Sedition and the Advocacy of Violence

Free Speech and Counter-Terrorism

Sarah Sorial

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415859769
• eBook ISBN: 9781136639821
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This book employs the theoretical framework of 'speech act theory' to analyse current legislative frameworks and cases pertaining to sedition or the advocacy of violence and the issue of freedom of speech. An analysis of the relation between speech and action offers a promising way of clarifying confusion over the contested status of speech, which advocates violence as a political strategy. This account reflects an understanding of philosophical issues about both the nature of freedom and speech and how these issues can be applied to concrete legal problems.

This approach will shed new light on the problems of the sedition laws and how they might be remedied by providing a conceptual account of the nature of speech and its relation to action. On the basis of J.L Austin's account of verdictive and exercitive speech acts, it is argued that while all speech acts are 'conduct' in a narrow sense, not all of them have the power to produce effects. This philosophical account will have legal consequences for how we classify speech acts deemed to be dangerous, or to cause harm. It also suggests that because speech can evoke or constitute action or conduct in certain circumstances, modern versions of sedition laws might in principle be defensible, but not in their current form. On the basis of this account, it is argued that the harms caused or constituted by speech can be located in the authority of the speaker.

Sedition and Violence Against the State: Free Speech and Counter-Terrorism will be of interest to students and scholars of philosophy of law and legal theory.

1 Modern ‘Sedition’ Law and the ‘Glorification’ of Terrorism

A Legislative Overview

Sedition traditionally refers to the uttering or writing of words intended to bring the sovereign state into hatred or contempt, to urge disaffection against the Constitution or democratically elected government, or the attempt to procure change in government by unlawful means. Sedition has traditionally been justified on the grounds that a sovereign government has the right to resist both external and internal aggression, and to protect the citizens of the state from harm. This classic definition of sedition is based on a traditional view of the relationship between the state and its citizens. According to Eric Barendt, on this view, governments and public institutions are not considered to be answerable or responsible to the people, but are entitled to the respect of their subjects in the same way monarchs were entitled to respect by virtue of the Divine Right of Kings (Barendt 2007: 163). The state could tolerate suggestions about how it could be improved, but it could not tolerate open or vehement attack (Barendt 2007: 163). Sedition laws were frequently used to suppress unpopular political views in England during the 18th and early 19th centuries and in Australia in the 19th century and well into the 20th century.¹ In the United States, prosecutions for seditious libel were frequent, particularly during times of war and in spite of first amendment free speech protection.² While sedition laws were liberalised during the 20th century across all jurisdictions, and a common law distinction was made between incitement to violence and the expression of criticism, sedition laws continued to be used to prosecute people for expressing unpopular political opinions.

Sedition has thus always been an essentially political crime and, according to Roger Douglas, has been used throughout history to ‘punish people for what they think (or what they are thought to think) rather than on the basis of the degree to which their activities actually pose a threat to the social order (however defined)’ (Douglas 2005: 247–8). During the 20th century, sedition laws were mostly used to curb the spread of international communism.³ The rationale for these prosecutions was based on the belief that any advocacy of communist ideas and opinions was inherently dangerous and constituted incitement to overthrow the existing social order. With the exception of the indictment and conviction of Sheikh Omar Abdel Rahman in the United States for violation of the seditious conspiracy statute in 1994 and the conviction in 1995 of Rabbi Ido Elba in Israel for the publication of a pamphlet advocating violence (among other things), the offence of seditious libel has for some time been considered to be incompatible with liberal free speech principles and has rarely been used since the Cold War years.

This led various law reform bodies to recommend that ‘there is no need for an offence of sedition in the criminal code because the conduct it seeks to capture would be caught under the ordinary offences of “incitement or conspiracy to commit” the relevant offence’. The UK Law Commission found that: ‘it is better in principle to rely on these ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is “political”’.⁴ Similarly, in its review of current sedition laws in Australia, the Australian Law Reform Commission (ALRC) recommended discarding the offence of sedition from the federal statute book because of its historical taint. It recommended retaining federal security and public order offences and the urging of inter-group violence in its place. Reviews of criminal law in Canada and New Zealand omitted sedition offences altogether (Gibbs, Watson and Menzies 1991).

