<<previous | index | next>>
Incitement to commit a crime is an offense in many legal systems around the world, and specific laws prohibiting incitement to terrorist acts are increasingly common. Such conduct sometimes can be reached through accomplice liability and conspiracy laws as well. The crime of direct incitement generally requires that the message directly encourage the commission of a crime, and that the speaker intend this, whether or not a criminal act results. In the United States, constitutional jurisprudence requires that the incitement present a risk of “imminent” criminal action; in Europe, the courts tend to allow somewhat more latitude with respect to the risk of proximate causation.
What is new on the scene is the proliferation of crimes of “indirect incitement,” that is, criminalization of speech which is thought to have some potential to incite criminal action, but which may be less targeted in message or audience and less obviously a proximate cause of actual criminal acts. These laws are often ambiguous on whether the proscribed speech must merely portray terrorism or terrorists—variously or vaguely defined—in a favorable light to an outside observer, or whether it must be specifically intended to spur violent criminal acts and present a real risk of doing so under the circumstances.
In 2004 only three European countries had laws against “apologie” or “glorification” of terrorism, but by mid-November 2006 some 36 countries had signed the Council of Europe Convention on Terrorism which requires states to criminalize “provocation” of terrorism, a crime that could include indirect incitement.12 The new crime is catching on in domestic law. Spain and France had apologie laws on the books prior to 2001; the United Kingdom and Denmark have more recently adopted laws on promotion or glorification of terrorist acts, while Turkey and Russia in 2006 amended terrorism legislation in ways that would punish speech characterized, respectively, as “propaganda” for terrorism or support of “extremism.”
Australia has been considering following the model of the UK Terrorism Act of 2006, which outlaws “glorification” where it is reasonable to infer that the audience would understand the speech as encouraging emulation of terrorist conduct. There is no qualification in the UK law, however, for either imminent danger that a terrorist act would be committed, or the speaker’s intention to cause such a result. It is important to recognize that acts of glorification or apologie are the basis for more than penal consequences: they also may lead to blacklisting of organizations for the purpose of halting fundraising or freezing assets, as in the UK, or to deportation of aliens, as in France.
The crime of indirect incitement has to be seen as an effort to go beyond situations where the evidence shows that the speaker clearly intends to provoke the audience to criminal conduct. There are strong reasons to question whether there is, in fact, room for principled distinction between controversial but protected political speech and indirect incitement.13 In the UK, some have sought to distinguish between those who carry placards praising the perpetrators of the London 7/7 attacks and those whose placards urge murder of critics of Islam. Others have worried that glorification laws could be used against Muslims who speak in favor of armed resistance against occupation, expression which is typically viewed as a form of protected, if controversial, political speech. Prime Minister Tony Blair’s statement that juries would understand glorification “when they see it” underscored the fears of minorities that the definition would be subject to the popular prejudices of the moment.14
If counterterrorism has been the motive for new speech-restrictive laws in Europe, it also has become a pretext for repression of political dissent in places such as Uzbekistan. Treated as an ally in the aftermath of the 9/11 attacks by Washington and Moscow, Uzbekistan significantly intensified its persecution of independent reporters and human rights monitors, justifying this crackdown as a legitimate counterterrorism response. And it did so with particular energy against those who contradicted the government’s claims that Islamist terrorists, rather than government agents, were responsible for massacring hundreds of unarmed civilians in Andijan in May 2005.15 Despite commitments to reform its laws, Jordan still prosecutes writers for criminal defamation of government leaders and officials or for material that endangers foreign relations. In June 2006 the state jailed four parliamentarians who paid a condolence call to the family of Abu Mus’ab al-Zarqawi; one of the four also allegedly called al-Zarqawi “a martyr and a fighter.” The charge against the four was stirring up sectarian or racial tension or strife among different elements of the nation.16
But it is in Spain that one finds one of the stranger prosecutions for apologie, which ended in acquittal in November 2006. Impelled by the Association of Terrorism Victims, the government indicted a Basque punk rock band for allegedly praising separatist terrorism in the lyrics of its songs. The group denied supporting terrorists and explicitly disavowed supporting the armed ETA insurgency when it was alleged that their songs were hurtful to the ETA’s victims. Under the European Court’s jurisprudence, works of art and political speech are both to be given an extra degree of latitude. Even so, the prosecutor sought not only to imprison the band, but to bar them from working as musicians.17
