Original Proposal - 336 Views Before Being Transplanted Here

[johnkarls]

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The Case For Limiting Speech By Religious Extremists
Originally posted by johnkarls on Wed Sep 08, 2010 at 4:13 pm
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I propose that we focus on The Case for Limiting Speech by Religious Extremists.

The suggested reading would be “Freedom From Religion: Rights and National Security” (Oxford University Press 2009) by University of Utah Law Professor Amos Guiora.

The central question for discussion would be whether “undercover moles would be planted in Islamic mosques and in polygamous sect meetinghouses led by controversial figures to listen for speech that incites followers to violent behavior.”

[The quotation in the preceding paragraph comes from the first paragraph in the immediately-succeeding article from the Salt Lake Tribune which, presumably, demonstrates the naiveté of the author who apparently believes that this is not already done on a routine basis – it is respectfully submitted for consideration by the reader that the F.B.I. would not be doing its job if it failed to do this.]

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THE CASE FOR LIMITING SPEECH BY RELIGIOUS EXTREMISTS*
Article by Brooke Adams based on a book =
Freedom From Religion: Rights and National Security (Oxford University Press 2009) by University of Utah Law Professor Amos Guiora

The Salt Lake Tribune
Updated Aug 30, 2010 03:58PM (but seems verbatim identical to the original 8/21/2010 article)

* This was the original title occupying with its accompanying graphic (an angry cleric behind a pulpit with images of a fist, knife, grenade, rifle and pistol) the entire top half of the first page of the Faith Section of the Salt Lake Tribune of Sat 21 Aug 2010)

If Amos Guiora had his way, undercover moles would be planted in Islamic mosques and in polygamous sect meetinghouses led by controversial figures to listen for speech that incites followers to violent behavior.

Any extremist religious leader who sanctions criminal acts — like the terrorist attacks of 9/11 or underage marriages performed at a remote Texas ranch — should, he argues, be arrested.

Religious extremism is the single greatest danger to civil democratic society today, a threat so great it justifies controversial impositions on constitutional rights, said Guiora, a professor at the University of Utah’s S.J. Quinney College of Law.

“That reality — terror in the name of God — is the reality of our current milieu,” Guiora states as he lays out his controversial thesis in Freedom From Religion: Rights and National Security (Oxford University Press, 2009).

The book’s aim is to focus a “conversation on whether or not free speech in the context of religious extremism should be limited,” Guiora said in an interview. “The subset question is whether or not limits should be imposed on the practice of religion in the context of religious extremism.”

His answer to those questions? Yes.

Critics such as Frederick Gedicks, a professor at Brigham Young University’s J. Reuben Clark Law School, say Guiora is “completely wrong.”

Religious extremism is the “threat of the moment,” Gedicks said during a panel discussion on Guiora’s book at the Utah State Bar summer convention in Sun Valley, Idaho, last month. “But we have threats all the time. If we carve out exceptions every time we have a threat, there is not going to be much left of the Constitution.”

Gedicks said freedom from religion is “a notion to be taken seriously — but not this way.”

FROM ISRAEL TO UTAH

Guiora counters that religious authorities hold unique sway over followers, who regard clergy as interpreters of how God wants them to act. That means followers are more likely to act on religious authorities’ directives, and those given by some extremists are being “used as a motivator to commit wide-scale acts of terrorism, to justify individual acts of violence behind closed doors, and promote hatred of the ‘other.’”

One example he uses throughout the book: the 1995 assassination of Israeli Prime Minister Yitzhak Rabin. Orthodox rabbis, unhappy with Rabin’s participation in the Oslo Accords, a framework for settlement talks between Israel and the Palestinians, denounced the premier — even gathering outside his home to pray for his destruction.

The rabbis who made the most “inflammatory and pointed statements against Rabin,” Guiora writes, “should have been held legally accountable for their words.”

Guiora argues government needs to bring immunity for religious speech to a “crashing end.” The test should be whether words spoken present an “operational threat,” rather than waiting for any behavior to follow. Government needs to answer the danger “legislatively, politically and, if need be, forcefully.”

