Terrorism and Speech
By JOANNE MARINER
|Monday, Jan. 28, 2008|
Restrictions of all sorts have multiplied in the heightened security environment of the last six-and-a-half years, so it should be no surprise that, around the world, legal restrictions on speech have tightened. Since 2001, there has been a clear trend toward prohibiting speech perceived as supporting terrorism, and toward barring the dissemination of materials--including books, videos, and other forms of written and graphic communication--that are believed to be of use for terrorist activity.
International protections on free expression in no way restrict governments from criminally prosecuting direct incitement to terrorism--speech that directly encourages the commission of a crime, is intended to result in criminal action, and is likely to result in criminal action--whether or not criminal action does, in fact, result. (In the United States, where the Constitution imposes stricter protections for expression than found elsewhere, the courts have required that the prohibited incitement present a risk of "imminent" criminal action.) Yet the legal trend globally is not only to criminalize direct incitement to terrorist activity, but to criminalize indirect incitement--to prohibit speech perceived as justifying, defending, or "glorifying" terrorism. This, from the standpoint of free expression, is problematic.
The British government has been a leader in this effort. Not only has it passed new domestic laws to regulate speech, it has pressed international institutions to take up the issue. In September 2005, the U.N. Security Council adopted a UK-sponsored resolution that purported to repudiate "attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts." Although the resolution used the term incitement, rather than indirect incitement, its references to justification and glorification suggested a broad understanding of the term.
Earlier that year, the Council of Europe, a European human rights body, adopted a Convention on the Prevention of Terrorism with similarly expansive language. The treaty requires states to criminalize "public provocation" of terrorism, a crime that could include indirect incitement. The convention defines public provocation as the public dissemination of a message "with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed." Note the clear erosion of the incitement standard: There's no need for the message to directly encourage terrorism, and rather than having to be "likely" to result in criminal action, it's enough that the message may "cause a danger" of such action.
A Global Survey
Let's review a few country examples to get a better sense of what kinds of statements these laws tend to cover:
. The UK's 2006 counterterrorism law criminalizes any public statement that is intended to encourage, or that recklessly encourages, acts of terrorism, if the statement takes the form of "glorif[ying] the commission or preparation (whether in the past, in the future or generally) of such acts or offences" and is such that the audience "could reasonably infer" that what is being glorified should be emulated. (A 2000 UK law already specifies that "inciting another person to commit an act of terrorism" is a criminal offense, one punishable in the same manner as the offense that was incited.)
. Under Zimbabwe's 2006 counterterrorism law, a person who "solicits, invites, or encourages moral or material support" for a designated terrorist organization commits an offense.
. The United Arab Emirates' 2004 counterterrorism law reportedly provides for up to five years of imprisonment for anyone who promotes verbally or in writing any of the offenses set out in the law.
. Bahrain's 2006 counterterrorism law includes extremely broad and vaguely-drafted restrictions on expression. The law provides that: "Whoever uses religion, religious buildings, public places or religious festivities to propagate provocative appeals or extremist ideas, or holds notices/posters, or puts up graphics, pictures, slogans or signs that might create fitna [disorder] or insult monotheist religions, their symbols or their believers, or harm the national unity or social peace, or destabilize security or public order shall be punished by imprisonment and fine or one or both penalties." The legislation also provides that anyone who "promotes or approves, in any way" of a terrorist act faces imprisonment.
. El Salvador's 2006 counterterrorism law prescribes a five- to ten-year prison sentence for anyone who publicly justifies terrorism.
. In Australia, the 2005 Anti-Terrorism Act bars organizations from advocating terrorism. An organization is understood to advocate a terrorist act if it: 1) "directly or indirectly counsels or urges" such an act; 2) "provides instruction" on how to commit such an act, or 3) "directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person … to engage in a terrorist act."
. Turkey's 2006 counterterrorism law imposes criminal penalties on those who "make propaganda for a terrorist organization or for its aims." The law provides for harsher penalties for those who do so using the media. A Council of Europe expert committee has criticized the provision, finding it to be "ambiguous and written in wide and vague terms."
. Under French and Spanish counterterrorism laws, which predate the September 11 terrorist attacks, the act of justifying terrorism (apologie or apolog'a) is a crime. The difference between the two countries is that such prosecutions are quite common in Spain, whereas they are extremely rare in France.
What these laws generally have in common is broad language, which may in some instances cover legitimate political speech, and which gives prosecutors enormous discretion in deciding when and if to bring a case.
Possession of a Map without an Excuse
In some countries, moreover, not only is it illegal to express views deemed to support terrorism, it is illegal to possess materials that support terrorism. Again, the UK has taken the lead in this area, both in passing legislation to restrict the possession and dissemination of such materials, and in prosecuting alleged offenders.
. Under the UK's 2000 counterterrorism law, the possession of articles connected to terrorism--including terrorism-related publications or videos--is a criminal offense, as long as there is some minimal showing that the person's possession of the items may be related to plans to commit terrorism. Specifically, the law provides that: "[a] person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism."
. Another provision of the same UK law criminalizes the possession of documents containing information "of a kind likely to be useful to a person committing or preparing an act of terrorism." This extremely broad provision--which could otherwise bar, for example, possessing a map of London--also provides that a person charged with violating the law may defend against prosecution by proving that he has "a reasonable excuse for his action or possession."
. Finally, the 2006 UK counterterrorism law criminalizes the distribution of "terrorist publications," defined as publications that either glorify terrorist acts or are made available "wholly or mainly" because they would be useful in the commission or preparation of terrorist acts.
Preemptive Action against Terrorism
The reasoning behind such laws is understandable. Governments want to stop terrorism before it occurs; indeed, they would prefer to deal with the problem before the potential terrorist gets anywhere near the stage of actually planning violent acts. Some proportion of the people who communicate support for terrorism, or who read terrorist publications, may one day be moved to action.
Still, a spate of recent prosecutions in the UK does little to instill confidence in these laws. Defendants have included a couple of 17-year-olds, and a young woman known (for her poems) as the "lyrical terrorist." Are such people really a threat? It's hard to tell; the problem with preemptive action is that it's based on prediction. And while some number of adolescents may go from downloading Al Qaeda videos to actively supporting terrorism, the gap between the two activities is large.
By wasting scarce legal and prosecutorial resources going after speech, rather than action, governments may be doing more harm than good. The defendants in such cases no doubt see them as political and religious persecution, and their families, neighbors and larger communities may agree.