On November 27th, 2006, Newt Gingrich delivered a First Amendment lecture at the Nackey S. Loeb School of Communications, Inc. In the course of his speech, he made this controversial statement:
And, my prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us.
This is a serious problem that will lead to a serious debate about the first amendment, but I think that the national security threat of losing an American city to a nuclear weapon, or losing several million Americans to a biological attack is so real that we need to proactively, now, develop the appropriate rules of engagement.
Since Gingrich still wields an awful lot of political influence, it's a good idea to take a hard look at two questions: What is he really suggesting, and how bad of an idea is it?
On Monday, December 4th, Newt Gingrich clarified his remarks in an op-ed titled "The First Amendment is Not a Suicide Pact."
In it, he further explained his argument:
Former federal prosecutor Andy McCarthy put it best: "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" ...
We need a serious dialogue -- not knee-jerk hysteria -- about the 1st Amendment, what it protects and what it should not protect ... We should be allowed to close down websites that recruit suicide bombers and provide instructions to indiscriminately kill civilians by suicide or other means, or advocate killing people from the West or the destruction of Western civilization ... We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents.
What Gingrich is really proposing, though he has never explicitly said so, is that we resurrect a form of the Sedition Act.
The crime of "sedition," which refers (in the words of the Oxford American Dictionary
) to "conduct or speech inciting people to rebel against the authority of a state or monarch," has never been well prosecuted in this country. Perhaps this is because our country was co-founded by people like Thomas Jefferson, who famously wrote that:
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.
It's hard to imagine a more seditious statement than that, or a more patriotic historical figure than Thomas Jefferson, so we find ourselves in the uncomfortable position of living in a country where it is considered patriotic to accept the legitimacy of sedition. That is very much the philosophy the Founding Fathers had in mind when they proposed the Second Amendment