Guiora examines the response of five nations — the United States, the United Kingdom, the Netherlands, Turkey and Israel — to violence carried out by Islamic, Jewish and Christian extremists. His Christian example: the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints, which has 10,000 adherents, most of them in Utah.

Why the FLDS?

“We, using the word broadly, we as the polity know there is a category, a class that is unprotected and vulnerable,” he said, referring to the sect’s practice of setting up arranged marriages between underage girls and older men.

Guiora notes that the United States already has accepted limits on some speech — obscenity and fighting words, for example. He also points to an 1878 U.S. Supreme Court decision outlawing polygamy as an example of how religious conduct can be restrained.

Among the ways such limits might be placed on speech of religious extremists: Consider unprotected any religious speech that promotes hatred or violence or lower standards used for intent and scrutiny — outlined in the U.S. Supreme Court’s landmark Brandenburg decision — when the speaker is a religious authority.

Guiora would expand incitement statutes to carefully describe language that is a threat to democratic stability and who is threatened by such speech.

“I have no doubt that to draw a line on this issue of religion and speech would be a significant intellectual challenge for those involved,” Guiora said. “But that is not a reason not to do it.”

DICEY POLITICS

It’s an argument that makes many people — particularly politicians — uncomfortable, said Guiora, who spent 20 years battling terrorists as a member of the Israel Defense Forces.

“It’s uncomfortable because it forces [politicians] to directly address and articulate what presents a threat — not in platitudes and not in clichés but concretely, and that is not something politicians really like to do,” Guiora said. “Government does not like to engage in a definitional discussion because government likes wiggle room.”

Once the state has acknowledged the problem, as Utah has done with the FLDS, it cannot abdicate its responsibility. It must, through law enforcement, “actively engage these people.”

For Guiora, that means “monitoring, imposing, planting sources or moles or however the state wants to get intelligence information.”

Government also needs to make clear to religious leaders there is a price to be paid for incitement.

“Take a Warren Jeffs or others who convince adult males to marry underage girls,” he said. “That’s clear incitement predicated on religious tenets.”

And it justifies placing limits not only on such speech, he said, but also on the sect’s practices.

Guoira said Utah officials should have acted sooner and more forcefully in regards to the FLDS community but instead justified inaction because it was “too hard” to infiltrate the closed communities.

“I don’t buy that,” Guoira said. “If there is a crime being committed, then the state has the obligation to act. I am not particularly sympathetic to people who commit crimes, particularly if they are harming children … particularly in the name of religion.”

Guoira wouldn’t stop at leaders, either.

“What do we do, for instance, with parents who are allowing their daughters to be married off at 14 and having sex at 14?” he asked. “That mom, she is facilitating a crime.”

To hold that mother blameless because of her culture, faith or own potential for danger, he said, “doesn’t wash with me.”

Guiora agreed his “good-of-the-child-wins” philosophy would apply to parents in other religious faiths who engage in behavior that threatens the well-being of youngsters — whether it is the limits on an Amish child’s education or a Christian Science parent’s aversion to modern medicine.

“If somebody is harmed,” he said, “I don’t think that should be protected.”

But politicians and law professors aren’t the only ones uncomfortable with Guiora’s proposal. The Rev. Gregory C. V. Johnson, an evangelical pastor who leads the Standing Together ministry in Utah, said Guiora’s ideas align with the “New Atheist” thinking of writers such as Richard Dawkins and Christopher Hitchens.

It’s easy to be sympathetic to the idea of trying to stop radical terrorists intent on killing, Johnson said. “Who wouldn’t want someone in society to be able to stop those kinds of things from happening?”

But Johnson said the question that has to be asked is: Who becomes the deciding authority on what is and isn’t extremism and what price are we willing to pay to give up basic constitutional freedoms, like freedom of speech, association and religion?

“Today, for example, advocating a position against homosexual marriage might be considered extreme by some members of society,” he said, “and thus I myself would possibly be considered an extremist.”

