In May 2013, in the month following the Boston Marathon bombing, U.S. intelligence operatives hacked, and temporarily shut down, the website for Al-Qaeda’s online magazine, Inspire. During the cyber-attack, “the text on the second page was garbled and the following 20 pages were blank.” The episode was the latest in a string of attacks against Al Qaeda’s online presence, with one intelligence official claiming, “You can make it hard for them to distribute it, or you can mess with the content.”
At a Constitutional level, the hacking has raised First Amendment questions within the intelligence community. Congressman Adam Schiff sought to allay these concerns noting that, “I don’t think al-Qaeda has a First Amendment right to put out its propaganda, to encourage people to commit acts of terrorists.”
However, the genuine First Amendment question raised by the hacking isn’t the right of Al Qaeda to put forward the magazine, it’s the right of Americans to be able to read the magazine. If the U.S. government hacked the magazine and took it down, could a group of Americans challenge the Constitutionality of the action because it deprived them of their ability to receive information?
This post addresses this issue for the first time by addressing the scope of the First Amendment’s right to listen in this context. The post argues that, due to the role of Inspire in Al Qaeda’s strategy and the danger of the publication, the government has the Constitutional ability to conduct a cyber-attack which may limit the right of Americans to receive the information.
I: The Constitutional Right to Listen and Its Limits
The right of Americans to access foreign materials under the right to listen has been litigated in two Supreme Court cases; Lamont v. Postmaster General and Kleinfield v. Mandel. Lamont stands for the principle that the government cannot restrict Americans’ access to a foreign publication because of the nature of that publication. In that case, U.S. citizens challenged the Constitutionality of a statute requiring that foreign communist propaganda be held by the government until an addressee sent in a specific request for the mail. The plaintiffs were the American citizens seeking to receive the information, and the case was decided in their favor without any discussion of the First Amendment rights of the foreign authors. The court ruled, as Justice Brennan noted, that the requirement to notify the post office was an interference with the First Amendment right of Americans because it limited their “right to receive information.” In Kleindiest v. Mandel, a group of Americans sued Attorney General Kleindiest to grant a temporary visa to European Marxist theorist Ernest Mandel, so that he could attend academic conferences in the Unites States. Justice Blackmun, writing for the majority, noted that, “In a variety of contexts this Court has referred to a First Amendment right to ‘receive information and ideas.’” However, noted Justice Blackmun, the ability of the United States to regulate immigration was paramount and “congressional power to make policies and rules for exclusion of aliens has long been firmly established.” While recognizing a right to listen, the Court excluded the scholar under the government’s ability to regulate entry into the country.
While the Supreme Court has recognized a “right to listen,” these cases have not yet provided a test for when that right can be limited in the interest of public safety. To that end, judges should turn to the Supreme Court’s more fully-developed jurisprudence on the right to free speech to ascertain when the government can limit a right to receive information. Specifically, the Supreme Court’s famous decision in Brandenburg v. Ohio provides a basis for constructing a limit on the right to receive information.
In that case, the Supreme Court overturned the conviction of a KKK leader for appearing on a T.V. show to advocate for violence against African-Americans. Brandenburg had been convicted under the Ohio Criminal Syndicalism statute for his speech "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 court overturned the Constitutionality of the statute because, “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 directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court’s decision represented a major reversal of its earlier decisions upholding limitations on speech based on a “clear and present danger” test.
The Brandenburg test that speech can only be limited when the speech is intended to and can cause “imminent lawless action” has become “the governing standard in this area for four decades and is often hailed as the final word on the government's power to restrict criminal advocacy.”
II. Application to Inspire Magazine
Though the Brandenburg test was developed to limit the right to free speech, this post applies the test to a limitation on the right to listen in a parallel context. While the process of applying doctrine from one area to another can be fraught, this is a logical application. Inherently, when the government censors the right of a speaker to say something, they are limiting the ability of a potential listener to hear it. In a system of democratic self-government, the rights to speak and to listen are inextricably linked. A limitation in one arena can thus be translated as a limitation on the other.
