Terrorism, Violent Extremism, and the Internet: Free Speech Considerations

Summary: Recent acts of terrorism and hate crimes have prompted a renewed focus on the possible links between internet content and offline violence. While some have focused on the role that social media companies play in moderating user-generated content, others have called for Congress to pass laws regulating online content promoting terrorism or violence. Proposals related to government action of this nature raise significant free speech questions, including (1) the reach of the First Amendment's protections when it comes to foreign nationals posting online content from abroad; (2) the scope of so-called "unprotected" categories of speech developed long before the advent of the internet; and (3) the judicial standards that limit how the government can craft or enforce laws to preserve national security and prevent violence.

Summary: At the outset, it is not clear that a foreign national (i.e., a non-U.S. citizen or resident) could invoke the protections of the First Amendment in a specific U.S. prosecution or litigation involving online speech that the foreign national posted from abroad. The Supreme Court has never directly opined on this question. However, its decisions regarding the extraterritorial application of other constitutional protections to foreign nationals and lower court decisions involving speech made by foreign nationals while outside of the United States suggest that the First Amendment may not apply in that scenario. In contrast, free speech considerations are likely to be highly relevant in evaluating the legality of (1) proposals for the U.S. government to regulate what internet users in the United States can post, or (2) the enforcement of existing U.S. laws where the government seeks to hold U.S. persons liable for their online speech.

Summary: Although the government typically can regulate conduct without running afoul of the First Amendment, regulations that restrict or burden expression often do implicate free speech protections. In such circumstances, courts generally distinguish between laws that regulate speech on the basis of its content (i.e., the topic discussed or the message expressed) and those that do not, subjecting the former to more stringent review. A law that expressly restricts online communications or media promoting violence or terrorism is likely to be deemed a content-based restriction on speech; whereas a law that primarily regulates conduct could be subject to a less stringent standard of review, unless its application to speech turns on the message expressed. Whether such laws would survive First Amendment scrutiny depends on a number of factors.

Summary: Over the past 50 years, the Supreme Court has generally extended the First Amendment's free speech protections to speech that advocates violence in the abstract while allowing the government to restrict or punish speech that threatens or facilitates violence in a more specific or immediate way. The subtle distinctions that have developed over time are reflected in the categories of speech that the court has deemed unprotected, meaning that the government generally can prohibit speech in these areas because of its content. These include incitement to imminent lawless action, true threats, and speech integral to criminal conduct. Although judicial decisions have helped to define the scope of some of these categories, open questions remain as to how they apply in the context of online speech. For instance, legal scholars have questioned what it means for speech to incite "imminent" violence when posted to social media. They have also asked how threats should be perceived when made in the context of online forums where hyperbolic speech about violence is common.

Summary: The extent to which the government can regulate speech promoting violence or terrorism also depends on whether its law or action satisfies the applicable level of scrutiny that the Court has developed to evaluate measures that restrict or burden speech. In general, laws that regulate protected speech on political or ideological matters are subject to strict scrutiny, a test that requires the government to demonstrate that its law is narrowly tailored to achieve a compelling governmental interest. Nevertheless, in some cases, courts have concluded that the government's national security interests justify restrictions on protected speech, such as in 2010 when the Supreme Court upheld certain applications of a federal statute prohibiting providing material support to U.S.-designated foreign terrorist organizations.

A s the Supreme Court has observed, while the First Amendment protects the "freedom of speech," it "does not protect violence." But when speech promotes violence, a tension can form between the values of liberty and security. In an oft-quoted passage from a dissenting opinion, Justice Robert Jackson argued that the problems this tension creates are not insurmountable but must be confronted with a dose of pragmatism: a government can temper "liberty with order," but to treat free speech as absolute threatens to "convert the constitutional Bill of Rights into a suicide pact." While Justices of the Court have often disagreed over when free speech rights must yield to the government's interests, when it comes to speech promoting violence, the Court has rejected an all-or-nothing approach. Over the past 50 years, the Court has drawn a line between speech that advocates violence in the abstract and speech that facilitates it in a specific way, with the former receiving more robust constitutional protections. It has done so because, in the Court's view, upholding the First Amendment requires preserving "uninhibited, robust, and wide-open" debate on public issues, even if that means allowing individuals to express ideas that are "deeply offensive to many."

In more recent years, some have begun to question whether and how the Court's decisions in this area should apply to speech online. The "vast democratic fora of the Internet" have provided ample platforms not only for those seeking to debate issues or express controversial views, but also for individuals and entities planning violent attacks or threatening violence online. Many policymakers and commentators, including some Members of Congress, have expressed concerns about the proliferation of social media content promoting terrorism and violence and the influence such speech can have on other internet users. Some have called on Congress to restrict or even prohibit such content, which raises the question of whether the First Amendment would allow such regulation. A number of legal scholars have explored these issues, and some have proposed recommendations to Congress about how best to address these concerns in accordance with the First Amendment.

Although governmental efforts to combat online content promoting terrorism or violence could take a number of forms, this report focuses on the First Amendment implications of imposing civil or criminal liability on individual internet users (i.e., the originators of the content) rather than the social media companies or internet service providers themselves. As such, it focuses on the underlying First Amendment issues that are likely to be common to both forms of government action, but does not discuss the additional considerations attendant to regulating a social media platform, which are the subject of another CRS report. The report begins with some background on the use of the internet by terrorist groups and the reported influence of online content on certain individuals accused of committing violent attacks. It then considers the question of who can invoke the First Amendment by analyzing whether its free speech protections apply to foreign nationals when they post online content from abroad, for example, in circumstances such as U.S. prosecutions where online content is introduced as evidence of a crime. The report then discusses the overarching First Amendment principles that bear on what the government may regulate under the First Amendment, including (1) the distinction between regulating conduct and speech; (2) the presumed invalidity of content-based laws; and (3) relevant "unprotected" categories of speech that generally can be restricted because of their content. The report next discusses the strict scrutiny standard and the overbreadth doctrine, which impose limitations on how the government can regulate by requiring that laws restricting speech be sufficiently tailored and not so broad as to chill protected speech. Finally, the report concludes with some considerations for Congress in evaluating the constitutionality of regulating online content promoting terrorism or violence.

