Inexplicable(?) New York Times Op-Ed on Inspire Magazine and the First Amendment

In today’s New York Times, a lawyer named Martin London has published an Op-Ed full of alarm, with dire warnings about “First Amendment fundamentalists” who have become “a powerful influence on our government” and who have, in particular, “persuaded” the Attorney General that the Constitution “bars him from taking action against Inspire magazine, published on the Internet by Al Qaeda in the Arabian Peninsula.”

The substance of the Op-Ed leaves a lot to be desired–not least of which is its its dangerous and overbroad (at best) notion that “every Supreme Court decision on this subject recognizes war as an exception to the First Amendment.”  There are, however, two more fundamental problems with the Op-Ed.

First, Mr. London does not specify what “actions” he believes the Attorney General should take “against” Inspire.  Criminal prosecution of publishers?  of readers?  mailing restrictions within the U.S.?  asking allies to shut down servers?  some form of cyber-sabotage?  (He includes only a vague reference to “mov[ing] decisively to block Inspire on the web.”)  It’s impossible to intelligently discuss the constitutional and statutory (and possible international law) questions without knowing which possible government actions, exactly, he’s proposing.

Second, and more fundamentally, Mr. London doesn’t cite anything to support the basic premises of his complaint:  Who, exactly, are these “First Amendment fundamentalists” who have become “a powerful influence on our government”?  How have they “persuaded” the Attorney General that the Constitution “bars him from taking action against Inspire magazine”?  London doesn’t say.

Indeed, what’s the basis for Mr. London’s assertion that the Attorney General thinks the government is constitutionally barred from taking any action against Inspire?  Perhaps there’s some story out there to that effect; but, if so, I’ve missed it.  Indeed, as far as I know, all evidence is to the contrary:  We learned in Holder v. Humanitarian Law that the Supreme Court agrees with the Attorney General (the petitioner in that case) that individuals can be prosecuted for speech activity that is directed by or coordinated with AQAP.  (UPDATE:  See, for example, this pending federal indictment, based in part on allegations that the defendant “worked with” a U.S. citizen to “create online propaganda” for AQAP.)  Moreover, if press reports are to be believed, the U.S. government has not felt itself constitutionally precluded from “taking action against Inspire.”

So what prompted the Times to publish this Op-Ed?  Have I overlooked something?  (I’ll update this post if I learn more from our readers.) 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).