Avoiding a “Militant Democratic” Response to the Paris Attacks

The dreadful Paris attack, even more than the recent and similar attacks in Australia and Canada, is likely to produce a demand for strong action. This is not only because the death count was higher, with two of the perpetrators having so far escaped, and the fact that the attack was followed a day later by another murder of a French police officer. The Paris attack is likely to shape policy because of the strong symbolism of an attack on a newspaper that had already been fire bombed because it offended some Muslims.

These factors may prompt calls for a “militant democratic” response that targets extremists and radical expression.

As we write this, much remains unknown about the Paris attack and its perpetrators. A number of leaders have denounced the acts as “barbaric,” implicitly linking them with the rise of the Islamic State. There is also growing evidence of links to al Qaeda. It is understandable that so many world leaders responding to the attacks have expressed outrage and anger at the attacks alongside a simultaneous pride in democracy.

However, it seems likely that the combination of a shocking and symbolic terrorist attack on a newspaper and existing concerns about radicalized Islamic terrorists in Europe will constitute a potent political mix; one that could lead to a dangerous overreaction by democratic governments. 

Terror and Militant Democracy

Militant democracy is less well known in the United States but it is widely discussed and debated in Europe. The idea has its origins in Karl Lowenstein’s 1937 warnings that we must not allow the enemies of democracies to use democratic freedoms to overthrow democracy. A militant democracy is prepared to abridge the freedoms of those who are prepared to use democratic freedoms to destroy a democracy.

Many democracies will see the attacks as justification for expanded laws against extremist speech that constitute glorification or “apologie” of acts of terrorism. France, for example, had already enacted broad new anti-terrorism laws in Oct. 2014 relating to speech on the Internet. Article 4 of that new law allows punishment of up to 7 years for those who incite, or make public apologies for, acts of terrorism.

The European Court of Human Rights has been very accepting of speech-targeted anti-terrorism laws. In Leroy v. France it upheld a fine against Denis Leroy under the then-existing apologie of terrorism provisions in French media law. Leroy was a cartoonist for a Basque newspaper in southern France who published a cartoon portraying the 9/11 attacks, accompanied with the caption, “We all dreamed of it…Hamas did it.” The Court held, with little reasoning, that the fine constituted a proportionate restriction on freedom of expression.

Laws such as the one penalizing cartoonists who may be guilty of bad taste undermine democratic freedoms and are unlikely to be effective in preventing terrorism.

In a draft article (posted here) we have examined whether speech-based legal offenses are justified in response to rising extremism that has produced so many recruits for the Islamic State and may have played a role in the recent attacks in Canada, Australia, and now France. This is not an academic question. The Canadian government has hinted that it may draw on European precedents to enact such an offense as a response to the Oct. 2014 terrorist attacks in Ottawa and St. Jean sur Richelieu.

The Paris attacks increase the chances that democracies will quickly enact laws as a form of symbolic response. In Europe and also in Canada, such laws may well attempt to limit freedom of expression as an expression of militant democracy and as a symbolic way of saying “enough is enough.”

And yet, such laws, especially those targeting radicalized speech, infringe democratic values of freedom and liberty without scant evidence that they will be effective in preventing terrorism.

The available social science suggests that the correlation between the expression of radical and extremist ideas in support of terrorism and actual acts of terrorism is very weak. One recent study estimated from UK data that only 1 in 100 of those who hold radical ideas supportive of terrorism will actually move to violence.

Added to that modest correlation is the possibility that offenses against speech may deter the remarkable level of social media activity by extremists and deprive intelligence agencies of possible tracking opportunities. Such a step may also feed a “clash of civilizations” narrative that pits Islam against the West.

This is not to say that no regulation of speech can be justified. In our draft paper, we suggest that consideration should be given to allowing courts to order speech that is already illegal be deleted or hidden from the Internet. This would allow a judge- not a police officer as under British laws against the glorification of terrorism – to order online speech constrained. It would help develop jurisprudence about the limits of freedom of expression. Our proposal is not to expand the ambit of illegal speech, but to allow “in rem” remedies that makes it more difficult to access speech that is already illegal.

But whatever the legislative response, any regulation of speech must be done carefully and proportionately, with full and open debate about its advantages and disadvantages.

It is understandable and justified that many world leaders, and many citizens under the banner Je Suis Charlie, have defended democratic freedoms in the wake of these horrific and shocking murders. Indeed, what is needed is a resilient democracy that prides itself on democratic freedoms. What is not needed is a militant democracy that takes away democratic freedoms in the hope of (but with very little evidence) that it will increase security.

The reaction of our leaders and the public to this event is an important reminder that law is not everything: expressions of condemnation and solidarity matter. They help shape the world we live in.

But there should be a profound difference between how we react in the days after a shocking tragedy and how we legislate. We must all take a deep breath and think twice before codifying these feelings into law. The threat to democratic freedoms is real in countries which have weak freedom of expression protections and are attracted to the concept of militant democracy.

There is the perverse danger that the attack on Charlie Hebdo may ultimately produce even more laws in Europe, Canada and other democracies that could be used against those, such as the deceased, who are prepared to push the boundaries of free expression. Repressing speech as a response to cowardly violence towards those who engage in free speech is not the proper way to honor the 12 who died at Charlie Hebdo and it is unlikely to prevent future attacks.

  

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About the Author(s)

Kent Roach

Professor of Law and Prichard Wilson Chair in Law and Public Policy at the University of Toronto

Craig Forcese

Full Professor - Faculty of Law (Common Law Section) at the University of Ottawa Follow him on Twitter (@cforcese).