The growing presence of ISIS and other terrorist groups on social media has triggered lawsuits and sparked debate over what steps should be taken by the government and/or social media companies to restrict this growth.
I just returned from a dialogue hosted by the U.S. Holocaust Museum and Loyola Marymount University on “Fueling Extremism on the Internet” where this was very much part of the debate. Below is an brief segment with David Kaye, Special Rapporteur on Freedom of Expression, United Nations, and Professor, University of California, Irvine, School of Law, addressing the topic.
So it is not surprising that members of Congress have asked the Congressional Research Service to this question, which has led to a new CRS report on the topic.
Many policymakers, including some Members of Congress, have expressed concern about the influence the speech of terrorist groups and the speech of others who advocate terrorism can have on those who view or read it.20 Some policymakers have expressed particular concern regarding the ease by which persons who might otherwise not have been exposed to the ideology or recruitment efforts of terrorist entities may become radicalized. These concerns raise the question of whether it would be permissible for the federal government to restrict or prohibit the publication and distribution of speech that advocates the commission of terrorist acts when that speech appears on the Internet.
The report breaks down into two categories – criminalizing the advocacy of violence versus general advocacy of terrorism. The former may be constitutionally prohibited if the speaker intends to incite violence or lawlessness and such action is likely to imminently occur as a result. Restricting the latter, however, would be unconstitutional.
Relying on Brandenburg v. Ohio, 395 U.S. 444 (1969), the report explains that
laws that criminalize the dissemination of the pure advocacy of terrorism, without more, would likely be deemed unconstitutional. . . . To be sure, some terrorist propaganda depicts terrorist attacks or executions, but terrorist advocacy does not necessarily require someone to be harmed in order for the speech to occur. Instead, the advocacy of terrorism, like virtual child pornography, arguably creates or increases a risk that a crime will be committed “at some indefinite future time.” And the Supreme Court has held that the government may not prohibit speech solely on the basis of that indefinite risk.
The full report is below.