Bomb recipes

During 1995, Senator Diane Feinstein, a Democrat from California, introduced a bill which would criminalize the dissemination of bomb recipes in any media, print or electronic.

Though most reasonable people would agree that recipes for the creation of such devices as a toilet paper booby trap are of use only to the murderous, the effect of Feinstein's legislation was to introduce a new exception to the First Amendment.

Under the Supreme Court case of Brandenburg v. Ohio, violent speech is only illegal if it occurs in a context which causes an immediate apprehension of harm. Standing outside someone's house, calling on a mob to lynch those inside, would be illegal under this test, but writing an essay calling for the murder of a political adversary would be First Amendment protected speech, albeit morally repulsive.

Applying this test to bomb recipes, they constitute protected speech because they do not cause an immediate apprehension of harm. Typically, the author is not acquainted with his readership and has no way of knowing which, if any, will act on the information.

The Senate subcommittee on Terrorism and Technology (some combination) held a hearing last spring at which, remarkably, every single witness who appeared told the Senators that the bill was unconstitutional. They included a Justice Department official and Rabbi Marvin Hier of the Simon Wiesenthal Center.

Nonetheless, the subcommittee, in the shadow of the Oklahoma City bombing, referred Senator Feinstein's bill to the full Senate, where it passed as part of President Clinton's Counterterrorism Act. However, the whole effort has stalled in the House, which pre-occupied with government violence and over-reaching at Waco and Ruby Ridge, is disinclined to grant the increased police powers the bill contains.

The First Amendment was not created by the founders to protect just the speech of which we approve. The test of free speech is whether we will tolerate speech of which we profoundly disapprove, even speech "fraught with death," as Justice Holmes said. Outlawing bomb recipes means, depending on your outlook, either outlawing pure advocacy or pure information. Supporters of Senator Feinstein's bill have tried to argue both sides of this case. Law professor Cass Sunstein says that bomb recipes are pure information and therefore not protected by the First Amendment. But there is no logic in saying that the First Amendment protects the advocacy of an act, but not describing the instrumentality by which it is to be done. There is no real distinction to be made between information and advocacy, since information impliedly advocates its own use. Bomb recipes exist in a context of the advocacy of the use of explosives for political gestures or dispute resolution.

Sunstein also immediately contradicts himself by saying that Brandenberg should only be held to apply to speech heard by small groups of people. Treating bomb recipes now not as information but as advocacy, he says that speech which does not cause immediate apprehension of harm when spoken to a small group becomes dangerous when uttered on the Internet, when, reaching a mass audience, it is more likely to find a psycho who will act on it. This preposterous thesis can be translated as follows: "The First Amendment protects 'bad speech' only when it is spoken to small audiences, but bans the same speech when it is in danger of succeeding in the marketplace of ideas." This, of course, is the death of Justice Holmes' concept of the marketplace, where speech must be left free to compete.

Ultimately, there is no rationale for banning bomb speech without banning any other advocacy of crime or description of the instrumentality of carrying it out. Why make a distinction for bomb recipes but not for books on illegal wiretapping, or marijuana smoking, or tax evasion, or even civil disobedience? The result is to throw Thoreau in jail twice, once for refusing to pay a tax, and then for writing about it. It is a fundamental rule in this country that writing about crime is not a crime.