Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP).

In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul — the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’ — all the more interesting.

Counsel for al Bahlul (it is unclear to what extent the appellant is actively participating in the appeal given that he boycotted much of the original proceedings, announcing his intention by holding the sign at right at one hearing (credit)) is arguing that the propaganda videos al Bahlul is alleged to have released as personal assistant the media secretary to Osama bin Laden are in fact constitutionally protected political speech and, as a result, can not be criminalised. The full argument is set out in the Appeal Brief. As the brief documents, the US Government conceded that the video at issue presented a political argument, which the appellant is interpreting as meaning that the speech involved was political speech.

The argument is interesting although, on the face of it, not that likely to succeed as a superior government interest can override the first amendment rights (United States v O'Brien (1968) -- holding that criminalisation of the burning of draft cards was constitutionally permissible) and words that create an immediate risk to national security do not enjoy constitutional protection. In addition, whether the presentation of a political argument necessarily means that the means of its presentation counts as political speech raises interesting question-does the nature of the content dictate the nature of the speech?

Of most interest to people who are interested in the interactions between law and counter-terrorism, however, may well be how the US courts deal with interesting questions that are likely to arise on how political speech and propaganda can be distinguished from one another. This is especially so as this may well mirror the well-trodden 'terrorist' v 'liberation fighter' v 'political activist' etc... terrain that national security lawyers are very well acquainted with!

(Cross posted at HumanRightsinIreland)