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Friday, January 8, 2016

Why Don’t We Just Censor Eric Posner?

What speech isn't potentially "dangerous"?

In an article published in Slate, University of Chicago law professor Eric Posner made the following proposal, which is meant to “protect” naive teenagers from ISIS propaganda.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions.

Just sit with that. Breathe it in for a moment. Fully absorb the legislative drafting skills of Eric Posner. Have you taken it in? Are you ready to move on?

Here’s a small dose of reality:

First, that would be a totally unworkable law, even if it weren’t for the standard moral, constitutional, and prudential objections to censoring political speech.

Do we really want courts deciding what “glorifies” or “expresses support for” ISIS? Do we want the local Assistant U.S. Attorney choosing who gets prosecuted for this? How about the kind of surveillance it would take to enforce it  —  do you want the federal government watching every website you access?

Second, why is ISIS propaganda the real danger? Maybe ISIS is particularly good at propaganda, maybe it isn’t. (If you’re willing to sacrifice the time to read Posner’s article, you’ll learn that his “evidence” for this proposition is a single anecdote of a 17-year old who got radicalized in Virginia, and who got caught before he could do anything significant, plus a reference to a study about what Twitter accounts did. Do we have any comparative evidence of the impact of ISIS propaganda relative to, say, KGB propaganda from the 70’s?)

Even if ISIS has some kind of unholy skill at propaganda, they don’t seem all that good at killing Americans. Let’s not forget that about 71 Americans have been killed in the U.S. in the last decade by what the New America Foundation classified as terrorism. That’s 7 a year, or less than a third of the Americans killed by lightning strikes. Let’s not even compare it to real causes of death. And that 7 a year number is Islamic and non-Islamic terrorism put together: “jihad” is only part of that. This, Posner calls “unprecedented danger!”

So if we’re censoring propaganda that might lead stupid people who read it to turn to violence, here are some other websites Posner’s censorship commission should ban:

And let’s not forget the websites that might lead to other kinds of death. For example, perhaps we should make it a crime to visit anti-vaxxer websites to protect the vulnerable fools who might otherwise kill their and other people’s children. We’ll make it a crime to access websites glorifying or expressing support for cigarette smoking, so people don’t get fooled into killing themselves (and, with peer pressure, their friends). Oh, yeah, consuming alcohol is associated with violence, so we’d better make it a crime to access those websites too.

Actually, I have a better idea. Since the logical stopping point of Eric Posner’s proposed policy is a vast increase in police intrusion into our lives, and since police kill many more Americans than terrorists do, we should just make it a crime to access websites that glorify, express support for, or provide encouragement for Eric Posner.

This post first appeared at

  • Paul Gowder is a law professor and political scientist who writes about constitutional law, political philosophy, data, professional ethics, and justice.