FacebookTwitterGoogle+RedditEmail

How Anti-Terror Laws Threaten Free Speech

by JOANNE MARINER

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 examples from different countries 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 Ö 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.

JOANNE MARINER is a human rights attorney based in New York.

 

 

 

 

JOANNE MARINER is a human rights lawyer living in New York and Paris.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
April 28, 2017
Friday - Sunday
Paul Street
Slandering Populism: a Chilling Media Habit
Andrew Levine
Why I Fear and Loathe Trump Even More Now Than On Election Day
Jeffrey St. Clair
Mountain of Tears: the Vanishing Glaciers of the Pacific Northwest
Philippe Marlière
The Neoliberal or the Fascist? What Should French Progressives Do?
Conn Hallinan
America’s New Nuclear Missile Endangers the World
Peter Linebaugh
Omnia Sunt Communia: May Day 2017
Vijay Prashad
Reckless in the White House
Brian Cloughley
Who Benefits From Prolonged Warfare?
Kathy Kelly
The Shame of Killing Innocent People
Ron Jacobs
Hate Speech as Free Speech: How Does That Work, Exactly?
Andre Vltchek
Middle Eastern Surgeon Speaks About “Ecology of War”
Matt Rubenstein
Which Witch Hunt? Liberal Disanalogies
Sami Awad - Yoav Litvin - Rabbi Lynn Gottlieb
Never Give Up: Nonviolent Civilian Resistance, Healing and Active Hope in the Holyland
Pete Dolack
Tribunal Finds Monsanto an Abuser of Human Rights and Environment
Christopher Ketcham
The Coyote Hunt
Mike Whitney
Putin’s New World Order
Ramzy Baroud
Palestinian, Jewish Voices Must Jointly Challenge Israel’s Past
Ralph Nader
Trump’s 100 Days of Rage and Rapacity
Harvey Wasserman
Marine Le Pen Is a Fascist—Not a ‘Right-Wing Populist,’ Which Is a Contradiction in Terms
William Hawes
World War Whatever
John Stanton
War With North Korea: No Joke
Jim Goodman
NAFTA Needs to be Replaced, Not Renegotiated
Murray Dobbin
What is the Antidote to Trumpism?
Louis Proyect
Left Power in an Age of Capitalist Decay
Medea Benjamin
Women Beware: Saudi Arabia Charged with Shaping Global Standards for Women’s Equality
Rev. William Alberts
Selling Spiritual Care
Peter Lee
Invasion of the Pretty People, Kamala Harris Edition
Cal Winslow
A Special Obscenity: “Guernica” Today
Binoy Kampmark
Turkey’s Kurdish Agenda
Guillermo R. Gil
The Senator Visits Río Piedras
Jeff Mackler
Mumia Abu-Jamal Fights for a New Trial and Freedom 
Cesar Chelala
The Responsibility of Rich Countries in Yemen’s Crisis
Leslie Watson Malachi
Women’s Health is on the Chopping Block, Again
Basav Sen
The Coal Industry is a Job Killer
Judith Bello
Rojava, a Popular Imperial Project
Robert Koehler
A Public Plan for Peace
Sam Pizzigati
The Insider Who Blew the Whistle on Corporate Greed
Nyla Ali Khan
There Has to be a Way Out of the Labyrinth
Michael J. Sainato
Trump Scales Back Antiquities Act, Which Helped to Create National Parks
Stu Harrison
Under Duterte, Filipino Youth Struggle for Real Change
Martin Billheimer
Balm for Goat’s Milk
Stephen Martin
Spooky Cookies and Algorithmic Steps Dystopian
Michael Doliner
Thank You Note
Charles R. Larson
Review: Gregor Hens’ “Nicotine”
David Yearsley
Handel’s Executioner
FacebookTwitterGoogle+RedditEmail