Source: Huffington Post

By Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law, University of Chicago

In recent weeks, two of the legal scholars I most admire — Cass Sunstein and Eric Posner — have independently called for possible limitations on the scope of First Amendment protection in light of the dangers posed to the United States by online radicalization messages directed at Americans.

Although I certainly understand the concerns driving these suggestions, it is essential that we resist the temptation to restrict our most fundamental freedoms in moment of panic. This is not to say that our nation’s security is not important or that preventing terrorist attacks is not a critical goal. But it is to say that this is not an appropriate way to protect ourselves.

At the core of these concerns is the fear that if ISIS supporters are free to encourage others to join their ranks and to launch terrorist attacks against the United States, we will be less safe than if we could make it a crime for individuals to promote such messages. This is a credible fear. But a credible fear is not a sufficient justification for jettisoning hard-bought constitutional rights.

We have a long history in the United States of compromising our First Amendment freedoms in the face of perceived danger and then later recognizing that we had overreacted, often with dire consequences for individual freedom and for our democracy.

Less than a decade after we adopted the First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech, or of the press,” Congress enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the President, the Congress, or the government of the United States. The purported justification for the legislation was fear of a possible war with France, then the world’s leading military power. The rationale was that, if citizens could criticize the government, then the government would be less able to protect the nation in time of war.

The war never came, but government officials relentlessly prosecuted their critics, in no small part in an unsuccessful effort to retain their power in the 1800 elections. In later years, Congress repealed the Act, the government released those who had been convicted under it, and the Supreme Court declared that the Sedition Act of 1798 had in fact been unconstitutional.

A similar situation arose during World War I, when the federal government enacted first the Espionage Act of 1917 and then the Sedition Act of 1918. As interpreted and applied, these laws once again made it a crime for any person to criticize the government, the war, the draft, the military, or the flag of the United States. In another episode driven by fear, some 2,000 Americans were prosecuted, convicted, and sentenced to prison terms for as long as ten or twenty years for doing nothing more than questioning the morality, wisdom or legality of government policy during the war.

Once again, after all the dust settled, those who were convicted were released from prison and pardoned, and the government eventually acknowledged that its actions had been driven by an illegitimate combination of panic and political expediency. Although the Supreme Court upheld the constitutionality these prosecutions and convictions at the time, in later years the Court recognized that they had violated the First Amendment.

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