Abstract
This is a book about freedom of expression and counter terrorism laws in the United Kingdom. It was sparked by what was seen at the time to be a largely incidental aspect of the Blair Government's wider response to the terrorist outrages of September 11, 2001 and the London Bus and Tube bombings of July 7, 2005 (and the unsuccessful subsequent attempts of July 21, 2005) – namely the set of restraints in Sections 1 & 2 of the Terrorism Act 2006 upon communications that indirectly encouraged terrorism. Other controversial measures in the ‘war on terror’ such as indefinite detention of suspected terrorists, control orders, extensions of period of detention prior to charge, limits on the right of persons subject to control orders to learn in judicial proceedings of the basis of the case against them, have justly attracted considerable critical attention
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- 1.
I use the term in parentheses to refer to counter terrorism measures pursued since September 11, 2001 by a number of western liberal democracies, notably the US & UK. Like many others, I dispute the assertion that these states are now or have been living through a time of ever present terror in which the lives of their citizens are experienced as being under continuous physical threat in the way that the lives of citizens elsewhere in Sudan, Afghanistan or Iraq are threatened. As Kostakopolou has noted, while terrorists can kill innocent persons, frighten countless more individuals and destroy property, they do not threaten the very existence of the state, see D Kostakopolou, ‘How to do things with security post 9/11’ (2008) 28 OJLS 317. The phrase though contested has however acquired a resonance through its repeated use by politicians and the media to refer to counter terrorism measures adopted since September 11, 2001.
- 2.
A good recent account that discusses developments within their historical context is provided by Professor David Bonner, Executive Measures, Terrorism and National Security (2007, Ashgate, Hants).
- 3.
‘The rules of the game are changing’ The Guardian (2005) August 5.
- 4.
For a critical assessment of this premise, see D Bonner, Executive Measures, Terrorism and National Security (2007, Ashgate, Hants.) ch. 1.
- 5.
R Ashby Wilson, ‘Human Rights in the ‘War on Terror’’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass) at p. 1.
- 6.
(2004, Princeton University Press, Princeton).
- 7.
For a critical evaluation of the ‘lesser evil’ argument see C Gearty, ‘Terrorism and Human Rights’ [2005] EHRLR 1. In cases where a departure from prevailing due process standard occurs in the name of counter terrorism, Ignatieff proposes that coercive measures be subject to adversarial justification in legislatures, courts and more widely in public debate. For discussion of the application of Ignatieff's principles to the United States' counter terrorist strategy, see M Minow, ‘What is the greatest evil?’ (2005) 118 Harv L Rev 2134. Ignatieff's paradigm shift into the resolutely anti-rights reasoning of utilitarianism prompted Jonathan Raban to comment that Ignatieff had become the ‘in-house philosopher of the terror warriors’, J Raban, ‘The Truth About Terrorism’ (2005) New York Review of Books, January 13.
- 8.
A Dershowitz, Why Terrorism Works (2002, Yale University Press, New Haven).
- 9.
B Ackerman, Before the Next Attack, Preserving Civil Liberties in an Age of Terrorism (2006, Yale University Press, New Haven).
- 10.
Ibid., at p. 9.
- 11.
See further S Levinson (ed.) Torture, A Collection (2004, OUP, Oxford).
- 12.
Although Locke's account of prerogative powers appears to confer an unchecked discretion on the executive to act in exceptional circumstances, see J Locke, Two Treatises of Government (1970, CUP, Cambridge) at 146–168 and the essay by M Freeman, ‘Order, Rights and Threats: Terrorism and Global Justice' in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass) at pp. 39–41.
- 13.
See in this vein the work of Judith Shklar, whose concept ‘the liberalism of fear’ draws on moral psychology and the prevalence of human vices and prejudices. Shklar stresses the dangers of cruelty which arise from concentrating ever greater powers in the state in the name of securing greater order and security as discussed in B Yack, (ed.) Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N Shklar (1996, Univ. of Chicago Press, Chicago). I discuss this in more detail in the text below.
- 14.
D Cole & J X Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (3rd edn.) (2006, The New Press, New York) at p. 1.
- 15.
See the UN Press Release of March 11, 2005 entitled ‘Secretary-General Kofi Annan Launches Global Strategy against Terrorism in Madrid: Agreement on Terrorism Convention, Respect for Human Rights, Strengthening State Capacity to Prevent Terrorist Acts Key Elements of Strategy’ at http://www.unis.unvienna.org/unis/pressrels/2005/sg2095.html
- 16.
F Tesón, ‘Liberal Security’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass).
- 17.
Ibid., at p. 62.
- 18.
For Waldron, rights are ‘resolutely anti-consequentialist’, see J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Jo. of Pol. Phil. 191.
