Bopfederal inmatesUniversity of Chicago Prof. Eric Posner, the fourth most-cited law professor in the U.S. as of May 2014, says the U.S. government may need to jail you after enough warnings if you even read an ISIS Web site.

Posner does not mention ISIS e-books by way of the E word, but it’s hard to see why they would not be covered in the final version of a law that he urges Washington to consider.

One also wonders what the same mindset could mean for libraries of all kinds, including the paper variety.

In a Slate article, Posner proposes to make 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.”

He says the law’s targets would be “naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.

“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. The idea would be to get out the word that looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden. As word spread,” the  naïve “would be discouraged from searching for ISIS-related websites and perhaps be spared radicalization and draconian punishment for more serious terrorism-related crimes.

“The law would not deter sophisticated terrorists who send one another encrypted messages. That’s not its point. ISIS seeks to recruit Americans on American soil; in order to recruit from the public, it obviously cannot act secretly. It must instead broadcast widely and rely on surrogates to broadcast widely, in order to reach an audience of nonradicalized Muslims. This is a vulnerability. When people discover ISIS websites and circulate them by Twitter, Facebook, and other public websites, those people often disclose their identities. Many are too naïve to use pseudonyms; others reveal their identities to their ISPs, which can be forced to cough them up to police. Teenagers who are curious about ISIS but not yet committed to it are unlikely to use complicated encryption technologies to mask their identities from ISPs. Laws directed at this behavior would make a dent in recruitment, and hence in homegrown radicalism, even if they do not solve other problems.”

ericposnerPosner acknowledges the constitutional obstacles based on court decisions going to the 1960s (example here) but he notes that “before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a third column with recruits. The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.”

Yes, ISIS is a threat. But do we really want to go by the overkill of the past, such as the World War II era, when the government was herding even patriotic Japanese-Americans into camps? Consider also that for PR reasons, if nothing else, Facebook and the like aren’t exactly eager to be known as havens for ISIS. We don’t need laws in this case to incentivize them to take down terrorist rants.

Of course, many and perhaps even most of the ISIS sites are beyond the control of U.S. Internet companies. But here’s a proposal for that could address that issue, too—namely, decent treatment of America’s nonelite, Muslim youth included, so they are less vulnerable to terrorists’ outreach. If nothing else, consider what we should stop doing. Why did a Texas school have police arrest young Ahmed Mohamed for showing off a digital clock made from a pencil case? If we want to turn nerds into terrorists, this is a pretty efficient way to do it. On the positive side, how about more money for outreach to youth in a variety of forms—for example, cell phone book clubs—that would address their needs and interest and bring them closer to the mainstream of American life. More Muslims working as teachers and librarians and providing role models, could also help, long term. As it happens, even Hispanic and African-American librarians are rarer than they should be. Far better we aim for assimilation and inclusion than go Posner’s route. And, no, I’m not talking about Muslims giving up their religious and cultural identities. The American Islamic Congress, for example, could promote the creation of cell phone book clubs that taught both technology and accurate interpretations of Muslim teachings while enticing prospective members with popular culture deemed appropriate.

But wait. Why bother with such alternatives to censorship? Did you really think that Posner’s proposal reading restrictions would apply to everyone? If you’re an elite academic or journalist or other researcher or expert, you needn’t worry. Whew! The law “could contain broad exemptions 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.” Thank you, Professor, but we already have enough de-facto licensing of the press by the U.S. government, First Amendment be damned. I’m a lifelong liberal Democrat and Obama supporter, I’ve appeared in the Washington Post, the Baltimore Sun, the Nation and even its philosophical opposite, National Review (William F. Buckley Jr. and I just happened to see eye to eye on the need for an Electronic Peace Corps), but the White House switchboard would not even connect me to the press office when I was seeking possible comment on library-related matters.  No government-recognized affiliations—and do I really want to trust Washington to evaluate me in other ways? Thank you very much, Professor, but neither you nor anyone else should tell me what I can even read. Furthermore, how to enforce such restrictions? Will Washington need to track people by IP addresses or other means?

I know: Posner’s proposal at this point is nothing more than that—a proposal. But keep in mind that Donald Trump, the most popular presidential candidate among the Republican faithful as of this writing, is even calling for a suspension of Muslim immigration into the U.S. Alas, Posner is far more respected within law than Trump is within politics. Simply put, Posner’s proposal is one whopper of a bad idea that deserves widespread condemnation now, before the standard policy hacks in D.C. consider and perhaps even embrace it.

Update, 9:10 a.m.: Welcome, Slashdotters!

(Bureau of Prisons photo.)



  1. It shows a gross ignorance of history of ideas. We’ve had panics about ideas before. The Anarchists almost paralysed political thinking back in the 1800s with the fear of terrorism and assasinations. But eventually the anarchists evolved into the bookish small l socialists of today (And in the US, even developed a capitalist variant, paradoxical as it is). The communists again frightened the bejezus out of western governments but eventually , that threat faded away and people realised it was just an idea. Just a plain immaterial idea that has no power unless its *implemented*. Even fascism, which has nary a single thing in its favor ultimately is just an implementation of an idea.

    The thing is if we ban the idea, how are we support to reason about the implementation (and why that impementation is bad or evil) if we dont have a concept to attach to it.

    ISIS might be evil, but its an implementation, not an idea.

  2. Hear, hear! When a person whose opinions are as quoted and respected in his field as Mr. Posner’s are “proposes” trampling all over other folks’ civil rights, it can too soon mainstream the idea into acceptability in certain circles. Perhaps Donald Trump can simply close that part of the Internet, hmmm?

  3. We can suspect that Posner is so often-quoted exactly because he makes dumb-assed statements like this; designed to appeal to the Right-Wing media which then devours such dreck and regurgitates it all over the web.

    More to the point, the University of Chicago ended its relevance about the time it hired Milton Friedman and the Neo-Con crowd took over the joint. That was a *long* time ago.

  4. @Bridget: Let’s hope that even the standard suspects can understand what a nutty proposal this is.

    @Bud: Alas, I think we’re really talking about legal journals. That said, corporate money is everywhere, and one wonders how many journals may have been compromised. Perhaps of far greater importance, so many major judicial appointments have gone to right-wingers whose decisions will sooner or later influence legal scholarship. I am not a lawyer, so this is just a guess on my part; perhaps an insider can speak up. One way or another, it reflects very badly on the legal profession and academia that someone like Posner can command so much influence.

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