According to the Federal Bureau of Investigation (FBI), the internet and, in particular, the use of social media are among the key "factors [that] have contributed to the evolution of the terrorism threat landscape" since the September 11, 2001, terrorist attacks. Certain organizations that track or study hate crimes also cite the internet as a tool used to intimidate and harass people because of their race, ethnicity, religion, sexual orientation, or other attributes. At the same time, some commentators have questioned the purported link between what some refer to as "hate speech" and bias-motivated crimes or have expressed concern that focusing on the ideological motivations of speakers has led to calls to criminalize protected speech divorced from any criminal intent or action.

While the nature or extent of the relationship between online speech and criminal conduct may be disputed, the use of the internet by terrorist groups is well documented. U.S.-designated terrorist groups such as the Islamic State (also known as ISIS or ISIL), Al Qaeda, Hamas, and Al Shabaab, have long used social media to disseminate their ideologies and recruit new members to their causes. The Islamic State group has used Twitter and YouTube to disseminate videos of its fighters executing prisoners and to claim credit for attacks around the world. Al Shabaab used Twitter to claim credit for the 2013 attack on the Westgate Shopping Mall in Nairobi, Kenya, and to distribute information about the attack while it unfolded. News outlets are also beginning to examine how the alleged perpetrator of the March 2019 terrorist attacks on two mosques in New Zealand may have used social media to announce and promote his actions.

In addition, the internet reportedly has played a key role in certain individuals' personal "journey[s] to terrorism" or violent extremism —a process often referred to as "radicalization." For example, the person convicted of killing nine black parishioners in a South Carolina church in 2015 was said to have "self-radicalized" online, adopting a "white supremacy extremist ideology, including a belief in the need to use violence to achieve white supremacy." In 2015, it was reported that "the digital legacy" of Anwar al Awlaki—a U.S. citizen who became closely involved with Al Qaeda's affiliate in Yemen and was targeted and killed by a U.S. drone strike there—influenced the ideologies of certain individuals accused or convicted of terrorist activities, including the Boston Marathon bombers.

Speech advocating violence and terrorism is prohibited by the terms of service of Facebook, Twitter, and certain other social media outlets. Such prohibitions are permissible under current judicial interpretations of First Amendment law because these platforms are operated by private actors, and the First Amendment constrains only state (i.e., government) action. Although the more established sites reportedly have increased their efforts to disable accounts that are associated with terrorist groups or remove content promoting terrorism or violence, it is not clear how comprehensive or successful these efforts have been. Moreover, users banned from one platform may move to another online forum that does not have the same restrictions, sometimes finding a community of like-minded individuals who reinforce or escalate their violent rhetoric (sometimes referred to as "echo chambers").

As previously noted, this report focuses on the First Amendment considerations relevant to government regulation of online content promoting terrorism or violence. Because of the global reach of many online platforms, this report begins with the threshold question of the First Amendment's reach, and in particular, whether it applies to foreign nationals posting online content from outside of the United States.

The First Amendment and Foreign Speakers

While the First Amendment may extend to U.S. citizens speaking abroad or foreign nationals speaking within the United States under some circumstances, the Supreme Court has not directly opined on whether the First Amendment applies to online content that a foreign national posts while located outside of the United States. Nevertheless, the Court's decisions involving the extraterritorial reach of other constitutional protections, as well as lower court decisions involving the First Amendment rights of foreign nationals, suggest that foreign nationals may face barriers in claiming First Amendment protections for such speech.

The Supreme Court's decision in United States v. Verdugo-Urquidez —though it involves the Fourth Amendment—is instructive. In that case, the Court held that the Fourth Amendment, which "prohibits 'unreasonable searches and seizures,'" did not extend to the search of a Mexican citizen's home in Mexico by U.S. authorities. The Court reasoned that in contrast to the Fifth and Sixth Amendments, which concern trial rights and procedures, the Fourth Amendment applies regardless of the prospect of trial, and "a violation of the Amendment is 'fully accomplished' at the time of an unreasonable governmental intrusion." As such, any violation would have "occurred solely in Mexico." Four of the five Justices who joined the majority opinion reasoned that the Fourth Amendment reserves its protections to "the people," which they interpreted as a "term of art employed in select parts of the Constitution." In the view of those Justices, a textual analysis of the Constitution suggested that "'the people' protected by the Fourth Amendment, and by the First and Second Amendments," meant "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Because the defendant had "no voluntary attachment to the United States" at the time of the search, he could not claim the protections of the Fourth Amendment.

At least two sitting Supreme Court justices—Justices Clarence Thomas and Brett Kavanaugh—have suggested that the First Amendment does not apply to foreign nationals abroad, citing to Verdugo-Urquidez . The discussion that more directly addressed the applicability of free speech protections to foreign nationals came from then-Judge Brett Kavanaugh in a 2014 case involving the United States' prosecution of an Al Qaeda associate. In that case, a U.S. military commission convicted a personal assistant to Osama bin Laden for, among other things, conspiracy to commit war crimes. The defendant "claim[ed] that he was unconstitutionally prosecuted for his political speech, including his production of [an] al Qaeda recruitment video celebrating the terrorist attack on the U.S.S. Cole ." When the case, Al Bahlul v. United States , first reached the full U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), the court ruled on a different legal question and remanded the case for consideration of the First Amendment challenge. However, Judge Kavanaugh authored a separate opinion, in part to address the First Amendment's applicability. He stated that "although non-U.S. citizens arguably may have some First Amendment rights at [a U.S. military base in] Guantanamo or in other U.S. territories for any speech they engage in there , non-U.S. citizens have no First Amendment rights abroad in foreign countries."

The Supreme Court has applied the Constitution to aliens in the United States and in U.S. territories, but has not extended constitutional rights to aliens in foreign countries. See Boumediene v. Bush , 553 U.S. 723, 768-71 (2008) (applying Article I, Section 9 to U.S. Naval base at Guantanamo, which was "[i]n every practical sense . . . not abroad"); United States v. Verdugo-Urquidez , 494 U.S. 259 (1990) (declining to apply Fourth Amendment to search and seizure of alien's property in Mexico); Johnson v. Eisentrager , 339 U.S. 763 (1950) (declining to apply habeas corpus right to U.S.-controlled military prison in Germany); see also Al Maqaleh v. Hagel , 738 F.3d 312 (D.C. Cir. 2013) (declining to apply habeas corpus right to U.S. military base in Afghanistan); Al Maqaleh v. Gates , 605 F.3d 84 (D.C. Cir. 2010) (same). Therefore, [the defendant] had no First Amendment rights as a non-U.S. citizen in Afghanistan when he led bin Laden's media operation.

