Here’s another glorious contribution to the “ISIS-is-coming-so-let’s-turn-our-brains-off-in-abject-terror-and-think-of-more-rights-to-violate” literature. This one is by Eric Posner, son of Richard Posner, and evidence for the old saw that some apples fall in close proximity to the trees whence they came.

Eric Posner’s suggestion? Let’s pass a law that criminalizes the act of accessing an ISIS website, on the premise that ISIS’s propaganda has the causal powers of a cognitive virus that incapacitates people’s minds and drags them involuntarily into terrorist acts.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. … The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences.

But don’t worry: exceptions “could” be made

for people who can show that they have a legitimate interest in viewing ISIS websites. Press credentials, a track record of legitimate public commentary on blogs and elsewhere, academic affiliations, employment in a security agency, and the like would serve as adequate proof (my emphases).

What are the chances that “legitimate” and “the like” can be defined in a non-circular way?

And what about people without press credentials, etc.? What about people just starting out in “public commentary,” and therefore lacking a track record? Or people with a sense of curiosity, idle or otherwise, who would simply like to get a first-hand knowledge of what ISIS is about, rather than relying on “experts” picked by “the likes” of Eric Posner? Do non-credentialed people no longer have rights to free speech, or are rights reserved to a special, arbitrarily defined elite with credentials that demonstrate their worthiness to have them?

The latter, evidently. Any remaining worries can be dispatched by that old jurisprudential stand-by, “the balancing test.”

A simple balancing test would permit laws to target dangerous speech that does not advance public debate.

“A simple balancing test”–so simple that every attempt at applying such a test raises more questions than it answers, even if we arbitrarily decide that all jurisprudence must be conducted on utilitarian-consequentialist assumptions. Apparently, public debate about ISIS is not advanced by citizens’ having first-hand evidence of the nature and content of ISIS propaganda. The only permissible evidence is evidence filtered through people with “a track record of legitimate public commentary” on the subject–where “legitimacy” is presumably defined and decided by “like”-minded people with the same credentials.

Posner forgets that the legislators who are tasked with drafting his crackpot law will need access to the banned sites in order to know which sites to ban. But legislators are not on his exception list. Neither are their staffs. Neither for that matter are jurists, prosecutors, law enforcement officers, or juries. The whole idea that law involves an orderly, principled process seems not to figure in his calculations.

How his law is to be written, enforced, or judged is therefore left a mystery. One possibility is that criminal defendants will be arrested or tried by journalists, academics, or bloggers. Another, I suppose, is that the relevant legal processes will take place by telepathy. A third possibility is that “we” dispense with legal procedures and trials altogether, criminalize access to any site that fits an “ISIS-relevant algorithm,” monitor Internet access at will, arrest anyone who accesses a banned site, and treat access to a banned site as a strict liability offense so as to simplify the process of conviction. It sounds like a reductio, but with a proposal like this, a reductio is just another entailment alongside all the others.

If you think I’m reading Posner uncharitably on the grounds that his weasel phrase “and the like” was intended to cover bloggers and law enforcement officers (legislators, judges, prosecutors, juries…), ask yourself how you would feel if someone demanded to search your home on the basis of his or her affiliation with a blog or online publication, be it BHL, Notes on Liberty, Talking Points Memo, Daily Nous, Slate, or even Policy of Truth. If you asked what the hell they were doing, it wouldn’t help for them to invoke their “likeness” to law enforcement officers. But then it won’t do to invoke the “likeness” of law enforcement officers (etc.) to bloggers while claiming that a reference to the latter ought implicitly to be construed as a reference to the former.

There is, by the way, no reason why academics or bloggers should be less susceptible to seduction by ISIS than anyone else, unless you stipulate in ad hoc fashion that the academics and bloggers who will have access are restricted precisely to those least susceptible to influence-by-ISIS. In that case, you’d probably want to restrict my access before you restricted most other people’s. If ISIS targets bored and angry people of vaguely Muslim sensibilities, beware of the vaguely Muslim academic who has spent time in Palestine, Pakistan, and Saudi Arabia; has suggested that Locke’s Second Treatise can be given a Hamas-friendly reading; and who still has piles of grading to do after everyone else at the university has left for break.

Many able commentators have knocked down this or that feature of Posner’s argument on moral, constitutional, legal, and logistical grounds. I would simply point out that the argument relies on metaphors that would need to be cashed out in literal terms for the argument to get off the ground. At a minimum, we would need some empirical evidence for the claim that ISIS websites have the causal powers of a virus, that the virus in question incapacitates otherwise non-culpable minds, and that in doing so, it drags these helpless innocents into sinister terrorist or terrorist-abetting actions they couldn’t otherwise have committed. I’m afraid I don’t really believe any of that, and don’t see any reason to believe it, either.

What I find more plausible is the hypothesis that terrorism and the wars supposedly waged on it have so weakened the critical powers of our commentariat that they fear, possibly with justification, that they lack the capacity to refute what ISIS has to say. Unable to refute the propaganda, and unable to conceive its appeal to those to whom it has appeal, they feel impotent to contribute to a war effort that they have, on the basis of little more than rhetorical self-mesmerization, turned into a categorical imperative for all of us. But they feel the pressing need to do something. So day by day they produce what they like to think of as novel proposals for eliminating this or that right in the futile hope that the fewer rights we have, the more security we’ll enjoy. As for the task of offering a justification for the war “we’re in,” or the hysteria, rights violations, or state-worship it seems to necessitate, don’t hold your breath for an answer, or even an attempt at one. They’re AWOL on all that.

Eight years ago, I wrote a very critical review of Richard Posner’s book, Not a Suicide Pact: The Constitution in a Time of National Emergency. Several years later, on re-reading the review, I almost wondered whether I’d been too rude or harsh about things. I ended it with this thought:

Posner is right to say that the Constitution is not a ‘suicide pact.’ I wonder, however, whether that phrase might not accurately describe the jurisprudence he defends in his book.

