Speaker Pelosi is right that we need commission to look into Capitol riot

Speaker Pelosi is right that we need commission to look into Capitol riot
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As a commission like the 9/11 one gains traction as a way to move past the recent impeachment trial, there is a chance to do a serious exploration of the grey area where free speech can incite criminal behavior. The choice should not be zero sum to protect all speech or curb all speech if violence results. A century ago, the Supreme Court made clear in its decision that the First Amendment was not absolute. It does not protect crying fire in a crowded theater. But as this turbulent century keeps teaching us, we need better tools to protect our constitutional values while also deterring and punishing when justified those who challenge old thinking.

One tool could be the resurrection of an idea in the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, which overwhelmingly passed the House but swiftly died in the Senate as privacy groups claimed it could label Rosa Parks a terrorist. It is so hard to believe, both then and now, that a nonpartisan group of historians, economists, anthropologists, religious scholars, and others, would not be helpful to understand and to deal with this difficult problem. Yet in hindsight, our politics was growing toxic back then, and it has certainly become worse now.

It is true that the relationship between security and liberty is delicate. The founders understood this, as the often cited line from Benjamin Franklin about liberty and security reminds us. There are times in our history when the government went far in the wrong direction. Just ask Benjamin Bache, publisher of the American Aurora, a partisan newspaper that supported Thomas Jefferson. Under President Adams, a rival of Jefferson, Congress passed the Sedition Act at the close of the 18th century.


The Sedition Act had made it a crime to “print, utter, or publish” a “false, scandalous, and malicious writing” directed against the government so Bache, who referred to Adams as “blind, bald, crippled, and toothless” among other insults, was arrested with the authority of the Sedition Act and died of yellow fever while awaiting trial. The Sedition Act also got a Massachusetts man, David Brown, thrown in jail for 18 months for having one sign which read “Downfall to the Tyrants of America.”

In more recent memory, tens of thousands of citizens, including doctors, lawyers, teachers, school kids, and store owners, were forced to spend years surrounded by barbed wire in the middle of a bleak desert simply because they shared the ancestry of the people with whom our country battled. The internment of some 120,000 Japanese Americans during World War Two remains a shameful stain on our history.

We can avoid abhorrent repeats while still protecting our democracy by working to better understand the relationship between free speech and violence. Radical speech is still free speech protected by the Bill of Rights, which shoved the Sedition Act in the dustbin of history. But the moment that someone inspired by such free speech breaks down a barricade and brutally attacks a police officer, the issue moves beyond free speech to whether that individual had engaged in criminal behavior.

The world has changed a great deal since 2007. People now spend most of their days connected on social media, preyed on by a business model that slices and dices our interests and exploits areas we are vulnerable to messaging. Bad actors are taking advantage, leading people down dark paths online and fueling the danger of domestic terrorism.

Several of our leaders know this and are working toward positive change, as Representative Elissa Slotkin of Michigan, a former Central Intelligence Agency analyst, is now the chair of the Intelligence and Counterterrorism Subcommittee of the House Committee on Homeland Security, a position I once held. Slotkin, in whose state armed militants had plotted to kidnap the governor, has spoken often about the need to prevent radical speech from spreading across communities and inspiring violence.

Speaker Nancy Pelosi is right that a commission like the 9/11 one needs to investigate the Capitol riot and how it started. It should build upon sound recommendations on how to update our idea of the relationship between speech and violence. If it does this, it could allow Congress to identify and avoid the mistakes made by John Adams and Franklin Roosevelt, and keep us from punishing innocent people when real danger looms.

Jane Harman is the president of the Woodrow Wilson International Center for Scholars. She served in Congress as a Democratic representative from California and was ranking member on the House Intelligence Committee. Her latest book titled “Insanity Defense: Why Our Failure to Confront Hard National Security Problems Makes Us Less Safe” will come out this spring.