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NOTES

Obscene Terrorism: Can the First


Amendment’s Obscenity Framework Be
Applied to Terrorist Speech?

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

O n December 8, 2015, Senator Dianne Feinstein (D-CA) and


Richard Burr (R-NC) introduced into the United States Senate a
bill titled “Requiring Reporting of Online Terrorist Activity Act.” 1 This bill
would give companies that provide “electronic communication service[s]
or a remote computing service” a legal duty to report any “facts or
circumstances” relating to “terrorist activities” to authorities later
designated by the Attorney General. 2 The provisions of this short bill have
previously been rejected within larger intelligence bills due to the advocacy
of certain interest groups, including advocates for civil liberties. 3 Similar
critiques are mounting again given the inherent importance of the topic
from both a national security and civil liberty perspective. 4
One of the fears with this bill concerns infringements upon freedom of
speech rights, which Senator Feinstein herself noted as a potential barrier,
although she believes that counter-terrorism concerns are more important. 5
Keeping freedom of speech concerns in mind, it is noteworthy that the
bill’s framework is primarily borrowed from a similar law requiring the
reporting of child pornography. 6 As such, the bill analogizes terrorist
speech to child pornography, a class of speech that is analyzed within the
jurisprudential context of the obscenity doctrine. 7 The obscenity framework
developed for the First Amendment is complicated and has been subjected
to multiple interpretations and critiques. 8 As a result, the ultimate question
becomes whether it is a good idea to further the proposed analogy from

1 S. 2372, 114th Cong. (2015).


2 Id.
3 Phil Matier & Andy Ross, Feinstein Wants to Enlist Social Media to Help Prevent Terrorism,

S.F. CHRONICLE (Dec. 5, 2015, 6:49 PM), https://perma.cc/R3GJ-FP99.


4 See, e.g., Jessica DaSilva, Terrorism Bill Puts Social Media Companies in Tough Spot,

BLOOMBERG BNA (Jan. 6, 2016), https://perma.cc/3EVQ-RFEH; Lauren C. Williams, New Bill


Would Force Social Media Companies to Identify Potential Terrorists, Report Them to Government,
THINK PROGRESS (Dec. 10, 2015, 3:52 PM), https://perma.cc/2NF9-2NK8.
5 See Williams, supra note 4 (quoting Senator Feinstein as saying: “We are at a different

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

(Dec. 8, 2015, 6:57 PM), https://perma.cc/JQ9E-6M


ZU; see also 18 U.S.C. § 2258A (2012).
7 See New York v. Ferber, 458 U.S. 747, 756 (1982); David T. Cox, Litigating Child

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

this bill by applying the obscenity exception framework to terrorist


speech. 9
This Note argues that, although appealing, applying an obscenity-like
framework to terrorist speech is an unwise and dangerous approach. Part I
of this Note looks at the historical backdrop that has heretofore regulated
terrorist speech under the First Amendment. Part I goes on to look at the
development, application, and concerns that have arisen from the
obscenity framework and the test for obscenity as defined by the Supreme
Court in Miller v. California. Part II discusses the importance of the issue of
terrorism and terrorist communication, especially given the recent
international focus on the issue. Part III addresses the perceived benefits
that would come from applying an obscenity-like framework to terrorist
speech. Part IV concludes, however, that the detrimental effects to freedom
of speech that would result from using this framework outweigh any of the
potential benefits.

I. Background

The First Amendment states, in part, that “Congress shall make no


law . . . abridging the freedom of speech.” 10 This protection is not beyond
qualification—over the years the Supreme Court has distinguished many
different categories of speech, with different levels of constitutional
protection for each. 11 Terrorist speech, depending on its nature, is subject to
different qualifications. 12

A. Terrorist Speech and the First Amendment

First Amendment jurisprudence has not ignored terrorist speech, and


there is a great deal of terrorist speech that is unprotected. 13 Much terrorist
speech is curbed through the determination that at a certain point it can
rise to the level of real threats and is completely unprotected as
inflammatory speech. 14 However, not all terrorist speech will fall into the
realm of inflammatory speech and therefore this existing framework is not
applicable to all terrorist communication. 15 Additionally, terrorist speech

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).

