Radioactive Speech

“Congress wants these organizations to be radioactive.”

– DoJ attorney Douglas N. Letter to the Ninth Circuit, oral arguments in Humanitarian Law v. Gonzales, May 1, 2007 (quoted by Adam Liptak in “Right to Free Speech Collides With Fight Against Terror,” New York Times, Feb. 11, 2010)

“The culture of suspicion’s most dangerous feature is the termination of due process after an agency declares a question to be settled by a particular institution’s reading of the security imperative. The fundamental dangers include imprisoning people without recourse to a court and excluding information from a trial that might be important in the creation of a defense.”

– Todd Gitlin, CLS’s “Privacy in the Age of National Security” conference, Nov. 14, 2007

The Obama administration and members of Congress on both sides of the aisle appear to be gearing up to change the course of free speech law as we know it. Under this rapidly emerging paradigm, speech is a potential weapon, and improper use of it can be a crime or even an act of war. They follow their predecessors in wanting the public to see national security as a radioactive zone – one in which the government not only has the exclusive ability to operate in but that the rest of the country dare not enter into. Prosecutions, military decisions, and increasingly pointed rhetoric are being used to mark the limits of this territory.

In June, the Supreme Court, deciding a case that began during the Clinton administration, agreed with the government in finding that advocacy work can be criminal. The Court held that human rights advocates would be committing a crime – material support of terrorism – by providing legal or lobbying advice to groups designated as foreign terrorist organizations, even if that advice is intended to “promot[e] peaceable, lawful conduct.”

Word began to emerge as early as December that Anwar al-Awlaki, a U.S. citizen in Yemen, may have been among the intended targets of a U.S. drone strike. News reports in April confirmed that the “targeted killing” of al-Awlaki – without any sort of trial or chance to present his case – had indeed been approved. (The ACLU and the Center for Constitutional Rights are preparing to file a lawsuit on al-Alwaki’s behalf). While officials have said that his role has gone from being “inspirational” to “operational,” the bulk of the publicly known information about his activity focuses on e-mail messages and YouTube videos. He has also written an article for Inspire – an online, English-language magazine circulated in July by al Qaeda in the Arabian Peninsula – that threatened cartoonists in several countries. In a July 15th opinion piece in the Wall Street Journal, Rep. Peter Hoekstra (R-MI), the ranking member of the House Permanent Select Committee on Intelligence, said that “[i]f the magazine succeeds, our security will be put at further risk.” Hoekstra argued that that it doesn’t matter that the magazine wouldn’t make sense to most people, what matters is how it will influence a handful.

Five days later, Rep. Sue Myrick (R-N.C.), a member of the same congressional committee, said that Samir Khan should have his U.S. citizenship stripped and be charged with material support for serving as Inspire’s editor in chief.

The Obama administration has ramped up prosecutions of government employees charged with leaking classified information, one of which included a subpoena of Times reporter James Risen. And now August brings us a government officials clamoring for a crackdown not only on people who leak classified information, but also on those who made the information available to the public. Following WikiLeaks’s disclosure of tens of thousands of military documents about the war in Afghanistan, Sen. Charles Schumer (D-N.Y.) made clear that the Web site wouldn’t be covered by a proposal intended to increase protections for journalists who rely on confidential sources. “WikiLeaks should not be spared in any way from the fullest prosecution possible under the law,” he said, according to The New York Times.

The Times further reports that Sen. Lindsey Graham (R-S.C.) has also called for WikiLeaks to be criminally charged, and that WikiLeaks founder Julian Assange was told that the government had been considering charging him with conspiracy to espionage. Assange did say, however, that he did not believe that the government planned to pursue the idea.

A prosecution of WikiLeaks could signal that charges may be brought not only against government employees who leak classified information but also journalists, bloggers, and others who publish it. The potential for news reporting to be considered criminal activity would severely hamper the public’s ability to know about what the government is doing in their name, let alone debate its wisdom.

Speech can undoubtedly be dangerous. It seems clear that WikiLeaks’s disclosures have led to the identification of Afghan citizens who have helped the U.S. war effort there, and that the Taliban responded by issuing a wave of death threats and killing at least one person. And we have heard of no credible evidence to refute the assertion that Anwar al-Alwaki has played a role in the radicalization of potential terrorists within the U.S., including the Fort Hood shooter and Faisal Shahzad, who left a car bomb in Times Square in May. Al-Awlaki is also said to have been involved in the Christmas Day attempt to bomb an airliner on final approach to Detroit. (The airstrikes that may have been aiming at al-Awlaki in December came just before Christmas and months before the Times Square bombing attempt, however).

But the effect of criminalizing speech, or even appearing to have criminalized speech, is to shatter the bulwark that allows ordinary citizens to speak their minds. It doesn’t matter that most people are presumably not encouraging terrorist attacks or attempting to radicalize anyone online. It is a foundational tenet of our society that people can’t be thrown in jail for what they say. Once that premise is dismantled – and dismantled publicly, with great fanfare – then it’s popped like a soap bubble. It’s not a question of a slippery slope. The dividing line between speech and conduct either provides protection or it doesn’t. Once that wall is taken down the damage has already been done.

Even in upholding the material support statute, Justice Roberts, in delivering the Supreme Court’s opinion, conceded that the law outlaws speech because of its content. In responding to the argument that the law is unconstitutionally vague, so that people wouldn’t know what they were allowed to say and what they weren’t, the Court held that there was no grounds for confusion in this particular case. “Of course, the scope of the material-support statute may not be clear in every application,” he wrote.

In that ambiguity lies everything.

Not everyone who wants to criticize national security policy or speak out in favor of people who they believe to be unfairly prosecuted will have the luxury of seeking the court’s clarification first. They will be left to wonder about what they’re allowed to say and what they aren’t, creating a legitimate fear of going to jail for writing or saying the wrong thing.

And that’s when speech becomes radioactive, creating a blast area that nobody dare approach. One of the scariest features of radioactivity is that it’s impossible to know where the borders of the safe zone are or when the danger may dissipate. In dissolving the previously recognizable cordon between speech and conduct, the government has knocked everyone else back, creating a realm of national security policy in which they and they alone may enter safely.

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