Documente Academic
Documente Profesional
Documente Cultură
ALEXANDER CONLEY *
ABSTRACT
There is a very real and frightening threat posed by the increased use
of social media by terrorist organizations. Terrorists have begun to use
social media to communicate plans, discuss goals, and to spread
propaganda. This threat has sparked debate and proposed legislation
regarding ways to regulate and control this type of terrorist speech. This
includes a proposed bill from Senators Dianne Feinstein (D-CA) and
Richard Burr (R-NC), which requires monitoring and control of this type of
speech in a way similar to laws designed to prevent obscenity.
To compare terrorist speech to obscenity, a class of speech that is
unprotected under the First Amendment, is a fascinating proposal. There
are a variety of potential benefits from this approach that would result in
beneficial limitations on dangerous terrorist speech. However, as a sub-set
of important political speech, terrorist speech, although unpopular,
deserves some level of constitutional protection. The costs of limiting such
political speech outweigh the potential benefits of stripping terrorist speech
of all protection under an obscenity-based framework.
* Candidate for Juris Doctor, New England Law | Boston (2017). B.A., History & Political
Science, University of North Carolina Wilmington (2014). I would like to thank Ioana Aprodu,
who has been my constant throughout law school and the writing process. I would also like to
thank all the lawmakers who must struggle to balance the competing interests of liberty and
security in order to provide for the needs of our society.
345
346 New England Law Review Vol. 51|2
INTRODUCTION
stage now. I’m all for freedom of speech, but it doesn’t mean encouraging terrorism.”).
6 Tami Abdollah, Lawmakers Want Social Media Companies to Report Terrorists, U.S. NEWS
Pornography and Obscenity Cases in the Internet Age, 4 J. TECH. L. & POL’Y 1, 14 (1999).
8 Javier Romero, Unconstitutional Vagueness and Restrictiveness in the Contextual Analysis of
the Obscenity Standard: A Critical Reading of the Miller Test Genealogy, 7 U. PA. J. CONST. L. 1207,
1209–10 (2005); see Elizabeth Harmer Dionne, Pornography, Morality, and Harm: Why Miller
Should Survive Lawrence, 15 GEO. MASON L. REV. 611, 640 (2008) (discussing the precarious
position of the test for obscenity’s “ongoing validity”).
2017 Obscene Terrorism 347
I. Background
9
See infra Part III–IV.
10
U.S. CONST. amend. I.
11 See R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992).
14 See Steven R. Morrison, Terrorism Online: Is Speech the Same as it Ever Was?, 44 CREIGHTON
Challenge of Global Constitutional Law, 2 HARV. NAT’L SEC. J. 1, 16 (2011); Nadine Strossen, The
348 New England Law Review Vol. 51|2
often falls within a subset of political speech, and thus carries additional
protections under First Amendment jurisprudence. 16
It has long been recognized that the First Amendment does not protect
speech that by its “very utterance inflict[s] injury or tend[s] to incite an
immediate breach of the peace.” 17 This category of speech has been called
fighting words, inflammatory, or inciting speech. 18 During the middle of
the twentieth century, the jurisprudence around this doctrine began to
develop with somewhat haphazard results. 19 The culmination of these
cases led to the development of the test articulated in Brandenburg v. Ohio. 20
The Brandenburg test is based on the basic premise that speech cannot be
limited by the government unless it “is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.” 21
The Brandenburg test draws a line between speech that is advocacy or
causes mere offense, and that which is incitement or true threats. 22
Drawing this line can be difficult, and there has been extensive
jurisprudence regarding when speech crosses the line. 23
Terrorist speech can fall on either side of this line. 24 For speech that is
clearly inflammatory or constitutes terrorist threats, the Brandenburg test
adequately allows for government limitations. 25 Not all terrorist speech
falls within this category, however, and the Brandenburg test is not
21 Id. at 447. This test has been interpreted into two separate prongs: (1) likeliness of inciting
23 E.g., Virginia v. Black, 538 U.S. 343, 359–60 (2003); Stewart v. McCoy, 543 U.S. 993, 993
(2002); R.A.V. v. City of St. Paul, 505 U.S. 377, 413 (1992); N.A.A.C.P. v. Clairborne Hardware
Co., 458 U.S. 886, 927–28 (1982); Communist Party of Indiana. v. Whitcomb, 414 U.S. 441, 448–
49 (1974).
24 Compare Holder v. Humanitarian Law Project, 561 U.S. 1, 44 (2010) (Breyer, J.,
dissenting), with U.S. v. Wheeler, 776 F.3d 736, 745 (10th Cir. 2015).
