In the Huffington Post, Geof Stone criticizes my argument that Congress should consider a law that prohibits people from accessing ISIS websites and ISIS-related recruitment social media posts. Geof argues that history shows that the government overreacts to security threats, either succumbing to or exploiting public panic. He makes this argument in greater length in his fine book, Perilous Times. While I have read his book and others like it, I remain unconvinced, for the following reasons:
- It ‘s too easy when looking at historical examples to succumb to hindsight bias. While today it is obvious with the benefit of hindsight that the Red Scare prosecutions and deportations were wildly excessive, it was hardly obvious at the time. In our own memory, we have 9/11, and most of us remember very clearly that it was almost impossible to evaluate the enormous range of possible countermeasures that could have been implemented in the aftermath of the attacks.
- The basic logic of emergency response points toward what will seem excessive later on. The reason is that an inadequate response will cost lives, whereas an excessive response will result in infringements of civil liberties like speech, which–as Geof points out–are almost always temporary. There is a view among many civil libertarians that every time the government introduces a new security measure, civil liberties are irretrievably lost. The ratchet is invoked as a metaphor. Yet the First Amendment is far stronger today than it was ever in the past; today, it is a wrecking ball used not only against security measures, but against campaign finance rules, consumer protection laws, labor laws, anti-pornography laws, and many other rules that in the past were considered constitutionally sound.
- Geof’s best example of an overreaction is the internment of Japanese Americans, which government officials apparently believed was not necessary even at the time. Conceded. But I don’t think it’s fair to argue that Lincoln overreacted in the midst of a civil war, or even that the Alien and Sedition Acts were–at the time, 1798–unjustified given the standards of the time, the existence of a quasi-war, and the extreme political instability as well as vulnerability of the early Republic. It’s simply too hard to put ourselves back into that historical setting.
- It’s also too easy to blame “fear” or “panic.” When the government enhances security measures after an attack, critics almost always say that the government is “panicking” or exploiting public panic. The problem with this argument is that enhanced security measures are also a logical response to an attack. The mere fact that the government enhances security measures therefore does not tell us whether the response was panic-driven or reasonable.
- In fact, it is quite common for the government to consider and then reject harsh measures. A recent example is the proposal to ban all Syrian refugees. The House passed a bill to this effect but the bill was rejected by the Senate, which has instead supported a more reasonable-sounding enhanced inspection regime for visa applicants. So did the government panic or not?
- Finally, the government cannot just ignore public fears; it must address them. Critics who complain about “security theater” in airports just don’t understand that the government cannot wave a magic wand and make fear vanish; it must respond. When it doesn’t, people legitimately complain that the government doesn’t take their interests seriously.
- I don’t think we can do better than to consider the costs and benefits of a proposed security measure on the merits. As history recedes, it can provide as much misguidance as guidance.