Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Joe Lieberman, Islamist Terrorism, and YouTube

By Jack M. Balkin

I thank Joe Lieberman for highlighting a point I made in an earlier post: new media monopolies raise some of the same free speech concerns as monopoly and oligopoly in traditional media.

Senator Lieberman recently demanded that Google's YouTube take down hundreds of videos produced by al-Qaeda and other groups that the State Department has designated as Foreign Terrorist Organizations. YouTube refused to comply with his broad request, but did review the videos to determine whether they violated its own guidelines, which prohibit hate speech and graphic or gratuitous violence. It then took down 80 videos, but left others up. Lieberman responded that YouTube's actions were insufficient, that "[v]ideos produced by al-Qaeda and al-Qaeda affiliates showing attacks on American troops remain on YouTube's website and ... should be taken down immediately."

The New York Times castigated Lieberman as a "would-be censor." Lieberman responds today in a letter to the editor: "The bipartisan staff of the Senate committee I head, which oversees homeland security matters, has documented that Islamist terror networks rely extensively on the Internet in their continuing war against the American people.... The peril here is not to legitimate dissent but to our fundamental right of self-defense. For those of us in government, protecting Americans is the highest responsibility. Asking private parties operating public communications systems to assist that effort is common sense."

I must confess that my initial, gut reaction was one of support for Lieberman. I am bewildered by those -- including many on this blog -- who seem to think that the worst thing about our post 9-11 world is not the very real threat of a repeat of 9-11 or worse, but the incursion on civil liberties, SOME of which is an inevitable part of homeland security. (Yes, yes, I realize the critical questions are how much incursion is truly necessary, at what price, and who has authority to decide.) And Lieberman is absolutely right that terrorists use the Internet to recruit, incite violence, raise funds, and give instructions. It makes the argument for civil liberty and free speech far too easy to pretend that's not so. The Times makes that very move in its criticism of Lieberman. Its editorial begins: "The Internet is simply a means of communication, like the telephone, but that has not prevented attempts to demonize it ? the latest being the ludicrous claim that the Internet promotes terrorism. " Yet today's Times features a front page story about a self-styled "female holy warrior for Al Qaeda," who makes highly effective use of the Internet to "bull[y] Muslim men to go and fight."

The reason Lieberman is wrong, of course, is not that the terrorist organization videos are innocuous, but that, as history has repeatedly taught us, we can't generally trust government to distinguish between truly dangerous speech and speech that government functionaries or ideologues think is dangerous. McCarthyism, the Pentagon Papers, the Bush Administration provide ready examples. And as Seth Kreimer has cogently underscored, government too often bullies mass media and other speech intermediaries to act as its censor.

Media are inevitably somewhat vulnerable to this kind of government bullying, and new media like Google, which now lobbies government on issues ranging from network neutrality to the wireless spectrum, is no exception. As a result, while no guarantee, the available of commercially viable alternative sources of information and opinion presents a vital bulwark against this kind of indirect censorship. If YouTube caves and too readily removes videos that Senator Lieberman finds dangerous or repugnant, our First Amendment interest in robust debate and expressive diversity is best served by the availability of such videos on other readily accessible, easily locatable, and commercially viable Web sites.

I emphasize "readily accessible, easily locatable, and commercially viable." I don't think it's enough for dissenting speech to be relegated to the Internet equivalent of street corner pamphleteers, seen and heard by very, very few. Rather we are best served by having several competing YouTubes. If one too readily caves, perhaps the others will resist and castigate the caver for doing so.

Full post as published by Balkinization on May 28, 2008 (boomark / email).