Egypt's Uncomfortable Challenge: Balancing Security and Civil Liberties

The government's seizure of newspapers that encouraged a military coup raise difficult questions for how post-revolutionary Egypt can stay stable and free. 

Egyptian President Mohamed Morsi speaks during in Cairo. (Reuters)

On August 11, one day before Egyptian President Mohamed Morsi launched a civilian "counter-coup" and forced top military leaders into retirement, the privately owned al-Dustour newspaper published a now infamous editorial that took up the entire front page. Government authorities confiscated copies of the issue. Soon after, Morsi and the Muslim Brotherhood were attacked for clamping down on freedom of speech. The U.S. State Department zeroed in on the Dustour controversy, saying, "We are very concerned by reports that the Egyptian Government is moving to restrict media freedom and criticism in Egypt, including preventing the distribution of al-Dustour."

The Brotherhood had made plenty of alarming moves -- such as censoring critical articles in state-owned newspapers -- and both Egyptian liberals and the international community were right to push back. Still, the Dustour controversy is more complicated. It brings into sharp focus questions of legitimacy, the limits of free speech, and the uneasy balance between civil liberties and national security in Egypt. There is also, of course, a more immediate question: do citizens have a constitutional right to agitate for the overthrow of their own government?

The Dustour editorial warned that if the Brotherhood had its way, Egypt would see "the destruction of the citizen's dignity in front of his family and his children and the rape of his private property rights." It warned that the result would be "killing and bloodshed." Alarmist and offensive, to be sure, but not quite at the level of incitement. The most controversial part came in the final paragraph, which seemed to suggest the military might be encouraged to move against the government:

Saving Egypt from the coming destruction will not occur without the union of the army and the people and the formation of a national salvation front composed of political leaders and the army [which would announce] an explicitly civil state protected by the army, very much like the Turkish system. If this does not happen in the coming days, then Egypt will fall and be destroyed. ... Taking to the streets in peaceful protest is imperative and a national duty until the army responds and announces its support for the people.

Is this protected speech? According to Article 174 of Egypt's penal code, which dates back to the 1930s, citizens can be imprisoned for a period not exceeding five years for "incitement to overthrow the government." According to this and other provisions, the government appears to have had legal grounds to confiscate copies of al-Dustour. But just because something is "legal" does not necessarily make it right. After all, a liberal reading of the penal code could render nearly any anti-government activity illegal.

Should Egyptians (or anyone else) be able to call, however peacefully, for the army to depose an elected president? According to the U.S. criminal code, to take an example, such calls are not generally protected under the first amendment.

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government.

Established democracies tend to have similar provisions, with European countries often being more restrictive than the U.S. on hate speech and incitement. There are also recognized practices, best exemplified by the "Johannesburg Principles," which state that restrictions on free speech cannot be justified unless they are meant to protect "a country's existence or territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force" including from an "internal source, such as incitement to violent overthrow of the government."

But successful democracies depend not just on legal provisions but also on accepted norms. In the United States, far-right groups and individuals do, on occasion, speak of bearing arms and overthrowing the government. Americans, myself included, don't tend to get too worried about this, because the vast majority of their fellow citizens accept the legitimacy of the elected government, no matter how much one might hate its policies. Moreover, civilian control of the military is a principle that virtually no one in America today objects to, so socialized has it been into the prevailing political culture.

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Shadi Hamid is a contributing writer for The Atlantic, a fellow at the Project on U.S. Relations with the Islamic World at the Brookings Institution's Center for Middle East Policy, and the author of Temptations of Power: Islamists and Illiberal Democracy in a New Middle East.

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