12 See infra Part I.A–B.

13 E.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 39–40 (2010).

14 See Steven R. Morrison, Terrorism Online: Is Speech the Same as it Ever Was?, 44 CREIGHTON

L. REV. 963, 972 (2011).


15 Daphne Barak-Erez & David Scharia, Freedom of Speech, Support for Terrorism, and the

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

1. Terrorist Speech as Inflammatory Speech

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

Regulation of Extremist Speech in the Era of Mass Digital Communications: Is Brandenburg


Tolerance Obsolete in the Terrorist Era?, 36 PEPP. L. REV. 361, 362 (2009).
16Ashutosh Bhagwat, Terrorism and Associations, 63 EMORY L.J. 581, 604 (2014).
17Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
18 See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Alexander Tsesis, Inflammatory

Speech: Offense Versus Incitement, 97 MINN. L. REV. 1145, 1155–56 (2013).


19 See generally Tsesis, supra note 18 (discussing the holdings of some of the cases that

“established the groundwork” for the doctrine).


20 Brandenburg, 395 U.S. at 447–49.

21 Id. at 447. This test has been interpreted into two separate prongs: (1) likeliness of inciting

unlawfulness, and (2) immanency of such unlawfulness. Adrianna D. Kastanek, Comment,


From Hit Man to a Military Takeover of New York City: The Evolving Effects of Rice v. Paladin
Enterprises on Internet Censorship, 99 NW. U. L. REV. 383, 389 (2004).
22 Brandenburg, 395 U.S. at 448–49.

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

2. Terrorist Speech as Political Speech

In Holder, the plaintiff unsuccessfully argued that the speech in


question was inherently political in nature. 33 Expression that is considered
political is often given a special significance, as it is at the core of the First
Amendment. 34 Political speech has long been recognized as being granted

26 Morrison, supra note 14, at 984.


27 Holder, 561 U.S. at 7.
28 Id. at 28. The Supreme Court has created three different levels of scrutiny for determining

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

the highest First Amendment protection of any form of speech. 35 Defining


political speech is difficult, but can usually be determined based on the
circumstances. 36 The basic definition is based on the intent of the speaker to
make a statement concerning government actions. 37
The progeny of political speech cases has resulted in a transition from
looking at when speech should not be protected for various reasons, to
focusing on when the government has inhibited political speech by
statute. 38 This has slightly changed the focus of jurisprudence from the
intent of the speech, to the actual political substance. 39 If the political nature
of speech is based on either intent or substance, however, terrorism speech
would fall into the category of political speech, based on most recognized
definitions of terrorism. 40 This is because, at its core, terrorism is based on
underlying political disagreements with certain policies or values. 41
Regulations or infringements on political speech receive the highest
level of constitutional scrutiny. 42 In practice, this means that they are
subject to strict scrutiny. 43 Under this test, used for a variety of
constitutional standards, a regulation must be shown to further a
compelling government interest while also being narrowly tailored to
address that interest. 44 In Holder, the Court determined that strict scrutiny
would not apply since the statute was not meant to regulate expression. 45
However, this narrow exception to strict scrutiny would not likely apply to

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-

prong test for determining what political speech is permissible as “unprecedented


governmental intervention”); Travis D. Spears, Civil Death in a Modern World: Criminal
Disenfranchisement and the First Amendment, 7 THE CRIT: CRITICAL STUD. J. 91, 101–02 (2014); see
generally Anastasia N. Niedrich, Note, Emphasizing Substance: Making the Case for a Shift in
Political Speech Jurisprudence, 44 U. MICH. J.L. REFORM 1019, 1029–35 (2011) (analyzing many of
the various approaches taken to political speech).
37 Wells v. State, 848 N.E.2d 1133, 1148 (Ind. Ct. App. 2006).
38 Niedrich, supra note 36, at 1024–25.

