by Matt Barr

The intersection of terrorism and a free marketplace of ideas

Hezbollah's TV network, Al Manar, is banned in the United States.

You may think that's odd and perhaps disturbing at first blush. But Al Manar itself has been designated a "global terrorist entity." The designation prohibits any transactions between Americans and the network.

Running afoul of the law was Javed Iqbal, who was arrested Thursday and charged with conspiracy to support a terrorist group for providing New Yorkers with access to Al Manar on their satellite networks along with other Arab TV stations.

Al Manar is of a different kind and quality than other Arab TV stations, as you might expect. The Washington Post reports:

Mark Dubowitz of the Coalition Against Terrorist Media (CATM), which is composed of Jewish, Christian, Muslim and secular organizations, said yesterday he is "saddened" that a U.S. resident was allegedly facilitating the transmission of Al Manar "but pleased that the U.S. is taking the necessary steps to ensure Al Manar's incitement to violence is stopped."

Al Manar, he said, was placed on the terrorist list because it was used to incite violence, recruit people to a terrorist organization and raise funds for terrorist activities, including the provision of bank accounts where money should be sent.

Cori Dauber provides related perspective:

If you could see clips from the thing you'd realize that this is far more than just news with Hezbollah's perspective -- it is propaganda of the crudest and most vile sort imaginable. And the point of the propaganda isn't lost in translation, either: we're evil, the Israelis are evil, and violence is more than justified, it is often glorious.

Hassan Fadlallah, Al Manar's news director, told the New Yorker:

"Neutrality like that of Al Jazeera is out of the question for us," Fadlallah said. "We cover only the victim, not the aggressor. CNN is the Zionist news network, Al Jazeera is neutral, and Al Manar takes the side of the Palestinians....

He said Al Manar's opposition to neutrality means that, unlike Al Jazeera, his station would never feature interviews or comments by Israeli officials. "We're not looking to interview Sharon," Fadlallah said. "We want to get close to him in order to kill him."

We're not talking about CNN, in other words. Not that anybody would be tendentious enough to compare the two. I'm sorry. What?

[A] spokesman for Mr. Iqbal called the government's charges ridiculous. "It's like the government of Iran saying we're going to ban The New York Times because we think of it as a terrorist outfit," the spokesman, Farhan Memon, said before the hearing. "Or China trying to ban CNN."

As Dauber points out, Iran does ban the New York Times, and China CNN. "That would be a dictatorship without a generally free press banning responsible news agencies," she notes, casting the debate in the appropriate terms.

There should be no doubt that this is different, and that it demands thoughtful consideration. That consideration must start though with the bare fact that the United States is prohibiting the dissemination of speech based on its content.

It may constitutionally do so if the speech is an incitement to violence, but it seems unlikely that the government can avail itself of that exception to prohibit hours upon hours (I don't know and can't find easily whether Al Manar broadcasts 24 hours a day) of daily material in advance.

It seems to me that a prohibition could pass constitutional muster if Al Manar is nothing but a fundraising arm of Hezbollah. Imagine PBS or NPR pledge weeks were devoted to raising money for terrorism and genocide. Would the FCC be estopped by the First Amendment from shutting them down because Jim Lehrer is on an hour a day? May you disseminate and receive child pornography if it includes a headline from the day's news?

What is bothersome about laws banning propaganda, apart from the interesting constitutional issues, is that they assume a level of control the government doesn't deserve -- or have.

There is an undercurrent to such laws that assumes recipients of the propaganda can't determine for themselves that the information is unreliable and that civilized people ought to be watching or reading something else instead. But that lurks below the surface. I don't think the point of a law banning propaganda is to protect ordinary channel-surfing Americans who have no interest in Middle Eastern affairs.

Mostly, laws banning propaganda assume that if we can just keep it away from those most receptive to it, we won't create any more jihadists, Holocaust deniers or anti-West zealots.

You simply can't -- as in, it won't work -- use the power of law to keep someone disposed to hatred from feeling or expressing it. To be powerful enough to do so, a law would have to get a little too far inside someone's head. Or it would have to choke off ten times more legitimate news and opinion than the propaganda it's targeting. Neither option is attractive in a liberal society.

The primary argument for something like this is that it ferrets out and punishes actual material supporters of terrorism, like (the argument goes) Mr. Iqbal. But there is a principle in First Amendment jurisprudence that a restriction on speech must be as narrowly tailored as possible to serve legitimate state interests; if overbroad, the First Amendment prohibits it. Similarly, I think it's worthwhile to figure out whether prohibiting and punishing the dissemination of propaganda is the most direct way to root out terrorist supporters without potentially infringing on legitimate First Amendment activity.

Laws like the one at issue usually include exceptions for news media; in fact, according to the ACLU (NYT link above), this one does. The reason for that isn't -- or isn't just -- some special extralegal status journalists have come to expect. It's that without an exception, the law could be enforced in such a way to choke off legitimate First Amendment activity. In fact, with an exception, the same possibility exists. (And it starts by qualifying "First Amendment activity" with words prone to subjective massage like "legitimate.")

There are many ways to support Hezbollah besides hooking satellite subscribers up to Al Manar, and if you're inclined to support Hezbollah, that's not all you'll do. Erring on the side of not prohibiting First Amendment activity, however distasteful, does not mean letting facilitators of terrorism walk.

And frankly, opening the arena of ideas to absolutely every perspective, however hateful or harebrained, is what we do in America. It's how it works. The government is never, ever going to know better than the collective wisdom of a free people which ideas are best and worst.

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