Without a case limiting the right to listen, courts should apply the Brandenburg test. While the Brandenburg test was designed as a limit on freedom of speech, it also creates a limitation on the right to listen because a limitation on one person’s speech is inherently a limitation on the right of another person to hear that speech. Thus, the same standard limiting free speech can be applied in this context.
From this, the post turns to analyze whether a limitation on Inspire is consistent with the Brandenburg test. Inspire Magazine is intended to cause Americans to participate in terrorist activity. The magazine directly seeks to mobilize Westerners to carry out terrorist attacks. The magazine involves a “canny blend of photos, feature stories, insider details, snappy news bits and verse-quoting theological justifications for terrorist attacks” designed to appeal to Western sympathizers to Al Qaeda. The magazine is intended to produce violence. One of the “Boston Bombers,” Dzhokhar Tsarnaev told investigators after his capture that he and his brother built their two bombs in pressure-cookers after reading Inspire Magazine, which included instructions for making those bombs in two editions. After the bombing, the magazine published an entire edition praising the Tsaranevs for their use of the magazine and encouraging further crimes. In other cases of foiled terrorist attacks, including the plots by U.S. Army Private Naser Abdo to attack Fort Hood and by Jose Pimintel to carry out an attack in Manhattan, the suspects were utilizing plans from Inspire to build bombs in their apartments.
Inspire Magazine is a threat to the safety of Americans. While homegrown terrorism has largely been unsuccessful, the Boston bombings demonstrated the capacity of homegrown radicals to engage with Inspire to carry out attacks.
However, the government must recognize that in its attempts to disrupt the publication and distribution of Inspire they are limiting the First Amendment rights of Americans to receive information. Thus far, they have dismissed the First Amendment concerns because, as they argued, Al Qaeda doesn’t have any.
In assessing the ability to limit that First Amendment right, this post has argued that the Brandenburg test can be applied to test whether there is a compelling interest in limiting the right to receive information. The application of the test demonstrates that the government does have a compelling interest to conduct cyber operations against Inspire Magazine. While Americans do have a right to information and may sue the government citing Lamont for access to information, the courts should apply the Brandenburg test to uphold the government’s actions.
 Ellen Nakashima, U.S. Disrupts Al Qaeda’s Online Magazine, W. Post, June 11, 2013.
 Nakashima, supra note 1.
 Lamont v. Postmaster Gen., 381 U.S. 301 (1965).
 Id. at, 308 (1965) (Brennan, J., concurring).
 Id. at 762.
 Id. at 769.
 Brandenburg v. Ohio, 395 U.S. 444 (1969)
 Id. at 447.
 Schenck v. United States, 249 U.S. 47, 52 (1919).
 Thomas Healy, Brandenburg in A Time of Terror, 84 Notre Dame L. Rev. 655, 656-57 (2009)
 Thomas I. Emerson, The First Amendment and the Right to Know: Legal Foundations of the Right to Know, WASH. U. L.Q. 1, 2. (1976).
 Judith Miller and David Samuels, A Glossy Approach to Inciting Terrorism, Wall Street J., Nov. 27, 2010.http://online.wsj.com/article/SB10001424052748703572404575635053157718986.html
 Scott Shane & David Herszenhorn, Agents Pore Over Suspects’ Trip to Russia, N.Y. Times Apr. 28, 2013.
 Caitlin Dewey, Al Qaeda’s Inspire Magazine Celebrates Boston Bombings, The Washington Post (May 31, 2013, 8:53 AM), http://www.washingtonpost.com/blogs/worldviews/wp/2013/05/31/al-qaedas-inspire-magazine-celebrates-boston-bombings/
 Scott Stewart, Assessing Inspire Magazine’s 10th Edition, Stratfor (Mar. 21, 2013, 4:01 PM), http://www.stratfor.com/weekly/assessing-inspire-magazines-10th-edition