The Regulation of Extremist Speech in the Era of Mass Digital Communications: Is Brandenburg Tolerance Obsolete in the Terrorist Era?

Abstract

Both the general theme of this symposium and the specific topic of this panel give me the opportunity to stress how conservative we civil libertarians are! We do not think the Constitution should stay "in tune with the times" by diluting its human rights protections in times that are seen as especially dangerous. And, of even greater weight than what current civil libertarians think, or what current Justices say, is what the First Amendment Framers did: they deliberately omitted a general national security exception. In short, both the plain language and the original intent of the First Amendment belie any post-9/11 exception for any speech.

This is just one of the major reasons why I reject any post-9/l 1 reductions to free speech protection. However, rather than addressing that general issue, I will add the most diversity to our discussion by raising some of the most serious threats to free speech in what has been called our "digital terrorist age." I would also like to draw upon the ACLU's extensive experience in countering seemingly countless erosions of free speech in this so-called "post-9/1 1" era.