Stone on Civil Liberties on NPR

Geoffrey R. Stone

August 5, 2005

MELISSA BLOCK, host:

Tony Blair's proposals are specific to Britain, but they got us thinking about the state of civil liberties and free speech in this country. Has anything changed since the terrorist attacks here on 9/11? To find out, I spoke with Geoffrey Stone, who teaches constitutional law at the University of Chicago Law School.

Professor GEOFFREY STONE (University of Chicago Law School): One of the positive things post-9/11 is that we have not seen a rash of criminal prosecutions of individuals for engaging in expression. It's commonplace throughout our history that government has prosecuted individuals, oftentimes very prominent individuals, like Eugene Debs during World War I, for doing nothing more than criticizing the government, the war, the draft or whatever. In the post-9/11 environment, we've seen virtually none of that.

Instead, the First Amendment issues have tended to be focused more on questions of the government's secrecy, its refusal to make available to the public access to information that arguably the public needs in order to assesss responsibly the government's conduct and also means of investigation of individuals that can have a significant chilling effect on the willingness of people to exercise their First Amendment right.

BLOCK: Is there a growing school of legal thought that would say given these times, given these threats that limitations on the First Amendment need to be tougher, need to be tighter?

Prof. STONE: If we had a situation like the one that occurred in London, where individuals in the United States had essentially been incited within the United States to engage in large-scale terrorist activity, there would be great pressure on the government and then on the courts to relax the standards that currently require express advocacy of unlawful conduct, specific intent and clear and present danger. And whether the Congress or state legislatures would be able to resist the temptation to start punishing individuals who do nothing more than justify or glorify suicide bombing, for example, and whether the Supreme Court would have the firmness to adhere to the existing rules, which would clearly not permit the punishment of that type of expression, will be a great question for us.

BLOCK: I wonder, though, if the times have not changed enough that, you know, we're in an increasingly globalized society, we seem to have more and more ways to do each other harm, that those are real things to consider as courts weigh limits on free speech and what's tolerable.

Prof. STONE: Well, I think part of the question that we will face going forward is whether we've learned enough of the lessons of our own history to have the self-discipline not to overreact in that way. I actually believe that since 9/11, although one can certainly argue about various provisions of the Patriot Act and some other steps that the Bush administration has taken, that up to this point, we have acted with a reasonable degree of self-restraint. Whether that would continue in the light of major events, criminal events, in the United States fostered by incitement that took place in the United States is a different question.

As to the globalization issue, I mean, I don't think there's really anything relevant in domestic law to individuals being incited in training camps in Pakistan who then come to the United States and blow up a building. There should certainly be no restriction on free speech in the United States because of something that is happening in other parts of the world.

BLOCK: Just to be clear there, though, if a similar scenario were to have developed in the United States, people being incited in this country to commit terrorist acts in this country, you're saying that US law on free speech at this point would protect them.

Prof. STONE: It would protect them unless they expressly incited unlawful conduct and that unlawful conduct was likely to occur imminently. But in general, under existing American law, the presumption is that we hold actors responsible for their conduct and we try to deter them, and we allow speakers to express their views however odious or however reprehensible they may be.

BLOCK: Professor Stone, thanks very much.