Glenn Reynolds and Jacob Levy rose to the bait. (Original post below.)
Jacob is clear that any restriction on mere advocacy is a bad idea, though he asks whether the cleric could properly have been charged with treason in connection with recruiting for terrorist training camps. (But were the groups running those training camps in question at war with the United Kingdom?)
Glenn also focuses on recruiting, on the theory that recruiting someone for terrorist training is an act of criminal conspiracy. (Again, I don’t know UK law; as I understand US law, since a killing that takes place overseas is not a crime in the United States, planning here to kill someone overseas likewise isn’t criminal.) In addition, he raises the question of whether the cleric might have been specifying named targets. He, too, thinks that pure advocacy, even advocacy of violence, is (under U.S. law), and ought to be, protected speech
There are three issues here:
1. What the facts were in this case.
2. What the law is, in the UK and in the US.
3. What the law ought to be.
As to the facts, it’s possible that the cleric was “recruiting” for terrorist training camps in the sense that he was persuading individuals to attend them and then introducing those individuals to people who could enroll them. But it’s also possible that he was saying, to groups of people, “Everyone should study the practice of jihad. The XYZ Training Camp is an excellent place to learn that practice.” That’s also “recruiting,” but even if he knew that XYZ Training Camp was run by al-Qaeda, making that general speech would still probably fall on the “advocacy” rather than the “incitement” side of the line as a legal matter.
Of course the UK doesn’t have a First Amendment and we do. My understanding of UK law is that it criminalizes some kinds of group libel, and perhaps even group defamation not involving misstatements of fact. Such laws could never pass scrutiny here. The statement “Jews should be killed at every opportunity” (or “Abortion providers should be killed at every opportunity”) cannot be banned under the First Amendment as the courts have understood it. Even saying “It would be an excellent thing if some of you were to take a torch to the synagogue next door” (or “the abortion clinic down the block”) can’t be criminalized unless it can be shown, as Glenn puts it, “that these statements were intended to produce, and were likely to produce, imminent unlawful activity.”
My question is whether that doctrine ought to be the law. Ever since the fatwa against Salman Rushie made me pay attention to the question, I’ve had doubts about how far free-speech protection ought to be extended to what might be called “non-specific incitement to violence,” where the lack of specificity has to do with the target, the intended agent, or the time. Rushdie lived as a hunted animal for a decade because a small number of religious leaders decided to paint a bull’s-eye on his chest. I’m not comfortable with a world in which anyone has the power to do that with impunity.
Libel is punishable, albeit civilly rather than criminally; it seems to me that calling for someone’s murder, even in a non-specific way, is much worse than saying he’s a con artist when in fact he isn’t.
Yes, I can see all the slippery slopes here; as Justice Black liked to say, “no law” means no law. But I can’t get the Rushdie case out of my mind.