25 Morrison, supra note 14, at 964; see also Barak-Erez & Scharia, supra note 15, at 15–16.
2017 Obscene Terrorism 349
adequately suited to deal with this kind of speech. 26 The Supreme Court
partially addressed this issue in Holder v. Humanitarian Law Project, which
examined a statute that criminalized “providing material support” to
terrorist organizations. 27 Applying something between strict and
intermediate scrutiny to the statute, 28 the Court determined that Congress
could prohibit the plaintiff’s attempt to provide certain peaceful types of
training to recognized terrorist organizations without violating the First
Amendment. 29 This decision was grounded not in the traditional freedom
of speech exceptions, but instead was based on whether the conduct could
be prohibited, even if in the form of speech. 30 This removal of the issue
from the freedom of speech context in Holder has undergone extensive
criticism; 31 not in the least because the case partially punted the issue by
declaring the statute only valid as applied to the particular plaintiff,
without ruling on whether other regulations “relating to speech and
terrorism would satisfy the First Amendment.” 32
the constitutionality of laws that infringe upon rights: Strict scrutiny applies to fundamental
rights and discrimination of suspect classes, and requires a law to be narrowly tailored to
address a compelling government interest; intermediate scrutiny applies to quasi-suspect
discrimination, and requires a law substantially related to an important government interest;
rational basis scrutiny applies for other types of discrimination, and requires only that a law is
rationally related to a legitimate government interest. Ashutosh Bhagwat, Purpose Scrutiny in
Constitutional Analysis, 85 CALIF. L. REV. 297, 303 (1997).
29 Holder, 561 U.S. at 36–37.
30 Id. at 28–29.
31 E.g., David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law
Project in First Amendment Doctrine, 6 HARV. L. & POL’Y REV. 147, 149 (2012); Peter Marguilies,
Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech, 63 HASTINGS L.J. 455,
463 (2012); Andrew V. Moshirnia, Valuing Speech and Open Source Intelligence in the Face of
Judicial Deference, 4 HARV. NAT’L SEC. J. 385, 386 (2013); see also Holder, 561 U.S. at 49 (Breyer, J.,
dissenting).
32 Holder, 561 U.S. at 39.
33 Id. at 25.
34 Jeremy S. Weber, Political Speech, the Military, and the Age of Viral Communication, 69 A.F.
L. REV. 91, 96 (2013); Saul Zipkin, The Election Period and Regulation of the Democratic Process, 18
WM. & MARY BILL RTS. J. 533, 534 (2010).
350 New England Law Review Vol. 51|2
35 R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (“Our First Amendment decisions have
created a rough hierarchy in the constitutional protection of speech. Core political speech
occupies the highest, most protected position.”).
36 See Citizens United v. F.E.C., 558 U.S. 310, 336 (2010) (invalidating the F.E.C.’s eleven-
39 Id. at 1026.
40 See Morrison, supra note 14, at 966–68 (listing out definitions of terrorism); see also infra
46 See S. 2372, 114th Congress (2015). The Holder Court also explicitly noted how narrow its
holding was and how it would not apply to other impediments on terrorist speech. Holder, 561
U.S. at 39.
47 See Winkler, supra note 44, at 815 (finding that between 1990 and 2003, the application of
strict scrutiny was the most fatal for freedom of speech cases, with only 22% surviving).
48 See Holder, 561 U.S. at 28–29.
49 See S. 2372.
50 See O. Lee Reed, Is Commercial Speech Really Less Valuable than Political Speech? On
Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L.J. 1, 12 (1996).
51 See generally H. Franklin Robbins, Jr. & Steven G. Mason, The Law of Obscenity — or
Absurdity, 15 ST. THOMAS L. REV. 517, 522–28 (2003) (discussing the history and development
of American obscenity law and jurisprudence).
52 Child pornography is a somewhat special case within the obscenity framework because
child pornography that is not considered obscene can still be proscribed in order to protect
children. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002); New York v. Ferber, 458
U.S. 747, 764–65 (1982). However, both child pornography, and speech deemed to be obscene
through the Miller test, are still entitled to the same constitutional protection: none. See Amy
Adler, Inverting the First Amendment, 149 U. PA. L. REV. 921, 930 (2001).
53 Roth v. U.S., 354 U.S. 476, 484–85 (1957); Orrin G. Hatch, Fighting the Pornification of
The laws regulating obscene and indecent speech can be traced as far
back as nineteenth century English common law. 55 This common law
proscription of such material within a community has been carried on for
the sake of public morality despite First Amendment challenges. 56 For
centuries, there were obscenity restrictions found in state law, including
state laws pre-dating the Constitution. 57 Based on these existing laws, the
Supreme Court ultimately declared in Roth v. U.S. that “obscenity is not
within the area of constitutionally protected speech.” 58
After making this declaration, the difficult challenge was defining
what constitutes obscenity. 59 In Roth, the Court defined obscenity as
“material which deals with sex in a manner appealing to prurient
interest.” 60 Of course this did little to help define the term, as determining
“prurient interest” did not create a structure for objectively analyzing
speech. 61 The result was a variety of different interpretations of obscenity,
prompting Justice Stewart to say frankly, “I know it when I see it.” 62
During the ten years following the Roth decision, there were thirteen more
decisions attempting to further define the obscenity test. 63 These cases
included some substantive refinements, such as adding a scienter
requirement, 64 and requiring independent appellate review, 65 but most of
these opinions simply made it apparent how unsure the Court was about
55 Winters v. New York, 333 U.S. 507, 515 (1948); See Regina v. Hicklin, L.R. 3 Q.B. 360, 368
(1868).
