1 Office of the High Commissioner for Human Rights, General Comment 11: Prohibition of propaganda for war and inciting national, racial or religious hatred, art. 20 (29 July 1983), available at http://www.ohchr.org.Google Scholar

2 Office of the High Commissioner for Human Rights, Incitement to Racial and Religious Hatred and the Promotion of Tolerance:, Report of the High Commissioner for Human Rights, § 13 (20 September 2006), available at http://ap.ohchr.org/documents/dpage_ e.aspx?m=86. Regarding the interpretation of international treaties, it must be remembered that the rules for interpretation are presented by the Vienna Convention on the Law of Treaties, art. 31-33, 155 U.N.T.S. 331 (1969).Google Scholar

3 Also, Art. 17 of the European Convention of Human Rights and Freedoms, and Art. of the Charter of Nizza, contain some protection clauses like these, which some literature considers the true foundation of militant democracies. See Drooghenbroek, S. Van & Tulkens, F., La Constitution de la Belgique et la incitation ä la haine, in Proceedings from the Congress of the International Academy of Comparative Law (2002), available at http://www.ddp.unipi.it. Concerning the small role of these types of clauses, especially regarding Art. 17 of ECHR, see Cesare Pinelli, Art. 17, in Commentario alla Convenzione europea per la tutela dei diritti dell'uomo e delle libertä fondamentali 455 (Sergio Bartole, Benedetto Conforti & Giuseppe Raimondi eds., 2001); Michela Manetti, L'incitamento all'odio razziale tra realizzazione dell'eguaglianza e difesa dello Stato, in Studi in onore di Gianni Ferrara 116 (Giappichelli ed., 2005). ECHR case law on Art. 17 identifies well the legitimization for content-based restrictions on freedom of speech.Google Scholar

4 Available at http://www.conventions.coe.int Google Scholar

5 Available at http://www.achpr.org Google Scholar

6 Available at http://www.hrcr.org Google Scholar

7 Available at http://www.coe.int Google Scholar

8 Available at http://www.consilium.europa.eu Google Scholar

9 Available at http://www.oecd.org/home/0,3305,en_2649_201185_1_1_1_1_1,00.html Google Scholar

10 Moreover, this fact determines what has been called the paradox of the constitutional democracy, and the tolerance of it (in its “actively pluralistic” meaning). On the public side, it implies the restraint of democratic power inside constitutional limits. On the relational side, it leads to acknowledging exceptions to ideological freedom, based on the nature of expressed ideas. This means that only tolerant ideas could participate in the democratic debate. See Norberto Bobbio, L'etä dei diritti (Einaudi ed., 1990), who refers to John Locke to demonstrate examples of those “prudential” theses. See also Michael Walzer, On toleration (1997), who posits that this leads to the reciprocity of tolerance, then to the refusal of it with regard to all who do not believe in the admissibility of the ideas of others. See additionally Karl Popper, Congetture e confutazioni 604 (Il Mulino ed., 1985) and Karl Popper, La societä aperta e i suoi nemici 265 (Armando ed., 1973-2002). Karl Popper proposes to resolve the “paradox of tolerance” by the limitation of the application of tolerance only to the tolerants. This concept is discussed as absurd and described as creating an “undefended democracy” that cannot protect itself without betraying its fundamental values, in Hans Kelsen, La democrazia 35 (Il Mulino ed., 1981). This interesting concept of democracy, similar to “tolerance for the disorder,” is also mentioned in Frank I. Michelman, La democrazia e il potere giudiziario. Il dilemma costituzionale e il giudice Brennan 144 (Dedalo ed., 2004), concerning the deep formulation by Justice Brennan.Google Scholar

11 See A. Meiklejohn, Free speech and Its Relation to Self-Government 94 (1948), in which the author reiterates that the protection to the First Amendment is not equally assured to every kind of expression. It is specially assured to expressions that directly or indirectly affect the generation of public opinion, particularly expression about political and public questions. In a later article, Meiklejohn enlarged his concept of the sphere of ‘political’, determining that many additional issues affected the public interest, and were therefore worthy of absolute protection in order to guarantee a free and open public debate. A. Meiklejohn, The First Amendment is an Absolute, in Supreme Court Review 245 (1961).Google Scholar

