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Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

Harvard National Security Journal, Vol. 2, 2011

30 Pages Posted: 5 Jan 2011  

Daphne Barak-Erez

Tel Aviv University - Buchmann Faculty of Law

David Scharia

Counter Terrorism Committee Executive Directorate UN Security Council

Date Written: 2011

Abstract

In the recent case of Holder v. Humanitarian Law Project, the Supreme court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech.

This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.

Keywords: Terrorism, national security, incitement, freedom of speech, comparative law, international law

Suggested Citation

Barak-Erez, Daphne and Scharia, David, Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law (2011). Harvard National Security Journal, Vol. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1735007

Daphne Barak-Erez (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

David Scharia

Counter Terrorism Committee Executive Directorate UN Security Council ( email )

New York, NY 10017
United States

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