My piece in Slate advocating an anti-propaganda law garnered little enthusiasm. A few themes emerged. Some critics deny that ISIS poses a serious threat. That may well be true, as I acknowledged. One wouldn’t want to pass laws that counter a threat that does not exist. Others warned that it is easy to overreact, as I also acknowledged. However, my major concern was not ISIS but the new technology environment in which we live. The question, which no one seems to want to address, is whether social media and other forms of Internet-based communication create opportunities for radicalization that pose a threat to public safety. People have finally gotten around to admitting that the Internet poses a threat to privacy. I think in a few years the radicalization risks posed by the Internet will be too obvious to ignore. (Incidentally, law enforcement does not ignore the risks, nor do people who think about security for a living.)
Otherwise, the critics fall back on three generic arguments. One is that people who are sufficiently determined will be able to evade the anti-propaganda law that I proposed. The generic version of this argument is that no law that can be evaded is worth enacting. If the argument were accepted, then no laws would be enacted. While it’s true that some laws are ineffectual because they contain loopholes or rely on vague definitions, that’s hardly a reason for abandoning the effort altogether. It is in the nature of radicalization that at an early stage a person does not yet believe the doctrines to which he later commits himself. The purpose of an anti-propaganda law is to catch people at this early stage, before they find it worthwhile to take steps to conceal their identities. For that reason, evasion is not as serious a problem as it is in most other areas of the law.
The second is that it is simply impossible to draw a line between propaganda and legitimate political speech. That’s why I argued that the law should ban relatively concrete actions like linking to websites that are sponsored by or otherwise closely associated with ISIS. Line-drawing is a ubiquitous problem in legal regulation. The unavoidable arbitrariness of drawing lines has never been an argument against doing so, not even in the area of freedom of expression, where line-drawing is ubiquitous.
The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule. Time, place, and manner restrictions could easily be expanded into a regime of effective censorship, but never are. To the contrary, protections for freedom of speech have never been stronger. If there is a slippery slope, it has gone in the other direction, with a conservative Supreme Court strengthening freedom of expression in areas like campaign finance and commercial activity in the last several decades, building on protections for political and artistic expression that were created by a liberal Supreme Court in the 1960s. If we could ban slippery slope arguments, the quality of public debate would be vastly greater.