TERRORIST SPEECH AND THE FUTURE OF FREE EXPRESSION Laura K. Donohue* Introduction.......................................................................................... 234 I. State as Sovereign in Relation to Terrorist Speech ...................... 239 A. Persuasive Speech ............................................................ 239 1. Sedition and Incitement in the American Context ..... 239 a. Life Before Brandenburg................................. 240 b. Brandenburg and Beyond................................ 248 2. United Kingdom: Offences Against the State and Public Order ....................................................................... 250 a. Treason............................................................. 251 b. Unlawful Assembly ......................................... 254 c. Sedition ............................................................ 262 d. Monuments and Flags...................................... 268 B. Knowledge-Based Speech ................................................ 271 1. Prior Restraint in the American Context .................... 272 a. Invention Secrecy Act...................................... 274 b. Atomic Energy Act .......................................... 279 c. Information Relating to Explosives and Weapons of Mass Destruction............................................ 280 2. Strictures in the United Kingdom............................... 287 a. Informal Restrictions........................................ 287 b. Formal Strictures: The Export Control Act ..... 292 II. State in Privileged Position in Relation to Speech of Terrorist Value .................................................................................. 293 A. Deference and the National Security Claim in the United States....................................................................... 293 1. State as Employer or Contractor: Confidentiality Doctrines ............................................................................ 295 2. State as Information-Holder: Classification and Rights of Access................................................................. 298 B. Extreme Deference in the United Kingdom ..................... 301 1. State as Employer or Contractor: Breach of * Special thanks to Paul Lomio, at the Robert Crown Law Library, Stanford University, for his help in acquiring the materials used in this paper. I also am indebted to Tom Grey, Geoffrey Stone, and Eugene Volokh, for their comments on the American legal analysis, and Conor Gearty and Clive Walker, who provided feedback on the British legal exposition. Observations by Barbara Fried and members of Stanford Law School’s 2004-05 Legal Studies Colloquium helped further to refine the text. 234 CARDOZO LAW REVIEW [Vol. 27:1 Confidence.......................................................................... 302 2. State as Information-Holder: The Official Secrets Act ...................................................................................... 305 C. Freedom of Information.................................................... 311 III. Provisions with A Secondary Effect on Free Speech ................ 316 A. Executive Detention ......................................................... 316 B. Proscription....................................................................... 318 C. Evidentiary Rules Based on Speech and Expression........ 322 IV. Policy Considerations................................................................ 326 A. Persuasive Political Speech .............................................. 326 B. Knowledge-Based Speech ................................................ 329 1. Biological Speech as Different in Kind...................... 329 2. Access to Bombmaking Information.......................... 335 3. State Vulnerabilities ................................................... 336 C. Classification and Freedom of Information...................... 337 Conclusion ........................................................................................... 339 INTRODUCTION On June 16, 2002, Dennis Pluchinsky, a senior intelligence analyst at the U.S. Department of State, wrote an article in the Washington Post calling for censorship. The article began, “I accuse the media in the United States of treason.” Pluchinsky, who worked counterterrorism in the government for twenty-five years, pointed to post-9/11 articles that revealed not scientific advancements, but American vulnerabilities in regard to the food supply, electricity, chemical production, transportation, and border security. He suggested that research conducted by the media could not have been funded by one, single terrorist organization: “Our news media, and certain think tankers and academicians, have done and continue to do the target vulnerability research for them.”1 Pluchinsky has a point. Terrorist organizations can and do use the media—and the protections afforded speech in the United States and the United Kingdom—to obtain and disseminate critical information. Al Qaeda proves instructive: Their training manual, recovered from a safe house in Manchester, England, details how to make bombs, assassinate, conduct espionage and take hostages. It instructs how to avoid detection and withstand interrogation. And it offers advice on how to obtain operational data: 1 Dennis Pluchinsky, They Heard It All Here, and That’s the Trouble, WASH. POST, June 16, 2002, at B03. 2005] TERRORIST SPEECH 235 Using . public source[s] openly and without resorting to illegal means, it is possible to gather at least 80% of information about the enemy. The percentage varies depending on the government’s policy on freedom of the press and publication. It is possible to gather information through newspapers, magazines, books, periodicals, official publications, and enemy broadcasts.2 What, exactly, can be learned from open source material? According to al Qaeda, it provides photographs of government and law enforcement personnel, data on state capabilities, information related to economic vulnerabilities, and announcements of events where the public can gain access to secure buildings. The text advises, “[t]hese may be used in assassination, kidnapping, and overthrowing the government.”3 With the advent of chemical, biological, nuclear, and radiological weapons (CBNRW), the range of information that may create vulnerabilities expands: Municipal data, such as the location of water sources or air intake vents, or the chemicals produced or stored at different facilities, may be essential to a group’s ability to launch an assault. Academic articles relating discoveries even in basic biology may prove devastating. Terrorist organizations may use open sources to organize, or to anticipate state surveillance. They may use coverage of past incidents to observe response times, staging grounds, and prophylactic measures used by first responders. Public commentary allows them to analyze their errors and gauge the success of future operations. The dissemination of critical information, however, is not the only harm caused by speech in the context of terrorism. Free expression allows organizations to persuade others to support the cause. They can draw attention to their aims and manipulate public opinion to reflect particular religious, political, social, military, and economic goals. The al Qaeda manual reads, “Islamic governments . are established as they [always] have been by pen and gun[,] by word and bullet[,] by tongue and teeth.”4 Osama bin Laden quickly followed 9/11 with a pre- recorded statement to persuade the world of the justness of his cause. Other non-state terrorist organizations also seek, ultimately, to convince: In Northern Ireland the Progressive Unionist Party and Ulster Democratic Party inject the aims of the Ulster Volunteer Force and the Ulster Defense Association into the political debate. The Provisional Irish Republican Army runs the Irish Republican Publicity Bureau. And 2 AL QAEDA MANUAL, UK/BM-80-81, http://www.usdoj.gov/ag/trainingmanual.htm (last visited July 21, 2005) [hereinafter AL QAEDA MANUAL]; see also Steve Mckenzie, War on Terrorism: Laden’s Blueprint to Destroy West; Trainees Told to Slaughter US Like Lambs, SUNDAY MAIL, Jan. 6, 2002, at 9. 3 AL QAEDA MANUAL, supra note 2. 4 Id. at UK/BM-3 236 CARDOZO LAW REVIEW [Vol. 27:1 left-wing organizations in the U.S. and U.K. in the 1970s issued lengthy, turgid prose that attempted to explain why they were doing what they were doing—an approach mimicked by the Unabomber in his manifesto, “Industrial Society and Its Future.”5 If successful, this persuasive aspect may legitimate violence as a way of redressing grievances—a course of action contrary to the fundamental structure of liberal democracy. And media coverage may be complicit, as efforts to report in a neutral manner provide terrorists with a platform. The power differential between the state and the non- state actors may encourage the media to go further, presenting those engaged in violence as underdogs in a broader struggle for self determination, freedom of religion, and other claims that resonate within liberal democracy. The legitimization of violence as a means of redressing grievances may lead to a copycat effect as it bolsters the confidence of adherents in the same struggle and other organizations employing a similar method to draw attention to their own claims.6 This persuasive element may help to establish and expand a base of support, generating assistance, money, and recruits from the uncommitted or sympathetic audience. Simultaneously,