56 E.g., Roth, 354 U.S. at 492; Winters, 333 U.S. at 515.
57 Roth, 354 U.S. at 482–83 (citing Acts and Laws of the Province of Mass. Bay, c. CV, s 8
(1712)).
58 Id. at 485.
must be some kind of willful or knowing violation of the law. See Scienter, MERRIAM-WEBSTER,
https://perma.cc/FH28-A297.
65 Jacobellis, 378 U.S. at 195.
2017 Obscene Terrorism 353
the proper reading of the Roth test. 66 It seemed that the Court was
struggling to “define what may be indefinable.” 67
These three prongs have given some additional guidance for defining
obscenity, and continue to be used as the test today. 72
Of course, the test did not silence all of the issues with defining
obscenity. 73 The first prong retains the requirement from Roth that the work
appeals to the prurient interest. 74 Roth defined prurience based on
dictionary definitions as having a “tendency to excite lustful thoughts.” 75
This definition has proven difficult to apply as statutes have used varying
language when proscribing obscene speech. 76 “Lustful,” for example, does
not necessarily exclude normal and healthy sexual desire, and hence a
66 See Redrup v. New York, 386 U.S. 767, 770–71 (1967) (outlining the diverging views on
the obscenity test by members of the Court). The thirteen cases resulted in a seemingly
excessive fifty-five separate written opinions. Suehiro, supra note 59, at 915.
67 Jacobellis, 378 U.S. at 197 (Stewart, J., concurring).
68 Miller v. California, 413 U.S. 15, 24–25 (1973); see Suehiro, supra note 59, at 915.
71 Id. at 24.
72 Suehiro, supra note 59, at 916; see, e.g., U.S. v. Williams, 553 U.S. 285, 293–94 (2008);
Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 751 (1996).
73 Suehiro, supra note 59, at 916.
74 Miller, 413 U.S. at 24; Roth v. U.S., 354 U.S. 476, 487 (1957).
75 Roth, 354 U.S. at 487 n.20.
statute using incitement of lust as the determining factor did not meet the
definition of prurience. 77 The first prong arguably creates further
vagueness through its requirement of looking at the works “as a whole.” 78
Ignoring constitutional concerns for vagueness under the Due Process
Clause, 79 the inherent vagueness of the prurient interest prong has
remained an issue. 80 Along with the definition of prurience, the ambiguous
nature of other terms such as “patently offensive,” and “serious . . . value”
create issues with the implementation of the test. 81
Apart from the attempt to create a more concrete structure, the other
major change created by Miller was to explicitly tie the test to
“contemporary community standards.” 82 Even before Miller, the Court in
Roth changed the focus from looking at particularly susceptible people, to
look instead at an average person in the community. 83 In determining what
was meant by “community” post-Roth, the Court began defining the term
broadly. 84 Miller rejected this in favor of allowing smaller local community
standards as opposed to national or societal standards. 85 This more
localized standard adequately served the purpose of creating an objective
standard and not looking only at particularly susceptible people. 86
Determining what a community is, as well as what the appropriate
standard within that community is, created one of the several issues with
the Miller test. 87
84 Jacobellis v. Ohio, 378 U.S. 184, 193 (1964) (“We do not see how any ‘local’ definition of
the ‘community’ could properly be employed in delineating the area of expression that is
protected by the Federal Constitution.”).
85Miller, 413 U.S. at 32–33 (“It is neither realistic nor constitutionally sound to read the First
Amendment as requiring that the people of Maine or Mississippi accept public depiction of
conduct found tolerable in Las Vegas, or New York City.”). The Miller Court rejected adopting
a national standard as proposed in the case, in favor of looking at state standards. Id. at 33–34.
86 Id.
87 See infra Part I.B.3. In general, a community need not be defined, and can range from a
state to a single district. Ashcroft v. A.C.L.U., 535 U.S. 564, 566–77 (2002); see also Hamling v.
U.S., 418 U.S. 87, 105–06 (1974) (choosing to use a district); Miller, 413 U.S. at 33–34 (choosing
to use a state).
2017 Obscene Terrorism 355
difference between normal sexual depictions and ones that would meet the second prong of
Miller).
91 E.g., Penthouse Intern., Ltd. v. McAuliffe, 610 F.2d 1353, 1366–67 (5th Cir. 1980).
94 Patricia G. Barnes, A Pragmatic Compromise in the Pornography Debate, 1 TEMP. POL. & CIV.
“virtual” means depicting minors “without using any real children.” Id. at 239.
96 Suehiro, supra note 59, at 916–17.
97 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
98 Miller v. California, 413 U.S. 15, 24 (1973). The Court has explicitly held that the third
prong of the test is not to be measured by community standards. Pope v. Illinois, 481 U.S. 497,
500–01 (1987).
