E-threat: Imminent Danger in the Information Age

MJLST Staffer, Jacob Weindling


One of the basic guarantees of the First Amendment is the right to free speech. This right protects the individual from restrictions on speech by the government, but is often invoked as a rhetorical weapon against private individuals or organizations declining to publish another’s words. On the internet, these organizations include some of the most popular discussion platforms in the U.S. including Facebook, Reddit, Yahoo, and Twitter. A key feature of these organizations is their lack of government control. As recenty as 2017, the Supreme Court has identified First Amendment grounds for overturning prohibitions on social media access. Indeed, one of the only major government prohibitions on speech currently in force is the ban on child pornography. Violent rhetoric, meanwhile, continues to fall under the Constitutional protections identified by the Court.

Historically, the Supreme Court has taken a nuanced view of violent speech as it relates to the First Amendment. The Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Contrast this with discussion of a moral responsibility to resort to violence, which the Supreme Court has held to be distinct from preparing a group for imminent violent acts.

With the rise and maturation of the internet, public discourse has entered a new and relatively unchartered territory that the Supreme Court would have been hard-pressed to anticipate at the time of the Brandenburg and Noto decisions. Where once geography served to isolate Neo-Nazi groups and the Ku Klux Klan into small local chapters, the internet now provides a centralized meeting place for the dissemination and discussion of violent rhetoric. Historically, the Supreme Court concerned itself mightily with the distinction between an imminent call to action and a general discussion of moral imperatives, making clear delineations between the two.

The context of the Brandenburg decision was a pre-information age telecommunications regime. While large amounts of information could be transmitted around the world in relatively short order thanks to development of international commercial air travel, real-time communication was generally limited to telephone conversations between two individuals. An imminent call to action would require substantial real-world logistics, meetings, and preparation, all of which provide significant opportunities for detection and disruption by law enforcement. By comparison, internet forums today provide for near-instant communication between large groups of individuals across the entire world, likely narrowing the window that law enforcement would have to identify and act upon a credible, imminent threat.

At what point does Islamic State recruitment or militant Neo-Nazi organizing on the internet rise to the level of imminent threat? The Supreme Court has not yet decided the issue, many internet businesses have recently begun to take matters into their own hands. Facebook and Youtube have reportedly been more active in policing Islamic State propaganda, while Reddit has taken some steps to remove communities that advocate for rape and violence. Consequently, while the Supreme Court has not yet elected to draw (or redraw) a bright red line in the internet age, many businesses appear to be taking the first steps to draw the line themselves, on their terms.