Professor Eugene Volokh on the ACLU and war censorship:
"CENSORSHIP IN TIMES OF CRISIS"
"CENSORSHIP IN TIMES OF CRISIS": I just got an ACLU e-newsletter titled "War on Words: Censorship in Times of Crisis". Now it says a lot about government searches, military tribunals, and various other things, but nearly nothing about actual censorship -- governmental restrictions on what people can say or write. (The only exception is a brief discussion of a Patriot Act provision that on its face seems to bar anyone, including people outside law enforcement, from revealing the existence of a Foreign Intelligence Surveillance Act wiretap.)
"The First Amendment violations now taking place are more subtle than in decades past and have not been widely reported in the press," the item warns. They are subtle indeed -- too subtle for me . . . .
Generally correct. The FISA wiretap gag rule is meaningless in any case given the ease of anonymous publishing in this era.
A better source than the ACLU though is the Electronic Frontier Foundation (EFF) page (
Chilling Effects of Anti-Terrorism) that tracks this sort of thing.
Going down their list, we see a few items --
FBI threats to websites to pull the Pearl Beheading Video under obscenity laws (even though it wasn't obscene since there was no sex or excretion). That failed and the video was restored but it was an official attempt.
Government pulling the plug on its own websites. I don't know if that's exactly censorship because I would like them to pull all their websites (and most other activities) as well. Doesn't bother me.
US shutdown of Somalia's only ISP. Presumably not done for content but because it was financially linked to terrorist organizations. Not as much censorship as was the US bombing of Serbian TV stations during that war (which was presumably content based in part).
There are two cases which suggest federal censorship at least in part - the cases of RaiseTheFist.com and StopAmerica.org.
Probably the most straightforward case of censorship is that of 19-year-old Sherman Austin of
RaiseTheFist.com [connection irregular because of legal action and overload]. See a fair
summary from the Carnegie Mellon student paper. Carnegie Mellon Computer Science Professor David Touretzky has a
page of links on the case.
Raisethefist.com is a website urging various sorts of left-wing street action and included a guide to the manufacture and use of various weapons. Austin's house was raided in January and he was arrested a few months ago and charged with violating
US Code title 18, section 842(p), which prohibits the demonstration of how to make or use explosives and weapons of mass destruction with the intention that the information will be used for violent crimes. He was also charged with possession of something explosive that violated the National Firearms Act (something that was arguably a Molotov Cocktail). We know his "crimes" weren't serious because the Feds offered him one month in stir and three years probation if he'd plead to one count of violating 842. A week ago he accepted the plea bargain. The explosive device he was accused of teaching how to make was a Molotov Cocktail. The Feds were clearly trying to obtain an 842 conviction because that statute is probably constitutionally limited to actual training in the manufacture and use of illegal devices in a context that would really constitute being an accessory to the underlying crime in any case. Arms length teaching of weapons and explosives is probably legal. Of course one who pleads guilty gives up the chance to challenge the application of the law. In any case, Austin's no doubt seminal contribution to the theory and practice of street combat is still available from
several sources including the government's own proposed
plea agreement!
Those of us with longer memories will recall when New York Magazine or Esquire or some such glossy mag published a cover illustration of how to make a Molotov Cocktail. It was the 60s/70s. You had to be there.
Another case not mentioned by the EFF is that of the webmaster of StopAmerica.org a Black Muslim who was originally held as a material witness and has now been charged with "providing material support to terrorists". Summary of case
here. Note the significant part of the indictment: "It was further a part of the conspiracy that Ujaama established one or more World Wide Web sites (through which his co-conspirator) espoused his beliefs concerning the need to conduct global violent jihad against the United States of America and other Western nations."
Now whatever the merits of these two cases as criminal prosecutions, it is likely that the government developed an interest in the defendants in whole or in part because they operated websites which suggest the possibility of selective prosecution based on protected First Amendment activities.
While Selective Prosecution is a disfavored defense (because the defendant is not denying the underlying acts charged) in First Amendment cases it can work. See US v. Watamull (9th Circuit circa 1971) in which the owner of a talk radio station (KTRG)was acquitted of the charge of failure to respond to the 1970 Census. The US attorney in Honolulu, charged the owner, station manager, show host, and a guest of horrific crime of census resistance (maximum $100 fine) after one of the station's shows featured an interview with census resisters.
Not a vast number of censorship cases. Many fewer than WWII. But some interesting situations that bear watching.