39 Id. at 1026.

40 See Morrison, supra note 14, at 966–68 (listing out definitions of terrorism); see also infra

Part IV.B (looking at potential issues related to defining terrorism).


41 Morrison, supra note 14, at 969.
42 R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992).
43 Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011). But see

Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).


44 Citizens United v. F.E.C., 558 U.S. 310, 340 (2010); see generally Adam Winkler, Fatal in
Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND.
L. REV. 793, 798–802 (2006) (looking at the genesis and definition of strict scrutiny).
45 Holder, 561 U.S. at 28.
2017 Obscene Terrorism 351

most restrictions on terrorist speech, including the regulation proposed by


Senator Feinstein’s bill. 46 When a government action is subject to strict
scrutiny, it is unlikely that it will survive, especially when freedom of
speech is implicated. 47 In this context, a regulation on terrorist speech is not
likely to survive, which partially explains why Chief Justice Roberts found
it necessary to divorce the regulation in question in Holder from this
context. 48 This indicates that there are significant policy concerns when it
comes to placing undesirable speech in the existing framework, especially
when it fails to fall into the inflammatory speech exception; this is the type
of speech that will be covered under the Feinstein bill. 49

B. The First Amendment’s Obscenity Framework

Freedom of speech jurisprudence, of course, is not limited to


inflammatory speech and political speech. 50 An entire subset of First
Amendment jurisprudence has developed to address the protection of
material that is obscene. 51 Material that is considered obscene, such as child
pornography, 52 is not protected by the First Amendment. 53 As such, its
regulation on social media by law, the law on which Senator Feinstein’s bill
is based, has not been subjected to rigorous First Amendment criticism. 54

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

America by Enforcing Obscenity Laws, 23 STAN. L. & POL’Y REV. 1, 3 (2012).


54 See 18 U.S.C. § 2258A (2008).
352 New England Law Review Vol. 51|2

1. The Creation and Development of the Obscenity Exception

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.

59 Megan A. Suehiro, Defining the Indefinable: Obscenity Jurisprudence as a Theoretical Guide to

Judicial Recusal Reform, 23 GEO. J. LEGAL ETHICS 907, 914–15 (2010).


60
Roth, 354 U.S. at 487.
61
See Jules B. Gerard & Scott D. Bergthold, Prurient Interest in Sex, in LOCAL REGULATION OF
ADULT BUSINESSES § 3:16 (2015).
62 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
63 Suehiro, supra note 59, at 915.
64 Smith v. California, 361 U.S. 147, 154 (1959). A scienter requirement means that there

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

2. The Application of the Three-Prong Test from Miller v.


California

After years of struggling to define obscene speech, the Court in Miller


v. California created a more comprehensive test to determine what is
obscene. 68 In Miller, the Court examined a mass mailing campaign sending
unsolicited brochures using graphic pictures to sell books. 69 The
responsible party was charged under a California statute that was in
accord with existing obscenity standards. 70 The Miller Court rejected these
standards and announced a new test for determining whether speech is
obscene:
[1] whether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a
whole, appeals to the prurient interest . . . [2] whether the work
depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and . . . [3]
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. 71

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.

69 Miller, 413 U.S. at 16–17.

70 See id. at 23.

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.

76 Gerard & Bergthold, supra note 61.


354 New England Law Review Vol. 51|2

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

77 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498–99 (1985).


