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How Anti-Terror Laws Threaten Free Speech


International protections on free expression in no way restrict governments from criminally prosecuting direct incitement to terrorism–speech that directly encourages the commission of a crime, is intended to result in criminal action, and is likely to result in criminal action–whether or not criminal action does, in fact, result. (In the United States, where the Constitution imposes stricter protections for expression than found elsewhere, the courts have required that the prohibited incitement present a risk of “imminent” criminal action.) Yet the legal trend globally is not only to criminalize direct incitement to terrorist activity, but to criminalize indirect incitement–to prohibit speech perceived as justifying, defending, or “glorifying” terrorism. This, from the standpoint of free expression, is problematic.

The British government has been a leader in this effort. Not only has it passed new domestic laws to regulate speech, it has pressed international institutions to take up the issue. In September 2005, the U.N. Security Council adopted a UK-sponsored resolution that purported to repudiate “attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts.” Although the resolution used the term incitement, rather than indirect incitement, its references to justification and glorification suggested a broad understanding of the term.

Earlier that year, the Council of Europe, a European human rights body, adopted a Convention on the Prevention of Terrorism with similarly expansive language. The treaty requires states to criminalize “public provocation” of terrorism, a crime that could include indirect incitement. The convention defines public provocation as the public dissemination of a message “with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.” Note the clear erosion of the incitement standard: There’s no need for the message to directly encourage terrorism, and rather than having to be “likely” to result in criminal action, it’s enough that the message may “cause a danger” of such action.

A Global Survey


. The UK’s 2006 counterterrorism law criminalizes any public statement that is intended to encourage, or that recklessly encourages, acts of terrorism, if the statement takes the form of “glorif[ying] the commission or preparation (whether in the past, in the future or generally) of such acts or offences” and is such that the audience “could reasonably infer” that what is being glorified should be emulated. (A 2000 UK law already specifies that “inciting another person to commit an act of terrorism” is a criminal offense, one punishable in the same manner as the offense that was incited.)

. Under Zimbabwe’s 2006 counterterrorism law, a person who “solicits, invites, or encourages moral or material support” for a designated terrorist organization commits an offense.


. Bahrain’s 2006 counterterrorism law includes extremely broad and vaguely-drafted restrictions on expression. The law provides that: “Whoever uses religion, religious buildings, public places or religious festivities to propagate provocative appeals or extremist ideas, or holds notices/posters, or puts up graphics, pictures, slogans or signs that might create fitna [disorder] or insult monotheist religions, their symbols or their believers, or harm the national unity or social peace, or destabilize security or public order shall be punished by imprisonment and fine or one or both penalties.” The legislation also provides that anyone who “promotes or approves, in any way” of a terrorist act faces imprisonment.


. In Australia, the 2005 Anti-Terrorism Act bars organizations from advocating terrorism. An organization is understood to advocate a terrorist act if it: 1) “directly or indirectly counsels or urges” such an act; 2) “provides instruction” on how to commit such an act, or 3) “directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person Ö to engage in a terrorist act.”

. Turkey’s 2006 counterterrorism law imposes criminal penalties on those who “make propaganda for a terrorist organization or for its aims.” The law provides for harsher penalties for those who do so using the media. A Council of Europe expert committee has criticized the provision, finding it to be “ambiguous and written in wide and vague terms.”



Possession of a Map Without an Excuse



. Another provision of the same UK law criminalizes the possession of documents containing information “of a kind likely to be useful to a person committing or preparing an act of terrorism.” This extremely broad provision–which could otherwise bar, for example, possessing a map of London–also provides that a person charged with violating the law may defend against prosecution by proving that he has “a reasonable excuse for his action or possession.”

. Finally, the 2006 UK counterterrorism law criminalizes the distribution of “terrorist publications,” defined as publications that either glorify terrorist acts or are made available “wholly or mainly” because they would be useful in the commission or preparation of terrorist acts.

Preemptive Action against Terrorism




JOANNE MARINER is a human rights attorney based in New York.