Radical extremists are going to “continue to blow up buildings, continue to kill abortion doctors, continue to attack homosexual people,” he said, “and we won’t be able to stop any of their behaviors by minimizing the religious freedoms of our larger society.

“Given the tight, secretive communities of extremists, those who will actually be affected by such notions as Guiora’s will be the nonextremists,” Johnson said. “So who is actually going to lose religious freedoms? It is not going to be the religious extremists but everyday ordinary people of faith. The New Atheists are trying to make the case based on the extreme and apply it to everyone broadly.”

POTENTIAL FOR ABUSE

Guiora said people from “all walks of life” shared views with him as he researched his book. Among them: Utah Attorney General Mark Shurtleff and a “senior official” in the mainstream Church of Jesus Christ of Latter-day Saints. Both, he said, were generous with their time.

LDS Church spokesman Scott Trotter said the church “is not aware of the contents of the book.”

And Shurtleff, for one, does not agree entirely with Guiora’s proposals.

“I certainly never supported, nor would I, his call for changing or lowering the Brandenburg test for religious speech,” Shurtleff said, calling the test “tough” and “sufficient.”

Shurtleff said he has no problem with, for example, a parishioner serving as a confidential informant about wrongdoing, but “planting people in there to monitor speech of religious leaders? No.”

The attorney general said he agrees “some religious practices are not protected by the First Amendment — in [the FLDS] case, child-bride marriages. There is a duty to protect victims of religious extremism in that regard.”

In the United Kingdom, Guiora found government and media apathetic about Muslim extremism. He lambastes the government’s prevention via “community outreach” emphasis, wherein moderates try to counter extremists. Utah has used a similar approach with a Safety Net Committee, which acts as a liaison between government agencies and closed polygamous groups.

Guiora acknowledges that attempts to quell speech may result in problematic religious figures moving underground. He also concedes the potential of governmental overreach.

The “American instinct is to engage in overreach and excess” when under direct or perceived attack, he writes. He points to Japanese-American internment camps set up in western Utah and other locations after the Japanese attack on Pearl Harbor and detainments authorized by President George W. Bush after the 9/11 attacks.

“This is a problematic strain in American history,” he said. “There, of course, is the danger of excess power granted to government. And that’s why the concept of threat must absolutely be articulated and defined, narrowly — and who is the protected category.”

The ultimate “restrainer” is the press, though Guiora does not believe that, in all five countries, journalists are capable of satisfactorily checking government.

Gedicks also looks to U.S. history — such as abolitionists who were prosecuted under incitement statutes — to explain why Guiora’s ideas are misguided.

“Today’s subversive speech may be tomorrow’s conventional wisdom,” Gedicks said. “There is nothing more dangerous than giving the government power to punish speech based on who it decides is dangerous.”

[Pat]

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Supreme Court Limitations On Freedom Of Religion
Originally posted by Pat » Thu Sep 09, 2010 11:40 am

Supreme Court Limitations On The First-Amendment Freedom Of Religion

A lot is written about Freedom of Religion while comparatively little is written about Supreme Court limitations on the Constitutional Right to Freedom of Religion.

The First Amendment to the US Constitution states in its entirety:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

All of these rights are subject to limitation. Indeed, the most famous First Amendment limitation affects the third right = “Freedom of speech does not include the right to shout ‘fire’ in a crowded theater”!!!

There are numerous cases in which the US Supreme Court found that religious practices were NOT protected by the First Amendment. A few examples =

(1) Reynolds vs. U.S. (1879) holding that polygamy was not protected by the free exercise of the Mormon religion (this was a mere 31 years after the Mormons, who had fled to the Utah portion of Mexico, were dragged back into the U.S. by the Treaty of Guadalupe Hidalgo concluding the Mexican-American War despite the fact that Utah was nowhere near the fighting in Texas or the US Naval blockade of California, both of which had also been part of Mexico).

(2) West Virginia State Board of Education vs. Barnette (1943) and Minersville School District vs. Gobitis (1940) holding that children of Jehovah’s Witnesses could be required to salute the American flag in public school.

