697
Home office (2012). Home Office Statistical Bulletin Operation Of Police Powers Under The Terrorism Act 2000 and Subsequent Legislation: Arrests, Outcomes And Stops And Searches (HOSB 11/12), at Table 1.03(a)
698
Ibid, Table 1.11(a)
699
See Crown Prosecution Service. Prosecution Policy and Guidance: Violent Extremism and
Related Criminal Offences, at http://www.cps.gov.uk/publications/prosecution/violent_extremism.html
700
Hansard, HL Deb Vol.676, col.455 (December 5, 2005)
701
Council of Europe (2005). Council of European Convention on the Prevention of Terrorism (Warsaw 16. v. 2005)
702
United Nations Security Council (2005). Threats to International Peace and Security (S/RES/1624 (2005).
703
See Council of Europe (2005). Explanatory Report, supra note 523, paras. 77-78; for the distinction between Article 4 of ECPT and Section 1 TA, see Joint Committee on Human Rights (2007). The Council of Europe Convention on the Prevention of Terrorism: First Report of session 2006-07, Report together with Formal Minutes and Appendices. (HL Paper 26 HC 247. London, TSO), paras. 22-49
151
In the UK, there are arguments both for and against criminal offence of encouraging a crime.704 As discussed above, the same is true with the offence of encouraging terrorism. It might be tempting to close the argument on encouraging terrorism by suggesting that because they would have been unconstitutional in the US, so they should assume the same illegitimacy in the UK. If this argument is made based on existing laws, then it is true that the US does not have a law that criminalises the glorification of terrorism. However, if it is made based on the Supreme Court's interpretation of the First Amendment rights, then the argument could be more ‘speculative'.705
There are several reasons for above accentuation. First, the Supreme Court was inconsistent in its approach to the question of national security and the scope of constitutionally protected rights during war and peace times.706 The various principles discussed above, such as the bad tendency test, the clear and present test, etc were a result of this. For this reason, it would be difficult to speculate that the US Supreme Court would overturn new offences on the issue of glorifying terrorism. The circumstances in which the law come into effect, for instance in time of war or terrorist attacks similar to 9/11, might convince the court not to do so.
Secondly, a comparison of the US laws on terrorism with the UK's is somehow misleading. More often than not, the cases cited for comparisons are those that dealt with the incitement of violence, not the glorification of terrorism. However, as discussed in detail in the previous sections, these two types of violence are not the same. Moreover, most of the US cases are related to the offence of
704
See Ormerod, D. and Fortson, R. (2009). Serious Crime Act 2007: the Part 2 Offences. Criminal Law Review No.6 pp. 389-414 (arguing that "It is questionable whether all of these tortuously difficult offences in ss.44-46 are even necessary.") See also a counter argument in Sullivan, G.R. (2006). Inchoate Liability for Assisting and Encouraging Crime. Crim. L.R. 1047. see also Barnum, D. G. (2006). ,supra note 444(arguing that "There do not appear to be any doctrinal impediments to using s.1 of the Terrorism Act to punish "indirect encouragement" to the commission of terrorist acts."); see also Child, J.J., supra note 72
705
Barnum, D. G., supra note 444 ("Freedom of speech is widely thought to enjoy stricter protection in the United States than almost anywhere else in the world. Presumably government would be barred from imposing criminal penalties on an open-ended and ill-defined category of speech such as "indirect incitement". This conclusion is plausible but speculative. It appears that American courts, like British courts, might be prepared to entertain the possibility that indirect incitement should qualify as punishable speech.")
706
Howard, R. D. et al. (2006). Homeland Security and Terrorism: Readings and Interpretations (New York: The McGraw-Hill Companies)
152
‘dissemination', not to a ‘statement offence.' These are different sorts of offences in the UK.707 The charges in Schenck v United States, for instance, were related to:
a conspiracy to circulate among men called and accepted for military services… a circular tending to influence them to obstruct the draft, with the intention to effect that result…708
Consequently, First Amendment protection was denied as the circulars were found encouraging to the commission of subversive activities. The same is true with the Masses Publishing Co. v Pattern 709, Gitlow v New York 710, Abrams v United States 711 cases where the offences were related to publishing, printing, or writing offensive expressions and then disseminating them to the public. These allegations would fall under section 2 TA 2006.
