Terrorism and free speech

The state of freedom of speech seems to be a hot topic these days.  The Economist devoted a recent cover story to it.  UK scholar Timothy Garton Ash has just written a critically acclaimed book on the issue.  Every day we read of new assaults on journalists and activists in China, Russia, Egypt (two Al Jazeera employees were just sentenced to death) and even Germany where a comedian was charged for writing a satirical poem about President Erdogan of Turkey, a country where press freedom is waning.

For what it is worth I think that there should be reasonable restrictions on freedom of speech although I fully acknowledge the difficulty in determining what speech should be banned and who the arbiter should be.  Even Mr. Garton Ash, who maintains that virtually everything should be allowed, recognises that child pornography should not.  I think we would all agree on that and yet we still see on occasion instances of innocent family photos of naked children misconstrued as pornography.

I have no intention of weighing in on hate speech in general or blasphemy, two subjects I am not expert in, but rather on terrorism, something I know a little about.  The challenge of what to do with those who espouse terrorist sympathy or leanings/support came to the fore once again in the case of the Orlando shooter, Omar Mateen.  The FBI had investigated him on two occasions because of information relating to his comments on terrorism but both times dropped their efforts because he was not seen to be planning a terrorist act.  The US unyielding belief in their First Amendment was probably a significant factor as well.   Some would argue that is the correct response: I fear the families of the victims would disagree.

So, what should we do with those who support terrorism in word only?  There is a pretty clear case to be made that people engaged in attack planning need to be arrested, but what about Internet posts?  Tweets?  Facebook?  Some countries have enacted “glorification of terrorism” legislation.  Canada’s C-51 contains clauses about the possession of terrorist propaganda.  The venturing into new legal territory has been controversial to say the least.

Is the creation of new laws criminalising the support of terrorism a violation of the fundamental principle of free speech?  Not necessarily.  As I noted above, there have to be reasonable restrictions on what people can say if that speech can be seen to lead to acts of serious violence.  Yes, the proof may be nigh impossible to achieve, but surely we can agree on those items that a “reasonable person” would qualify as undesirous (in the absence of a Solomonic figure that is the best we can do after all).

It seems to me that we have to carefully compartmentalise speech that supports terrorism and bring the weight of the law down only where there is a clear case of incitement to execute a terrorist act.  With that framework in mind, simple possession of terrorist material (e.g. Islamic State’s Dabiq or Al Qaeda in the Arabian Peninsula’s Inspire) should NOT be considered an offence.  In fact, many scholars have copies of these publications for research purposes as do I.  Distributing this material should also not be illegal, with one exception.  If a person shares this material, which by the way clearly  promotes terrorism, and endeavours to encourage, cajole or shame others to follow its recommendations (this may be hard to determine but good human source or wiretaps could help here), charges should be laid.  Other activities included here would be any method – speech, khutba, Internet posting – used to promote the actual commission of a terrorist act.

This will not be easy to do.  A few recent cases – the killing of British MP Jo Cox by an apparent neo-Nazi who saw her as a traitor and the murder of an Ahmadi Muslim in Glasgow – demonstrate the difficulty in drawing the line between word and deed.  In the first case, is it clear that the rhetoric of the Brexit campaign led the killer of Ms Cox to act (during the attack he apparently yelled “Britain First”, which happens to be the name of a group advocating the withdrawal from the EU)?  In the latter, one mosque in London allowed the preaching of anti-Ahmadi invective – was that what led to the death of a Muslim shopkeeper in March of this year?  I fear that there are no clear-cut answers here.

Unfortunately, the fact that we “all know” that there is a link between advocacy and violence is not enough.  The state still has to prove beyond a reasonable doubt that the connection is there and that a particular speech or email led to that act of violence.  This will remain a significant challenge going ahead and as a society we will continue to struggle with the incompatible pillars of absolute freedom and justifiable restrictions on speech.



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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