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2 Harv. Nat'l Sec. J. 1 (2011)

handle is hein.journals/harvardnsj2 and id is 1 raw text is: ARTICLE Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law Daphne Barak-Erez* and David Scharia** Abstract In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by Visiting Professor, Duke Law School: Professor of Law and Stewart andJudy Colton Chair of Law and Security, Faculty of Law, Tel-Aviv University. PhD, LLM, Legal Officer-Counter Terrorism Committee Executive Directorate, United Nations Security Council; former Senior First Deputy, Attorney General Office, Supreme Court Division, Israel. The views expressed here are those of the author and do not necessarily reflect the views of the United Nations or any of its bodies. We would like to thank Michael Birnhack, Curt Bradley,Josh Haber., Laurence Klaus, Aaron Kurman, Edward Flynn, Barak Medina., Liav Orgad., Albina Ovcearenco, Yael Ronen, Naomi Scheinerman, Clive Walker., Matthew Waxman and the participants of the faculty seminar at Wake Forest Law School for their comments, and Batya Stein for the editing. Copyright C 2011 by the President and Fellows of Harvard College, Daphne Barak- Erez, and David Scharia.

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