H2H: Are Civil Libertarians Too Willing to Sacrifice Innocent Human Life?
I’d like to begin, Dick, with your most recent book, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform. (By the way, for those readers who haven’t read Uncertain Shield, it is a terrific analysis of the successes and failures of intelligence reform since 9/11). In this opening post, I’d like to focus on an observation you make in Uncertain Shield, somewhat peripheral to the central thesis of the book, but of great interest to me. (I suppose that’s the advantage of going first.)
After criticizing “one prominent American civil libertarian” for his willingness “to pay a considerable price in innocent human life in order to vindicate an absolutist conception of civil liberty,” you maintain that “civil libertarians close their eyes to the rather obvious point that the more civil liberties, the more attacks – and the more attacks, the fewer civil liberties.” This reasoning rests on the assumption that protecting civil liberties causes attacks. In a simplistic sense, this may be true. If “radical imams” are allowed to preach “the glories of suicide attacks,” or if the National Security Agency is prohibited from reading email without probable cause and a warrant, the risk that the U.S. will be subjected to another 9/11-type attack may, indeed, be greater than would otherwise be the case. That’s why we talk about a trade-off between liberty and security. But to make that point doesn’t win the argument. It’s only to starts it. The question isn’t whether freedom has costs, but whether freedom is worth those costs. Otherwise, all freedom goes out the window. More important, the costs of freedom can’t rationally be measured in terms of the increased risk of attacks. That metric makes sense only if we assume that we are already doing everything we can to prevent further attacks and that the protection of freedom therefore increases the risk above this baseline. But as Uncertain Shield brilliantly demonstrates, this simply isn’t the case. To the contrary, as you convincingly show, our intelligence system is largely a shambles, and you suggest many steps we can take improve our security without limiting our freedom. Viewed in this light, it should be clear that when we grant constitutional protection to free expression or privacy or whatever we are not necessarily increasing the risk of attack, but focusing attention on how best to manage that risk. We are saying that to achieve a desired level of security the government should focus, for example, on reorganizing our intelligence system or spending more to secure our borders, rather than on suppressing speech or invading privacy. The cost of these freedoms is therefore properly measured not in terms of an increased risk of attack, but in terms of the cost of using other means to control the risk. So, Dick, it’s unfair to suggest that civil libertarians are “willing to pay a considerable price in innocent human life in order to vindicate an absolutist conception of civil liberty,” because that isn’t the real-world trade-off. Civil libertarians are no different in this respect than those who support tax cuts or increasing the salary of judges. It’s misleading, although commonplace, to argue that the critical trade-off is between liberty and security. This leads me to a related point. How do we assess the “cost” of a limitation on our civil liberties? How much should we care, for example, if the government criminally punishes the radical imam who condones or glorifies terrorism? As you know, Dick, my view is that in the realm of political (or religious) discourse, the First Amendment should be interpreted as prohibiting the government from punishing an individual for speech that might cause others to engage in unlawful conduct unless the speaker expressly advocates immediate unlawful conduct and such conduct is likely to occur immediately. I would therefore protect even the radical imam whose preaching, however distasteful, does not meet these requirements. As you note in Uncertain Shield, this also seems to be the position of the Supreme Court. In Uncertain Shield, you declare that those who endorse this view are in “denial,” because they ignore the “benefits to public safety” of stifling such speech. But I would then ask you, Dick, whether you are in “denial” because you fail to consider the benefits to democracy of allowing such speech. Exactly who would you punish? Anyone who glorifies or condones terrorism, or only imams? What does it mean to glorify or condone terrorism? Does a book arguing that terrorism can be morally justified fall within your rule? What about a blog attacking the president for authorizing torture? A magazine that publishes photographs of American soldiers killing Iraqi civilians? Frankly, Dick, I have no idea what speech would be protected and unprotected in your universe. You might say that most of my examples don’t literally constitute “glorifying or condoning” terrorism. But that’s no less artificial than a rule requiring “express advocacy of law violation.” Both categories can easily be circumvented by the clever imam. But at least my rule is reasonably clear. Your rule (and I’m not actually sure what your rule is) would let prosecutors, judges, and jurors run amok, with no clear guidance about what speech is and is not protected. And there are other problems. Does your “rule” apply only to terrorism? What about speech that glorifies or condones violence and adultery (The Sopranos) or drug abuse (Fear and Loathing in Las Vegas). And what about violent videogames? As I recall, you wrote a wonderful opinion holding unconstitutional a law providing that minors could not play such games without parental permission, even though they clearly glorify and condone brutal violence. Suppose a videogame glorifies terrorism? O.K. Your turn.