The other landmark decisions, on the other hand, were centred on unprotected public speeches. Feiner v New York, 712 Dennis v United States 713 and Brandenburg v Ohio714 fall under this category. Although the US Supreme Court applied the same balancing principles for both ‘statement offenses' and ‘disseminating offences', a comparison of TA 2006 with the US should be like for like as both are two separate offences.
Thirdly, the attempt to mix up the offence of indirectly encouraging terrorism and inciting terrorism is another confusing aspect of the comparison. An attempt to resort to court cases that deal with the latter by ignoring this difference is not helpful. For instance, the issue in the case of Taylor v State of Mississippi was the constitutionality of a Mississippi Statute that criminalized a person:
707
See section 1 and section 2 of TA 2006. For detail discussion on the difference between ‘statement offences' and ‘dissemination offences', see Hunt, A. (2007). supra note 650
708
Schenck v United States, supra note 443
709
Masses Publishing Co. v Pattern 244 F. 535 (S.D.N.Y. 1917)
710
Gitlow v New York, supra note 546
711
Abrams v Unted states , supra note 441
712
Feiner v New York, 340 US 315 (1951)
713
Dennis v United States, supra note 531
714
153
...who individually, or as member of any organisation… intentionally preach, teach or disseminate any teachings … by any … means or method designated and circulated to encourage violence… incite any sort of radical distrust…715 The defendant was "… indicted for orally disseminating teachings designed and calculated to encourage disloyalty…"716 Similar to the construction of the glorification clause (in the past or future) in the UK, Taylor condemned the sending of boys to battle overseas in the past and in the future. However, the US Supreme Court acquitted Taylor, and the other defendants, stating that the views expressed were "… their beliefs and opinions concerning domestic measures and trends in national and world affairs."717 The content of the Mississippi Statute was similar to that of the UK's direct encouragement clause except the former requires only criminal intent while the latter requires intent or recklessness. Moreover, the former does not make any distinction between private and public communications.
Under the current UK TA 2006, therefore, Schenck would have been prosecuted under section 2 of the TA 2006 whilst Taylor would have been covered by section 1.
However, Schenck's conviction was upheld while Taylor's claim to the First Amendment was upheld. Nevertheless, a question is appropriate here: Would Taylor be prosecuted if he advised the women not to send their children to war instead of general condemnation of the recruitment of men to battlefields? The answer would seem to be in the affirmative if we consider the position taken in Schenck v United States discussed above and Frohwerk v United States.718 The statements made in the anti-draft in Frohwerk were as follows:
...a monumental and inexcusable mistake to send our soldiers to France...; ‘out right murder without serving anything practical', ‘few men and compatriots
715
Taylor v State of Mississippi, 319 U.S. 583 (1943)
716
Ibid
717
Ibid
718
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might amuse unprecedented fortunes. We sold our honour, our very soul.', ‘we say, therefore, cease firing.719
It would appear that this statement presents no obvious dangers. However, the conviction of the defendant was upheld because the US Supreme Court believed that "a little breath would be enough to kindle a flame."720 However, the expressions used in Frohwerk would not be covered even by the strictest glorification clause in the UK because Frohwerk's statements contain nothing that ‘praise or celebrate' act of violence.
Another case, where the incitement test was applied is Brandenburg v Ohio.721 A look at this case suggests that a speech that falls short of inciting violence is protected by the US constitution. The US Supreme Court attempted to balance between permissible and non-permissible expressions. It went to the extent of overruling earlier cases such as Whitney v California 722 where an early US Supreme Court decision upheld a California's Criminal Syndicalism Act that criminalize mere ‘advocacy' of violence.
