Some legal scholars are asking whether it is time to reconsider the “clear and present danger” standard for curbing the freedom of speech. This is because some “naive” internet users apparently are convinced by Isis articles to get a passport, raise enough money for a ticket, close down their present activities, and move to the Middle East where they then become terrorists and…well, probably get killed. Marquel wondered what would happen if the law were changed. What law? How? He asked an expert.
“What legal change are these people asking for” asked Marquel.
“Just a minor change in First Amendment law.” Said the expert.
“Which change would that be?” Asked Marquel.
“You see, the law has been, created by justice Holmes, that you cannot restrict speech that might be subversive, let’s say, unless the speech, if unchecked, would lead to,”imminent” harm. Future harm is no good. Even one step away from imminency would be insufficient.” He said.
“The problem is the world has changed but the test is still the one Justice Holmes fashioned more than a century ago.” He complained.
“Because the world has changed. Naïve people read ISIS recruitment documents and become terrorists.” He said.
“Exactly! You should go to law school. So we would like the test to be th likelihood of harm or the probability of harm. That way we could shut down these Isis web sites.” He said.
“I don’t think so. Look at Paris.” He said.
“It doesn’t matter. These articles are scurrilous. If they are likely to cause harm, we should be able to police it.” He said.
“That’s very good nineteenth century doctrine. But it has to be updated. It has to be changed.” He said.
Now he was really excited. “Go ahead.”
“Yes. That’s the end of Isis.” He said.
- He was suddenly silent.
- “But I can see Wall Street firms suing Bernie Sanders for saying they should be shut down. It’s likely to cause Wall Street harm. Or even Donald Trump. Could he say the things he says without having somebody claiming he’s likely to harm them?” I asked.
“Oh I doubt a court would entertain such a claim.” He said.
“Well…” He whined.
“Once again, I doubt anybody would take that seriously.” he said.
“Heaven’s no. Not Scientology.” He said.
“Well we’re going to have to deal with this internet problem,” he said.