Two years later, the full D.C. Circuit took up the Al Bahlul case again following remand. This time, the court squarely rejected the defendant's First Amendment challenge, citing the concurring opinions of Judge Kavanaugh, Judge Patricia Millett, and Judge Robert Wilkins, who all concluded that the defendant could not avail himself of the First Amendment's protections. Thus, as the D.C. Circuit phrased it in a prior decision, "aliens beyond the territorial jurisdiction of the United States are generally unable to claim the protections of the First Amendment."

Nevertheless, "[i]n a variety of contexts th[e] Court has referred to a First Amendment right to 'receive information and ideas.'" In order to preserve this right, the Court has largely rejected governmental attempts to control information because of how the government views that information. For example, in Lamont v. Postmaster Gen eral , the Court held that a federal statute requiring the Postal Service to withhold foreign mailings classified as "communist political propaganda" from addressees unless they requested delivery of the mailings in writing amounted "to an unconstitutional abridgment of the addressee's First Amendment rights." The Court concluded that the "regime of this Act is at war with the 'uninhibited, robust, and wide-open' debate and discussion that are contemplated by the First Amendment."

Whether or when the government must observe the First Amendment in its interactions with foreign nationals in order to preserve the rights of U.S. citizens is uncertain. As then–D.C. Circuit Judge Ruth Bader Ginsburg noted in a dissenting opinion, "[t]he [F]irst [A]mendment secures to persons in the United States the respect of our government for their right to communicate and associate with foreign individuals and organizations." Referring to Lamont , she observed that "the first federal law the Supreme Court ever held violative of the [F]irst [A]mendment involved a condition on international correspondence—a restraint on delivery of mail from abroad." While finding it unnecessary to decide in that case "whether the [F]irst [A]mendment limits the actions of U.S. officials in their dealings with foreign parties," Judge Ginsburg noted the following principle from the Restatement (Third) of Foreign Relations :

The provisions of the United States Constitution safeguarding individual rights generally control the United States government in the conduct of its foreign relations as well as in domestic matters, and generally limit governmental authority whether it is exercised in the United States or abroad, and whether such authority is exercised unilaterally or by international agreement.

Judge Ginsburg concluded by stating that she "would hesitate long before holding that in a United States-foreign citizen encounter, the amendment we prize as 'first' has no force in court."

Based on these principles and decisions, there may be some cases involving social media content posted by foreign nationals that implicate the free speech rights of U.S. citizens, who may be members of the particular online forum or otherwise have access to it. However, there could be prudential limitations on a foreign national's ability to assert those rights. And, even if a court concludes that a particular foreign national has standing in a given case, it is not clear that the First Amendment would protect his or her online activities based solely on the purported interests of other Internet users.

In contrast, the Supreme Court has recognized that U.S. citizens regularly exercise First Amendment rights when communicating online, so free speech protections are more directly in play when considering the United States' regulation of its own citizens' online speech. Accordingly, the remainder of this report discusses the principles that bear on the government's ability to regulate online content promoting terrorism or violence when there is no dispute about the First Amendment's applicability.

A key initial consideration in evaluating whether a law or a particular application of that law comports with the First Amendment is whether the law at issue regulates conduct or speech . The distinction is sometimes elusive because speech may occur during a course of conduct, and actions themselves can sometimes be inherently expressive or "symbolic" speech protected by the First Amendment. As a potential starting point, a law typically regulates conduct if it dictates what the regulated persons or entities "must [or must not] do . . . not what they may or may not say ." But the touchstone for deciding whether such a law implicates the First Amendment appears to be whether the law targets expression. To determine whether a law targets expression and depending on the facts of the case, a court might consider (1) the express terms (i.e., "the face") of the law, (2) the purpose of the law, or (3) its practical application to see whether the law is directed at certain content or speakers or applies to the challenger's activities solely as a result of what that party seeks to communicate.

If a law does not target expression, the First Amendment extends the government more leeway to regulate that activity even if the regulation incidentally burdens speech. As the Supreme Court has explained,

[R]estrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. . . . [T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech. That is why . . . "an ordinance against outdoor fires" might forbid "burning a flag" . . . .

However, the conduct-focused nature of a law does not necessarily preclude First Amendment review where the government seeks to penalize a person under that law because of ideas or messages that person communicated.

The Supreme Court applied these principles in its 2010 decision in Holder v. Humanitarian Law Project , which involved the constitutionality of a federal statute concerning the provision of material support to U.S.-designated foreign terrorist organizations (FTOs). The statute imposes criminal penalties on anyone who "knowingly provides material support or resources to [an FTO], or attempts or conspires to do so." It defines "material support or resources" in relevant part as "any property, tangible or intangible, or service, including . . . training, expert advice or assistance, . . . false documentation or identification, communications equipment, . . . personnel (1 or more individuals who may be or include oneself) . . . , except medicine or religious materials." In Humanitarian Law Project , a group of U.S. citizens and domestic organizations brought a preenforcement challenge to the law, arguing that it would be unconstitutional to punish them for the types of support that they wished to provide to two FTOs. Specifically, the plaintiffs sought to (1) train members of one FTO on how to use humanitarian and international law in peaceful dispute resolution; (2) teach that FTO's members how to petition international organizations for relief; and (3) engage in political advocacy for the rights of certain groups, including by supporting one of the FTOs "as a political organization" for this purpose. After concluding that most of these activities clearly constituted "training" or "expert advice or assistance" under the law, the Court proceeded to address the First Amendment implications of applying the statute to the plaintiffs' activities.