If the Brandenburg v Ohio principle (held that a government cannot punish theoretical discussion of overthrow of a government by violence) is taken, the TA 2006 that deal with encouragement of terrorism would have been unconstitutional in the US. But is merely advocating violence the same as glorification of terrorism as appears under section 1 TA 2006? The answer would come in the form of negative because section 1 TA 2006, in terms of its construction, requires an actus reus that "the individual's statement was likely to be understood by those to whom it was published as a direct or indirect encouragement to them to engage in specific behaviour."723 But none of this requirement was required in Brandenburg v Ohio.
719 Ibid 720 Ibid 721
Brandenburg v Ohio, supra note 446
722
Whitney v California , supra note 441
723
155
A more convincing argument could be drawn from Holder v Humanitarian Law Project.724 This case has stirred much controversy by affirming the Material Support Statute (18 USC § 2339B). Holder has overruled, if not, retreated from Brandenburg's incitement test.
Holder725 raises basically a question of how much support one can offer to terrorist organisations. The case had been dragging on for twelve years. The plaintiffs challenged the Material Support Statute:
... asserting violations of Fifth Amendment due process clause on the ground that the statutory terms are impressively vague and a violation of their First Amendment rights to freedom of expression and association.726
The US Supreme Court rejected this argument. The relevance of the case to this research comes from the application of the Material Support Statute to speeches that advocate any form of support. As discussed in the preceding sections, Brandenburg v Ohio criticised and overruled previous court cases that punished speech that merely advocate violence. The US Supreme Court in Holder v Humanitarian Law Project qualified Brandenburg v Ohio in the following respects.
First, the US Supreme Court held that the Material Support Statute does not ban speech. Brandenburg v Ohio was generous in the sense that it went to the extent of upholding the advocacy of violence by any group [foreign or domestic], and individuals. But, Holder v Humanitarian Law Project deviated from this incitement test by punishing purely political advocacy in relation to foreign terrorist groups. In other words, the US Supreme Court here criminalised speech that has nothing to do with incitement to violence or imminent lawless action.
Second, it distinguished between ‘independent' advocacy and active membership. The US Supreme Court stated that ‘independent advocacy' is advocacy not
724
Holder v Humanitarian Law Project, supra note 451
725
Ibid
726
156
conducted "… under the direction of, or in coordination with foreign … terrorist organisation."727 The US Supreme Court held that this kind of advocacy is not prohibited. Moreover, the US Supreme Court is of the opinion that mere membership, even to proscribed terrorist groups, is not banned. The distinction made between various stages of participation is relevant here. One can be a member, but one may not take a role in any activity of a group. Independent advocacy is considered passive participation and not covered by the Material Support Statute. In contrast, one might not be a member, but one can still actively participate in the activities of the group, for instance, by contributing funds. Moreover, one can be both a member and an active participant. According to Holder v Humanitarian Law Project, the Material Support Statute covers both of the latter cases.
Third, the US Supreme Court made it clear that there should be a distinction between Communist and terrorist organisations. The US Supreme Court stated that the scrutiny of and restrictions placed on terrorist organisations will be more intense than in the former because of the very purpose for which they exist. 728 More interesting is the point made by Justice Scalia with regard to the Material Support Statute. He stated that joining an organisation for ‘philosophical reasons'729 is not a crime under the US law. Until it is made a crime by a Federal or State entity, therefore, there could not be any punishment thereof. His statement is an appropriate response to the speculative argument that the UK's indirect encouragement of terrorism offence would be unconstitutional in the US. In the absence of any Federal law or US Supreme Court decision that deals with glorification of terrorism, arguing that the UK law would be unconstitutional is fallacious.
For all the reasons discussed above, it is wrong to conclude that the offences under TA 2006 in the UK would have been unconstitutional in the US.
727
Ibid
728
See oral argument in Holder v Humanitarian Law Project [ as argued on February 23, 2010], supra note 451
729
157
3.9 How does the EATP define the Glorification of Terrorist Acts? How is