78 Romero, supra note 8, at 1208.
79 See U.S. CONST. amend. V, XIV.

80 See Suehiro, supra note 59, at 916.

81 See infra Part I.B.3.

82 Miller v. California, 413 U.S. 15, 24 (1973).


83 Roth v. U.S., 354 U.S. 476, 488–89 (1957).

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

3. The Main Issues with the Miller Test

The first major issue noted by critics of Miller is the definitional


ambiguity created by the wording of the test. 88 Litigation has ensued over a
number of the terms in the test, including “prurient interest,” 89 “patently
offensive,” 90 “serious redeeming value,” 91 and most of all “contemporary
community standards.” 92 The ambiguity apparent in these terms creates an
issue with the application of the test to different facts, and the potential for
pre-textual solutions to protect speech. 93 For example, pornographic
material would tend to be considered obscene under Miller’s three prongs,
yet continues to pass the test when it is placed next to literary pieces. 94 This
has even included virtual child pornography, which is per se
unconstitutional when not “virtual.” 95 On the other hand, the ambiguity
created by the test is useful in that it grants judges a certain degree of
discretion, which allows for looking at each set of unique facts to determine
if a work is obscene. 96 Under this rationale however, the court could simply
return to the “know it when I see it” days before Miller. 97
Another issue with the Miller analysis is that it requires looking at the
first two prongs under “contemporary community standards.” 98 There are
two major issues with community standards: what constitutes a
“community” and how the standards of a community are determined. 99
For the first issue, the Court has found that the relevant community need
not be explicitly addressed. 100 Instead, the relevant community should be

88 See supra text accompanying notes 73–81.


89 See supra text accompanying notes 75–80.
90 E.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498–99 (1985) (looking at the

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).

92 E.g., A.C.L.U., 535 U.S. at 566–77; Hamling, 418 U.S. at 105–06.


93 Romero, supra note 8, at 1227.

94 Patricia G. Barnes, A Pragmatic Compromise in the Pornography Debate, 1 TEMP. POL. & CIV.

RTS. L. REV. 117, 121 (1992).


95 See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246–48 (2002). In this context,

“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

II. The Policy Significance of Regulations on Terrorist Speech

A. The Dangers and Prevalence of Terrorist Communication

1. The Recent Prevalence of Terrorism and Basic Legal


Ramifications

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

101 Id. at 104.


102 This issue was noted, but rejected as being inconsequential in Miller. Miller, 413 U.S. at
30 (“Under a National Constitution, fundamental First Amendment limitations on the powers
of the States do not vary from community to community.”).
103 Lawrence G. Walters & Clyde DeWitt, Obscenity in the Digital Age: The Re-Evaluation of

Community Standards, 10 NEXUS 59, 60 (2005).


104 Id. at 64.

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

terrorism has been especially prevalent, either with established terrorist


organizations such as Al Qaeda, or more recently with the rise of the
Islamic State of Iraq and Syria (ISIS). 110 This threat has not been restricted
to the United States, as countries throughout the world have been similarly
threatened. 111 In 2015, 2016, and 2017, multiple large scale terrorist attacks
orchestrated by ISIS have put terrorism back into the forefront of the media
and politics, garnering dramatically more coverage and interest than any
terrorist threat since 2001. 112
In 2001, after the September 11 attacks, the United States declared a
“war on terror.” 113 This war, along with the continued threat to the United
States, has had a dramatic effect on the lives of Americans, and American
law. 114 The increased attention on terrorism today is likely to have similar
effects on domestic policy and legislation. 115 Today’s terrorism, especially
the small scale attacks orchestrated by ISIS, requires a different type of
response than the terrorism of the early 2000s. 116 Senator Feinstein’s bill
hopes to address some of these concerns for combatting the modern
terrorist threat. 117

2. Terrorist Communication over Social Media

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

People (Sept. 20, 2001), https://perma.cc/JR3L-9VFN.


114 See infra Part II.B.

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

Security Threat, FORBES (Jan. 30, 2015, 1:36 PM), https://perma.cc/8WUE-E4MA.


119 Evan Perez & Dana Ford, San Bernardino Shooter's Social Media Posts on Jihad Were

Obscured, CNN (Dec. 14, 2015, 11:37 PM), https://perma.cc/9W3S-MXJ4.


358 New England Law Review Vol. 51|2

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

U.N., 16 CHI. J. INT’L L. 281, 288–89 (2015).


122 Id. at 288.
123 Sanchez, supra note 120.
124 See Amna Akbar, National Security’s Broken Windows, 62 UCLA L. REV. 834, 855 (2015).

