A Selective Crackdown on the First Amendment

Over at The Corner, Andy McCarthy seconds Newt Gingrich's suggestion that the War on Terror requires "a rethinking of First Amendment principles." Specifically, McCarthy suggests that the Supreme Court should consider overruling Brandenburg v. Ohio, which held that the government could not proscribe advocacy of the use of force “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” McCarthy writes:

If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.

Under Brandenburg, calls for imminent lawless action are not protected by the First Amendment, so what McCarthy is getting at here is something much broader. He wants to outlaw generalized, non-imminent calls for revolution, or as he puts it, "calls for mass murder."

Upon reflection, however, it's pretty clear that McCarthy's crackdown on free speech would be rather selective in nature. For instance, I doubt he would question Rush Limbaugh's First Amendment right to call for "blowing up" the Middle East. Nor is he likely disturbed by calls among prominent right-wingers for a "more rubble, less trouble" approach to the Middle East. Or how about when the Wall Street Journal publishes an op-ed calling for "an international equivalent of Sherman's march through the South"? In case that's a little too cryptic, the author explained himself further:

Which is why there are times when we really should turn off the “smart” bombs and show our seriousness by putting the world on notice that, when we believe the situation calls for it, we are willing to ignore the inevitable bad press and the howls of protest from human rights groups, and exhibit a show of strength and military professionalism that is politically disinterested and tactically thorough and lethal.

Calls for military action, for violence against various perceived enemies (including innocent civilians who happen to be in the way) are so commonplace on the Right that any random google search is likely to turn up countless examples. Is McCarthy really prepared to remove First Amendment protection for such speech? What on earth will right wing bloggers talk about all day?

We live in a country where the rules apply to everyone equally. You can't just ban speech you don't like, particularly when you're not willing to restrict it across the board.