12 Alfonso Di Giovine, La protezione della democrazia tra libertä e sicurezza, in Democrazie protette e protezione della democrazia (Giappichelli ed., 2005) (reviving and completing a reflection developed by the same author in Alfonso Di Giovine, I confini della libertä di manifestazione del pensiero. Linee di riflessione teorica e profili di diritto comparato come premesse a uno studio sui reati di opinione (Giuffrè ed., 1988)).Google Scholar

13 In this case, the loyalty concretizes itself actively in the civil and military defense of the lato sensu intended territory.Google Scholar

14 Concerning the duty to be faithful and Art. 54 of the Italian Constitution, see Giorgio Lombardi, Fedeltä (diritto costituzionale), in Enciclopedia del diritto 165 (Giuffré ed., 1968), Luigi Ventura, Art. 54, in Commentario della Costituzione (Zanichelli ed., 1985), Luigi Ventura, La fedeltä alla Repubblica (Giuffré ed., 1984).Google Scholar

15 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (in which the Supreme Court formulates what has been defined as the “two-class theory” of the exceptions to the First Amendment). See also Rodney A. Smolla, Free Speech in an Open Society 160 (1992) (expressly excluding from First Amendment protection expressions that are not essential to the explication of every kind of idea, and that have so poor a social value as to render them absolutely insignificant with respect to the general objective of the progression towards truth, limitable on the basis of a compelling social interest). These express exclusions include obscene expressions, outrageous expressions, fighting words (expressions which will incite an immediate violent reaction by the receiver) and “those that by their very utterance inflict injury or tend to incite an immediate breach of the peace.“)Google Scholar

16 Content-based restrictions are limitations of freedom of expression that are directly aimed at intervening with the thought itself. They developed, with a “roller-coaster” course, through periods of militant repression of social-communist opposition. The evolution of content-based restrictions is evidenced through federal and state legislation and Supreme Court case-law after the Espionage Act of 1917, through the 1950's, in decisions like Dennis v. United States, 341 U.S. 494 (1951). Further restrictions have developed in the more recently in the war against terrorism. It is significant that the public choice theory - in the opinion of some influential authors – presents some reasons to oppose content-based restrictions. A government's restriction on the “quantity of expression” is preferable to content-neutral limitations. In fact, the content-based restrictions limit the interval of choice, and because of this consumers with a high demand of expression (limited because of their content) cannot be exposed to the opinions that they would listen to and know. At the same time, consumers with a high demand of free opinions (the ones not restricted) can find them available. See Daniel Farber, Free speech without romance: public choice and the First Amendment, in 105 Harvard Law Review 554 (1991). On the combination of market of ideas, market of goods, and the role of a public intervention in the former because of the need for regulation to produce more efficiency and equity concerning channels of communication, see Morton J. Horwitz, Foreward: the Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harvard Law Review 30 (1993); Jack M. Balkin, Free speech and hostile environments, 99 Columbia Law Review 2295 (1999); C.f. Ronald H. Coase, The Economics of the First Amendment: the Market for Goods and the Market for Ideas, 64 American Law and Economics Review 384 (1974), and Richard A. Posner, The Constitution as an Economic Document, 56 George Washington Law Review 4 (1987) (stating that public intervention, negative in the field of economic relations, is more detrimental to the market of ideas).Google Scholar

17 Gaetano Azzariti, Libertä di manifestazione del pensiero e ordinamento democratico. Appunti, in Libertä di manifestazione del pensiero e giurisprudenza costituzionale (Giuffrè ed., 2005).Google Scholar

18 On the meaning of the loyalty in Art. 54 of Italian Constitution as “limited” to exceptional circumstances, see Carlo Esposito, La libertä di manifestazione del pensiero nell'ordinamento italiano (Giuffrè ed., 1958).Google Scholar

19 On the determination of expressive conduct, ex multiis, see Lee Bollinger, The Tolerant Society 198 (1986).Google Scholar

20 On this new and pervading limit to free speech, Alessandro Pace & Michela Manetti, La libertä di manifestazione del proprio pensiero (Zanichelli ed., 2006). It is interesting to note, with regard to the “ideal public order” itself, the reflection of Alessandro Pace, who thinks that the existence of non-amendable constitutional provisions (added to provisions like Art. XII of the Transitory and Final Disposition in the Italian Constitution, determining the exclusion from democratic processes some ideas or “boxes” of ideas), rectìus, would be relevant for the observation of the presence of an “ideal public order.” Alessandro Pace, Ordine pubblico, ordine pubblico costituzionale, ordine pubblico secondo la Corte costituzionale, in Giurisprudenza costituzionale 1780, note 16 (1971). C.f. Paolo Barile, La salutare scomparsa del potere prefettizio di scioglimento delle associazioni, in Giurisprudenza costituzionale 1252 (1967).Google Scholar