The Humanitarian Law Project Court rejected the "extreme positions" advanced by both sides. On the one hand, it rejected the plaintiffs' contention that the statute banned their "pure political speech," noting that the law did not prevent the plaintiffs from becoming members of the FTOs, speaking and writing freely about these organizations, or engaging in independent advocacy. The Court reasoned that "Congress has prohibited 'material support,' which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations." On the other hand, the Court rejected the government's position that applying the law to the plaintiffs' activities implicated only conduct, not speech. It reasoned that the law itself "regulates speech on the basis of its content" because whether plaintiffs are subject to prosecution "depends on what they say." Referring to the statutory definitions of "training" and "expert advice or assistance," the Court noted that if the plaintiffs' speech to the organizations "imparts a 'specific skill' or communicates advice derived from 'specialized knowledge'—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred." Even if the law " generally functions as a regulation of conduct," the Court reasoned, in these circumstances, "as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message." As discussed in more detail infra , the Court ultimately held that the material support statute did not violate the First Amendment as applied to the plaintiffs' proposed activities because the challenged statutory prohibitions were necessary to further the government's asserted interests in combating terrorism.

Unlike a law involving "material support," which, in the Court's view, "most often" takes the form of conduct rather than speech, a law that expressly prohibits or restricts, for example, social media posts promoting terrorism or violence would more clearly involve speech because of its central focus on communications. Although the Supreme Court has not had many occasions to consider laws that expressly restrict online content, in a First Amendment challenge to a federal law that restricted the online transmission of certain "indecent" and "patently offensive" content, both the parties and the Court evaluated the law as regulating speech, not conduct.

Once it is established that a law regulates speech, the next consideration is whether it does so on the basis of content. First Amendment law historically has distinguished between laws that restrict speech because of its content or viewpoint and those that do not draw content-based distinctions or that have a content-neutral justification. Although the Justices of the Court have sometimes disagreed over whether a particular law is content-based for First Amendment purposes, the Court has largely settled on the following definition:

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.

Courts scrutinize content-based distinctions because of the potential for the government to silence speech with which it disagrees by prohibiting or imposing special burdens on an entire category of speech: "content discrimination 'raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'" Justice Anthony Kennedy wrote in a case involving federal restrictions on the transmission of sexually explicit cable programming: "The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must give us more than a moment's pause." The Supreme Court has repeatedly stated that content-based laws are "presumptively unconstitutional" and subject to the Court's most stringent review, at least insofar as they involve fully protected speech. In current First Amendment parlance, such laws must survive "strict scrutiny," meaning that the government must demonstrate that they are narrowly tailored to serve compelling governmental interests.

Under the Court's current formulation, a law that expressly regulates what topics can be discussed in a social media post would likely be considered a "content-based" restriction on speech, as the regulation "applies to particular speech because of the topic discussed or the idea or message expressed." As such, as a general matter, such a law would likely be subject to strict scrutiny and presumptively invalid. However, this level of scrutiny may not apply if the regulated content falls within a category of speech that the Court has said is not fully protected, as discussed in the next section.

If a law regulates speech, the next consideration in the First Amendment analysis is whether that speech is considered protected (sometimes referred to as "fully protected" ) or instead falls within one of the narrow categories of so-called "unprotected" speech (sometimes referred to as the First Amendment's "exceptions" ) recognized by the Supreme Court. Such categories are not determinative of whether a law is constitutional, but the government generally has greater leeway to regulate unprotected speech based on its content.

The Supreme Court has long considered political and ideological speech to be at the "core" of the First Amendment and the ability to exchange ideas to be integral to a functioning democracy.

Our cases have often noted the close connection between our Nation's commitment to self-government and the rights protected by the First Amendment. . . .

The First Amendment creates "an open marketplace" in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.

These principles extend even to speech that many would consider to be deeply offensive or hateful. Accordingly, a law that restricts speech concerning "politics, nationalism, religion, or other matters of opinion" generally receives strict scrutiny.

But the First Amendment does not just protect core political and ideological speech. Even in cases involving speech historically considered to have lower "social value," the government generally "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The same is generally true for speech that the legislature considers "too harmful to be tolerated," as the government generally may not proscribe speech based on its content unless that speech falls within one of the narrow categories of unprotected speech recognized by the Supreme Court. Three of those categories are of particular relevance in the context of online speech that promotes terrorism or violence.

In 1969, in Brandenburg v. Ohio , the Supreme Court considered a state law that prohibited "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." The state convicted a Ku Klux Klan leader of violating the statute based on films of a Klan rally that showed, among other things, hooded figures carrying firearms burning a cross and included, in the Court's words, "scattered phrases . . . that were derogatory of Negroes and, in one instance, of Jews." During a speech, the defendant stated, "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The Supreme Court reversed the defendant's conviction, concluding that the statute, by punishing "mere advocacy and [forbidding], on pain of criminal punishment, assembly with others merely to advocate the described type of action" violated the First Amendment. Effectively establishing a three-part test, the Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is [1] directed to inciting or producing [2] imminent lawless action and [3] is likely to incite or produce such action." The Court reiterated that "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action."

Supreme Court cases since Brandenburg have helped to elucidate its "directed to," "imminence," and "likelihood" requirements to some degree—though not in the specific context of internet speech. Hess v. Indiana involved a conviction for disorderly conduct stemming from an anti-war rally at which the defendant shouted, "We'll take the [expletive] street later." The Court overturned the defendant's conviction because his statement, though made to a crowd of people, "was not directed to any person or group of persons" and "amounted to nothing more than advocacy of illegal action at some indefinite future time." In the Court's words, "there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder."

Some argue that the Hess decision suggests that the Court views the "imminence" requirement to mean that violence must be likely to occur immediately as a result of the speech at issue. State and federal courts have not always applied Hess or the imminence requirement of Brandenburg so strictly. For example, in People v. Rubin , a California state court ruling, the defendant was charged with solicitation of murder. During a press conference to protest an upcoming march by the American Nazi Party through Skokie, IL, the defendant offered money to anyone who "kills, maims, or seriously injures a member of the American Nazi Party." He added, "This is not said in jest, we are deadly serious." The trial court concluded that his speech was protected by the First Amendment, but the state appeals court reversed in a split decision with one judge dissenting. Analogizing criminal solicitation to incitement, the appeals court applied Brandenburg 's imminence and likelihood requirements and concluded that both were satisfied even though the march in Skokie was not scheduled to take place until five weeks after the defendant had spoken. The court wrote that "time is a relative dimension and imminence a relative term, and the imminence of an event is related to its nature. . . . We think solicitation of murder in connection with a public event of this notoriety, even though five weeks away, can qualify as incitement to imminent lawless action."