99 See infra text accompanying notes 102–08.
100 Hamling v. U.S., 418 U.S. 87, 104–05 (1974).
356 New England Law Review Vol. 51|2
an issue of fact for the jury. 101 This creates a level of uncertainty in the test
because it could lead to First Amendment protection of certain speech in
one location, while not in another. 102 The larger issue that has arisen is
what kind of standard is in place when dealing with speech on the
Internet. 103 Because the community standards approach was created before
the advent of the Internet, it did not consider how potentially obscene
works could be so easily disseminated through the Internet. 104 Courts have
not adjusted quickly to this new technology—instead, justices and courts
have been splintered on whether a community standard can still apply at
all. 105 However, the Supreme Court has been reluctant to abandon the local
community standards approach in other contexts. 106 Despite the criticism
toward retaining this standard, even regulations of Internet obscenity as of
now have to be limited to local community standards. 107 These issues must
be carefully analyzed if a similar doctrine is to be used in the terrorist
speech context, which carries additional weighty policy concerns. 108
Probably the most serious foreign policy threat the United States faces
today is international terrorism. 109 Since the September 11, 2001, attacks in
New York City, which killed thousands of Americans, radical Islamic
105 See Ashcroft v. A.C.L.U., 535 U.S. 564, 566, 586, 589, 591, 602 (2002) (marking the
beginning of each separately written opinion). See generally Matthew Dawson, Comment, The
Intractable Obscenity Problem 2.0: The Emerging Circuit Split over the Constitutionality of “Local
Community Standards” Online, 60 CATH. U. L. REV. 719, 736–38 (2011) (discussing the circuit
split on whether local or community standards must be applied after Ashcroft).
106 See, e.g., Sable Commc’ns v. F.C.C., 492 U.S. 115, 125–26 (1989) (national telephone
dissemination); U.S. v. Thomas, 74 F.3d 701, 710–11 (6th Cir. 1996) (Internet bulletin board).
107 See Walters & DeWitt, supra note 103, at 69 (discussing potential alternatives to the
unworkable community standards approach).
108 See supra text accompanying notes 98–107.
109 Sean Hennessy, Note, In re the Sovereign Immunities Act: How the 9/11 Litigation Shows the
Shortcomings of FSIA as a Tool in the War on Global Terrorism, 42 GEO. J. INT’L L. 855, 855 (2011).
2017 Obscene Terrorism 357
One thing that makes recent terrorist attacks by ISIS and other groups
different from past terrorist threats is the rise of social media. 118 For
example, the couple who carried out a terrorist attack in San Bernardino,
California, Tashfeen Malik and her husband Syed Rizwan Farook,
advocated violent terror with posts on social media. 119 Other threats of
terrorist attacks however have been foiled by monitoring social media,
110 See President Barack Obama, Address to the Nation by the President (Dec. 6, 2015),
https://perma.cc/BUC2-EPRH.
111 The Data Team, The Plague of Global Terrorism, ECONOMIST (Nov. 18, 2015, 18:56),
https://perma.cc/BG6D-F39S.
112 See Brian J. Phillips, This is Why the Paris Attacks Have Gotten More News Coverage than
Other Terrorist Attacks, WASH. POST (Nov. 16, 2015), https://perma.cc/HM7Z-TS6M.
113 President George W. Bush, Address to a Joint Session of Congress and the American
115 See generally Ben Wofford & Manuela Tobias, Mayors: We’re More Scared of Terrorism than
Ever, POLITICO MAG. (Jan. 25, 2016), https://perma.cc/P45F-2YGB (discussing the rise in fears of
terrorism for local governments, and apprehension as to how to effectively address the issue).
116 President Obama, supra note 110.
117 Matier & Ross, supra note 3.
118 See Yigal Carmon & Steven Stalinsky, Terrorist Use of U.S. Social Media is a National
such as an attack on police officers that was going to take place in Boston in
the summer of 2015. 120 Besides spreading information and orchestrating
attacks, social media has also been a platform for terrorists to broadcast
their actions. 121 This includes horrendous videos posted by ISIS showing
beheadings of journalists and others. 122 As a result, public social media has
been monitored by law enforcement, leading to positive results such as in
Boston, 123 but also to possible unnecessary monitoring, particularly of
Muslims engaging in religious discourse. 124
Besides law enforcement actions, social media companies have taken
on some of the responsibility for monitoring themselves. 125 In 2016, there
were meetings between government officials and social media company
executives to address the issue of terrorism. 126 Even without any legislation
passed, social media companies have actively worked to remove terrorist
content that violates their own internal policies. 127 In less than a year,
Twitter, a prominent social media platform, has suspended accounts of
more than 125,000 users who promoted terrorism, most of them linked to
ISIS. 128 New measures seem to be proposed and implemented frequently,
including an executive task force created by the Obama Administration to
confront the issue. 129 Unfortunately, these efforts have not curbed the use
of social media platforms, to the frustration of top officials. 130
Senator Feinstein’s bill aims to take a new approach to this issue by
requiring mandatory reporting by social media companies. 131 This proposal
replaces the private initiatives of the social media companies to remove
120 Ray Sanchez, ISIS Exploits Social Media to Make Inroads in U.S., CNN (Jun. 5, 2015, 8:04
AM), https://perma.cc/ZZ2M-8Q2H.