125 See Mario Trujillo, Obama Officials, Tech Firms to Discuss Terror Threats on Social Media,

THE HILL (Jan. 7, 2016, 3:49 PM), https://perma.cc/72MA-9M7M.


126 Id.
127 Id.
128 Twitter Suspends 125,000 Accounts for Terrorism Links, DW (Feb. 5, 2016),

https://perma.cc/C3V2-FHCZ.
129 Press Release, National Security Council Spokesperson Ned Price, Statement by NSC

Spokesperson Ned Price on Updates to U.S. Government Efforts to Counter Violent


Extremism (Jan. 8, 2016) https://perma.cc/H4G5-Z7FV.
130Greg Miller & Karen DeYoung, Obama Administration Plans Shake-Up in Propaganda War
Against ISIS, WASH. POST (Jan. 8, 2016), https://perma.cc/EU
9L-KFH6.
131 S. 2372, 114th Cong. (2015).
2017 Obscene Terrorism 359

users with various legal requirements—which social media companies


have been opposed to. 132 Enforcement of the laws and regulations on
terrorist speech will be placed into the hands of the government, through
the discretion of the Attorney General. 133 Whatever the benefits of this bill,
however, it will prove difficult to manage in practice, 134 and also may come
up against constitutional protections. 135

B. Government Regulations of Speech and Privacy

Senator Feinstein’s bill is hardly the first proposed legislation as a


reaction to terrorism. 136 Numerous counter-terrorism measures were put
into effect after the September 11, 2001, terrorist attacks. 137 These measures
included more effective use of existing prosecutorial tools, implementing
structural changes within the FBI and Justice Department, and
coordinating with other governments. 138 Two important pieces of
legislation were also passed that gave the government broad powers of
monitoring and exploiting terrorist communication: the USA PATRIOT
Act, and the FISA (Foreign Intelligence Surveillance Act) Amendments Act
of 2008. 139 The efficacy of these legal frameworks in preventing terrorism
has been somewhat questionable. 140 The broad powers associated with
these acts have come under constitutional scrutiny for potentially violating

132 Trujillo, supra note 125.


133 S. 2372.
134 DaSilva, supra note 4. The main issue with the implementation will be that whereas the

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,

2015, 10:57 AM), https://perma.cc/QPB2-HSU5.


136 See Jackson Nyamuya Maogoto, Countering Terrorism: From Wigged Judges to Helmeted

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,

Group Says, WASH. POST (Jan. 12, 2014), https://perma.cc/5S37-GPQD.


360 New England Law Review Vol. 51|2

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,

3:16 PM), https://perma.cc/35CK-ZM2F.


143 Robert M. Chesney, Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by

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

III. The Benefits of the Obscenity Framework

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

A. Regulation of Undesirable Speech

Endorsing extreme violence of any kind is condemned almost


universally, and speech that does this will not be constitutional if it falls on
the “imminent danger” side of the Brandenburg test. 153 As such, there are
already several prohibitions against certain kinds of terrorist speech in
place. 154 However, the kinds of speech that Senator Feinstein’s bill hopes to
prevent are not necessarily in this category. 155 Terrorists’ communications
can involve speech that is nothing more than seemingly innocuous
coordination of plans, or more importantly, speech in favor of similar
causes as those associated with terrorism. 156
A lot of terrorist communication today is through the Internet. 157 This
has resulted in more easily disseminated terrorist messages, which have
taken root not just abroad, but even with United States residents and
citizens. 158 People advocating in favor of terrorist causes, especially

150 See infra Part III–IV.


151 See infra Part III.A–B.
152 See infra Part III.A–B.

153 S. Elizabeth Wilborn Malloy, Taming Terrorists But Not “Natural Born Killers,” 27 N. KY.

L. REV. 81, 86–87 (2000).


154 Morrison, supra note 14, at 963; see also supra Part I.A.1.

155 See S. 2372, 114th Congress (2015).


156 Morrison supra note 14, at 969. For a clear example of the latter, most Islamic terrorist

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

297, 303 (2008).


