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Terrorist Speech and the Future of Free Expression
Journal Article

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Cardozo Law Review, Vol. 27, page(s): 234-341

2005

On June 16, 2002, Dennis Pluchinsky, a senior intelligence analyst at the U.S. Department of State, wrote an article in the Washington Post calling for censorship. The article began, "I accuse the media in the United States of treason." Pluchinsky, who worked counterterrorism in the government for twenty-five years, pointed to post-9/11 articles that revealed not scientific advancements, but American vulnerabilities in regard to the food supply, electricity, chemical production, transportation, and border security. He suggested that research conducted by the media could not have been funded by one, single terrorist organization: "Our news media, and certain think tankers and academicians, have done and continue to do the target vulnerability research for them."

Pluchinsky has a point. Terrorist organizations can and do use the media--and the protections afforded speech in the United States and the United Kingdom--to obtain and disseminate critical information.

The crucial point is this: Both liberal, democratic states, and nonstate terrorist organizations need free speech. 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 naïve to rely on these alterations to protect expression in the contemporary counterterrorist environment--regardless of how remarkable they might be in the context of what went before.

Underlying my argument in this paper is a deeper concern that centers on the shifting nature of technology. What the average person could have done in 1776, or for that matter, 1976, to hurt either state pales in comparison to what a person with basic knowledge of microbiology, $1000, and a lab can do today. But neither American nor British law appears to have come to terms with what weapons of mass destruction, in terrorist hands, means for free speech.

This article won the 2004-2005 Steven M. Block Civil Liberties award for the best piece of writing in civil liberties at Stanford Law School. It also won second place in the national competition for the 2005 Judge John R. Brown Award for Excellence in Legal Writing, which recognizes the best legal writing by U.S. law students.

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