121 Paulina Wu, Comment, Impossible to Regulate? Social Media, Terrorists, and the Role for the
125 See Mario Trujillo, Obama Officials, Tech Firms to Discuss Terror Threats on Social Media,
https://perma.cc/C3V2-FHCZ.
129 Press Release, National Security Council Spokesperson Ned Price, Statement by NSC
comparable child pornography bill has existing algorithms in place to identify child
pornography by features and content, there is no comparable algorithm in place for
identifying terrorist content. Id.
135 See Aliyah Frumin, Senators Revive Social Media Bill After Terror Attacks, MSNBC (Dec. 9,
Soldiers—Legal Perspectives on America’s Counter-Terrorism Responses, 6 SAN DIEGO INT’L L.J. 243,
253 (2005); Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11, U.S. DEP’T OF
JUSTICE, (Sept. 11, 2008) [hereinafter Counter-Terrorism Fact Sheet], https://perma.cc/ZM9M-
VELP.
137 Counter-Terrorism Fact Sheet, supra note 136.
138 Id.
139 Id.; see Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115
Stat. 272 (2001); FISA Amendments Act of 2008, Pub. L. No. 110-261, § 403, 122 Stat. 2436, 2437
(2008). Even before passing the FISA Amendments Act, the USA PATRIOT Act loosened some
of the government restrictions of FISA, which had been on the books since 1978. David S. Kris,
The Rise and Fall of the FISA Wall, 17 STAN. L. & POL’Y REV. 487, 508–09 (2006); see Foreign
Intelligence Surveillance Act (FISA) of 1978, Pub. L. 95-511, 92 Stat. 1783 (1978).
140 See Ellen Nakashima, NSA Phone Record Collection Does Little to Prevent Terrorist Attacks,
the First and Fourth Amendments. 141 Additionally, after the exposure by
Edward Snowden of just how vast government surveillance had become,
the acts came under additionally scrutiny. 142
It seems that Americans today have, to a certain extent, traded their
liberty for further protections from very real terrorist threats. 143 This
pattern has caused significant alarm for many, especially those concerned
with protecting civil liberties. 144 Senator Feinstein’s new approach to
regulating terrorist speech is another step in the direction away from
liberty and toward security. 145 Further regulations on political speech
created by the bill certainly will be an important step, and it is worth
analyzing carefully whether such a dramatic step is prudent. 146
ANALYSIS
The costs and benefits of the obscenity framework beg the question of
whether it would be prudent to fashion a similar approach to terrorist
speech. 147 This would create a subset of political speech that is per se
unprotected, as was avoided in Holder. 148 The particularly troubling, if not
oxymoronic, issue with this categorization is that it would take a subset of
the most highly protected speech, and make it completely unprotected. 149 If
141 E.g., John Doe, Inc. v. Mukasey, 549 F.3d 861, 864 (2d Cir. 2008) (looking at whether
certain USA PATRIOT Act provisions violate the First Amendment); Mayfield v. United
States, 504 F. Supp. 2d 1023, 1037 (D. Or. 2007), vacated, 588 F.3d 1252 (9th Cir. 2009), opinion
vacated and superseded, 599 F.3d 964 (9th Cir. 2010) and vacated, 599 F.3d 964 (9th Cir. 2010)
(looking at Fourth Amendment challenges to FISA as amended by the USA PATRIOT Act).
142 See Lauren Fox, FISA and Patriot Act Under Fire in U.S. Senate, U.S. NEWS (June 25, 2013,
Association Critique, 101 MICH. L. REV. 1408, 1411–12 (2003) (reviewing DAVID COLE & JAMES X.
DEMPSEY, TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF
NATIONAL SECURITY (2002), and DAVID COLE, ENEMY ALIENS: DOUBLE STANDARD AND
CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM (2003)). But see Stephen Holmes, In
Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 CALIF. L. REV. 301, 1314–
15 (2009).
144 E.g., Beverly E. Bashor, The Liberty/Safety Paradigm: The United States' Struggle to
Discourage Violations of Civil Liberties in Times of War, 41 W. ST. U. L. REV. 617, 629–30 (2014);
Jules Lobel, The War on Terrorism and Civil Liberties, 63 U. PITT. L. REV. 767, 770–71 (2002).
145 See Frumin, supra note 135 (discussing the First Amendment issues related to the bill,
and some of the criticisms from the ACLU and from other Senators).
146 See supra Part I.A.2 (discussing the value of political speech, and the dangers of its
censorship).
147 See supra Part I.B.3.
148 See Holder v. Humanitarian Law Project, 561 U.S. 1, 28–29 (2010).
149 See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422 (1992) (Stevens, J., concurring).
2017 Obscene Terrorism 361
this or a similarly fashioned test were to be applied, then the costs would
outweigh the security benefits and therefore should not be adopted. 150
Before addressing the dangerous costs associated with the use of the
obscenity framework, it is important to analyze the potential benefits that
make the approach attractive. 151 The two major benefits associated with
this approach both stem from the desire to maintain national security. 152
153 S. Elizabeth Wilborn Malloy, Taming Terrorists But Not “Natural Born Killers,” 27 N. KY.
groups oppose U.S. intervention, but this same view is also held by many voters. See Dina
Smeltz et al., America Divided: Political Partisans and US Foreign Policy, CHI. COUNCIL ON
GLOBAL AFF. (Sept. 15, 2015), https://perma.cc/K7YW-Z7XZ.
