Targeting speech to snuff out terror

Friday, January 16, 2009

Amid concerns over terrorist acts worldwide, many countries are searching for ways to cut off terrorism at its roots. For many, this means targeting those who support and advocate terrorism. Yet for countries that offer some form of free-speech protection, the question becomes where to draw the line between protected dissident speech and unprotected advocacy of terrorism. In the United States, where freedom of speech is enshrined in our Constitution, the question goes further: Would such efforts threaten long-standing legal principles?

Some countries have responded to terrorism concerns by criminalizing speech that promotes or “glorifies” terrorism. In the wake of the 2005 London subway bombings, the United Kingdom passed the Terrorism Act 2006, which includes a “glorification” clause and punishes those who make statements that encourage or incite terrorist acts. Denmark, Spain and France have similar laws.

In the U.K.’s Terrorism Act, and others like it, there is no requirement that speech directly incite imminent unlawful terrorist action. The Terrorism Act punishes speakers who speak in a way that even “indirectly” encourages or induces others to “commit, prepare or instigate acts of terrorism.” It also provides that “statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism … include every statement which glorifies the commission or preparation (whether in the past, in the future or generally) of such acts … and is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.”

Dr. Agnes Callamard, executive director of Article 19 (an international group that advocates freedom of expression worldwide) writes that many of these new “glorification” laws are “so broadly and vaguely worded that they are likely to result in excessive interferences with freedom of association, expression and the media.” Callamard adds, “This new offence captures all sorts of statements that are perfectly legitimate under international human rights law.”

These new “glorification” offenses also conflict with the United States’ seminal First Amendment standard articulated by the U.S. Supreme Court 40 years ago in Brandenburg v. Ohio. In Brandenburg, the Court wrote in a per curiam opinion that “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.”

First Amendment jurisprudence generally requires a speaker to directly incite imminent lawless action. A statement glorifying terrorism could fall under abstract advocacy. Brandenburg, however, requires direct incitement, not indirect provocation or encouragement. Speech that glorifies terrorism, then, would not meet the Brandenburg standard. Without proof that a speaker engaged in conduct and provided “material support” to terrorism or joined in a conspiracy, theoretically, the First Amendment would protect such speech.

Yet some have questioned whether the Brandenburg imminency requirement should be relaxed during the war on terror and whether the balance between liberty and security must be recalibrated to account for the evils of modern terrorism.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals wrote in his 2006 book Not a Suicide Pact: The Constitution in a Time of National Emergency that “the greatest danger to American civil liberties would be another terrorist attack on the United States.” Posner called for reduced protection of civil liberties in many circumstances to deal with the “novel” threats presented by global terrorism.

Some may scoff at the notion that Brandenburg could ever be modified to allow the criminalization of the “glorification” of terrorism. But consider that in the 110th Congress measures were introduced that used the term “glorification.” Rep. Ileana Ros-Lehtinen, R-Fla., introduced a resolution (H.Res. 939) in January 2008 that condemned “the glorification of terrorism and the continuing anti-Israel and anti-Semitic rhetoric at the United Nations.” In August 2008, Rep. Alcee Hastings, D-Fla., introduced a measure (H.R. 6808) that would “establish a commission to study the culture and glorification of violence in America.” Hastings’ proposal dealt with violence and teens (not terrorism), but the choice of language carries significance.

Statements that glorify terrorist acts are repugnant and offensive. But, criminalizing any speech that glorifies terrorism would require a modification of First Amendment jurisprudence and could be applied to a broad array of political and religious expression.

Hopefully, our leaders can maintain security and liberty, in the belief that the understandable urge to squelch terrorism does not justify abandonment of First Amendment free-speech principles.