Bill 51, The Anti-terrorism Act 2015 – the need for restraint in policing the unrestrained

 

I believe there are very, very few people in this country who don’t see the need to combat the dissemination of information and views that that can promote terrorism and the twisted attitudes that underlie it.

This is especially so given the incredible sweep of the new media and the large numbers of folks who might be vulnerable to such “advocacy”.

That said, the criminalization of “promotion of terrorism” gives rise to important human rights concerns that will have to be addressed as the legislation is fashioned. These concerns originated in American case law in the last half of the 20th century, mostly in the context of legislation aimed to regulate pornography or unsavoury political views.

The US Supreme Court adopted the standards of “vagueness” and “over breadth” to regulate such legislation, which involved the prior restraint of first Amendment speech – i.e. the laws did not simply sanction expression that had already been uttered, it sought to prevent the utterances from taking place. These standards have bee followed by our own Supreme Court, in particular in the A.G. (Canada) v.Bedford et al Judgment in 2013 ( prostitution laws).[Note that these concepts were different from simply deciding whether the expression targeted in the legislation was per se protected by the First Amendment to the Constitution]

“Overbreadth”involved the idea that laws intended to curtail the harm that might arise from some future expression might cast the net so large that not only the intended targets of the law would be caught, but also other expression that did not merit restriction.

“Vagueness” involved prohibitions that did not permit speakers, singers, film makers, artists, etc. to identify what would be prohibited in order to comply with the legislation.

In addition to striking down such laws because they effectively outlawed expression that was not intended by the legislators, the Courts also underlined that such laws had a chilling effect on citizens – rather than risk engaging in expression that might break a law, they simply did not express themselves in the first place.

Let’s look carefully at how “promotion of terrorism” is clarified in the debates leading to enactment of the Bill. Let’s beware of the uses that might be made of the legislation that may not have been intended by the drafters- or by those who may have supported the policy without much inquiry.

Will expression of support, for example by responding to a survey, for a group that has been labelled a terrorist organization fall within the ambit of porting terrorism?

What about expressing support in some humanitarian context for states or other entities that have been determined to harbour or support terrorists?

What about advocating for the rights of individuals who have  expressed views that the general public might deem terroristic?

What about a view that supports a religious doctrine that has been associated with terrorists?

What about a film that portrays individuals involved in terrorist acts without overtly demonizing them?

What about advocacy for groups that do not fall within the radical Islamist sphere, such as radical Hindu or Buddhist groups?

What about advocating views that seek to suppress rights, related, for example, to sexual orientation, abortion and the like, where certain groups are known to advocate or practice threats or violence to meet these ends?

I’m not saying that we should not combat the menace of Islamic terrorism, far from it.

Freedom of expression doesn’t let you yell “fire” in a crowded theatre and it doesn’t let talk kids into setting the theatre on fire.

I’m just saying that we have to be very conscious of  the difference between a scalpel and a hand grenade.

 

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