21 Art. XII of the Transitory and Final Dispositions forbids the “reorganization, in every form, of the dissolved fascist party.” This was carried out by the “Scelba” law n. 645/1952, modified by the law n. 152/1975.Google Scholar

The Scelba law accomplished the extension of the ambit created by the constitutional rule, introducing two incriminating cases signed by an exclusively ideological peculiarity (on this point, see Paolo Barile & Ugo De Siervo, Fascismo (sanzioni contro il), in Digesto delle discipline pubblicistiche 137 (Utet ed., 1987) (the apologia of fascism and the fascist manifestations). The Constitutional Court subordinated their validity to the instrumentality with the reorganization of the fascist party (sent. n. 1/1957 and sent. n. 74/1958). But the same Court would have saved that validity by elaborating a “renewal”, at least doubtful, of the apologia of fascism read as an indirect instigation to the reconstitution of the fascist party. Successively, the statute n. 152/1975 - whose adoption is collocated in a particular context signed by opposite tensions also determined by neo-fascist ideological elements – introduced some modifications. They were essentially represented by the enlargement of the qualification to consider the possibility of reorganization of the fascist party to every “movement or group of people not lower to five;” by the remaking of the cases of apologia and fascist manifestations (the latter were enlarged to the utilization of the symbols of “Nazi organizations”); by the charge of punishments and the provision of an autonomous crime of “propaganda to the construction of a neo-fascist association, movement or group.”Google Scholar

The diversity between the letter of the constitutional provision and the work of legislator is evident.Google Scholar

Art. XII certainly posed a restriction to the freedom of association ulterior to the provision of Art. 18 of the Constitution. The expression “in every form” was imposed in order not to limit the provision to the National Fascist Party, as “immortalized” at the moment of its origin and defined through its development till its configuration as the sole party of the regime. A limitation like this would have deprived the constitutional disposition of its normative content, making it paradoxical.Google Scholar

However, Art. XII did not plainly imply the beginnings of a limit to the freedom of expression. In fact, the constitutional level of protection of democracy embodied in this provision did not specifically concern freedom of expression. It was the legislative implementation of the Penal Code of 1930 that introduced new “thought crimes.”Google Scholar

22 Brugger, Winfried, The Treatment of Hate Speech in German Constitutional Law, 4 German Law Journal (no. 1) January 1, 2003; Pizzorusso, Alessandro, La disciplina costituzionale dell'istigazione all'odio, in The Constitutional Treatment of Hate Speech, Proceedings from the Congress of the International Academy of Comparative Law (2002) available at http://www.ddp.unipi.it; Alessandro Pizzorusso, Limiti alla libertä di manifestazione del pensiero derivanti da incompatibilitä del pensiero espresso con principi costituzionali, in Diritti, nuove tecnologie, trasformazioni sociali in Scritti in memoria di Paolo Barile 651 (Cedam ed., 2003).Google Scholar

23 Relevant to this is the well-known decision, Bundesverfassungsgericht, BVerfGE 90, 128 – 131 (1991), in which it was affirmed that the protection of freedom of expression does not comprehend “the denial of the truth of facts that the individual asking to protect his speech knows to be true, or that are demonstrated to be true, while concerns eventual expressions evaluating facts historically proved”. However, in a more recent case, Bundesgerichtshof, 12 Dec. 2000, Strafkammer AZ/S R 184 (2000), the German Court condemned the actions of a German citizen, promoter of an institute whose studies and researches were clearly aimed to the diffusion of ideas concerning Holocaust, because his website publicized opinions denying the existence of the Holocaust, in violation of Section 130 of the German Criminal Code. The most interesting element of the decision was that regarding the analysis of the means of communication used in the transmission of the message. The court stated that it was absolutely able to determine that such form of diffusion resulted in a high possibility that the message would be received, read or downloaded in Germany. The Court then introduced two important statements: the first referring to the total exclusion of the opinion of denial from protection established by Art. 5 GG, it means from “speech,” and the second tending to neutralize the role of space in penal law when the crime regards the horror of Holocaust. See also Bundesgerichtshof, 15 March 1994, no. 179/1993 e BVerfGE, 6 Sept.2000, no. 1056/1995. On this question, see Federal Court of Justice (BGH) Convicts Foreigner for Internet Posted Incitement to Racial Hatred, 2 German Law Journal (no. 8) (May 1, 2001).Google Scholar

