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

by Daphne Barak-Erez (Tel Aviv University – Buchmann Faculty of Law) and David Scharia (Counter Terrorism Committee Executive Directorate UN Security Council)

forthcoming Harvard National Security Journal, Vol. 2, 2011; via SSRN

Abstract:

In the recent case of Holder v. Humanitarian Law Project, [here] 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.