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HARVEY A. SILVERGLATE

Free speech in an age of terror

A WIDELY MISUNDERSTOOD and under-appreciated aspect of the First Amendment's free speech guaranty was reaffirmed earlier this month by a federal jury in Idaho. At the same time, however, the principle was being undermined by some of the nation's premier charitable foundations. The issue? Protection of speech that advocates violence, including violence against the very system of constitutional government that brings us the First Amendment.

In terms of the never-ending battle for free speech, it's always the hardest sell -- protecting speech that's often violent, subversive, revolutionary. And yet it's precisely the kind of speech where the First Amendment plays its most important role.

After seven days of deliberations, the jury acquitted Sami Omar Al-Hussayen, a 34-year-old Muslim Saudi graduate student at the University of Idaho, of charges that he provided "expert advice or assistance" to terrorist organizations by operating websites and e-mail discussion groups that advocated what lead prosecutor Kim Lindquist termed "extreme jihad."

Boise federal prosecutors had brought the case under a controversial provision of the US Patriot Act that broadened a Clinton-era prohibition against lending assistance to causes designated by the federal government as "foreign terrorist organizations." To support their contention that Al-Hussayen had assisted a terrorist conspiracy, prosecutors pulled several examples of inflammatory speech from Al-Hussayen's otherwise mundane collection of Muslim-themed websites and discussion groups. These included his redistribution of four fatwas issued by radical clerics offering religious justifications for "martyrdom attacks" and his hyperlinks to a Hamas-affiliated website.

But the prosecutors ran up against the First Amendment. As US District Judge Edward Lodge instructed the jury, the Constitution protects expression of beliefs "even if those beliefs advocate the use of force or violation of law, unless the speech is directed to inciting or producing imminent lawless action."

Civil liberties and legal communities widely viewed this case as a terrorism-era test of the free speech protections first articulated in a McCarthy-era Supreme Court opinion; that ruling protected the right of public university professor Paul Sweezy, a self-styled "classical Marxist," to argue that the capitalist system would collapse when confronted by violence on the part of those seeking to create a "truly human society."

This protection was broadened and clarified in 1969 when the court, in a case involving pro-violence rhetoric at a Klan rally, held that speech-restrictive legislation had to be limited to "advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In this age of terrorism, it is not "classical Marxists" but fundamentalist religious radicals -- and those who disseminate their sermons and writings -- who are increasingly targeted by such viewpoint-based prosecutions. And like the anti-Communist purges of the '50s, these government actions are inspiring similar private sector purges.   Continued...

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