I thought long and hard before I committed those sentences to print. Was I being too snide? Too clever by half? Was I exaggerating?

Re-reading the review now, however, I’m really glad I wrote what I did, how I did. Virtually every move in Eric Posner’s article is one originally made in Richard Posner’s book; the son has simply recycled the father’s adhocrocratic prescriptions and given them a contemporary twist for the current mood.

It occurs to me with a bit of middle aged weariness that this particular malady–apocalyptic rhetoric about the unprecedented danger we face from terrorism, followed by a regrettably unavoidable proposal for more rights violations–is fated to pop up at semi-predictable intervals of our public life, like outbreaks of the measles virus or the re-emergence of the cicadas. I guess that fact implies in turn that some of us are fated to respond over and over again to such proposals in what often seems to others like a histrionic way, like a pedantic version of Nietzsche’s Zarathustra engaged in a finger-wagging version of the eternal recurrence.

Well so be it. It is, I’ll admit, boring to read or even write the nth sounding of the alarm over threats to free speech. I can testify from personal experience, however, that there is one thing more boring still–life under a regime of censorship. It’s a bore to sound the alarm, but it’s more boring not to be able to. A “simple balancing test” suggests which bore is preferable to the other.

Postscript, December 29, 2015: I found Eric Posner’s arguments so ridiculous that I almost wondered whether I over-reacted in writing about them at all. No sooner do I have this thought than along comes an article in The New York Times devoted not just to Posner’s Slate piece, but to variants on the theme expressed, among others, by Cass Sunstein and Jeremy Waldron.

Sunstein’s views are laid out in this short piece at Bloomberg View. The first thing to say is that it’s not on the same topic as Posner’s. Posner wanted to criminalize access to ISIS-glorifying websites, even by people who may have no sympathy for ISIS at all. Sunstein is (much more reasonably) discussing the limits on the endorsement of potentially violent activities by those endorsing it.

In particular, he questions the “clear and present danger” test, suggesting that it’s worth asking whether the test is “ripe for reconsideration.” He ends up with this formulation:

If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not.

I don’t have a strong objection to that formulation, but it’s a long way from Posner’s view, and it’s also a long way from being clear enough to be susceptible of a response. What it needs and lacks is an account of what it is for a speech act to “produce a genuine risk to public safety”–a tall order.

A speech act can in some sense “produce a genuine risk to public safety” without inciting anything. If what I say fills a large number of people with rage, you might say (misleadingly) that my assertion that p “produced” the rage that (say) led to a riot, whether or not I incited it in the sense of explicitly calling for it. But from a different perspective, the speech act didn’t “produce” anything except speech. The crowd considered the sound and acted on it, and each individual in the crowd produced the riot. In one sense, then, “produce X” means “raise the probability that X will happen.” In another sense, “produce X” means “intentionally bring X about, or try to bring it about.” It’s not clear which one Sunstein means. If he means the latter, I can agree with him, but not if he means the former.

On the latter interpretation, the suggestion I would make would be to regulate incitement by analogy with assault and/or conspiracy. If I incite violence, my act should be legally actionable just in case it credibly calls for violence against some particular victim, the victim credibly fears a threat on the basis of this call, and the threatened act would violate the criminal code (=violate rights). Celebrating a murder wouldn’t do it, even if you called in the midst of the celebration for more killing. Neither would this shit, vile as it is. (The correct way of handling something like the preceding would be for the guardians of the mosque to deny the speaker the right to speak in the it, i.e., to throw him out, not to arrest him.) I think it’s obvious that we don’t want to say that an Ayaan Hirsi Ali, Theo van Gogh, or Salman Rushdie et. al. should be held responsible for the overwrought reactions people have had to their work, even if the work in question is thought to “incite” (i.e., elicit) violence by its “inflammatory” or “incendiary” style.

In many cases, it seems to me that the dangers Sunstein mentions can be averted by assiduous enforcement of weapons laws, and also by demanding that political protest be regulated so that it’s confined to a specific place and time. If people want to gather in a park, with a permit that confines them to the park for a certain amount of time, and call for the overthrow of the U.S. government–or the mass slaughter of Jews, Muslims, or atheist philosophers–while they’re there during that time, that’s fine. But if they call for those things as they leave the park en masse with a view to enact the overthrow, that’s a different story. And a demonstration with weapons is another story as well. (It’s a tremendous irony that critics of Islam object to the face-concealing features of the hijab, but show up at armed protests against Muslims wearing masks.)

It’s also not clear from Sunstein’s account what counts as a genuine risk to public safety, or even what’s meant by “public safety” in a day and age when college students demands “safe spaces” from ordinary political speech. But that said, Sunstein’s view are light-years away from Posner’s.

Waldron’s views are more obviously objectionable than Sunstein’s (and apparently laid out in his 2012 book, The Harm in Hate Speech).

“I argued, in the adjacent area of hate speech, that the clear and present danger test is inadequate,” Mr. Waldron said in an interview. “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”

Well, you can “poison the atmosphere” simply by committing the fallacy of poisoning the well–or by committing almost any ad hominem fallacy. Would Waldron want to say that the commission of ad hominem fallacies should be illegal? I have trouble believing that the preceding quotation expresses Waldron’s considered view, but taking it at face value, as stated in the Times, I find it ridiculous. If “poisoning the atmosphere” were enough to trigger legal action, virtually the whole Republican presidential slate would have to be put under arrest, followed by whole college campuses.

I agree with Posner, Sunstein, and Waldron on one thing: legal thinking on incitement is a mess and could use some rethinking, though not I suspect in the direction they seem to want to take things.