By Alexander Tsesis, Loyola University Chicago School of Law.
Abstract The internet provides a platform for speech across national borders and allows users to communicate destructive information quickly, both on open forums such as YouTube and Facebook as well as on “darknets.” This symposium foreword examines government regulation of terrorist speech on the internet and suggests that understanding terrorist speech through law, culture, and contemporary media can help governments better prevent the spread of hate speech on the internet. First Amendment protection of free speech permits the government to censor speech that explicitly or implicitly threatens others and this foreword considers whether governments – local, state, and federal – should also engage in the censorship of internet speech that indoctrinates and incites people to engage in future terrorist operations. The symposium assessed the limits of legitimate government regulation of terrorist communication on the internet and this foreword introduces diverse topics such as applying the imminent harm test to terrorist speech, critical race theory and white terrorism, and the role of the material-support statute in holding private companies responsible for terrorist messages disseminated through their social media platforms.
The internet is an astoundingly robust and dynamic instrument for all manner of communications. It is a platform for an array of webpages, blogs, chatrooms, virtual groups, news media, political forums, advertisement options, cybersleuth sites, revenge spaces, shaming discussion groups, incitement networks, and much more. While many pages on the internet are devoted to civil discourse, others are dedicated to calumnious activities. Along with newspapers and university websites, there are others engaged in cybershamingl and cyberbullying. (2)
Of even greater social, political, and cultural consequence is the slew of websites committed to the spread of hate against various groups, (3) and in its darkest crevasses are terrorist websites dedicated to inciting violence, recruiting like-minded individuals, and indoctrinating others on the use of political, religious, and otherwise ideological violence. (4) Terrorist speech on the internet poses a threat worldwide. The realm of communications has vastly expanded the delivery of constructive and destructive information. Groups who seek to alter governments' policies and religious practices through havoc, violence, and intimidation are among those who exploit the cross-border nature of internet protocols and electromagnetic packets. In addition to open propaganda on forums such as YouTube and Facebook, terrorists have increasingly exploited "darknets" to obfuscate and anonymize their activities through networks like Tor, 12P, and Freenet. (5) While all of these are benign tools useful for confidential interactions, privacy, and other legitimate purposes, international criminals-terrorists, counterfeiters, drug dealers, and arms dealers among them-exploit these tools for nefarious purposes.
I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation of modern communication technologies to influence, recruit, and exploit others to perpetrate ideologically driven acts of violence. Undertaking such a multipronged study requires not only looking at the personal and sociological appeals that extreme ideology exerts but also considering how to create political, administrative, educational, and economic conditions to effect positive change at micro and macro levels. The deep analysis that a symposium provides can paint a more comprehensive picture to explain the effectiveness or ineffectiveness of various memes, videos, interactive websites, group chat rooms, and blogs that justify, glorify, or incite violence. Moreover, understanding the operation of terrorist groups on the internet can help to explain their organizational hierarchies.
Terrorist organizations' increasingly diverse use of digital devices vastly expands their reach beyond the scope of traditional modes of communication-conversations, pamphlets, or couriers.(6) The challenge facing government agencies and thinktanks is how to formulate policies, statutes, standards, and regulations for digital platforms that are likely to safeguard the public, while maintaining the constitutional standards of protected speech and privacy.
First Amendment values are essential for a functional democracy, personal development, and the spread of sciences. However, they do not require an absolute prohibition against national security-based restrictions.(7) The compelling need for regulations is particularly evident when dealing with incitements to violence that are aimed at achieving political and religious ends. (8) Terrorism is not a spontaneous reaction to the existing order; to the contrary, it requires planning, training, organizing, coordinating, executing, and debriefing for which the internet has proved to be a reliable tool.
Among the most urgent issues confronting governments and citizens is the extent to which the state can justify censoring speech that explicitly or implicitly threatens others. One of the most respected principles of U.S. constitutional law is that the First Amendment does not prevent the government from enforcing criminal laws against speech aimed at inciting or likely to lead to an imminent harm. (10) A more complex issue is the extent to which federal and state entities can censor online indoctrination that influences and directs persons to engage in future terrorist operations.
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Keywords: Symposium Papers; Constitutional Law; First Amendment; Free Speech; terrorism, internet, social media platforms, hate speech.
Tsesis, Alexander, Terrorist Incitement on the Internet (November 2017). Fordham Law Review, Vol. 86, No. 2, 2017, Available at SSRN: https://ssrn.com/abstract=3661269