Incitement To Terrorism And The Limits Of Freedom Of Expression

In recent years,anti-terrorism situations at home and abroad are grim.Incitement to terrorism has become a causeto terrorist activities and it is thus necessary to incorporate it into the regulatory scope of the Criminal Law.In fact,stipulations related to incitement to terrorism crime have been newly appended to Amendment to the Criminal Law(?)so that a novel approach is provided to prevent and fight against terrorism.As an expressive behavior,incitement to terrorism is abuse of the freedom of expression and it does not fall into the category of legitimate use of the freedom of expression.Fighting against incitement to terrorism behaviors is involved with boundary delimiting for freedom of expression which is a constitutional right of citizens who are able to enjoy high-level freedom according to it.However,the boundary between incitement to terrorism and it is not clear sometimes.Behaviors of incitement to terrorism should be strictly stricken so as to guarantee stability,well-organized social order,national security and personal interests.In comparison,freedom of expression is of important significance to pursuing truth,promoting social democracy and facilitating self-actualization of citizens.Gaming between such two essential legal interests means that effective terrorism prevention should be accompanied with guaranteeing citizens' right of freedom of expression.Therefore,delimiting the boundary of freedom of expression is required to abide by a principle of balancing legal interests;besides,such a principle should be followed by case investigation all through.With an aim to decide criminalization criteria for incitement of terrorismcrime,we should start from connotations of incitement to terrorism behavior.Dependent on behavioral pattern,incitement to terrorism can be classified into direct incitement and indirect incitement.Moreover,speeches,written language,audio and video,pictures,symbols and movements,etc.all can be forms of incitement to terrorism.The reason why it is necessary to stipulate incitement to terrorism behavior by the penal law is that such behaviors are able to generate risks intolerable to laws.Considering this,incitement to terrorism crime belongs to potential damage offense and criminalization of it depends on subjective malignant measurement for the corresponding actor and social danger measurement for these behaviors themselves.Such a process is ultimately embodied in case investigations.As far as personal danger is concerned,emphasis is laid on a fact that whether the actor possesses subjective aims and subjective intentions;regarding social harm,analysis is mainly performed from four aspects,including openness,speech-plus,context and expressive contents.Impacts of the above factors on social harm are studied to provide a more definite standard for criminalization.In China,anti-terror efforts are made rather late and legal system of anti-terrorism is still not established in a rather mature manner.By contrast,experience in anti-terrorism is relatively abundant in western countries represented by America and Britain,etc.where anti-terrorism legislation is more perfect.Experience and lessons of these countries are worthy of learning from and using for references.Additionally,we should realize the particularity of national situations in China to combine learning western experience with local environment.Finally,in conjunction with national conditions and legislation status quo of China,proposals are presented for further striking incitement to terrorism crime.