Sunday, June 1, 2008

On "Internet Jihad"

The case of Malika El Aroud, which Naomi Norberg sets out concisely in her post above, may not turn out to be a question of laws regarding protected speech as much as it is a question of proof.
Incitement to certain violence -- genocide -- is deemed a crime by all the 100-plus states parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Numerous individuals are now in prison following judgments of conviction for incitement rendered by the International Criminal Tribunal for Rwanda -- judgments that establish a jurisprudence of incitement.
The international jurisprudence has tended to be less defendant-friendly than that in the United States. So let's consider this case under the U.S. standard respecting incitement.
That standard was established decades ago. Interpreting the 1st Amendment to the Constitution, the Supreme Court held in Brandenburg v. Ohio (1969):

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
In that case defendant's "mere advocacy" of disruption -- his speech at a Ku Klux Klan rally was so ambiguous that it'd be a stretch to say he'd advocated violence -- was not enough to justify criminal punishment. The result would have been different, however, if he'd spoken with evident intent to incite immediate violence, at a time and place when his hearers were likely to respond by committing violence.
As my own 1st Amendment teacher put it long ago:

'No one has a fundamental right to speech that's like a punch in the nose.'
The question, then, would seem to be whether El Aroud's words are "like a punch in the nose." If they are, if her suggestion that her "[w]riting is also a bomb" turns out to be more than hyperbole -- if there is sufficient proof that what she has written intentionally urged readers immediately to commit violence, at times and places where they were like to do so -- not even a speech-friendly jurisprudence would protect her.

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