Originally published in NewropMag
June 09, 2005
By Houry Mayissian
The Clear and Present Danger test, as it is called, was first proposed in 1919 by Justice Oliver Wendell Holmes Jr. in his interpretations of the First Amendment of the United States’ Constitution (1). In order to determine whether the speech at hand is constitutional, “the Clear and Present Danger test asked not whether the words had a bad tendency but rather ‘whether the words used are used in such circumstances and are of such a nature as to create clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.'” (1)
Advocates of this theory of freedom of expression believe that it is “the best available judicial test for striking a proper balance between protection of the marketplace of ideas and the need to protect the national security and the publics order.” (2) The opponents to this theory, on the other hand, argue that the test is “open to widely varying interpretations” and provides “little or no protection to radical speech in times of political stress” (2). While this argument makes a logical point, I personally believe, that if exercised with care, the above test would be efficient in both securing freedom of expression to the citizens of a country and protecting its national security, especially in times of war.
Although the Clear and Present Danger test is an interpretation of the First Amendment of the US Constitution, it can be applied to other countries as a means of regulating government intervention in the right to freedom of expression. Furthermore, using this test in the case of article 305 is appropriate, because the article itself is based on the need to protect “fundamental national interests.” Thus, based on this concept, article 305 would have been justifiable if recognition of the Armenian Genocide truly constituted a “clear and present danger” for Turkey. Not only the recognition of the Armenian Genocide constitutes no such danger to Turkey, its denial threatens one of the country’s basic national interests as announced by Turkey itself: its membership to the European Union. Recent developments show that the recognition of the Armenian Genocide by Turkey will be one of the issues on the agenda of accession talks. In fact, French Foreign Minister Michel Barnier told the French RTL radio in December that France will include the issue of the Armenian Genocide in the accession talks that are due to start with Turkey in October 2005 (3). Similar statements by other EU officials and member countries indicate that denial of the Armenian Genocide might in fact become a headache, causing more danger to Turkey, than its recognition.
In conclusion, the adoption of article 305 of the Turkish Penal Code has no justification; the argument that recognition of the Armenian Genocide is a threat against national interests has no basis. In addition, the article contains serious shortcomings that might lead to its abuse by the government. The article has been criticized by the European Parliament and Commission, as well as a number of non-governmental organizations and has been regarded as an infringement on freedom of expression. The article is not the only attempt by the Turkish Government to deny the Armenian Genocide, but its significance lies in the fact that it legalizes this denial. Finally, the article violates the European Convention for the Protection of Human Rights, a document Turkey has ratified and is obliged to respect. For all the above reasons, the explanatory report citing the Armenian Genocide example (this paper has not dealt with the Cyprus issue) should be deleted.
(1) Kersch, K. I. (2003). Freedom Of Speech: Rights and Liberties Under The Law. California: ABC-CLIO
(2) Cohen, J. & Gleason, T. W. (1990). Social Research in Communication And Law. California: Sage Publications
(3) France to Include “Armenian Genocide” in Turkey’s EU bid talks: FM. Retrieved 19-01-2005.