Should the Celebration of Terrorist Acts be Criminalized?
In the last few months several groups in Canada have called on the federal government to enlarge the scope of the Criminal Code ban on speech that counsels others to engage in acts of terrorism to include an explicit prohibition on the “glorification of terrorism”. A ban on the glorification of terrorism might extend to speech that celebrates the murder of Israeli civilians by Hamas on October 7 or the 9-11 attacks in the United States.
What the Criminal Code currently prohibits is the “counselling” of another person to commit one of the terrorism offences set in the Code, “whether or not such an offence occurs.” Terrorist activity as defined by the Code includes a range of politically or religiously motivated acts of violence. The counselling offence replaced an earlier prohibition on the “advocacy or promotion” of terrorism.
Similar prohibitions exist in other jurisdictions. In the UK, for example, the Terrorism Act 2006 prohibits expression that “encourages” acts of terrorism, including expression that glorifies terrorism when “members of the public could reasonably be expected to infer” that the conduct being glorified “should be emulated by them in the existing circumstances”. A number of European countries have also banned “indirect” forms of incitement or encouragement, such as the glorification of terrorism or “apologie” for terrorism.
Those who are pressing for the enlargement of the counselling ban to include speech that glorifies terrorism, see the counselling ban as similar to the current criminal ban on hate speech – on “the wilful promotion of hatred” – while recognizing that the counselling/glorification ban, unlike the ban on hate speech, does not focus exclusively on speech that is directed at particular groups, defined on racial, religious, ethnic and other similar grounds. This difference though is important. Without such a focus, the enlargement of the counselling ban to include speech that glorifies terrorism would put at risk political speech that should be protected.
Terrorist counselling or advocacy may target the members of minority religious or racial groups. However, we usually think of it as targeting members of the general community, or its political representatives. The audience to which “terrorist promotion” is intended to appeal is most often composed of minority group members who feel marginalized and alienated from the larger community. It calls on them to strike out against their “oppressors,” the dominant or mainstream community. Terrorist advocacy then can be seen as the inverse of hate speech, which is addressed to members of the “dominant community” and promotes hatred and violence against marginalized groups that have been the historic victims of oppression.
Despite these differences, terrorist advocacy operates in much the same way as hate speech and is dangerous for many of the same reasons. Like hate speech it takes place at the margins of public discourse, principally on the internet. Terrorist advocacy is removed from general public view and insulated from counter-speech. It is directed at “outsiders” to the mainstream, primarily angry, alienated young men who identify as members of a marginalized racial or religious group and see themselves as victims of private and state discrimination, and it appeals to their feelings of resentment, anger, and injustice. Terrorist advocacy is harmful not because its message may spread widely in the community, but instead because it may encourage an alienated individual in the community – a lone wolf – to take violent action against those who he believes are oppressing his group. In this respect terrorist advocacy is similar to most hate speech. In both cases, the speech is effective – creates a risk of harm – when it gives alienated young men a focus for their anger and resentment and a sense of purpose and identity that is experienced in the performance of an act of violence. Those who are responsive to the message of hate speech may formally be part of the dominant community but often feel left behind and denied the privilege or status they believe is owed to them. The hate-monger, and the audience to which she/he appeals, perceive the target of their hatred – groups such as Jews and Muslims – not as marginal and powerless, but instead as wielding power behind the scenes, or as poised to take control of society.
Terrorist advocacy, though, is different from hate speech in other, more significant, ways that make hate speech law a poor model for its legal regulation. Hate speech attributes dangerous or undesirable traits to the members of a racial or other identifiable group, or it portrays the members of such a group as less human than others. At the core of hate speech then is a claim that is both false and extreme. Such a claim can be understood as justifying the violent treatment of the members of the target group even if it is not attached to an explicit call to violence. For example, the assertion that the members of a particular racial or religious group are dangerous or subhuman can, without anything more being said, be seen as hate speech. It is objectionable because the false claim that the members of a group are by nature violent or duplicitous, can be seen as justifying their exclusion or suppression.
Terrorist advocacy, in contrast, is objectionable not because of the political positions (about foreign policy or domestic discrimination) that are deployed to persuade the audience that violence is justified, but simply and only because it calls on the audience to commit violent acts. The political and religious claims that are sometimes offered to justify terrorist action may be erroneous or overstated; nevertheless, they fall within the scope of protected speech – the political speech of the marginalized, criticizing the actions of the powerful. When they are detached from a call to violence, they are a legitimate part of public discourse. Even speech that claims that with 9/11 America got some of its own medicine must be treated as political and protected, no matter how insensitive or odious it might seem.
At issue in the terrorist advocacy cases is whether the speech calls for violent action, but such a call cannot be implied from political claims about the unjust actions of a particular state or even from the celebration of violent acts against a particular society. The enlargement of the current criminal ban on counselling terrorist activity to include speech that glorifies or celebrates acts of terrorism, when this speech does not explicitly call for violent action would put at risk political speech that should be protected. The community’s anger or upset at expressions of sympathy or understanding for the actions of terrorists may lead police and prosecutors to view these expressions (and the supporting political positions) as terrorist advocacy or the glorification of terrorism that encourages others to take similar action. Some expressions of outrage about the actions of Western powers or the celebration of terrorist acts may be intended to incite others to take violent action against mainstream society; nevertheless, speech should be suppressed only when it clearly calls for violent action.