166 See Morrison, supra note 14, at 963 (noting the different types of speech used by

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

would be left unprotected. 167 Additionally, courts and legislators would be


free to analyze different terrorist speech differently, deciding which
regulations of terrorist speech should be subject to closer analysis, through
either a Miller type of framework, 168 or through an exception similar to the
child pornography strand of obscenity jurisprudence. 169

B. The Flexibility of the Approach

Besides being able to halt terrorist communication in its tracks, the


somewhat ambiguous nature of the obscenity framework could supply law
enforcement with the discretion necessary to seek and find terrorists, while
not stepping on the rights of innocent people. 170 The obscenity framework
is based on a test that determines prurience, patent offense, and merit. 171 In
the terrorist context, the most relevant term that would need to be defined
is terror, which, like obscenity, is normally distinguishable from non-
terror. 172 The test would additionally link the definition to community
standards, instead of the currently existing and seemingly endless
statutory definitions of terror. 173 This shifting idea of what terror is would
give the government, and courts, the power to effectively use their
judgment to prosecute actual terrorism while leaving non-terrorist political
speech untouched. 174
Because terrorism can shift, what is considered terrorist speech can
shift as well. 175 Therefore, in a bill like Senator Feinstein’s, the government
can define terrorism only to the extent necessary to regulate it. 176
Additionally, the use of community standards to determine the validity of
a regulation will ensure an adequate check on the government’s power. 177

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

committed to influence a civilian population or a government.”).


173 Oliver Libaw, How Do You Define Terrorism?, ABC NEWS (Oct. 11, 2015),
https://perma.cc/YE8P-YN4C.
174 See infra text accompanying notes 175–80; see also Counter-Terrorism Fact Sheet, supra note

136 (showing the shifting as to what groups are considered terrorist).


175 See Counter-Terrorism Fact Sheet, supra note 136. See generally Boaz Ganor, Defining
Terrorism: Is One Man’s Terrorist Another Man’s Freedom Fighter?, 3 POLICE PRAC. & RES. 287, 287
(2002) (discussing issues defining terrorism).
176 See S. 2372, 114th Cong. (2015).
177 See Miller v. California, 413 U.S. 15, 24 (1973) (defining the test using community
364 New England Law Review Vol. 51|2

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

IV. The Costs of the Obscenity Framework Outweigh the Benefits

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

A. Ambiguity and Discretion in the Framework

Any amount of ambiguity in a legal doctrine will provide a certain


degree of discretion to those tasked with enforcing it; this can prove to be
either positive or negative, depending on the perspective. 185 In the
obscenity context however, the negative perspective of the discretion and
ambiguity is notable. 186 When obscenity laws are enacted, either by state

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

(2007); Barnes, supra note 94, at 121.


180 Morrison, supra note 14, at 969.
181 See supra Part III.
182 See infra Part IV.A–B.

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.

185 See supra Part III.B.3 (focusing on the positive perspective).

186 See, e.g., Romero, supra note 8, at 1227–28 (concluding that the obscenity test is

unconstitutionally vague in its application).


2017 Obscene Terrorism 365

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

187 Hatch, supra note 53, at 15.


188 See, e.g., N.C. GEN. STAT. ANN. §14-190.1(b) (West 2016); 18 PA. CONS. STAT. ANN. §
5903(b) (West 2016).
189 Compare U.S. v. Various Articles of Merch., Schedule No. 27, 230 F.3d 649, 658 (3d Cir.

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).

192 Romero, supra note 8, at 1227–28.

193 Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 603 (S.D. Fla. 1990), rev’d, Luke

Records, Inc. v. Navarro, 960 F.2d (11th Cir. 1992).