157 See Frank Gardner, How Do Terrorists Communicate?, BBC NEWS (Nov. 2, 2013),
https://perma.cc/HG5S-HKPR; Mitch Silber & Adam Frey, Detect, Disrupt, and Detain: Local
Law Enforcement's Critical Roles in Combating Homegrown Extremism and the Evolving Terrorist
Threat, 41 FORDHAM URB. L.J. 127, 140–41 (2013).
158 See, e.g., Michael Gordon & Bruce Henderson, Morganton Teen Accused in Federal Court of
Planning Killing for ISIS, CHARLOTTE OBSERVER (June 22, 2015), https://perma.cc/LTG9-GT
8Y (looking at the arrest of teenager from a small North Carolina town (Morganton, which
happens to be the hometown of the author of this article) who is alleged to have plotted
terrorist attacks with ISIS); Larry Neumeister, A U.S. Air Force Veteran Charged With Trying to
362 New England Law Review Vol. 51|2
through the Internet, can increase the threat to national security by those
who hear these messages, especially if action is taken in accordance with
those messages. 159 If left completely unchecked, advocacy and support of
terrorism could spread, and indoctrinating propaganda could readily
stream to anyone who is interested. 160 Clearly, this is a frightening proposal
because of the unpopularity and danger associated with this type of
speech. 161 The undesirable nature of this speech can be analogized to the
undesirable nature of obscene speech, 162 and due to the additional safety
concerns regarding terrorist speech, an outright ban in the way of child
pornography would seem effective and reasonable. 163
If the obscenity framework were applied, speech that is deemed
“terrorist” would no longer be granted any type of protection. 164 This
would allow any speech that poses a terrorist threat to be stopped in the
communicative or networking phases, ensuring the greatest protection
from actual attacks. 165 The benefit of the obscenity approach is that there
would no longer be a need to distinguish between different types of
terrorist speech. 166 Instead, all communication that is related to terrorism
Join the Islamic State Will be Among the First Americans to go on Trial as a Result of the U.S.
Government’s Pursuit of Dozens of Suspected Sympathizers of the Militant Group, U.S. NEWS (Feb.
20, 2016, 11:01 AM), https://perma.cc/EU33-WJD7 (discussing the beginning of a trial for
alleged ISIS sympathizer, Tairod Nathan Webster Pugh, and the upcoming trials of other
Americans involved with ISIS).
159 See Morrison, supra note 14, at 973.
160 E.g., P.W. Singer & Emerson Brooking, Terror on Twitter: How ISIS is Taking War to Social
Media–and Social Media is Fighting Back, POPULAR SCI. (Dec. 11, 2015), https://perma.cc/Q9H8-J5
XX (noting that when ISIS attacked a city in Iraq, “[w]ithin hours, images of ISIS barbarity
spread throughout the Arab world”). In the Middle East, the use of social media to
disseminate information is extremely prevalent in order to overcome the excessive speech
regulations. Courtney C. Radsch, Treating the Internet as the Enemy in the Middle East, CPJ (Apr.
27, 2015), https://perma.cc/3CZR-HJYJ. This has led both to use of social media for terrorism,
and for other revolutionary movements, such as the overthrow of authoritarianism. Id.
161 See generally Emily Goldberg Knox, Note, The Slippery Slope of Material Support
Prosecutions: Social Media Support to Terrorists, 66 HASTINGS L.J. 295, 299–302 (2014) (looking at
the many dangers associated with terrorist use of social media for communication).
162 See Roth v. U.S., 354 U.S. 476, 485 (1957).
163 See New York v. Ferber, 458 U.S. 747, 764–65 (1982).
164 See Roth, 354 U.S. at 485 (stating that things deemed obscene have no protection).
165 See Andrew Peterson, Addressing Tomorrow’s Terrorists, 2 J. NAT’L SECURITY L. & POL’Y
terrorists and how not all can currently be regulated); see also Holder v. Humanitarian Law
Project, 561 U.S. 1, 39 (2010) (noting how different types of terrorist speech would not be
subject to the Court’s decision).
2017 Obscene Terrorism 363
167 See Miller v. California, 413 U.S. 15, 23 (1973) (“[O]bscene material is unprotected by the
First Amendment.”).
168 See supra text accompanying notes 68–87.
169 New York v. Ferber, 458 U.S. 747, 764–65 (1982); JoAnne Sweeny, Do Sexting Prosecutions
Violate Teenager’s Constitutional Rights, 48 SAN DIEGO L. REV. 951, 967 (2011).
