Free Speech or Regulation: How should we draw the line to curb terrorist speech?

Terrorist speech was once extremely easy to identify and offenders were easy to prosecute. Yet now, as the world has entered into a new age of hyper-connectivity, the internet and social media has become an extremely effective form of communication reaching people from all walks of life irrespective of borders. With these changes, monitoring speech (in particular terrorist speech) has become extremely difficult. With the rise of terrorism, the foreign fighters phenomenon and the propaganda machine that terror organisations have become, questions can be raised on how terrorist speech can be defined and whether or not it should be monitored for the sake of the safety of civil society.

My argument is this: censorship of free expression is necessary to a certain degree in order to protect the society from terrorism.  

Firstly, this is shown by an analysis of ‘terrorist speech’ and propaganda.  The United States Supreme Court determined that freedom of expression is as protected by the First Amendment as much as freedom of speech is, in the case of Tinker v. Des Moines Independent Community School (1969). At this school, students were suspended for wearing armbands in protest against the Vietnam War, and this was deemed to be “closely akin” to pure speech thus was protected (Petraro 2006: 544). Importantly, to understand freedom of expression and freedom of speech, the definitions of both must be highlighted. According to the Universal Declaration of Human Rights, freedom of expression is covered by Article 19, in which it is stated that everyone has the right to freedom of opinion and expression including freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’ (UDHR 1948). Clearly, there are no limitations to this, however limitations are brought about by the respective country that includes the law. For the United States, the landmark case for a Ku Klux Klan member called Brandenburg v. Ohio (1969) highlighted the extent to which freedom of speech covers violence inciting speech. In this case it was deemed that hate speech is covered by the First Amendment, even in terms of violence inciting speech, unless the speech is likely to lead to imminent lawless action (Cram 2009: 91). In some cases, when an activist stated that African American’s who did not participate in a boycott of white-owned business would “have their necks broken,” it was deemed that that comment was not enough to incite violence, nor is typical speech at white-supremacist rallies or is carrying firearms or other weapons considered to be (Reuters 2017).

For Australia, freedom of expression is far more limited, it is restricted when its comes to derogation and discrimination, to protect the rights and reputation of others, national security and public order (Attorney General’s Department n.d.). Consequently, the limitations of freedom of expression in relation to terrorist speech falls under the banner of threatening national security, however in many places around the world, such as the US, free speech is far more unregulated.

Secondly, liberty of speech supporters often make an extremely compelling point that complete censorship of terrorist speech is not feasible and in effect threatens democracy in which public voice loses out to security interests (Cram 2009: 3). The definition of terrorism is already an extremely contentious issue, having changed several times throughout history and varying from region to region (Department of Emergency and Military Affairs n.d.). Censorship of terrorist speech can instead give oppressive and corrupt governments a justification to limit political speech and opposition against governments and regimes, allowing them to abuse their powers under in the name of greater security (Cram 2009: 5). This leaves opportunity for massacres such as that of Tiananmen Square and across China where over 10, 000 people were killed by government forces during anti-government, pro - democracy protests in 1989 (Jian 2014). Furthermore, this censorship becomes dangerously close to characteristics of authoritarian governments in which people would face grave consequences should they oppose the government. Full censorship also means that considerations would not be made to context and intention. This issue was exemplified recently in Texas, when an 18-year-old named Justin Carter was arrested for ‘making terrorist threats’ after he stated that he is crazy and thus will be a school shooter. On the surface, this would be considered to be terrorist speech, however this case exemplifies how much context is extremely important to the story. This was stated online after playing a game, when he was called insane, he sarcastically agreed and he followed his comments by saying things like “lol” (laughing out loud) and “jk” (just kidding) (Daily Mail 2013). He was later released after extreme public uproar with a petition for his release being signed over 228, 000 times ( 2013) and after his $500,000 bail was paid off by an anonymous donor (Shontell 2013). In this case neither context nor intention were taken into account and the prosecution's case was extremely weak. As such, in a country with full censorship, people would be convicted this way often and easily and the public uproar which influenced his release would no longer be there.

