Excerpts from “Free Speech for Terrorists?”

Words as Weapons:

“With an enemy committed to terrorism, the advocacy of terrorism—the threats, the words—are not mere dogma, or even calls to ‘action.' They are themselves weapons—weapons of incitement and intimidation, often as effective in achieving their ends as would be firearms and explosives brandished openly.”

Al-Manar's Threat:

“Al-Manar is a sedulous propaganda machine, designed to foment violence against Israel and the United States and meant, as one of its officials unabashedly told Jorisch, to ‘help people on the way to committing what you call in the West a suicide mission.' Nor is this ‘help' faceless: Hizballah Secretary General Hassan Nasrallah himself frequently appears, calling for ‘death to America.'”

What the U.S. Should Do:

“The shutdown of al-Manar here would be compulsory and permanent rather than voluntary and tenuous if the State Department were to take the more meaningful step of designating it as a foreign terrorist organization, or if the Treasury Department were to add al-Manar to its list of specially designated global terrorist organizations. Such designations would lay the legal groundwork for freezing al-Manar's assets, barring financial transactions with it, and rendering liable for U.S. prosecution anyone anywhere who provided material support to the station.”

The Civil Libertarian Defense:

“Given that this is no ‘abstraction'—terrorists are in fact killing Americans and energetically scheming to kill more—one would think such steps would be straightforward. But they are not. Al-Manar is not just any organization supporting terrorism, like a charitable front or a money exchange. It is a media outlet. Therefore, civil libertarians are mobilizing, insisting that the station's advocacy of barbarism is simply speech, purportedly making its special contribution to the great marketplace of ideas.”

A Simple Test:

 “To the extent that we need to factor in the imminence of a threat, Learned Hand's formula, ‘the gravity of the ‘evil' discounted by its improbability,' should serve us well. The evil here could not be graver, and it is beyond calculations of probability—this enemy has killed repeatedly, and promises to kill anew.”

Conclusion:

“In America's bumptious, bounteous marketplace, there are no limits on words as the building blocks of ideas, or on ideas as the legitimate instruments of persuasion. Terror has no place in such discourse. It is the function of law to express our society's judgments. Ours should be simple and humane: words that kill are not words we need abide.”