated some hate-speech laws, most governments would still find ways to suppress the speech of those protesters who found the film so offensive. Compared with almost every country in the world, the United States is an outlier when it comes to free expression.

Our Supreme Court does not interpret the First Amendment absolutely. Speech that is judged highly probable to incite imminent violence can be banned. But that standard has traditionally been applied only to speakers who are directly inciting the audience in front of them. And it has generally been applied to speakers who were encouraging the audience to violence on behalf of a cause that the speaker shares -- not to speakers who are provoking the audience to rage against them.


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Under these standards, speech that offends Muslims abroad -- no matter how nasty and provocative -- would be protected by the Constitution. Not only would violence be distant and of uncertain probability. It would also be directed against the speaker. Banning speech because of the danger of such a reaction would create what is sometimes called a "heckler's veto," highly disfavored by our law.

After the deaths of more than 50 people, do we need to revisit our free-speech norms?

Two years ago, Supreme Court Justice Stephen Breyer shocked free-speech lovers when, during an interview about a book he had just published, he suggested in passing that our free-speech laws might have to be changed in the era of instant global communications. Breyer's prophetic comments were inspired by anger in the Muslim world about possible Quran burning in the United States.

Today, in the wake of attacks on U.S. embassies and the killing of a U.S. ambassador and three other Americans in Libya, Breyer's offhand observations need to be taken seriously.

 

In principle, it should not be more difficult to predict the likelihood that an audience abroad will respond violently to a given statement than it should be to predict that a crowd gathered in front of the speaker will respond violently. At present, we rely on the informed judgment of law-enforcement officers who are on the scene, watching both the speaker and the audience that is on the verge of exploding. It seems possible that law-enforcement officers who were sufficiently well-informed about conditions elsewhere could make a similar judgment about a YouTube video.

The difficulty is in measuring the immediacy of a reaction taking place far away from the speaker. The law requires not only high probability but also imminence. Who is to say exactly when a group of people will watch a speech that took place in another land, organize themselves into a crowd and commit violence? Perhaps if the speaker were seen live and the crowds were already gathered, we could imagine blocking remote speech without compromising on our values. But that's a far cry from a Web posting that is sent out into the ether in the hopes that it will find an audience. And it certainly does not apply to speech that is calculated to offend listeners rather than to encourage them to protest.

Yet we should also acknowledge that the Supreme Court has recently compromised free-speech principles in the area of terrorism. In a 2010 decision, Holder v. Humanitarian Law Project, the court upheld the federal law that criminalizes speech that materially supports terrorism. That case involved human rights groups who wanted to teach nonviolent advocacy techniques to Kurdish nationalist groups who were on the State Department's terrorist list.

The court said that the law could prohibit speakers from advising terrorist groups on how to advocate peacefully in lieu of violence. To reach this conclusion, the Supreme Court simply sidestepped the traditional speech-protected rules for incitement. The implication was that speech supporting terrorism deserved its own legal regime.

Justice Breyer dissented from this decision, bemoaning the court's failure to consider the usual rules. He clearly doubted that the peaceful advocacy resembled incitement. But the result suggests that the Supreme Court is, in fact, willing to find creative ways to deal with serious threats to public safety.

 

President Obama's free-speech rhetoric was inspiring. It remains to be seen if emerging realities of transnational responses to domestic speech will make that rhetoric eventually look dated.

Noah Feldman, a law professor at Harvard University, is the author of "Fall and Rise of the Islamic State" and "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices."

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