On the other hand, full freedom of speech is not feasible. It would allow any information to be passed without regulation, the ability for violence to be incited and harm to come to others. Thus some level of censorship is needed to fight a “greater evil”, which in this context is terrorism (Cram 2009: 4). Plato framed this as two arguments, the first - censorship should be invoked when it comes to protecting children, such as from the harmful influence of ideas that may morally corrupt or damage the child (Fieser 2017). The second - censorship  in order to protect society (Fieser 2017), this is the most controversial argument as it can be the justification under which whistle-blowers are prosecuted, however this also relates heavily to terrorist speech as it means that speech should be censored should it threaten and harm society or the nation. Finally, another important argument for censorship is by American philosopher, Joel Feinberg in which speech should be censored if it is offensive to others. This includes flag burning, desecration of religious symbols, and hate speech (Fieser 2017). This is extremely relevant as much of terrorist speech derives from hate speech against the government or groups of people. With full freedom, individuals receptive to influence of others and violence can become embroiled in terrorism and commit terrorist acts just by witnessing the expression of others, such as propaganda videos and calls to arm, this is seen in the foreign fighters phenomenon. A similar situation occurred in the Weimar Republic, and scholars now argue that if the Republic was less tolerant to fascist speech, perhaps the Nazi’s would not have come into power (Cram 2009: 89). Hence, after the events of September 11, 2001, the American public was told that there needs to be a realignment of a balance between liberty and security as the world moves into the age of terror. As such, due to the influence of others due to another’s expression, harm and violence can come to others, if regulations were not in place.

Throughout history, prior to internet age, terrorists and freedom of expression has been a very contentious issue and was often able to be censored and monitored by the government. This was shown by the case of Gitlow v. New York (1925) in which a prominent communist politician was identified and convicted due to promoting ideas of violent revolution (Fieser 2017). However now, with the rise of Islamic terrorism and the realisation of the power of the internet as shown by the revolution in Tahrir Square in 2011 initiating the Arab Spring, terrorists have become able to utilise this platform to express their ideas and influence others to commit terrorist acts without such interceptions. In Tahrir Square, freedom of expression played an integral role in dismantling the government (Tufekci, Wilson 2012). Rather than assembling publicly, youth throughout Egypt conversed and organised a large revolution online without government interception (Tufekci, Wilson 2012). This demonstrated the extent to which revolutions and gatherings can be organised and ideas can be expressed without the regulations and monitoring of the government. It showed how individuals can communicate with each other so effectively that revolutions can be planned. The communication between people and use of freedom of expression aided to dismantle the oppressive regime in the nation as the government was ill-prepared for such a well organised movement.  This brought to light the power that social media has and demonstrated that public assembly is no longer necessary.

The extent of which people’s expression and speech were reached all across the Arab world, almost instantly and information was shared without interception from the government inevitably influenced terrorist organisations. It was clear the power that social media had in this technological world and that information can be shared to anyone. Thus, this platform was utilised by terror groups. ISIS, in its prime was a propaganda machine, having a dedicated group of social media experts (Sardarnia, Safizadeh 2017). Speech and videos were spread throughout social media in order to entice individuals to carry out attacks or join the organisation. For this reason, regulation is essential, as without regulation individuals who are open and receptive to influence from such organisations and can cause danger to their community. As aforementioned, the terrorist groups utilising their freedom of expression can lead to the spread of propaganda, and though this is not necessarily illegal, many states consider the content of many of these organisations to be unlawful because they glorify terrorism (United Nations Office on Drugs and Crime 2012: 6). However, the concept of ‘glorification’ is extremely narrow, as such the monitoring of terrorist activities is largely up to websites. Currently, platforms such as Twitter, Facebook and YouTube have their own regulations system, in which accounts, posts and videos are often taken off the websites if they promote terrorism (Fuentes 2016:35, 34). An example of this was Twitter's removal of 270,000 accounts last year (The Guardian, 2018). Another example is the EU’s recent pressure on Facebook and Google to tackle extremist content and to implement a new system so the responses of the companies in dealing with such information is faster (Gibbs 2018).  This is essential as due to the anonymous and borderless factor of the internet, information can work to radicalise and indoctrinate individuals. This was shown by reports of numerous teenagers who were caught and detained for allegedly planning to attack Christmas shoppers in Belgium, and a 12-year-old boy was arrested for attempting to detonate a nail bomb in Germany at a Christmas market (Sengupta 2016). This occurred through children being able to access propaganda and expression of terrorist groups, such as their words related to violence and extremism and incentivising attacks carried out against the West (Sengupta 2016). One notable occasion when individuals were radicalised due to the use of expression by terrorist accounts over the internet and successfully carried out an attack were the shooters in the San Bernardino, they swore allegiance to ISIS online prior to the attack and were indoctrinated after coming into contact with terrorists over the internet and viewing their posts and images (Paletta et al. 2015). Moreover, the United Nations Council concluded in 2014 that over 15,000 fighters have travelled to Syria, Iraq, Yemen and Somalia to fight with terrorist organisations and it is attributed greatly to the recruitment tactics on social media (United Nations Security Council 2014). For these reasons, it is essential to regulate free speech and expression to some degree due to the sheer influence that many terrorist organisations have. It is difficult due to the borderless nature of the internet, allowing terrorist organisations to spread terrorist speech across the world and create home-grown terrorists, despite this, it is important that regulations are in place, however the regulations must be done correctly.