Supreme Court decisions after Hess suggest that whether strong rhetoric is directed to inciting or producing imminent lawless action depends on the context in which the statements at issue were made—and to some degree, whether violence actually resulted. In NAACP v. Claiborne Hardware Co. , "17 white merchants" filed suit against the NAACP, its Field Secretary in Mississippi, and over a hundred other individuals involved in a "boycott of white merchants in Claiborne County, [Mississippi]," that was organized to protest racial discrimination, alleging tortious interference with trade. In relevant part, at issue were claims arising from certain speeches that the Field Secretary, Charles Evers, made during the middle of the boycott. In the wake of the shooting and killing of "a young black man . . . during an encounter with two Port Gibson police officers," which led to mounting "[t]ension in the community" and "sporadic acts of violence," Evers allegedly stated that "boycott violators would be 'disciplined'" and that if anyone was caught entering the boycotted stores, "we're gonna break your damn neck."

The Claiborne Hardware Court held that Evers was not liable to the boycotted store owners for their economic losses because his speech was protected under the First Amendment. The Court acknowledged that "[i]n the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended." Still, the Court held, "[t]he emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg " because the "strong language" used was part of "lengthy addresses" that "generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them ." Of potential significance, the Court noted that "a substantial question [as to the defendant's liability] would be presented" if that language "had been followed by acts of violence," but there was no evidence of violence occurring after the challenged statements.

In a later case, Texas v. Johnson , involving a criminal defendant's First Amendment challenge to his prosecution for burning a flag during a political protest, the Supreme Court ruled for the defendant, finding it notable that despite the allegedly "disruptive behavior of the protestors during their march . . . no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning." The Court added that in such circumstances, the "likel[ihood]" of imminent lawless action under Brandenburg cannot be inferred merely because an audience may take "serious offense" to particular expression. The Court explained,

[A] principal "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago , 337 U.S. 1, 4 (1949). It would be odd indeed to conclude both that "if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection," FCC v. Pacifica Foundation , 438 U.S. 726, 745 (1978) (opinion of Stevens, J.), and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Thus, the Court reasoned, to equate the potential for violence with speech "directed to" and "likely to" incite or produce such action would be to "eviscerate [the Court's] holding in Brandenburg ."

Scholars and commentators have noted the limits of the Brandenburg incitement doctrine when it comes to regulating content on social media. In particular, many have questioned what constitutes "imminence" when speech is made in an online forum rather than in connection with a specific event where violence or unrest might be anticipated. Others have questioned how the "directed to" or "likelihood" prongs of the test operate when speech is made to an unknown audience of internet users rather than an assembled group in person.

In applying Brandenburg to internet speech, a few lower courts have identified certain types of content that may not constitute incitement but might constitute a true threat, another category of unprotected speech discussed below. For example, the Third Circuit has stated that "merely posting information on unlawful acts that have already occurred, in the past, does not incite future, imminent unlawful conduct," but held that under the circumstances of that case, the defendants' use of "past incidents to instill fear in future targets" amounted to unprotected speech. That circuit also observed in dicta in another case that Brandenburg might allow the government to obtain an injunction to "restrain a website published by a hate group naming specific groups or individuals as targets, or specifying instructions for committing a crime."

As with incitement of the Brandenburg variety, the government may prohibit some forms of intimidation such as "true" threats. True threats occur when the speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," even if the speaker does not "actually intend to carry out the threat." In this way, the doctrine focuses on the harms related to the message the speaker communicates rather than the possibility that it will stir others to commit violent acts. Like the line between incitement and "mere advocacy" that the Court drew in Brandenburg , the Supreme Court has distinguished true threats from "political hyperbole."

In Watts v. United States —the 1969 decision coining the phrase "true threat"—the Court held that a statute that prohibited any person from "knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States" was "constitutional on its face." But the Court ruled that it was improperly applied to an individual who, in the course of expressing opposition to the draft during a public rally, stated, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. . . . They are not going to make me kill my black brothers." The Court reasoned that this "kind of political hyperbole" was not a "true 'threat'" within the meaning of the statute because "[the Court] must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'"

Nearly 35 years later, in Virginia v. Black , the Supreme Court applied the true threats doctrine in a case involving a state law prohibiting cross burning with the intent to intimidate. The Court explained that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." The Court held that "[t]he First Amendment permits [a state] to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." A plurality of the Court went on to conclude that the particular statute before it was unconstitutional insofar as it included a presumption making cross burning "prima facie evidence of an intent to intimidate a person or group of persons." They reasoned that such a presumption would likely result in convictions in any cross-burning case regardless of the purpose of the cross burning and therefore chill protected speech.

While some scholars have cited the true threats doctrine as one avenue for the government to regulate social media content promoting terrorism or violence, others have argued that the Supreme Court's decisions in this area may provide inadequate guidance for distinguishing between real threats online and protected expression, particularly in cases where judges do not share the same linguistic frame of reference as members of a particular online community.

This year, the Supreme Court declined to review the Pennsylvania Supreme Court's interpretation of the true threats doctrine in a case involving alleged "terroristic threats" posted to social media. In Commonwealth v. Knox , the state court considered whether the defendant had a First Amendment right to publish "a rap-music video containing threatening lyrics directed to named law enforcement officers," including two officers who were scheduled to testify against him in a pending criminal case. The defendant argued that he never intended for the video to be uploaded to social media (in that case, YouTube and Facebook) and that the song was a way to express himself and was not meant to be taken literally. Several organizations filed briefs in support of the defendant, noting, among other things, the defendant's status as a semiprofessional rap artist and the First Amendment protections accorded to speech about violence in other forms of media.