Despite these recommendations by law reform bodies, interest in sedition as a category of offence was renewed in light of the so-called ‘war on terror’, and various laws were enacted to prohibit seditious libel across common law jurisdictions. Sedition laws in their modern form appear to be aimed at those who incite or encourage the commission of terrorist acts, or those who ‘glorify’ the perpetrators of these acts, or who condone acts of martyrdom in the form of suicide bombings or violent jihad. They also target the provocative and inflammatory propaganda used by terrorist and religious groups to disseminate their ideas and beliefs.⁵ Take for example the then Liberal Government in Australia’s claim that in the counter-terrorism context, ‘sedition was just as relevant as it ever was’, in particular, to ‘address problems with those who communicate inciting messages directed against other groups within our community, including against Australia’s forces overseas and in support of Australia’s enemies’.⁶ Similarly, the UK Government argued that new offences relating to the encouragement of terrorism were necessary ‘to deal with those who … contribute to the creation of a climate in which impressionable people might believe that terrorism was acceptable’.⁷ Although these laws were not categorised as sedition offences, they have similar aims and objectives to traditional sedition laws. Many of the speech acts condoning or glorifying acts of violence could be classed as seditious in nature, even though they are not referred to as such in jurisdictions such as the United Kingdom, because they incite violence or hostility against the state, its institutions and the rule of law and because they often advocate the overthrow of democratically elected government. In any case, the regulation represents an attempt to regulate forms of ‘extreme speech’ directed at the state.

The first section of this chapter demonstrates the controversial nature of sedition laws. Sedition laws are inherently controversial because they have always been enacted and enforced during periods of national crises and, more often than not, have been used in an opportunistic way to stifle political dissent. I draw on a number of cases from the US, Israel and Australia to support this claim. The examination of the case law in this section is by no means comprehensive or exhaustive. The cases selected are intended to demonstrate the political and, thus, the controversial aspect of these laws and to highlight the conceptual points at issue. They also give some insight into why criticism of modern sedition laws was so intense: given the way governments have enforced such laws in the past, there are good reasons to be wary of attempts to revive or modernise this particular offence. In the second section, I examine the legislative changes to sedition laws in Australia and the ‘glorification’ of terrorism laws enacted in the United Kingdom with a view to highlighting the way such laws have been tailored to the ‘counter-terrorism’ context.

In the final section, I examine the three conceptual issues that these laws raise. The first is the conceptual problem of distinguishing between incitement to violence and criticism of government, also commonly referred to as the problem of ‘line-drawing’. The second problem concerns the relation between speech and action, and the conditions under which a speech act will cause or constitute various acts of violence. The third problem is whether citizens can use the freedoms afforded by democracy – in this case, the freedom of speech – to undermine or overthrow democracy.

1.1 Sedition and ‘Pathological’ Times: War, Communism and Political Assassination

My analysis in this section takes its cue from Vincent Blasi’s account of national ‘pathologies’. Blasi’s arguments are framed in terms of First Amendment jurisprudence, but the analysis is instructive for any democratic state that purports to value free expression. Blasi argues that the US Supreme Court should adopt what he calls the ‘pathological perspective’ when adjudicating First Amendment disputes and reformulating First Amendment doctrines. By this, he means that the fundamental objective of the court should be to interpret the First Amendment in such a way that does maximum service to speech protections during those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are able and likely to stifle dissent and unpopular opinions by playing on people’s fears. Free speech jurisprudence should thus be designed and targeted with the worst of times in mind. The underlying rationale of this thesis is that certain periods of time are of special significance for the preservation of the basic liberties of expression and inquiry because the most serious threats to those liberties tend to occur in abnormal periods or during ‘pathological’ times.

‘Pathology’ here refers to a social phenomenon characterised by a notable shift in attitudes where unorthodox ideas that were once tolerated are regarded with intolerance. What makes a period pathological is the existence of ‘certain dynamics that radically increase the likelihood that people who hold unorthodox views will be punished for what they say or believe’ (Blasi 1985: 451). Those dynamics can operate at a number of different levels: they can operate in the legislative and executive branches of government; they may influence the judicial psyche and cause judges to interpret the freedom of speech restrictively; or they may cause potential dissenters to perceive the risks that are entailed in indentifying themselves as dissenters differently so that they do not express any dissent at all. The one feature that unites these various pathologies is ‘a shift in fundamental attitudes or perceptions among one or another group of persons whose judgments have an important influence on the general level and vigour of public debate and private inquiry’ (Blasi 1985: 451).

While liberal democracies are, in principle, committed to protecting the freedoms of speech, the press and of assembly, this does not seem to be the case during pathological periods, where at least some of the central norms of the constitutional regime are subjected to greater scrutiny and challenge. Many people come to view these norms during turbulent times as highly burdensome, controversial and potentially harmful. Blasi writes: ‘in such periods the times seem so different, so out of joint, the threats from within or without seem to be unprecedented, that the Constitution itself is perceived by many persons as anachronistic, or at least rigidly, unrealistically formalistic’ (Blasi 1985: 457). In times where those sentiments are prevalent, the central principles and norms of the constitutional regime are threatened and the strength of the political community’s commitment to those norms is tested. The extent to which a political community’s principles will remain intact during pathological times will ultimately depend on how well the central norms were cultivated and nurtured in the periods of calm that preceded the pathology. If these norms are well protected and respected by the citizenry, the norms will be less vulnerable in times of stress.