An important argument by advocates of full liberty is that censorship allows governments to abuse their power in the name of national security. This has been seen in the arrest of Justin Carter as aforementioned. One of the major occasions that this has happened was the bombings in India in 2008, in which the Hindu government arbitrarily arrested scores of Muslim men, even going so far to draft confessions (HRW 2011). Consequently, it seems that this abuse is extremely easy for the government to do and censorship can play into government agendas. This is a question that can be asked of the Brandenburg case in comparison to the case of Gitlow in 1925. Brandenburg was not charged with hate speech or terrorist speech, under the reasoning that he was not using his speech to advocate immediate violence (Cram 2009: 91). However, Gitlow was convicted due to the first amendment not protecting communist discourse as if the communists were to enter into power, liberties such as free speech would be removed from the public, thus it was for the ‘greater good’ (Cram 2009: 87). On the contrary, speech by Brandenburg in support of the Ku Klux Klan and speech by white supremacists are protected, though such speech can prevent people who are persecuted by such individuals from using their own speech, thus their prosecution could also be considered to be for the ‘greater good’, however it was not. A conclusion can be drawn from this, and that is that freedom of speech and expression is not a problem unless it is against the majoritarian culture of the time. The Brandenburg case and the Civil Rights Movement coincided together, as such Brandenburg was with the majoritarian culture in using his speech to terrorise minority cultures such as Jewish and African Americans (Justia US Supreme Court n.d.). Hence, it served the agenda of the government, while for Gitlow, his calls to action were instead against the majoritarian culture and the agenda of the government, hence he was arrested. This is also reflected by today's ‘war on terror’ discourse, in that the government has the ability to prosecute on terror charges. An interesting point to consider is also the fact that as stated by Professor McLaughlin of Pace University who specialises in civil rights, that “The term ‘terrorist’ has been overused only in connection with Muslim extreme groups who have committed acts of terror. To my knowledge, it has never been used to designate homegrown American groups that terrorize minority groups” (Jones 2015). Due to this, it is clear that perhaps some censorship can be exploited and people can be profiled. In order to combat this and put the necessary censorship methods into place that is not influenced by the government to maintain the status quo, but to actually protect the public from violent discourse and influence to commit violent acts, external, institutional safeguards against abusers of power must be put into place (Cram 2009: 8). These bodies must be void of influence, thus there can be a true balance between the protection of society and freedom of expression. Some bodies such as NGO’s and organizations such as Human Rights Watch can be appointed as auditors to the regulators due to their advocacy against arbitrary arrests (HRW 2011). As exemplified, it is extremely imperative to ensure that regulators are serving the community and preventing terrorist speech from reaching the public only for the community, not for other agendas, such as the governments, as seen many times previously.

Freedom of expression and terrorist speech are extremely contentious issues. It is important to find a balance between retaining fundamental liberties like freedom of expression and ensuring the security and safety of the state and the people within it. Now, due to the technological age and the significance of the internet, it is essential that priority is put on how to regulate speech online, as this is where many people receive information today, thus it has powerful and dangerous implications as seen by the indoctrinated individuals who carried out the San Bernardino shooting. It is also extremely necessary to consider to valid argument of full freedom advocates, who are concerned about the governments abuse of power, as stated, this needs to be combatted by an independent body who keeps regulators in check, insuring that arrests and convictions are not arbitrary and things like context are taken into account. In doing this, censoring terrorist speech can ensure both freedom of expression and the safety of the state.


DISCLAIMER: The views presented in this article do not represent the views of the UNSW United Nations Society, they only represent the views of the author.

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