Law Professor: ISIS Is, Like, Totally Scary, So Let's Do Away With The First Amendment

from the and-probably-the-4th dept

Law professor Eric Posner is no fan of the First Amendment. Never has been. Back in 2012, he argued that Americans basically need to get over the First Amendment because free speech upsets people. Earlier this year, he argued for restricting the speech of college students because students are children who don't deserve free speech. A few months ago, he also argued that the US should adopt a "right to be forgotten," because sometimes it's better to make speech disappear entirely.

So it comes as little surprise that he's now arguing that we should just dump the First Amendment, because ISIS is, like, super scary, yo.

It has become increasingly clear that terrorist groups such as ISIS can extend their reach to American territory via the Internet. Using their own websites, Twitter, Facebook, YouTube, and other platforms, they lure young men and women to their mission—without having to risk the capture of foreign agents on U.S. soil. The Americans ensnared in ISIS’s net in turn radicalize others, send money to ISIS, and even carry out attacks.

Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way—and by this I mean ideas that lead directly to terrorist attacks that kill people. The novelty of this threat calls for new thinking about limits on freedom of speech.

Posner's proposal? Make it a crime to even visit a website that supports ISIS or to make any vaguely pro-ISIS statement:

But there is something we can do to protect people like Amin from being infected by the ISIS virus by propagandists, many of whom are anonymous and most of whom live in foreign countries. Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. Such a law would be directed at people like Amin: naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.

He admits that this might interfere with actual research about ISIS, but says there can be an exemption for those with a "legitimate interest" which he defines as credentialed members of the press or those with academic associations. Of course, he then notes that, obviously, such law would violate the First Amendment. But, no problem, he says, let's just dump that... noting that prior to the 1960s, we never really took that whole First Amendment thing all that seriously anyway, and then cites a bunch of horrifically awful examples from history of the US not respecting free expression -- basically using some of the most embarrassing examples of our past to argue that we should go back to that sort of barbaric view of the world:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a third column with recruits. The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

We do not currently face a national emergency comparable to a world war, but anti-propaganda laws may nonetheless be warranted because of the unique challenge posed by ISIS’s sophisticated exploitation of modern technology.

There are, of course, all sorts of problems with his argument -- not that I think he shouldn't be allowed to say it and reveal to the world his own issues. First off, it presumes, without any real evidence, that ISIS propaganda is actually effective. Multiple studies have shown this is simply not true. Nearly all recruitment into ISIS happens within established social circles, where people already know each other -- not because of ISIS tweeting out beheading videos.

Second, it's become something of a cliche to use the argument "that's exactly what ISIS/terrorists want..." but it really does seem to fit here. Scaring the living daylights out of "public intellectuals" so that they compromise the very principles on which their society is built on, seems like the pretty clear goal of terrorism. So, step on up, Eric Posner, you're posting pro-ISIS propaganda now. Under your own proposed law, you may have just committed a crime.

Third, it way overestimates the "threat" of ISIS. I am not saying that ISIS is not a legitimate threat to cause some damage, but of all the threats we've faced over the years, this is the one that we suddenly dump the First Amendment over? Really? Especially when there's no real evidence that its propaganda is effective at much beyond scaring the pants off of pretend intellectuals?

Fourth, are we really so weak minded and weak willed that people can't look at ISIS propaganda and realize "holy crap, those people are crazy" -- and that such information needs to be blocked? We've spent decades highlighting how attempts to suppress and block speech tend to do the opposite. It makes those whose expressions are blocked more resolved to speak out and also makes them feel more powerful, believing they've somehow "scared" those they're speaking against.

Fifth, why shouldn't we see what they say and then respond to it and highlight why it's barbaric and wrong? Or, at the very least, to have a better understanding of who we're dealing with. Trying to hide and stifle their speech doesn't do much in terms of better understanding the enemy.

Frankly, this really seems like Posner just looking for yet another excuse to wipe away the First Amendment. And we won't even get into the fact that he's no fan of the 4th Amendment either...

Filed Under: eric posner, first amendment, free speech, isis, propaganda

Chicago Law Professor Claims No Privacy In Your Emails, As Long As The Content Isn't Used To Detain Or Harass You

from the oh-really? dept

Eric Posner, a law professor in Chicago and a full-blown supporter of extreme authoritarian governments (he's even written a book about why the US presidency needs more power and less respect for the Constitutional separation of powers), is, not surprisingly, a big fan of the NSA's surveillance efforts. In the past, he's mocked Snowden and Manning, and talked up why a government that keeps secrets is better than one that's actually accountable to its public. In other words, he's the perfect stooge to try to come up with a justification for Rep. Mike Rogers' ridiculous claims that your privacy isn't violated if you don't know about it.

His latest article isn't directly a justification for that statement -- in fact, it doesn't even mention it -- but it's clearly cut from the same cloth. He makes the argument that the NSA should keep spying on all foreigners in part because they spy on us (and also because he thinks we're good at it). However, he also has a rather unique interpretation of privacy:

Mass surveillance—where emails and other communications are vacuumed up, stored in databases, and then searched for keywords—doesn’t harm anyone in itself. The problem only arises when the information is used to detain, interrogate, or harass people.

He's using this bizarre and laughable line of argument to suggest that it's okay when governments spy on citizens in other countries because their "intelligence agents do not have the time or inclination to harass random Americans, nor the capability as long as Americans remain in the United States." So, in his mind: no privacy violation happens.

He doubles down on this thinking later, arguing again that if there's no known "harm" to the individual, there's no privacy issue at all.

Suppose that the NSA collects the emails of foreigners and conducts searches of them for keywords. Occasionally a false positive turns up, and an analyst reads someone’s email to his lover, therapist, or doctor, ascertains that the email contains no information that identifies terrorists or other security threats, and deletes it. The writer of the email never finds out, and the analyst of course has no idea who this person is. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears a snatch of personal conversation on the bus.

Of course, how hard is it to reword that paragraph just slightly, to demonstrate the insanity of Posner's claim?

Suppose that some hackers collect the emails of Eric Posner, and conducts searches of them for keywords. Occasionally a really embarrassing one turns up, and the hacker reads about Posner's sexual proclivities, financial difficulties, medical problems or similar such things, ascertains that the email contains no information that identifies crimes that Posner is planning to commit and deletes it. Or maybe he saves it for use at a later date. Or to share with a friend. Or a lot of friends. Posner never finds out, and even though the hacker knows who Posner is, he'll never see him in person. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears Eric Posner talking on a bus.

Posner's basic assumption is flat out crazy. He's arguing that there's no privacy violation until something bad happens with the information, not when it was seized, and not even when it was perused by human eyes -- but only when something nebulously bad happens with it. That makes no sense. The violation comes much earlier. There is real harm in having your information exposed, even if you don't know about it.

Beyond the fact that Posner is simply wrong about when the privacy violation occurs, even if we accept his wacky argument, he's still wrong. That's because he's making two giant assumptions. First, that such information isn't abused. He pretends that "national borders" protect spying on foreigners because you can't do something legally to a person in another country. I would imagine that people killed by US drone strikes might disagree with that assessment. He also argues it's unlikely that there would be many abuses of this information, because any abuses would harm the spying country and its spies once they came out. Pretty much all of civilized human history suggests that's wrong. Give people power, as Posner is aching to do, and they abuse it. Over and over again. But, I guess he's okay with that, just as long as he never finds out about it. Dictatorships and ignorance are bliss!

Filed Under: emails, eric posner, nsa, privacy, surveillance