Commentary, June 2005.
In 1925, Justice Oliver Wendell Holmes said, and in some circles became famous for saying, “if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they shall be given their chance and have their way.” In other words, anything goes, and Holmes did not care how it went—or, giving him the benefit of the doubt, the Constitution did not permit him, as a Supreme Court Justice, to care how it went. This is absurd, but it does state the problem facing Andrew C. McCarthy in his essay, “Free Speech for Terrorists?”
Mr. McCarthy would solve it by insisting that there is a constitutionally significant difference between Communism and militant Islam. Respecting the latter, he says, the “nexus” between “advocacy and actual savagery” is an empirical fact. Thus, if advocacy is savagery, or if speech is the deed, it follows that “advocacy of terrorism can be effectively regulated.” In this way, he avoids the problem that certain liberals—those who treat rights as “trumps”—are unable to solve, namely, how to limit a right. For them, if freedom of speech is a right protected by the Constitution, there is no way to limit it. Mr. McCarthy avoids this problem by, in effect, denying that jihadist speech is speech.