170 See supra Part I.B.3.
171 Miller, 413 U.S. at 24.
172 Morrison, supra note 14, at 968 (“In short . . . statutes define terrorism as violent acts
With this known balance, the government will be able to address the actual
security concerns when it sees them, using the “I know it when I see it”
approach, still applicable to obscenity. 178 Also, in the same way that
different interpretations of the standards for obscenity allow for protection
of certain things that appear to meet the obscenity definition, such as
pornography, 179 certain statements that would be innocent political speech
with terrorist connotations could be properly left alone. 180
The benefits for the government and national security are notable in
that they could potentially limit terrorist communication. 181 However, the
root causes of these benefits have an overwhelming negative side. 182 While
national security is certainly important, and should not be ignored, there is
no explicit national security exception for freedom of speech. 183 As such,
the framework must be looked at within the existing paradigm for political
speech. 184
standards).
178 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring); see also Suehiro, supra
note 59, at 916 (“Critics of the Miller test argue that it has not cured the problem of vagueness
and still involves nuanced judgments of tone and value.”).
179 See Amy Adler, All Porn All the Time, 31 N.Y.U. REV. L. & SOC. CHANGE 695, 701–02
183 See Kate Kovaric, When the Nation Springs a [Wiki]Leak: The “National Security” Attack on
Free Speech, 14 TUORO INT’L L. REV. 273, 275 (2011) (noting that any national security exception
to free speech “remains unclear and undefined”); Michael C. Shaughnessy, Comment, Praising
the Enemy: Could the United States Criminalize the Glorification of Terror Under an Act Similar to
the United Kingdom’s Terrorism Act 2006?, 113 PENN ST. L. REV. 923, 963 (2009) (looking at how
national security can play a role in altering freedom of speech standards in other contexts).
184 See supra Part I.A.2.
186 See, e.g., Romero, supra note 8, at 1227–28 (concluding that the obscenity test is
governments or the federal government, 187 they tend to mirror each other,
using the test from Miller as a guideline. 188 In practice, similar tests have
resulted in different outcomes for similar types of speech. 189 The clearest
example is the pornography context, where there still remains uncertainty
about the extent of graphicness that is permissible before something is
considered obscene. 190 Even in the context of child pornography, which is
per se obscene, there is a degree of flexibility. 191 The haphazard nature of
these results indicates that despite Miller’s attempt to simplify the test, the
obscenity doctrine remains ambiguous and vague. 192 This has allowed the
government and courts to declare even things as innocuous, artistic, and
seemingly meritorious as song lyrics to be obscene. 193
Applied to terrorism, discretion can be even more dangerous, as it
would allow for limitations on political speech. 194 The Supreme Court has
held that political speech is the most important speech to protect, because it
is vital to a functioning democracy. 195 Limiting political speech, especially
when it speaks against the government, inhibits the spread of ideas and the
ability to change the government—the very purpose of freedom of speech
protections. 196 Even seemingly insignificant limitations have the potential
to “chill,” or impose practical constraints upon, the exercise of important
political speech. 197 Terrorist speech, especially propaganda, addresses
underlying political disagreements with government. 198 Although the
expression of these disagreements is, by definition, violent, the
2000) (finding certain nude magazines not to be obscene), with City of Belleville v. Morgan,
376 N.E.2d 704, 711 (Ill. App. Ct. 1978) (finding certain parts of nude magazines to be
obscene).
190 State v. Hudson Cnty. News Co., 196 A.2d 225, 228–29 (N.J. 1963).
191 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246–48 (2002).
193 Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 603 (S.D. Fla. 1990), rev’d, Luke
regulating political speech, any speech arguably within their reach is chilled.”).
198 Morrison, supra note 14, at 969.
366 New England Law Review Vol. 51|2
hard-core pornography, can change. Mary G. Leary, Mulieris Dignitatem: Pornography and the
Dignity of the Soul––An Exploration of Dignity in a Protected Speech Paradigm, 8 AVE MARIA L.
REV. 247, 272–73 (2010).
202 See, e.g., 18 U.S.C. § 2339A (2012) (stating the potential for imprisonment of fifteen years
to life for violating the existing law prohibiting material support to terrorists).
203See id.
204See Marc D. Falkoff, Litigation and Delay at Guantánamo Bay, 10 N.Y. CITY L. REV. 393,
393–94 (2007).
205 See supra text accompanying notes 198–204. Given the peculiar definitions in existence
for terrorism, it could also lead to punishing those who advocate for organizations that most
people would not consider terrorist. See BUREAU OF COUNTERTERRORISM, Foreign Terrorist
Organizations, U.S. DEP’T OF STATE, https://perma.cc/NG44-JMPK (last visited Apr. 12, 2017)
[hereinafter Terrorist Organizations].
206 See supra text accompanying notes 98–108.
207 See Ganor, supra note 175, at 287; Terrorist Organizations, supra note 205.
209 See id. (listing, for example, the “Manuel Rodriguez Patriotic Front Dissidents” as
having been put on the list in 1997, and then removed exactly two years later).
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210 See Miller v. California, 413 U.S. 15, 24 (1973) (requiring that for obscenity it must meet
community standards in part, and in part be “specifically defined by the applicable state
law”).