(3) Wisconsin vs. Yoder (1972) holding that Amish children could be forced to attend school until age 16.

(4) Hamilton vs. Regents of the University of California (1934) holding that the regents could compel students to take ROTC.

(5) Cox vs. New Hampshire (1943) holding that states can require a license to hold a parade.

(6) Prince vs. Massachusetts (1944) holding that Jehovah’s Witnesses cannot violate child-labor laws in distributing religious literature.

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LEGISLATION OVERRULING ADVERSE COURT DECISIONS

The American Indian Religious Freedom Act of 1978 (“AIRFA”) overruled the US Supreme Court decision that Freedom of Religion does NOT protect the use of peyote (a drug derived from cactus) in Native American religious ceremonies – but left intact the US Supreme Court’s decision that snake handling by Native Americans was NOT protected by the First Amendment.

One of the most controversial battles currently raging is whether Freedom of Religion permits parents to deny medical treatment for their children.

There is a wonderful discussion of this issue that was aired on PBS last year (the transcript is available at http://www.pbs.org/wnet/religionandethi ... ases/2961/).

The 5/15/2009 PBS program was touched off by a Wisconsin District Attorney prosecuting parents for reckless homicide in denying any medical treatment for their 14-year-old daughter who had diabetes DESPITE THE FACT THAT WISCONSIN IS ONE OF 30 STATES THAT HAVE ENACTED STATUTES PROTECTING MEMBERS OF RELIGIONS THAT BELIEVE SOLELY IN “FAITH HEALING”!!! (Mr. and Mrs. Neumann, the parents, happened to be members of the Unleavened Bread Ministries, though Christian Scientists are much more famous for believing in faith and prayer alone to heal and Tom Cruise has put Scientology in the front ranks of such religions.)

Obviously 30 states would NOT have enacted such legislation if the US Supreme Court had been willing to protect such parents under the First Amendment.

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SON OF SAM – SPANISH INQUISITION – ETC.

SON OF SAM

Sam Berkowitz was sentenced to 365 years in jail for terrorizing NYC in the mid-1970’s, killing 6 people and wounding 7 others. He was a member of a “cult” that introduced him to drug use, sadistic pornography and violent crime. He claimed that he had been commanded to kill by a “demon” that possessed his neighbor’s dog.

It is interesting that society would label a religious group that believes in violent crime as a “cult” and a religious deity that commands violence as a “demon” rather than a “god” or even a “false god” as if goodness is a pre-requisite for god status.

SPANISH INQUISITION

The Spanish Inquisition began with Spanish Royal Decrees in 1492 and 1501 that ordered Jews and Muslims to convert to Roman Catholicism or leave Spain. However, it wasn’t long before the worst excesses became common practice. The Inquisition was not abolished until 1834.

The Inquisition was conducted by officials of the Roman Catholic Church and featured innumerable “trials” based on confessions of being a secret Protestant/Jew/Muslim extorted by torture (most commonly by the rack or by water boarding). Conviction meant execution, most commonly by en masse burning at the stake.

It is inconceivable that the US Supreme Court would hold that such practices are protected by Freedom of Religion.

THE ROMAN CATHOLIC DOCTRINE OF BLOOD GUILT

Until 1961, official Roman Catholic Doctrine held that all Jews currently living are/were responsible for the death of Christ!!!

It is not considered polite to discuss the linkage between this official Roman Catholic Doctrine and the Holocaust.

Nevertheless, it is inconceivable that the US Supreme Court would hold that the genocide of World War II was protected by Freedom of Religion.

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CONCLUSION – LIMITING SPEECH BY RELIGIOUS EXTREMISTS

From such examples as Son of Sam, the Spanish Inquisition and the Holocaust, it is easy to see why speech by religious clerics advocating violence is NOT protected by the First Amendment.

And why the FBI and, vis-à-vis threats against the President, the Secret Service would be derelict in their duty if they failed to infiltrate the congregations of religious clerics who advocate violence.