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Is freedom of speech untouchable?

I must confess that I am feeling a little frustrated with my US friends these days.  There is a lot to admire in the US of A and that is why so many people want to move there.  True, they have their problems, and they have Donald Trump, but don’t we all (except for Trump that is)?

Their security and intelligence agencies are solid as well and Americans (and others) should be grateful for the work they do on our collective behalf.  Even if they are handcuffed a lot of the time.  And the handcuffs are at times linked to fundamental principles, like the constitution and its amendments.  For the record, I think we do things differently here in Canada and I am very happy for that.

Americans are very proud and tenaciously protective of the First Amendment, the one covering fundamental freedoms like the practice of religion and the right to assembly.  It also includes the freedom of speech, an amazingly powerful tool that is the envy of a lot of people who live in countries where liberty to say what you want is a dream and an inspiration for all.

The Americans I have talked to insist that there should be no exceptions to this amendment.  In their view everyone has the absolute right to say anything they want, no  matter how hateful and disgusting, as long as it does not constitute an actual act of violence (or at least that is my interpretation of what they told me).  The US rightfully separates violent speech (and thought) from violent action.  After all, do we really need the state to police what we write and say?

And yet it strikes me reasonable that there are legitimate exceptions to this freedom.  There are individuals and groups who advocate violence and indeed our destruction and hide behind First Amendment protection.  A good example would be an imam in Maryland who has, among other things, supported Islamic State openly online, posted execution videos, praised terrorist attacks overseas, called mosques in the US “unIslamic” and advocated killing homosexuals.

All of these acts were apparently OK although the imam in question may have crossed a line by allegedly giving money to a Detroit man who used it to buy explosives.  The state may be able to use that to eventually charge the self-styled religious leader.

The question I want to put on the table is the following: should he have been allowed to say the things he has done to date?  Do we really believe that a man who has publicly expressed backing for IS, a group that has pledged to kill us all, irrespective of whether their goal is realistic or not, should have been permitted to do so under “freedom of speech” laws?  Curiously, would overt support for the Nazis in the US in 1942 have been dismissed as not a threat?  I am not in favour of the “war on terrorism” analogy but for a country that uses it frequently the US seems all too forgiving of those who are pledge allegiance to a group that has declared war on it.

The problem with outlawing this kind of speech is that it is tricky.  There is no formula that I know of that easily divides real threats from aspiring or fake ones.  In other words, we would have to judge each case on its own merits before deciding that a particular set of speeches constituted illegal behaviour.

And yet this kind of sanction is already happening in the US.  Twitter routinely takes down the accounts of IS users and the major players in the online world like Google are coming up with ways to lessen the impact of violent Web sites.  Are these moves not contraventions of the First Amendment?

I fail to understand why individuals like the Maryland imam are allowed to get away with their poisonous bile.  Those of us who have studied violent radicalisation know that the presence and influence of a charismatic leader is a critical part of that process and can inspire others to carry out acts of terrorism.  Even if we cannot tie this imam’s venom to a specific act, is it not enough to know that it is likely to have to contributed to one?  Maybe not in a court of law but surely in the court of public opinion it seems like a slam-dunk to me (I should probably not have used that term given its connotations to US intelligence).

On the other hand the court of public opinion is not a real court and thank God for that.  Far too often people have been convicted by the hoi polloi only to be found innocent when all the facts are in.

So we are left with a conundrum.  Our tenacious holding to fundamental freedoms allows those who hate us viscerally to continue to spend their time urging others to kill us.  While we should not throw these hard won tenets out willy-nilly, surely there has to be a sensible middle way, doesn’t there?

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. and Programme Director for the Security, Economics and Technology (SET) hub at the University of Ottawa’s Professional Development Institute (PDI). Phil is a 32-year veteran of CSE and CSIS and the author of five books on terrorism.

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