Document Type

Article

Publication Date

2005

Abstract

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive political speech have relaxed over time to allow for more criticism. In the United States, Brandenburg v. Ohio cemented this shift. In the United Kingdom, change came gradually. The practical elimination of treason and seditious libel, and incorporation of the European Convention of Human Rights (ECHR) into domestic law through the 1998 Human Rights Act (HRA), marked the transition. If free speech remains central to our understanding of liberal democracy, it would nevertheless be naive to rely on these alterations to protect expression in the contemporary counter-terrorist environment-regardless of how remarkable they might be in the context of what went before.

Publication Citation

27 Cardozo L. Rev. 233-341 (2005)