194See supra Part I.A.2.
195First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 (1978); see R.A.V. v. City of St. Paul,
Minn., 505 U.S. 377, 422 (1992) (Stevens, J., concurring).
196 See William A. Williams, A Necessary Compromise: Protecting Electoral Integrity through the
Regulation of False Campaign Speech, 52 S.D. L. REV. 321, 329 (2007).
197 Citizens United v. F.E.C., 558 U.S. 310, 334 (2010) (“As additional rules are created for

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

disagreement itself is still politically valuable. 199


This becomes an issue if the question of what constitutes terrorism is
hooked on to an ambiguous test such as that for obscenity. 200 Whereas the
implications of whether hardcore pornography is or is not obscene are
slight, 201 the implications of whether speech is simple disagreement with
American foreign policy or terrorist speech could be huge. 202 People that
exercise their fundamental right to criticize their government could find
themselves subject to extreme criminal sanctions. 203 This is especially true
given the United States’ record pertaining to its treatment of known and
suspected terrorists. 204 The overbroad nature of this potential test, coupled
with government discretion, will lead to punishing non-terrorist political
activists. 205

B. Defining Terrorism by Community

Using community standards to define terms has been problematic in


obscenity jurisprudence. 206 The definition of terrorism, even more so than
obscenity, is not static and is subject to numerous factors. 207 The numerous
definitions of terrorism, along with the plethora of groups defined as
terrorist by the State Department, indicate the unclear definition of
terrorism. 208 Even the groups designated by the State Department as
terrorist groups are subject to change at any time. 209 This will create a

199 See Terrorism, MERRIAM-WEBSTER, https://perma.cc/NY2K-47WE.


200 See supra text accompanying notes 88–97 (looking at the issues of ambiguity resulting
from the obscenity test).
201 Not all non-obscene pornography is protected, and the definitions of pornography, or

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.

208 See 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).
2017 Obscene Terrorism 367

practical issue for any community to attempt to define terrorism because it


will be forced to rely both on statutory definitions of terrorism, as well as
the standards within the individual community. 210 This will be particularly
problematic given the changing and uncertain nature of what constitutes
terrorism. 211 For example, a person could advocate for a group that is listed
as a terrorist organization by the State Department, and the advocacy could
meet other statutory definitions of terror, while also promoting a cause that
is popular in the particular community. 212 This type of situation will be
unworkable for juries tasked with determining the community
standards. 213
Causing further exacerbation, the definition of the relevant community
for purposes of the test would be unclear. 214 When Miller was decided in
the 1970s, individual communities were more isolated, and thus could
foreseeably establish different standards. 215 The Internet has created
substantial issues with this in the obscenity context, and will create an
equal amount of issues, if not more, in the terrorism context. 216 Terrorist
speech is a threat not just to those who see it, but to the nation as a
whole. 217 Although terrorism has been combated at both the national and
state level, most people will look to the national government and not to
local communities to deal with the issue. 218 Adopting a national
community standard has been routinely rejected in the obscenity context. 219

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

are a “matter of national security”).


218 See Karen Dunne Woodside & Alan Gershel, The U.S.A. Patriot Act and Michigan’s Anti-

Terrorism Laws, 82 MICH. B.J. 20, 21 (2003).


219 See Chu, supra note 215, at 198. It was later clarified, however, that the third prong of the
Miller test involving merit should be based on national standards. Pope v. Illinois, 481 U.S.
497, 500–01 (1987).
368 New England Law Review Vol. 51|2

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

C. The Slippery Slope of Speech Regulation

The chilling effect on speech caused by government regulations is well


noted. 227 This effect will limit free speech based on fear of punishment, and

220 See, e.g., Boyce, supra note 214, at 368.


221 See Norman C. Bay, Executive Power and the War on Terror, 83 DENV. U. L REV. 335, 335
(2005) (“[T]he United States has treated terrorism as a military issue, not a law enforcement
problem.”).
222 See generally Samuel Arbesman, The Invisible Borders that Define American Culture, CITY