The Pennsylvania Supreme Court held that the song constituted a true threat. It began by observing that although "First Amendment freedoms apply broadly to different types of expression," and while the government "generally lacks the authority to restrict expression based on its message, topic, ideas, or content," speech that "threatens unlawful violence can subject the speaker to criminal sanction" under the true threats doctrine. The court explained that while the Watts decision suggested that courts should use a "contextual," "objective" standard in determining whether speech constituted a "true threat," courts since Virginia v. Black "have disagreed over whether the speaker's subjective intent to intimidate is relevant in a true-threat analysis." For its part, the Pennsylvania Supreme Court read the opinions in the Black case to mean that the "First Amendment necessitates an inquiry into the speaker's mental state," which can be discerned from context. After reviewing the lyrics in the defendant's song, the court concluded that certain "aspects of the song tend to detract from any claim that [the defendant's] words were only meant to be understood as an artistic expression of frustration"; namely, that the song "mentions [two police officers] by name, stating that the lyrics are 'for' them," and "proceeds to describe in graphic terms how [the defendant] intends to kill those officers." The court also noted that the lyrics were "tied to interactions which had recently taken place between [the defendant and the named officers]," and that the named officers responded to hearing them by taking measures to enhance their safety. With respect to the song's publication online, the court stated that "although the song was not communicated directly to the police and a third party uploaded it to YouTube, this factor does not negate an intent on [the defendant's] part that the song be heard by the officers." The court accepted the lower courts' findings that the defendant "either intended for the song to be published or knew publication was inevitable," particularly where a link to the YouTube video was later posted on a Facebook page thought to belong to a codefendant who helped to write and record the song.

The case law to date on online communications demonstrates that not all forms of alleged intimidation are analyzed under the true threats doctrine. In a lower court case involving state tort claims for invasion of privacy and intentional infliction of emotional distress, a federal district court in Montana rejected the First Amendment arguments of the defendant, an "alt-right website" publisher accused of launching an anti-Semitic "troll storm" against the plaintiff after publishing several articles accusing her of "extortion" in business discussions with the "mother of [a] prominent neo-Nazi." The defendant allegedly published the plaintiff's "phone numbers, email addresses, and social media profiles, as well as those of her husband, twelve-year-old son, friends, and colleagues" after which she and her family "received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards." According to the court, the defendant had "called for 'confrontation' and 'action,' but he also told readers to avoid illegal activity." In denying the defendant's motion to dismiss, the court did not analyze the defendant's speech as a true threat or any other category of unprotected speech, reasoning that "there is no categorical exception to the First Amendment for harassing or offensive speech." Instead, it considered whether it was clear from the pleadings that the defendant was speaking on a matter of public concern, which might give rise to a First Amendment defense under Supreme Court precedent. The court concluded that the plaintiff had "made a plausible claim that [the defendant's] speech involved a matter of strictly private concern." The court reasoned that although the defendant "drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass [the plaintiff]" because of "a perceived conflict" between the plaintiff and his friend's mother.

Like incitement and true threats, speech that is integral to criminal conduct is considered unprotected under the Court's First Amendment jurisprudence. This exception has sometimes been used to explain why the government may proscribe so-called "inchoate crimes—acts looking toward the commission of another crime" such as conspiracy, solicitation, and attempt. Although these acts typically involve speech, the speech is "intended to induce or commence illegal activities" and thus is "undeserving of First Amendment protection." Once again, the Supreme Court has distinguished in this context between "proposal[s] to engage in illegal activity" and "the abstract advocacy of illegality," extending the First Amendment's protections to the latter type of speech. However, as one district court has observed, the "line between advocacy and action" can be "a hazy one," particularly in the case of inchoate offenses where the "action" that the law criminalizes "may be minor or look benign."

Some courts have cited the speech integral to criminal conduct doctrine in rejecting First Amendment challenges to criminal convictions based on online communications. However, the scope of the doctrine, particularly as it applies in the internet context, is not clear. One scholar has suggested that "[h]aving to show that something on social media is 'integral' to criminal activity seems like a tall order" except perhaps in "the case of a Tweet or Facebook posting along the lines of 'the bomb is in location x. Here is what you need to do to detonate it in location y at time z.'" In contrast, another scholar has suggested that it is too easy, particularly in the context of federal terrorism statutes, to prosecute someone for conspiracy based on online speech and thereby avoid Brandenburg 's requirements. More broadly, others have proposed ways to cabin the doctrine's reach so that it is not used in a circular fashion to criminalize speech because of its content without "serious First Amendment analysis." In view of these considerations, this category of unprotected speech appears to be less well-defined (and thus susceptible to broader application) than the standards for incitement and true threats.

Whether the government seeks to regulate protected speech, unprotected speech, or both, the First Amendment imposes some limitations on the means the government may use to achieve its regulatory objectives. When a law regulates protected speech, courts generally apply strict scrutiny and require the government to show that the law is narrowly tailored to achieve a compelling governmental interest. In contrast, laws that primarily regulate nonexpressive conduct or unprotected speech normally are not subjected to strict scrutiny. However, such laws can sometimes be challenged as unduly overbroad on the grounds that a "substantial number of [their] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." This section examines the strict scrutiny test and the overbreadth doctrine, as well as applications of those doctrines in the context of terrorism-related offenses and criminal prosecutions involving online speech, as those standards and precedents are likely to affect how the government may regulate online speech promoting terrorism or violence.

As previously noted, when a law regulates protected speech—especially on the basis of its content—courts generally require the government to prove: (1) a compelling governmental interest, and (2) that the law is narrowly tailored to achieve that interest. As discussed below, not all of the government's interests in regulating speech promoting violence may rise to the level of compelling. In addition, even if the government can demonstrate a compelling interest, it would still have to show that the law is sufficiently tailored to that interest.

The Supreme Court has held that the government does not have a compelling interest—or even a substantial one —in shielding listeners from messages that they might find offensive. In addition, where the government has deemed certain speech harmful, the Court has in some cases required the government to demonstrate actual harms that the regulation can redress. In contrast, the Court has repeatedly recognized the government's compelling interests in maintaining national security and combating terrorism. It has also acknowledged that Congress and the executive branch are uniquely positioned—both as a constitutional matter and in terms of their expertise—to safeguard the nation's security and regulate foreign affairs. Accordingly, it has recognized some situations in which the First Amendment must yield to the "exclusive[]" authority of the political branches to "maintain[] normal international relations and defend[] the country against foreign encroachments and dangers."

