The balance between countering terrorism and free speech

This post appeared in The Hill Times on October 1, 2018.

In 1964 US Supreme Court Justice Potter Stewart came up with a now famous comment that has become a meme (not there were memes back in 1964).   During a threshold case on obscenity he stated “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

I  know it when I see it.  Does that only apply to pornography?  Or can it apply to terrorist propaganda?

Back in May or June of 2018 ( but just made public recently) Federal Crown prosecutors for the first time used the terrorism-propaganda provision of the Criminal Code in an attempt to remove content from the internet.  The law allows the government to order social media companies to take down material and report the parties responsible for putting it up in the first place.  The move is interesting but rife with challenges.

When it comes to terrorist propaganda it should be obvious that some material is more clearly ‘terroristic’ than others.  Beheading videos, images of homosexuals thrown off buildings, the burning to death of captives – these are no-brainers.  Not only does the State have the right to tell providers to remove this stuff, it is increasingly becoming incumbent on those companies to take proactive action to take it down right away without being told to do so.  This is what FaceBook, Twitter and others are already beginning to do.

What about the less obvious uploads?  What of speeches by terrorist leaders?  What of material that talks about the injustices that lead to radicalisation and violent extremism?  What about films about terrorists?  This last one is exactly what is under debate in Norway now that a film about Anders Breivik, the man behind the 2011 mass murders, is out.  While the director emphasises that his work does not focus on the violence of that day some people would object to a movie that portrays a terrorist event. It is also not impossible that some who view the film could be radicalised by it.

It gets more complicated.  What to do with content that is hateful, or inspires hate in others?  Should that be earmarked and acted upon?  What about freedom of speech?  When Twitter and FaceBook banned American right-wing demagogue Alex Jones from their platforms, all hell broke loose.  In light of the increasingly polarised atmosphere south of the border actions like this by social media giants merely feed the conviction that the ‘Deep State’ is trying to stifle the views of those on the right of the political spectrum.

And more to think about.  CSIS, the RCMP and other investigative bodies need to know who is involved in extremist activity and monitoring online postings is part of that task.  Leaving extremist material up is often an important part in building a case to take to court.  The government is thus stuck between a rock and a hard place.

We are faced more and more with the need to take action against violent – or violence-inspiring – material present on an increasingly diverse online environment.  Not surprisingly, governments are having a hard time keeping up: the private sector is usually several steps ahead.    It is far from clear that those governments are up to the task.

As a former intelligence analyst I am conflicted.  My understanding of the threat necessitated having access to what people were reading and viewing.  At the same time the organisation I worked for – CSIS – was created to stop acts of terrorism and interdict those responsible for it.  So do we let the material to stay or do we flag it for removal?  Good questions.

The debate will go on.  Multiple parties will have to weigh in.  They must be allowed to do so.

Phil Gurski’s latest book ‘An End to the War on Terrorism,‘ is now available. A book launch will be held on Oct. 3 at 7:30 p.m. at Peter Devine’s  in Ottawa.



By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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