- 19.
R Dworkin, Taking Rights Seriously (1977, Duckworth, London).
- 20.
The Theory of Justice – Revised Edition (1999, OUP, Oxford) p. 193.
- 21.
‘Security and Liberty: The Image of Balance’ (2003) 11 Jo. of Pol. Phil. 191.
- 22.
Of course, this analysis would look quite different where the security claim could be convincingly recast as a competing individual right claim (such as the right to life or freedom from intentionally inflicted harm). There, the idea of a lexical priority for rights does not help resolve the conflict. This is not to say however that a reduction in a right is justified merely because the adjustment confers some benefit upon another rights bearer.
- 23.
See similarly D Luban, ‘Eight Fallacies About Liberty and Security’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass).
- 24.
This point is conceded by those concerned to defend the executive's wide discretionary powers, see E Posner & A Vermeule, Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) p. 92.
- 25.
For a detailed account see D Cole & J X Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (3rd edn.) (2006, The New Press, New York) Part IV.
- 26.
‘The Liberalism of Fear’ in (ed. S Hoffman) Judith N Shklar: Political Thought & Political Thinkers (1998, Univ. of Chicago Press, Chicago).
- 27.
Ibid., at p. 11.
- 28.
Ibid., at p. 13.
- 29.
To adopt the definition used by Posner & Vermeule in Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) at p. 42.
- 30.
This design can of course be traced to the Founding Fathers' appreciation of Montesquieu. Madison for example referred to Montesquieu as ‘the oracle who is always consulted and cited on this subject…’ J Madison, A Hamilton & J Jay, The Federalist Papers (ed. I Kramnick) (1987, Penguin Books, London) – Federalist Paper Number 47 – Publius (Madison).
- 31.
Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) at p. 5.
- 32.
Ibid., at p. 275.
- 33.
For discussion of early Supreme Court rulings arising out of Guantanamo Bay see P Berkowitz (ed.) Terrorism, the Laws of War and the Constitution: Debating the Enemy Combatant Cases (2005, Hoover Institution Press, Stanford). For an account of a rule of law-based approach to emergencies in which the judges play a relatively restrained role (alongside the executive and legislature) in responding to the emergency, see D Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006, CUP, Cambridge).
- 34.
US 557 (2006).
- 35.
US 466 (2004).
- 36.
US 507 (2004).
- 37.
US 214 (1944) Mass internment of Japanese-Americans during World War II. In 1988, President George Bush belatedly apologized for the internment and made an offer of reparation. For a British equivalent in terms of judicial feebleness, see Liversidge v Anderson [1942] AC 206.
- 38.
US 579 (1952) and see Black J, ‘The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.’ at 589.
- 39.
Terror in the Balance (2007, OUP, New York) at p. 38.
- 40.
Ibid., at p. 94.
- 41.
Posner and Vermeule claim that the state of fear that precedes a panicked official reaction is not an unambiguously bad phenomenon since it may motivate governments to address the threat. However it cannot be the case that the irrationality that is implied by ‘panic’ is to be preferred to a rational determination that considers whether existing laws are up to the task of meeting the threat in question.
- 42.
Terror in the Balance (2007, OUP, New York) at p. 60.
- 43.
A good and brief summary of legislation enacted immediately after terrorist incidents in the UK and US is to be found in K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajó (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands) at pp. 184–188.
- 44.
S R & O 1918 No. 367 Regulation 4. Admittedly the regulation was revoked shortly afterwards by S R & O 1918 No. 1550 which may itself be an admission of its irrationality. See further K D Ewing & C Gearty, The Struggle for Civil Liberties (2000, OUP, Oxford) at p. 53.
- 45.
In truth, it is generally accepted that low pay and poor conditions lay behind the Nore mutiny, see further Ch. 4.
- 46.
‘The United Kingdom's Anti-Terrorism Laws: Lessons for Australia’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales) at p. 187.
- 47.
Anti-terrorism, Crime and Security Act 2001, Part IV, ss. 21–23.
- 48.
[2005] 2 AC 68.
- 49.
Henry McLemore writing contemporaneously in the Los Angeles Times and cited by US News & World Report (2008) May 8 ‘Japanese-Americans Fight to Preserve Wartime Internment Camps’ by Justin Ewers.
- 50.
D Nagata, ‘Expanding the Internment Narrative: Multiple Layers of Japanese American Women's Experiences’ in (eds. M Romero & A J Stewart) Women's Untold Stories: Breaking Silence, Talking Back, Voicing Complexity (1999, Routledge, London) at p. 72.
- 51.
M O'Boyle, ‘Emergency Situations and the Protection of Human Rights: a Model Derogation Provision for a Northern Ireland Bill of Rights’ (1977) 28 NILQ, 160, 164.