Once the government has established a compelling interest, the focus of the First Amendment inquiry is on whether the law is sufficiently tailored to achieve that interest. Under a strict scrutiny standard, narrow tailoring typically means that the law has to be the least speech-restrictive means of advancing the government's interest. For example, in Reno v. ACLU , the Supreme Court struck down two provisions of the Communications Decency Act of 1996 (CDA) that banned the knowing transmission of "indecent" messages, and the knowing sending or display of "patently offensive" messages, to minors over the internet. The CDA contained affirmative defenses for persons who took "good faith, reasonable, effective, and appropriate actions" to restrict minors' access to the prohibited communications or who restricted access through certain age-verification measures such as requesting a verified credit card. The Court first concluded that the terms "indecent" and "patently offensive" were vague and thus threatened to "silence[] some speakers whose messages would be entitled to constitutional protection." Moving to the narrow tailoring analysis, the Court then explained that the CDA's "burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute." The Court recounted the district court's findings regarding the technological limitations of restricting minors' access to such content and the cost-prohibitive nature of age-verification solutions. In contrast, the district court had found that available software for parental controls could curtail minors' access in a reasonably effective way. The Court concluded that the government failed to "explain why a less restrictive provision would not be as effective as the CDA," and thus the challenged provisions were not narrowly tailored.

While a court may examine the availability and effectiveness of less speech-restrictive alternatives under some circumstances, it may exercise some deference in evaluating the policy judgments of Congress and the Executive in certain areas such as national security and foreign affairs. The Humanitarian Law Project decision discussed above is one case in which the Court applied stringent scrutiny but deferred in some measure to the means that Congress chose to combat terrorism. In that case, the Supreme Court construed the federal material support statute to ban "only material support coordinated with or under the direction of" an FTO, not "[i]ndependent advocacy that might be viewed as promoting the group's legitimacy." It concluded that the statute was "carefully drawn" insofar as it reached speech rather than conduct. The Court then considered whether the law, as applied to the plaintiffs' proposed activities, was "necessary to further" the government's compelling interest in combating terrorism. In this regard, the Court examined the plaintiffs' contention that they sought to advance only the "legitimate activities of the [FTOs], not their terrorism." Reasoning that whether FTOs "meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question," the Court gave "significant weight" to "the considered judgment of Congress and the Executive that providing material support to [an FTO]—even seemingly benign support—bolsters the terrorist activities of that organization." The Court then provided examples of how the plaintiffs' support could potentially further the terrorist objectives of the organizations.

In upholding the statute as applied to the plaintiffs' activities, the Court cabined its decision in three respects. First, it held that it was not opining on the constitutionality of "any future applications of the material-support statute to speech or advocacy" or "any other statute relating to speech and terrorism." Second, it suggested that "a regulation of independent speech" may not "pass constitutional muster, even if the Government were to show that such speech benefits [FTOs]." And third, it expressly disclaimed any suggestion "that Congress could extend the same prohibition on material support at issue here to domestic organizations."

The Humanitarian Law Project decision was criticized by several dissenting Justices and some outside commentators for a perceived departure from settled First Amendment standards. The three dissenting Justices agreed that the government has a "compelling" interest "in protecting the security of the United States" by "denying [FTOs] financial and other fungible resources." However, they argued that the government failed to show how applying the statute to the plaintiffs' activities would " help achieve that important security-related end," which is typically required under any level of heightened scrutiny. Legal scholars have disagreed as to whether the decision is consistent with the protections accorded to political advocacy in other contexts such as campaign finance. Others have argued that the Court erred in prohibiting "mere advocacy" without asking whether the plaintiffs' activities amounted to proscribable incitement under Brandenburg. At least one commentator has emphasized the context of the decision, suggesting that the serious national security concerns presented by terrorism may have weighed on the Justices in the majority.

Lower courts have applied the Court's reasoning in Humanitarian Law Project in cases involving material support prosecutions where key evidence included the defendant's online activities.

In United States v. Mehanna , the First Circuit considered the defendant's appeal from his convictions for conspiring to provide material support to Al Qaeda and providing material support for terrorism. As the court described it, his indictment on the terrorism-related charges was "based on two separate clusters of activities": (1) the defendant's travel to Yemen in search of a terrorist training camp; and (2) the year after his return to the United States, the defendant's translations of "Arab-language materials into English," which he posted "on a website . . . that comprised an online community for those sympathetic to al-Qa'ida and Salafi-Jihadi perspectives," and at least some of which "constituted al-Qa'ida-generated media and materials supportive of al-Qa'ida and/or [violent] jihad." On appeal, the defendant argued that the government's theory of guilt centered on the translations and that the jury's guilty verdict was improperly based on protected First Amendment speech. The trial court had instructed the jury that it need not consider "the scope or effect of the guarantee of free speech contained in the First Amendment" because "activity that is proven to be the furnishing of material support" because it was undertaken at the direction of or in coordination with an FTO rather than independent advocacy "is not activity that is protected by the First Amendment." The First Circuit held that the trial court's instructions were proper because they "captured the essence of the controlling decision" in Humanitarian Law Project and "already accounted for [free speech] protections." The court further held that "[i]t makes no difference that the absence of facts showing coordination with al-Qa'ida [in the defendant's translation activities] might have resulted in constitutionally protected conduct," because the jury had ample evidence to convict him on the basis of his travel to Yemen and associated activities. In United States v. Elshinawy , the defendant, a U.S. citizen, was indicted for providing and conspiring to provide material support to ISIL in the form of personnel (i.e., himself), services, and financial services. Many of the allegations were based on social media communications between the defendant and a childhood friend who was a member of ISIL and resided outside of the United States. These conversations allegedly included the defendant's "pledge[ of] his allegiance to ISIL" and "plans to obtain or make some sort of explosive device." In addition, the defendant received funds transfers from overseas allegedly for the purpose of conducting a terrorist attack on ISIL's behalf. The defendant challenged the indictment on First Amendment grounds, arguing that the government sought to criminalize protected speech and association; namely, his independent interest in ISIL's cause. The district court, while suggesting that the defendant's characterizations of his communications could be raised in his defense at trial, largely rejected his First Amendment argument, stating that it "distort[ed] the allegations and misapprehend[ed] the [material support] statute." The court noted that in interpreting the same statute in Humanitarian Law Project , the Supreme Court drew a line between independent advocacy and operating under an FTO's "direction and control." The court reasoned that the indictment's allegations included "more than just an expression of support during a conversation over social media" because the defendant pledged his allegiance to ISIL. Moreover, the court held, to the extent that any statements were mere expressions of support, those statements could not be considered "in isolation" and must be viewed "along with defendant's conduct." In United States v. Nagi , a U.S. citizen charged with attempting to provide material support to ISIL in the form of personnel (i.e., himself) moved to dismiss the indictment on First Amendment grounds. The defendant argued that the government could not prosecute him merely because he allegedly traveled to Turkey with the intent of entering Syria and joining ISIL because such a prosecution would violate his First Amendment right of association. The district court disagreed, based on the Supreme Court's reasoning in Humanitarian Law Project . In particular, the court rejected the defendant's argument that his charges were based on "something that § 2339B does not prohibit: simple membership in a terrorist organization." In the court's view, "the anticipated trial evidence show[ed] that the Defendant attempted to work 'under the direction of, or in coordination with' ISIL," not merely to associate with the group. Among other things, the government planned to introduce the defendant's Twitter pledge to support ISIL's leader and his purchase of combat gear. The court explained that although the Twitter pledge itself was protected under the First Amendment, the government could use it to show the defendant's intent.