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

is an apparent result of even the slightest of regulations. 228 In the past


century, regulations on free speech have increased. 229 Since 1919, laws have
been upheld that limited speech in a variety of contexts: Speech against the
draft, 230 speech in favor of communist ideals, 231 speech that appears in
public broadcast, 232 speech of public school students, 233 and more. 234 Only
in rare occasions have these regulations touched on speech that is
considered political, 235 and normally such regulations have been stamped
out. 236
In the terrorism context, Holder v. Humanitarian Law Project indicates
that political speech is not necessarily implicated. 237 Although the Court
did not announce a per se rule as to terrorist speech, its implication of non-
protection would be expanded to terrorist political speech if the obscenity
context were to be applied, as implicitly proposed by Senator Feinstein’s
bill. 238 If this were accepted, then it would create a precedent for other per
se exclusions of political speech. 239 While the ambiguity inherit in the
obscenity doctrine could lead to unintended regulations on non-terrorist
political speech, opening the door to further regulation of what is deemed
to be unpopular or dangerous speech in other contexts would frustrate the
very purpose of freedom of speech protections. 240
Like other types of political speech, terrorist speech pushes for certain
political goals. 241 Taking ISIS as the most relevant current example, its goal

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-

R88K (providing a timeline of laws and decisions on free speech).


230 Schenk v. U.S., 249 U.S. 47, 51–52 (1919).
231 Dennis v. U.S., 341 U.S. 494, 516–17 (1951).
232 Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 389 (1969).

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

is to develop an Islamic caliphate. 242 This goal is based on its members’


opinions that a return to a religiously ordered society is an important
policy. 243 Belief in a society based on Islam is not in itself a terrorist goal,
and is already used today as a political structure in some nations, such as
Iran. 244 Many other countries also base their legal systems either entirely or
partially on the Quran, through Sharia Law. 245 These countries include,
inter alia, Egypt, Saudi Arabia, Indonesia, Nigeria, Bangladesh, and
Oman. 246 None of these countries’ populations, however—assuming that
they support the systems in place to any degree—are considered terrorists
per se, or are put on the State Department’s terrorism list. 247
Furthermore, there are even debates about the role that religion should
play in governance in the United States. 248 If a per se restriction on terrorist
speech could encompass all advocacy in accordance with ISIS, then it is not
a huge leap for political speech in favor of Islamic law, or all advocacy of
religion in politics, to be similarly restricted. 249 Continuing down this slope
would clearly diminish the high protections afforded to political speech
under the First Amendment, and run contrary to the constitutional
imperative that “political speech must prevail against laws that would
suppress it.” 250

CONCLUSION

Terrorism is an important and frightening issue in contemporary


society, politics, and law. Terrorist communication has risen to the
forefront of people’s minds given recent extreme terrorist attacks, and the
daunting rise in the use of social media by terrorists. This has resulted in
newly proposed government measures, including Senator Feinstein’s bill

242 Chris Tognotti, What does ISIS Want, Exactly? The Terrorists’ Stated Goal has been Made

Clear, BUSTLE (Sept. 2, 2014), https://perma.cc/5KPJ-K4B7. The limitations on this caliphate, as


well as other goals along the way are less clear and numerous. Id.
243 See id.
244 See generally The Structure of Power in Iran: An Overview of the Iranian Government and
Political System, PBS FRONTLINE, https://perma.cc/G37E-J34K (providing an overview of the
Iranian political and governmental system).
245 Omar Sacirbey, Sharia Law in the USA 101: A Guide to What It Is and Why States Want to

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,

PEW RES. CTR. (Jan. 27, 2016), https://perma.cc/4FUH-SRJN.


249 See generally supra Part IV.A (looking at broad discretion for speech as terrorist under the

obscenity framework).
250 Citizens United v. F.E.C., 558 U.S. 310, 340 (2010).
2017 Obscene Terrorism 371

that likens terrorist speech on social media to obscene child pornography.


Analogizing terrorist speech to obscenity in the First Amendment context
is attractive at first glance. Terrorist speech, however, is political in nature
and subject to a different paradigm than obscenity. The possibility of the
exercise of arbitrary discretion, the problematic nature of determining
community standards, and the slippery slope that this type of regulation
on free speech can create, far outweigh the potential benefits of this
framework, and would result in a diminishing of freedom of speech
protections overall.