24 But an interpretation like this would fail to consider the Holocaust denial as symbolic speech, reading its eventual symbolic sphere in the distinction between the literal expression and the deeper meaning of the same. In this case, Holocaust denial would become necessary and always qualified, because of the programmatic nature coessential in the symbolic speech.Google Scholar

25 Manetti, Michela, Libertä di pensiero e negazionismo, in Michele ainis, Informazione, potere e libertä 48 (Giappichelli ed., 2005).Google Scholar

26 On the contrary, a much more important role of these interests in ECHR case-law can be found by looking, for instance, at some cases like the one decided on 23 September 1998, concerning the publication of an article about the marshal Pétain and the case Chauvy and Others v. France, on 29 June 2004. Chauvy and Others (64915/01), (June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=France&sessionid=3028425&skin=hudoc-en. In the first situation, in fact, the Court remarks on the absolutely fictitious nature of the publication, and on Pétain as a very positive character, but remembers that Art. 10 also protects the manner in which ideas are expressed, as well as the substance of the expressed ideas and information (see also De Haes and Gijsels v. Belgium, (19983/92), (Feb. 24, 1997), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Belgium&sessionid=3046369&skin=hudoc-en.) On the premise that all other speech directed against the values under the Convention would not be allowable (the Court quotes the famous Jersild v. Denmark), the justification of pro-Nazi politics would not be protected under Art. 10. The Court affirms that, in spite of the silence maintained about some strong facts concerning the notorious and important involvement of Pétain, the protection of Art. 10 must be extended to this kind of expression because the claimants “simply praise a man”. Jersild v. Denmark, (15890/89), (Sept. 23, 1994), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Jersild%20%7C%20v.%%20%7C%20Denmark&sessionid=3046369&skin=hudoc-en. In the second similar case, the decision of the Court was the opposite because the relationship did not merely regard free speech and historical truth; rather it is triadic, including also the right to honor. Similarly, in the well-known case Faurisson (1996), it was said that the so called Gayssot law (the French statute that, in the Art. 24-bis, defines the crime of the contestation of the existence of Nazi misdeeds) was legitimate with regard to the provisions of the International Covenant on Civil and Political Rights because the condemnation of Faurisson, based on the real violation of rights and reputation of other individuals, did not contrast with his right to express and sustain an opinion.Google Scholar

27 Those which have been declared unconstitutional, requested by German Federal Government in 1951, are as follows: the Socialistiche Reichspartei (SPD) and the Kommunistische Partei Deutschlands (KPD). In 2003, the German government, together with Bundestag and Bundesrat, asked for the banning of the Nationaldemokratische Partei Deutschlands (NPD), a party that had evidently been inspired by Nazi ideology. This was not considered unconstitutional by the BVerfGE because the party had published some information about its composition that had been made prevalently known by German secret agents. In September of 2006, NPD had an important electoral consent in Pomerania. Moreover, the Federal Admistrative Court (Urteile vom 27. November 2002 - BVerwG 6 A 1.02, 6 A 3.02, 6 A 4.02 und 6 A 9.02) has affirmed the decision (8 December 2001) of the Federal Secretariat of Internal Affairs that established the banning of the Islamic fundamentalistic association, a group that had among its substantive aims the institution of a Caliphate inside the State, on the basis of the interpretation, already supported by doctrine, that the anti-extremism instruments in the Grundgesetz were absolutely valid to combat a group trying to undermine the democratic order because of religious and cultural more than political reasons. (See Palomar, n. 12, 2003, available at http://www.unisi.it/ricerca/dip/dir_eco/palomar/012_2003.html#germania2).Google Scholar