As Blasi notes, the aggressive impulse to be intolerant of others resides in all of us. Only the most sustained socialisation, education and inculcation of the value of free speech keeps the urge to suppress dissent under control. When the constraints imposed by that process of socialisation lose their effectiveness – as most social constraints do from time to time – the power of the instinct toward intolerance usually generates a highly charged collective mentality: ‘because the instinct to suppress dissent is basic, primitive, and aggressive, it tends to have great momentum when it breaks loose from the shackles of social constraint’ (Blasi 1985: 457). Moreover, the feeling of aggression is often highly contagious. During turbulent times, citizens are more likely to turn this aggression against strangers or dissenters. The problem of intolerance is compounded by the fact that suppression of dissent ordinarily is undertaken in the guise of political affirmation, of insisting that ‘everyone stand up and be counted’ in favour of the supposed true values of the political community (Blasi 1985: 457).

Moreover, the constraints we impose on liberties during national pathologies may be short lived, but their effects can be felt for a significantly longer period of time. For example, some historians argue that the Red Scare was a factor in the collapse of the once strong Socialist Movement in the United States during the 1920s. The Hollywood Blacklist struggle of 1947–1953 ruined careers and made film studios and writers reluctant to address controversial subjects or portray social conditions of political significance. The character of the trade union movement was significantly affected by the expulsion during the anti-Communist purges of the 1950s (Blasi 1985: 458).

Blasi’s insight into the character of pathological times and our legal and political response to these periods of stress is especially borne out by the way in which the law of sedition has historically been used. Sedition laws have, for the most part, only been used during times of war or other perceived emergency and almost always to suppress dissent or unpopular ideas. It should, then, come as no surprise that the modernisation of this offence occurred in light of the attacks on the World Trade Center and subsequent attacks in London, Bali and Madrid. However, because such laws have only ever been used during times of national stress, they are inherently controversial. Like Blasi, I think we need to devise laws or principles that would serve us best in the worst of times, rather than devising reactionary laws that do little but heighten anxiety, dampen or mute the quality of public debate and potentially prevent us from holding our governments properly to account. The following discussion will examine some of the most significant US, Australian and Israeli cases – all decided during turbulent times – in order to draw attention to some of the ways sedition laws have been used to stifle dissent during times of national political turbulence.

1.1.1 Sedition Laws in the United States

Despite the protections afforded to speech by virtue of the first amendment, the United States has a seditious conspiracy statute that originates from a Civil War law aimed at secessionists. While these laws were introduced to address real threats, they were more often than not used to punish or stifle political opponents of government, not only those engaged in acts of violence. The Alien and Sedition Acts, introduced in 1798, made it an offence to make ‘any false, scandalous and malicious writings’ against the government, either house of Congress or the President, ‘with intent to defame … or to bring them … into contempt or disrepute; or to excite against them … hatred of the good people of the United States, or to stir up sedition’.⁸ The statute was repealed by President Jefferson, but was reintroduced during the Civil War. While there was no outright prohibition of political speech during the Civil War, the writ of habeas corpus was suspended. This enabled the detention of thousands of citizens, often on the basis of what they had said or written.⁹

During the First World War, the US Government enacted the 1917 Espionage Act. This statute made it an offence to ‘make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies’.¹⁰ Any attempts ‘to cause insubordination, disloyalty, mutiny’ or the refusal of military duty was also made illegal. The Act did not allow truth as a defence, which meant that even if the statements made were found to be true, but also had the consequence of interfering in the war effort, the speaker could be charged. The Espionage Act was, for this reason, much harsher than the 1798 Sedition Act.

In 1918, the government introduced the Sedition Act, described by Donohue as one of the most draconian pieces of legislation in American history (Donohue 2005–6: 243). This Act made it an offence to ‘utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military of the United States, or the flag … or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government … or the Constitution … or the military or naval forces … or the flag … of the United States into contempt, scorn, contumely, or disrepute…’.¹¹ Any congressional member who opposed any part of the Act was seen as an enemy of the state.

The cases of Schenck v United Sta...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Table of cases
• Table of legislation
• Acknowledgements
• Introduction
• 1. Modern ‘sedition’ law and the ‘glorification’ of terrorism: a legislative overview
• 2. Free speech and democracy: the problem of ‘line-drawing’
• 3. Can saying so make it so? The relation between speech and action
• 4. Speech and harm
• 5. Truth, autonomy and the ‘marketplace’ of ideas
• 6. Imitation, belief formation and media technologies
• 7. Policy implications
• Conclusion
• Bibliography
• Index