- 52.
W Twining, Emergency Powers: a Fresh Start Fabian Tract 416 (1972, Fabian Society, London) p. 4.
- 53.
D Bonner, Emergency Powers in Peacetime (1985, Sweet & Maxwell, London) at p. 17.
- 54.
K Ewing & C Gearty, Freedom under Thatcher (1990, Clarendon Press, Oxford) at p. 213. See further C Walker, The Prevention of Terrorism in British Law (2nd ed.) (1992, Manchester Univ. Press, Manchester) ch. 4.
- 55.
The focus in the monograph being on expressive freedom, I am ignoring here the tendency of militant democracies to resort to preventative detention and the right to liberty issues also implicated in militant democracy-style responses.
- 56.
K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajó (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands). This of course has a downside for prosecutors in that failing to prove beyond reasonable doubt that the defendant was so motivated will be fatal to the prospects of conviction. Roach has been critical of Canada's inclusion of political, ideological or religious motive in its Anti-Terrorism Act 2001, see K Roach, September 11 – Consequences for Canada (2003, McGill – Queen's University Press, Montreal) at pp. 25–28 and see further Chap. 3 of this book.
- 57.
See inter alia RAV v St Paul 505 US 377 (1992).
- 58.
‘Militant Democracy and Fundamental Rights I’ (1937) 31 Am. Pol. Sci. Rev. 417, 431–2.
- 59.
Socialist Reich Party Case (1952) 2 BVerfGE 1.
- 60.
Ibid.
- 61.
(1956) 5 BVerGE 85. For commentary, see DP Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn., 1997, Duke University Press, Durham) at 217–38; L Kestel & L Godmer, ‘Inclusion and exclusion of extreme-right parties’ in (eds. R Eatwell & C Mudde) Western Democracies and the New Extreme Right Challenge (2004, Routledge, London) at 135–6; R Youngs, ‘Freedom of Speech and the Protection of Democracy’ [1996] Public Law 225.
- 62.
(2000) 30 EHRR 519 – restrictions upon the political activities of police officers in Hungary held not to violate Article 10.
- 63.
A Sajó, ‘Militant Democracy and the Transition towards Democracy’ in A Sajó (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands) at p. 212.
- 64.
K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajó (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands).
- 65.
I refer here to ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v Falwell’ (1990) 103 Harv L Rev 605; ‘Racist Speech, Democracy and the First Amendment’ (1990–91) 32 Wm & Mary Law Rev 267; ‘Community and the First Amendment’ (1997) 27 Ariz St L J 473; ‘Democracy and Equality’ (2006) ANNALS of the American Academy 24; ‘Religion and Freedom of Speech: Portraits of Muhammed’ (2007) 14 Constellations 72.
- 66.
‘Democracy and Equality’ (2006) ANNALS of the American Academy 24, 26.
- 67.
Aside from expression of anti-democratic values, an alternative basis for the restraint might be the offence caused thereby to others, see further I Cram, ‘Satire, Cartoons and Offensive Expression’ in (eds. I Hare & J Weinstein) Extreme Speech and Democracy (2009, OUP Oxford) ch. 16.
- 68.
For a suggestion that the UK Government accepts that this threshold for liability is set too low, see the parliamentary debates on the new offence of inciting hatred on the grounds of sexual orientation at HC Debs (2007–8) Vol 475 cc. 603–604. (Maria Eagle MP).
- 69.
‘Democracy and Equality’ (2006) ANNALS of the American Academy 24, at p. 31. The speech type that he suggests might fit this scenario is ‘fighting words’.
- 70.
The literature on the ‘silencing’ effect of racist and other speech includes M J Matsuda, ‘Public Response to Racist Speech: Considering the Victim's Story’ (1989) 87 Mich L Rev 2320; R Delgado & J Stefancic, Understanding Words That Wound (2004, Westview Press, Oxford).
- 71.
On communitarian thinking in general see, M Sandel, Liberalism and the Limits of Justice (1982, CUP Cambridge), C Taylor, Philosophy and the Human Sciences: Philosophical Papers, Vol II (1985, CUP, Cambridge); M Walzer, Spheres of Justice: A Defence of Pluralism and Equality (1983, Blackwell, Oxford).
- 72.
See now Criminal Justice and Immigration Act 2008, s. 74 & Sch 16 which amends Part 3A of the Public Order Act 1986 by the insertion of a new offence of inciting hatred against persons on grounds of sexual orientation.
- 73.
‘Community and the First Amendment’ (1997) 27 Ariz St L J 473, 483.
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Cram, I. (2009). ‘The War on Terror’ Security and Expressive Freedom. In: Terror and the War on Dissent. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-00637-1_1
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