28 An interesting classification was made in Niesen, Peter, Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms for Banning Political Parties – Part I e Part II, Vol. 3, No.7 German Law Journal (2002). The author individuates a third and new model of democracy protection from its enemies and contrasting expressions, defined as the civil society. The model of civil society determines a passage from protected democracies (that struggle against the extremist and subversive tendencies, ideas, political movements) to protective democracies (that limit liberties (like freedom of speech) in order to shield minorities and generally the “very human values.”) This is a democracy that would protect the weakest individuals using, above all, the weapon of the recognition of the other as an equal subject, and intercommunication. On this last point, see also Jurgen Habermas, L'inclusione dell'altro (Feltrinelli ed., 1998).Google Scholar

29 See, among others, Dominic McGoldrick & Thérèse O'Donnell, Hate-speech laws: consistency with national and international human rights law, in 18 Legal Studies 453 (1998).Google Scholar

30 A significant example can be found in Wisconsin v. Mitchell, 508 U. S. 476 (1993), in which the distinction between punishing someone because of their opinions versus punishing someone for using prejudice as a motive for their behavior is confirmed. In Wisconsin, the law incriminated behavior, not opinions, because of the determination that crimes motivated by prejudice and hate resulted in bigger personal and social injuries than crimes committed for other reasons.Google Scholar

31 Rodney A. Smolla, Free Speech in an Open Society 158 (1992)Google Scholar

32 It seems quite unnecessary to refer to the Supreme Court statements in Brown v. Board of Education, 347 U.S. 483 (1954), where the separate but equal doctrine was destroyed because of its intrinsic discriminatory nature deriving directly from the message included in segregation, or to Anderson v. Martin, 375 U.S. 399 (1964), in which the Supreme Court struck down a state law provision requiring indication of the race of political candidates.Google Scholar

33 Eric Heinze, Viewpoint absolutism and hate speech, 69 Modern Law Review 4 (2006), and James Weinstein, Hate speech, pornography and the radical attack on free speech doctrine (1999) - recently commented on in Kyu H. Youm, First Amendment law: hate speech, equality, and freedom of expression, 51 Journal of Communication 2 (2001) – affirm that the regulation of hate speech unavoidably concerns the content of the message. Also, Andrew Altman, Liberalism and Campus hate speech: a philosophical examination, 103 Ethics 2 (1993), affirms that rules against hate speech cannot be viewpoint-neutral, even if they can be justified with regard to the limitation of some kind of harm for the victims. This is the most important point concerning the reflection about the relation between the I and the XIV Amendments.Google Scholar

34 On this case, see, in particular, Lee Bollinger, The Tolerant Society (1986).Google Scholar

35 The “heterogenesis” in the aims could, on the one hand, criminalize people belonging to minorities and marginalized groups; on the other hand (and in the short term) it could turn the perception of the criminals in victims. See Sergio Moccia, La perenne emergenza. Tendenze autoritarie nel sistema penale 99 (Jovene ed., 1997).Google Scholar

36 Virginia v. Black, 538 U. S. 344 (2003).Google Scholar

37 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).Google Scholar

38 Cohen v. California, 403 U.S. 15, 20 (1971).Google Scholar

39 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).Google Scholar

40 See, in particular, Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam), and R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).Google Scholar

41 Virginia v. Black, 538 U. S. 343, 344 (2003). See Manetti, Michela, L'incitamento all'odio razziale tra realizzazione dell'eguaglianza e difesa dello Stato, in Scritti in onore di Gianni Ferrara, and Giuseppe Franco Ferrari, La giurisprudenza della Corte Suprema americana nel biennio 2002-2003, in Giurisprudenza costituzionale (2003).Google Scholar

42 Virginia v. Black, 538 U.S. at 344.Google Scholar

43 Stone, George R., Content regulation and the First amendment, 25 William and Mary Law Review 189 (1983); Stone, George R., Content-neutral restrictions, 54 University of Chicago Law Review 46 (1987).Google Scholar

44 Id.Google Scholar

45 See, for instance, United States v. O'Brien, 391 U.S. 367 (1968).Google Scholar

46 Cass Sunstein, Democracy and the Problem of Free Speech (1995). See, for instance, the Supreme Court position in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).Google Scholar

47 On the individuation of a “danger test,” specifically with regard to a material and liberal definition of the restriction to freedom of speech, see Abrams v. United States, 250 U. S. 616 (1919), (Holmes, J., dissenting); Gitlow v. New York, 268 U. S. 652 (1925) (Holmes, J., dissenting); and Hess v. Indiana, 414 U. S. 105 (1973). In literature, see Rodney. A. Smolla, Free Speech in an Open Society (1992) and Sunstein, supra note 46.Google Scholar

