Choudry Greenwald

Photo: Steve Parsons/PA Wire/AP

As we all know ever since the inspiring parade in Paris following the Charlie Hebdo attack, “free speech” is a cherished and sacred right in the West even for the most provocative and controversial views (of course, if “free speech” does not allow expression of the most provocative and controversial views, then, by definition, it does not exist). But yesterday in the U.K., the British-born Muslim extremist Anjem Choudary, who has a long history of spouting noxious views, was arrested on charges of “inviting support” for ISIS based on statements he made in “individual lectures which were subsequently published online.”


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This arrest has predictably produced the odd spectacle of those who just months ago were parading around as free speech crusaders now cheering the arrest of someone for ideas he expressed in a lecture. That simply shows what was obvious all along: That for many participants, the Charlie Hebdo “free speech” orgies were all about celebrating and demanding protection for ideas that they like (ones that castigate Islam and anger Muslims), not actual principles of free speech (having the Paris march led by scores of world leaders who frequently imprison those with unpopular views was the perfect symbol).

Indeed, many of the West’s most vocal self-proclaimed free speech champions are perfectly happy to see ideas criminalized as long as the ideas are the ones they hate, expressed by those they regard as adversaries (beyond Choudary, just look at all the prosecutions for free speech they tolerate from their own governments when directed at the marginalized and disliked). Worse, they love to invent terminology to justify why their side’s views are totally appropriate and legal, but the other side’s views are criminal and beyond what “free speech” includes.

The principal justification I saw yesterday from those defending Choudary’s arrest was that “advocacy of violence” or “incitement to violence” is something different than speech, and can thus be legitimately punished, including with prison. With this standard in mind, I offer a few examples of statements and would like to know whether it should be legal to express them or whether one should be arrested, prosecuted and imprisoned for doing so:

(1) Saddam Hussein is a major threat and has WMD, and we should use all our might to invade Iraq, bomb the country, take it over, and kill him and his supporters!

(2) Obama is absolutely right to use drones even though he’s killing innocent people. In fact, we should use more drones to kill more people. Even if it means having civilians and children die, the need to wipe out The Terrorists requires we use more violence now, no matter how many innocent Muslims will die from it!

(3) Whenever Hamas shoots a rocket at Israel, Israel should retaliate with full, unbridled force against Gaza, even if it means killing large numbers of women and children. Nobody in Gaza is truly innocent — after all, they elected Hamas — and so they deserve what they get.

(4) If Iran doesn’t immediately give up its nuclear program, we should nuke them — blow them back to the Stone Age!

(5) Set to a musical score: we should bomb, bomb, bomb — bomb, bomb Iran.

(6) Muslims have been engaged in violence against the West for too long. It’s long past time we took the fight to them and did violence back to them.

(7) The West has spent decades bombing, occupying and otherwise interfering in Muslim countries. Western governments have killed countless innocent men, women and children. They’ve used violence indiscriminately, without regard to whether it kills innocents. They seem unwilling to stop unless forced to. It’s thus not only justified but mandatory for Muslims to use violence back against the West. If it kills civilians, so be it: Civilians elected the governments doing the violence.

(8) ISIS has valid grievances against the West, and I understand the reasons someone would want to join them. I agree with many of those reasons. Only ISIS has been successful in stopping Western aggression.

These are all very easy examples for me. Despite the fact that they all advocate, justify and on some level “incite” violence, and despite the fact that almost all of these ideas have led to actual violence and the killing of innocents, they are all political opinions that nobody should be sanctioned or punished by the state for expressing, and if anyone is punished for them, it means, by definition, that they live in a society without “free speech.”

That’s because I agree with what the U.S. Supreme Court ruled 45 years ago in Brandenburg v. Ohio. That case overturned the conviction of a KKK member for giving a speech that threatened political officials (including the U.S. president) with violence. The Court invalidated as unconstitutional the Ohio law that made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The Brandenburg Court’s key reasoning: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force.” Only incitement of imminent violence — e.g., leading a mob holding torches outside of someone’s house and directing them to burn it down — can be punished; advocacy of violence by itself cannot be (my most comprehensive argument against criminalizing ideas on the ground that they are “hateful” or “violent” is here).

But if you don’t agree with that well-established principle of American law, and instead believe that it is legitimate to punish people for advocating or “inciting” violence, then it’s critical to specify what you mean. More to the point, it’s crucial that these high-minded standards not be exploited to render permissible advocacy of ideas that you like while outlawing and criminalizing ideas that you hate — or, worse, to legalize advocacy of violence by one’s own side while criminalizing advocacy of violence by the other side. That desire — to imprison people for expressing views one dislikes — is the defining attribute of a petty tyrant, and is the precise opposite of “free speech.”

With that in mind: which of the above examples should be considered criminal, if any, and why? And if the answer is “none,” then why would anyone applaud or justify the arrest of someone for “inviting support” for a group? None of this is abstract: Numerous Western nations are increasingly punishing speech from Muslims, and Muslim citizens of Western nations frequently express fear of even discussing political views for fear of having those opinions used to turn them into criminals or “terrorists.”

UPDATE: I’ll add one more example, from the 1980s and 1990s when the African National Congress was designated a “terrorist” group:

(9) Apartheid is such a profound moral evil that the African National Congress is justified in engaging in violence against the apartheid state, and I urge all of you to support the ANC and Nelson Mandela in every way you can.

Could someone expressing that view be legitimately imprisoned for doing so consistent with “free speech”?

CONTACT THE AUTHOR:

glenn.greenwald@​theintercept.com@ggreenwald