Censorship and Institutional Competence

Chapter seven in “Terror in the Balance” has an interesting discussion of censorship as part of the war on terror. As Posner and Vermeule note, the Bush administration has not utilized this tool to fight terrorism, although the United Kingdom has.

I agree with most of what Posner and Vermeule say about censorship. Certainly when you read about the message of jihad preached by the likes of Abu Hamza at the Finsbury Park mosque in London, you cannot help but appreciate the threat that is posed by speech that incites terrorism. (Hamza was convicted in February 2006 of multiple counts of soliciting murder).

Posner and Vermeule state that “we do not express an opinion on the value of censorship but claim only that it is not too soon to think about whether the United States will need to follow Britain’s lead…” (p. 230). I agree.

But censorship raises quite interesting issues of institutional competence. Unlike other sections of the book, I don’t read Posner and Vermeule as arguing that courts lack the competence to strike the appropriate balance between liberty and security when it comes to matters such as incitement to terrorism. Indeed, I would guess if there is one subject discussed in the book in which courts would feel competent to balance liberty with security it would be in assessing free speech claims. Posner and Vermeule compare Dennis v. United States (upholding conviction of Communist party members for conspiring to advocate the overthrow of the government) with Brandenburg v. Ohio (overturning the conviction of a Ku Klux Klan leader for advocating violent means of political change). They suggest that the greater deference approach of Dennis is appropriate in times of emergency. (p. 232).

But they don’t argue that courts lack competence on the issue of censorship. They just argue for a model of deference. Of course, courts regularly balance liberty with security when they assess whether the government has a compelling state interest to justify a curtailment of speech. I would be curious if Posner and Vermeule think that the institutional competence claims they present elsewhere throughout the book apply with equal force in the free speech context. And if not, why is the competency calculus different in the free speech context?