In his op-ed "Recipes for Death," which appeared in the New York Times on September 17, Nicholas Kristof decries how easy it is to obtain "self-help" books instructing readers on how to make chemical or biological weapons of mass destruction. He asks, "...do we as a nation really want to permit books that facilitate terrorism and mass murder?"
Kristof's question, while no doubt sharpened by the fear and anxiety we feel in the wake of the September 11 terrorist attacks, is really not a new one. Following the 1995 Oklahoma City bombing, some members of Congress asked similar questions regarding the availability of bomb-making instructions on the Internet, and there was a push to pass legislation that would criminalize the dissemination of such information. To its credit, Congress did not rush through such legislation, but instead asked the Justice Department to assess the extent to which the First Amendment protects such materials. The Justice Department, in turn, urged a narrow approach to the problem that respected First Amendment constraints by focusing on the intention to facilitate the commission of a crime through the publication of such information, and on the publisher's knowledge that a particular recipient of the information intends to use it in committing a crime. The legislation enacted by Congress adopted the Justice Department's approach.
What is new about Kristof's question, however, is its breathtaking scope compared to the focused inquiry about bomb-making information that followed the Oklahoma City bombing. This, too, is undoubtedly a result of the September 11 attacks, when terrorists made weapons of mass destruction out of regularly scheduled commercial airliners and opened our minds to the horrible realization that such "weapons" can be found literally everywhere in a modern, open society.
History makes it hard to dispute that the contents of a book can "facilitate terrorism and mass murder." Many would agree, for example, that Mein Kampf did exactly that, and some might assert similar claims for the Bible and the Koran. Even if we ignore the ideas found in books, there is no question that some books contain detailed information that, under certain circumstances, could aid a determined reader in purposefully committing harmful and unlawful acts. So, as Kristof suggests, it is not really that much of a stretch in the post—9/11 world to think of such books as themselves potential "weapons of mass destruction."
But how should we, as a nation, act upon that possibility? If we agreed to suspend the First Amendment and broadly criminalize the dissemination of "dangerous information" in books, where would we begin? With information about chemical and biological agents? Where would we end? With schedules of commercial airline flights? Who would determine what constitutes "dangerous information?" The Justice Department? The Defense Department? The director of homeland security? What criteria would be used for making such determinations? Would it matter whether, or for how long, the information had been lawfully obtainable or otherwise widely available? Would it matter whether the information is published in government manuals, scientific journals, medical texts, or reference works in the Library of Congress? Would the restrictions apply to fictional scenarios in popular novels that graphically plot and describe schemes or weapons of mass destruction?
Would the restrictions apply to newspapers and magazines, as well as to books? What about depictions in motion pictures, television programs or theatrical productions? Would "dangerous information" already published in such media have to be censored from such works? Would copies of such works have to be routed out of libraries, businesses and private homes?
How would we handle the Internet, where anyone anywhere around the world can publish "dangerous information" that can be accessed and redistributed by anyone anywhere in the world?
If we begin walking down this road, we may find ourselves threatening the very way of life we are determined to protect.
Already in place are strong criminal prohibitions against conspiracy and "aiding and abetting" in the commission of crimes, and these laws can be used to prosecute those who disseminate or disclose information to facilitate criminal acts. In some cases, as in the dissemination of bomb-making information, Congress has enacted specific criminal legislation to address particular categories of inherently dangerous information.
Even if Kristof's premise seems valid, there is still only one answer to his question. It is unsettling to realize that our own freedoms of expression and information can be turned against us. This should not persuade us to turn away from them.