211 See Matthew James Enzweiler, Swatting Political Discourse: A Domestic Terrorism Threat,
90 NOTRE DAME L. REV. 2001, 2010 (2015) (discussing the uncertainty with defining terrorism
both internationally and domestically).
212 E.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 2 (2010) (indicating that the
plaintiffs were supporting humanitarian efforts of certain liberation groups, which happened
to also be designated terrorist organizations).
213 Hamling v. U.S., 418 U.S. 87, 104–05 (1974).
214 See generally Bret Boyce, Obscenity and Community Standards, 33 YALE J. INT’L L. 299, 320–
24 (2008) (examining some of the basic issues with defining community standards).
215 See Dennis W. Chu, Comment, Obscenity on the Internet: Local Community Standards for
Obscenity are Unworkable on the Information Superhighway, 36 SANTA CLARA L. REV. 185, 199–200
(1995).
216 Boyce, supra note 214, at 347.
217 See Obama, Address to the Nation, supra note 110 (noting that ways to prevent terrorism
Although this refusal has been criticized, it still has support, including
from the courts. 220 In the terrorism context however, applying such
standards would be illogical given the very nature of terrorism as a
national issue. 221
If a local community approach is adopted, the stark differences in
communities will create strikingly contrary, and potentially contradictory,
results. 222 For example, in extremely conservative localities, any speech not
based on Judeo-Christian values tends to be looked on harshly. 223 Given the
ambiguity inherent in terrorism already, the community standard could
further limit political speech that is pro-Muslim simply by declaring that,
in that particular community, such speech is considered terrorist. 224 Issues
would also arise on the other side of the spectrum, where certain
communities with a higher percentage of liberals that favor more
regulations on firearms could consider speech in favor of the Second
Amendment to be an endorsement of violence, and therefore terrorist. 225
What these examples indicate is that there is great danger in basing
political speech on local community standards, given the vast differences
of political opinion between communities. 226
LAB (Apr. 26, 2012), https://perma.cc/3NDC-5SUV (looking at the many differences between
different regions of the United States).
223 See Republicans Prefer Blunt Talk About Islamic Extremism, Democrats Favor Caution, PEW
RES. CTR. (Feb. 3, 2016) https://perma.cc/P4CR-U5PE (discussing much of the countries fear of
violence from all or most Muslims).
224 See id. (“[O]ne-third [of Republicans] . . . think at least half of Muslims are anti-
American.”).
225 See Continued Bipartisan Support for Expanded Background Checks on Gun Sales, PEW RES.
CTR. (Aug. 13, 2015) https://perma.cc/5VCL-F3F8] (noting the remaining discrepancy between
political views and views on gun control).
226 See Arbesman, supra note 222.
227 E.g., Alicia A. D’Addario, Police Protest: Protecting Dissent and Preventing Violence through
First and Fourth Amendment Law, 31 N.Y.U. REV. L. & SOC. CHANGE 97, 100 (2006); Wendy
Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First
Amendment, 24 HARV. J.L. & TECH. 171, 232 (2010); Jonathan R. Siegel, Note, Chilling Injuries as
a Basis for Standing, 98 YALE L.J. 905, 905 (1989).
2017 Obscene Terrorism 369
228 See Laird v. Tatum, 408 U.S. 1, 11 (1972) (collecting cases where a chilling effect has been
found).
229 See generally Changing Views of Free Speech in the U.S., INFOPLEASE, https://perma.cc/4XJZ-
233 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 276 (1988).
234 See Changing Views of Free Speech in the U.S., supra note 229.
235 E.g., Buckley v. Valeo, 424 U.S. 1, 22–23 (1976), superseded by statute, Bipartisan
Campaign Reform Act of 2002, Pub. L. No. 107–155, 116 Stat. 81.
236 E.g., Citizens United v. F.E.C., 558 U.S. 310, 365 (2010) (“Government may not suppress
political speech on the basis of the speaker's corporate identity.”); see also Texas v. Johnson,
491 U.S. 397, 414 (1989) (invalidating on First Amendment grounds a prohibition on burning
the American flag).
237 Holder v. Humanitarian Law Project, 561 U.S. 1, 28–29 (2010).
238 Id.; see S. 2372, 114th Congress (2015); supra text accompanying notes 155–58.
239 See supra text accompanying notes 155–58.
240 See Johnson, 491 U.S. at 414 (“If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”).
241 See Morrison, supra note 14, at 969.
370 New England Law Review Vol. 51|2
CONCLUSION
242 Chris Tognotti, What does ISIS Want, Exactly? The Terrorists’ Stated Goal has been Made
Ban It, HUFFPOST RELIGION (Jul. 29, 2013, 7:10 AM), https://perma.cc/L4GM-YSGR.
246 Id. (listing all of the countries that use “classical” or “mixed” Sharia systems).
247 See Terrorist Organizations, supra note 205.
248 E.g., Faith and the 2016 Campaign: GOP Candidates Seen as Religious - Except for Trump,
obscenity framework).
250 Citizens United v. F.E.C., 558 U.S. 310, 340 (2010).
2017 Obscene Terrorism 371