“Twitter has become one of the terrorist’s most popular platforms,” Representative Ted Poe (R-TX) proclaimed as he opened a hearing on “The Evolution of Terrorist Propaganda: The Paris Attack and Social Media,” convened by the House Foreign Affairs subcommittee he chairs.
Members of the Subcommittee on Terrorism, Nonproliferation, and Trade and four witnesses tangled with the question of how to prevent terrorists from using social media and the Internet for propaganda and recruitment purposes. Several committee members recognized the difficulty of protecting free-speech rights while seeking to deny terrorist groups a platform, but the hearing didn’t seem to help them find a solution.
“This isn’t free speech, this is hate speech,” Mark Wallace, a former Ambassador to the U.N. turned “terrorism expert,” sputtered indignantly when House members expressed some deference to the First Amendment. He claimed hate-speech law is a “settled” matter (it isn’t) and could be used to go after this “hijacking and weaponization of social media.”
Another witness, J.M. Berger, who has studied ISIS use of social media, agreed, citing French laws against anti-Semitism, which he says Twitter obeys. Rep. Joaquin Castro (D-TX) took up the question of hate speech, noting the parallel to groups in the U.S. that used hateful and violent rhetoric to recruit people to attend rallies against immigrant children this summer. He noted that many of those rally-goers were armed.
Rep. Poe decried the fact that terror groups like ISIS “have hosted press conferences, raised money on Twitter and other social media,” likening that to “letting our enemies take out an ad in the New York Times during World War II.” He expressed frustration that the FBI did not prioritize shutting extremist Websites down, because it says they can provide intelligence. He suggested “naming and shaming” social-media sites that allow foreign terrorist organizations to post content.
But Rep. William Keating (D-MA) cautioned that the space where terrorists operate is the same democratic space where society exercises our freedoms. He said that to compromise our free society would in effect be doing the terrorists’ work for them. He quoted from a Bipartisan Policy Center report on terrorism that suggested it is “neither feasible nor desirable” to prevent terror groups from posting to social media, and suggests building partnerships with Internet companies and civil society to make messages of peace more effective.
Rebecca MacKinnon from the New America Foundation offered a framework for arriving at a solution while safeguarding privacy and freedom. Industry, civil society, and the technical community must be included in policy-making discussions, she said. And she stressed that any laws or regulations must be assessed for their risk to human rights, to identify possible negative impacts to free expression, assembly, and privacy. Social-media sites should not be held liable for the speech of their users, and there should be effective channels for grievance and remedy for users who are taken down or censored.
But Rep. Poe was having none of it. He was eager to find a way to apply laws banning material support to terrorists to social-media companies. He cited Holder v. Humanitarian Law Project, a Supreme Court decision which ruled that there is no First Amendment right to give guidance or support to groups designated as foreign terrorist organizations (FTOs). Indeed, the Humanitarian Law Project sought only to train groups to mediate disputes and settle them peacefully. Their intent was peaceful and not to support terror groups, but the Supreme Court reasoned that they might confer legitimacy on such a group simply by working with them. None of the witnesses could advise Poe on that question of law, but Emily Goldberg Knox, editor-in-chief of the Hastings Law Journal, has explored the question in an article, The Slippery Slope of Material Support Prosecutions: Social Media Support to Terrorists.
In line with decades of First Amendment jurisprudence, and the Court’s recognition that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” the government could constitutionally punish speech encouraging specific acts of terrorism. FTO activity on social media, however, is too speculative to warrant a general infringement on the corporations’ First Amendment rights. Additionally, given the length of the “war on terror,” a determination that social media activity warrants censorship—because it is either likely to incite imminent, unlawful action or because it creates a clear and present danger—would quickly lead to the prohibition of other lawful activity. Perhaps David Cole put it best: History shows us that it is in moments of great fear that governments are most likely to target speech and association. . . . Modern First Amendment doctrine . . . was formulated in response to the excesses of the McCarthy era. But when the Court allows unsupported speculation about “terrorism” and disapproval of a speaker’s viewpoint . . . we appear to be repeating history rather than learning from it. Furthermore, prosecuting social media companies under the material support statute would result in censorship by proxy and would have a chilling effect on Internet activity. Fear of prosecution is likely to lead to an overregulation of content on social media sites, which would restrict individual rights and cripple the right to speak freely. However reprehensible we may find the ideology espoused by FTOs, the First Amendment guarantees members, or even nonmembers, the right to freely express their support. Whether speech is “in coordination with” or “under the direction of” an FTO should make no difference.