Newt - Destroying the 1st Amendment, or Restoring it For the Sake of Survival?

Last week, Newt Gingrich made headlines by suggesting we needed to rethink our current thinking about what the 1st Amendment does and does not allow in terms of free speech in order to protect ourselves. The expected wailing an gnashing of teeth followed about sacred protections, dissent being patriotic, etc. As usual, Ben Franklin's quote about essential liberties vs. "a little temporary safety" was misquoted and/or used out of context.

But the problem is that while Gingrich's general thrust is correct, the way he posited it was very wrong. Here's what he said:

"Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up [terrorists'] capacity to use the Internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us -- to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us."

Gingrich spoke in his piece in terms of "limiting free speech." That's not the argument, in my mind. Worse, putting it in those terms instantly raises the specter of censorship, 1984, etc., making it far less politically viable. Instead, the debate must be what defines "speech" within the meaning of the First Amendment - and what crosses the line into action. It may sound like semantics, but our very lives rest on the distinction.

When a Minneapolis Imam preaches that all good Muslims should rise up and destroy America by force, that is protected. When an American Communist urges college students to violent revolution, that is protected. When an Army officer urges fellow soldiers to ignore lawful orders from their elected civilian leaders, liberals argue it should be protected. What madness or self loathing requires us to suicidally accept such threats to our freedom and indeed, to our very existence?

Such advocacy is not merely speech - it is action. It is no more speech and no less action than Tony Soprano ordering his goon to kill someone, and deserves no more protection.

The kicker is that allowing these verbal threats against our very survival is far from the immutable American tradition. We have recognized throughout the majority of our history that advocating the violent overthrow of the US government - especially in times of war - is outside the bounds of speech, and can and should be proscribed. Where exactly the line is may be fuzzy, but common sense makes clear that an Imam declaring jihad is on the wrong side of that line. As late as 1951 in United States v. Dennis, 341 U.S. 494 (1951), the Supreme Court correctly recognized that the Communist Party was a real threat to this country, and that organizing a party and using its mechanisms to advocate subversion was not and should not be protected. The thought that we were not a free country prior to 1951 is simply absurd. But then, that was back before we chose to lose wars...

(Andrew McCarthy has a fantastic historical breakdown of free speech protections and their nexuses with our various conflicts - and brilliantly points out the current risk we face for our indulgence of terrorists. It's also a good review for next week's Free Expression final...)

I don't want a Sedition Act. I don't want people jailed for being critical of the President. The effort to conflate a return to Dennis with American Fascism is intellectually and historically bankrupt. What I do want is to simply return to our senses. Let's RE-recognize that the Constitution is and never was a suicide pact, and that it need not tolerate advocates for its violent destruction in the name of its protection.