To the Editor:
In 1925, Justice Oliver Wendell Holmes said, and in some circles became famous for saying, “if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they shall be given their chance and have their way.” In other words, anything goes, and Holmes did not care how it went—or, giving him the benefit of the doubt, the Constitution did not permit him, as a Supreme Court Justice, to care how it went. This is absurd, but it does state the problem facing Andrew C. McCarthy in his essay, “Free Speech for Terrorists?”
Mr. McCarthy would solve it by insisting that there is a constitutionally significant difference between Communism and militant Islam. Respecting the latter, he says, the “nexus” between “advocacy and actual savagery” is an empirical fact. Thus, if advocacy is savagery, or if speech is the deed, it follows that “advocacy of terrorism can be effectively regulated.” In this way, he avoids the problem that certain liberals—those who treat rights as “trumps”—are unable to solve, namely, how to limit a right. For them, if freedom of speech is a right protected by the Constitution, there is no way to limit it. Mr. McCarthy avoids this problem by, in effect, denying that jihadist speech is speech.
Had he chosen to confront the issue directly, Mr. McCarthy might have said that the problem exists for absolutist liberals only because they treat civil rights, like freedom of speech and press, as if they were natural rights, the unlimited rights we supposedly “enjoyed” in the “state of nature.” In fact, of course, we did not enjoy them. Without government, natural rights were insecure precisely because there was no entity to regulate and protect them from the war of “every man against every man.” One of the blessings of government is that it can, by due process of law, regulate what we say and print.
But Mr. McCarthy, wisely perhaps, makes his case for regulation in terms that at least some liberals might find congenial, invoking the celebrated jurist Learned Hand. Before Justice Holmes became a free-speech ideologue, he had formulated in 1925 the “clear-and-present-danger” test according to which speech might be regulated. Thirty-one years later, Hand reformulated Holmes’s test; the key question, he said, was “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the evil.” Mr. McCarthy rightly sees the virtue of this rule: it requires the judge to focus on the evil, to accord it the weight it deserves.
The evil in Hand’s day was Stalinism and its friends in the American Communist party. Liberals of that time can perhaps be excused for discounting, if not the evil, then the possibility of its taking hold in the United States. No one, other than a fool or a knave, could discount the threat facing us today from militant Islam.
American Enterprise Institute
To the Editor:
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