48 On the original notion of militant democracy, see K. Loewenstein, Militant Democracy and Fundamental Rights, I e II, 31, 3 The American Political Science Review 417 (1937)Google Scholar

49 The textual provision of Art. 414 C.p.:Google Scholar

Instigation to commit a crime: Whoever in public instigates to commit one or more crimes is punished, because of the instigation itself: 1) with the reclusion from one to five years, if the instigation is to commit crimes 2) with the reclusion up to one year, or with the fine […] if the instigation is to commit offences. If the instigation is to commit one or more crimes and one or more offences, it is applied the punishment established in n. 1. The punishment established in n. 1 regards also whoever in public makes apologia of one or more crimes.Google Scholar

In particular, this article is integrated with the present proposition: “Excepted the cases in Art. 302, if instigation or apologia enumerated above concern crimes of terrorism or crimes against humanity the punishment is augmented of an half.”Google Scholar

50 What happened in this poor quarter in the suburb of Rome has only recently become clear. This episode is mentioned because of its cruel significance in the memory of those years signed by a violent contrast between opposite extremes, during which also very young and innocent people lost their lives. With regard to the banning of the Ordine Nuovo, this can be seen in the events of 1974. This movement, with no representation in the Italian Parliament, was an extremist group promoting some ideas and forms of activity consistent with a fascist regime.Google Scholar

51 It is fundamental to remember that the constitutional document did not pose any expressed limitation to freedom of political speech residing in the content of the ideology.Google Scholar

52 On the organization in and of exceptional circumstances in relation to the Italian constitutional order, see Giuseppe De Vergottini, Guerra e Costituzione. Nuovi Conflitti e sfide alla democrazia (2005); Giuseppe De Vergottini, La difficile convivenza tra libertä e sicurezza. La risposta della democrazie al terrorismo, in Rassegna Parlamentare 427 (2004) with a complete review of the various anti-terrorism legislations.Google Scholar

53 Antonio Reposo, La disciplina dell'opposizione anticostituzionale negli Stati Uniti d'America 88 (1977). The author considers that the Milligan case represents the real precedent of the clear and present danger test elaborated by Justice Holmes in relation to the Espionage Act of 1917.Google Scholar

54 Id., at 91. See also the wide reconstruction by Thomas I. Emerson, The system of freedom of expression (1970).Google Scholar

55 http://www.un.org.Google Scholar

56 http://www.un.org/largerfreedom/.Google Scholar

57 Concerning relations between emergency/security and the protection of fundamental rights, particularly with regard to the controversial definition of a new right to security, see Alessandra Benazzo, L'emergenza nel conflitto tra libertä e sicurezza (2004); Paolo Bonetti, Terrorismo, emergenza e costituzioni democratiche (2006); D. Colarossi, La difficile convivenza tra regimi emergenziali e diritto di espressione: le ultime misure predisposte dal Governo di Tony Blair contro la minaccia del terrorismo, in Diritto pubblico comparato ed europeo, Rassegne 11 (2006); David d. Cole & J.X. Dempsey, Terrorism and the Constitution (2002), Giuseppe De Vergottini, La difficile convivenza tra libertä e sicurezza. La risposta della democrazie al terrorismo, in Rassegna parlamentare (2004); Giuseppe De Vergottini, Guerra e Costituzione. Nuovi conflitti e sfide alla democrazia (2005), Alfonso Di Giovine, La protezione della democrazia tra libertä e sicurezza, in Democrazie protette e protezione della democrazia (Giappichelli ed., 2005); Tania Groppi, Democrazia e terrorismo (2006); Gaetano Insolera, Terrorismo internazionale tra delitto politico e delitto penale del nemico, in Diritto penale e processo 7 (2006); Marco Pelissero, Terrorismo internazionale e diritto penale, in 11 Studium iuris 1279 (2005),;John A. E. Vervaele, La legislazione anti-terrorismo negli Stati Uniti: inter arma silent leges?, in 2 Rivista italiana di diritto e procedura penale 739 (2005); Jean-Claude Paye, Il Patriot Act Reauthorization: uno stato di emergenza permanente, in 2 Democrazia e diritto 181, 189 (2006).Google Scholar

58 Cole & Dempsey, supra note 57 at 158.Google Scholar