As the examples above illustrate, the First Amendment has not greatly restricted material support prosecutions concerning online speech, particularly when courts have contextualized the speech within a course of conduct. However, these cases may be of limited utility in evaluating the government's authority to regulate speech promoting terrorism in a prophylactic way, because they did not present scenarios involving online speech exclusively; in other words, the government proffered or introduced evidence that the defendant took some other step in coordination with an FTO.

Although a law directed at unprotected speech is unlikely to trigger strict scrutiny, the overbreadth doctrine may nonetheless limit Congress's ability to regulate online speech. The Supreme Court has said that "a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" This rule, called the overbreadth doctrine, "prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Because the doctrine can result in a court declaring a law invalid on its face rather than in the specific context before it, the Court has called the overbreadth doctrine "strong medicine" to be used "sparingly and only as a last resort" when the statute cannot be construed in a more limited manner. According to the Court, "[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)."

At least one circuit court has upheld the material support statute against an overbreadth challenge—albeit in circumstances in which the defendant failed to allege any circumstances in which the statute might be applied to protected speech. Overbreadth challenges have also arisen more generally in the context of other statutes that implicate online communications. In United States v. Ackell , a defendant convicted under a federal law prohibiting stalking challenged the statute as facially overbroad on appeal. In relevant part, the law makes it a crime to (1) use "any interactive computer service or electronic communication service" or other facility of interstate commerce; (2) "to engage in a course of conduct" that "causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress" to that person or certain other individuals; (3) with the "intent to kill, injure, harass, [or] intimidate . . . [that] person."

Construing the statute, the First Circuit reasoned that the law "targets conduct rather than speech" because, "[b]y its own terms," it regulates a "course of conduct." Although the court acknowledged that the statute refers to interactive computer services and other facilities of interstate commerce that "are commonly employed to facilitate communication," it concluded that the statute "covers countless amounts" of nonexpressive conduct such as mailing unknown substances to another person or repeatedly infecting a person's computer with viruses. Turning to whether the statute in practice might nonetheless apply to a substantial amount of protected speech in relation to its plainly legitimate sweep, the court construed the law to primarily implicate two categories of unprotected speech: true threats and speech integral to criminal conduct. Beyond those categories, the court identified only one case in which the government had prosecuted a defendant under the statute for protected speech and rejected the defendant's proffered hypothetical applications as either too speculative or falling outside the statutory proscription. The court acknowledged that the statute " could have an unconstitutional application," but declined to "administer the 'strong medicine' of holding the statute facially overbroad."

As the discussion above illustrates, regulating online content in accordance with the First Amendment—even online content promoting terrorism or violence—presents challenges. These challenges are due in large part to the complexities of free speech jurisprudence and the lack of controlling authority about how doctrines developed nearly 50 years ago—many in the context of statements made by identifiable speakers at political or ideological rallies—apply to speech on the internet where the lines between advocacy, incitement, threats, and conduct can be even more blurred. Nevertheless, the cases and scholarship to date suggest some general guideposts for evaluating the free speech implications of scholarly or legislative proposals to restrict online content promoting terrorism or violence.

First, a law that primarily regulates conduct online as opposed to speech may not trigger heightened First Amendment scrutiny. Likewise, a general regulatory scheme that incidentally regulates online content is unlikely to trigger heightened scrutiny. However, if a law expressly regulates certain types of online communications based on the words used or their effect on other internet users, it may be assumed to regulate speech rather than conduct. Second, a law that is narrowly drafted to prohibit online speech that falls within one of the so-called unprotected categories of speech may not trigger heightened First Amendment scrutiny. In this regard, speech on the internet advocating violence as an abstract proposition would likely be considered protected, while speech that incites imminent violence, constitutes a true threat, or is integral to criminal conduct may be deemed unprotected. Third, even if alaw is directed at nonexpressive conduct or unprotected speech on the internet, it may still be subject to an overbreadth challenge if, in practice, it prohibits a substantial amount of protected speech in relation to its plainly legitimate sweep. Fourth, except under some circumstances involving unprotected speech, a law that regulates online speech on the basis of its content would likely be subject to strict scr utiny. A law that regulates online content on the basis of the viewpoints expressed would likely present a clearer case of content discrimination and would be presumptively invalid regardless of whether the underlying speech is protected. Finally, the government may have more leeway to regulate online content when asserting its interests in national security and foreign affairs; however, such laws, to the extent they restrict or burden protected speech, would likely have to withstand heightened (if not strict) First Amendment scrutiny.

In addition to the considerations listed above, close attention to legal challenges regarding the enforcement of existing laws as applied to online activities may provide guidance to lawmakers seeking to balance the First Amendment interests of internet users with the safety and security of U.S. citizens on and offline.