The Misrule of Law? ‘Terrorist speech’, Human Rights and the Legal Construction of Risk

Freedom of expression is the obvious, but not the only casualty of laws against so-called ‘terrorist speech’. Borrowing from Dworkin’s analysis of laws criminalizing hate-speech, it can be argued that the rule of law itself is undermined when it imposes liability for speech which ‘glorifies’ terrorism – speech that falls far short of advocacy of imminent violent action. Formalistic understandings of the rule of law are prone to co-opt human rights (in part, because of the state centricity of rights-based obligations), and thus yield a shortfall in speech protection in the face of perceived ‘terrorist’ threats. Yet, the rule of law conceived differently – retaining as a central element an ideal of democratic participation and self-governance – exerts a stronger pull against such precautionary restrictions on freedom of speech.