Jihad, Hate Speech and the First Amendment

[Roguish Lawyer]

Hypothetical:

U.S.-born muslim imam
Citizen in good standing, no criminal convictions
Has congregation at his mosque
Preaches hatred of Jews and other infidels
Encourages violent jihad
All preaching is done as sermon in mosque
Does nothing else to support jihad (e.g., no fundraising or violence)


Should this be permitted? We are balancing free speech and the free exercise of religion against the consequences of permitting such activity.

:munchin

[Kyobanim]

I think when you incite violence as in "violent jihad" you've crossed the line from legal to breaking the law. These times we're living in are requiring a stricter or more conservative interpritation of the laws. Now, if he was just saying that sometimes it "takes violent actions" instead of saying "you should be violent"; I'd say the line isn't crossed.

Isn't inciting violence a criminal offence anyway? Couldn't it technically be called conspiracy to commit a violent act of some sort? If not, it should be.

[Gypsy]

Maybe I'm being too simplistic or missing something but how is he a citizen of good standing if he encourages violent jihad; isn't that a form of support albeit not financial? Seems to me preaching behind the pulpit for such actions can't/shouldn't supercede any "religious freedoms" from laws that prohibit inciting violence.

[pulque]

Originally posted by Kyobanim
I think when you incite violence as in "violent jihad" you've crossed the line from legal to breaking the law. These times we're living in are requiring a stricter or more conservative interpritation of the laws. Now, if he was just saying that sometimes it "takes violent actions" instead of saying "you should be violent"; I'd say the line isn't crossed.

Isn't inciting violence a criminal offence anyway? Couldn't it technically be called conspiracy to commit a violent act of some sort? If not, it should be.

I just found out that it has been illegal in Canada to incite religious hatred since the 1970's, and that Britain is now trying to pass amendments that would make their laws more level. In Britian right now, it is illegal to incite violence, to incite racial hatred, and to incite religious hatred against jews and sihks (but not christians and muslims). What up!!

Also, US states have "hate laws" but I dont know if these cover inciting violence.

[2VP]

I think it may also fall under the example of yelling fire in a movie theater. Although your allowed freedom of speech it doesn't extend to speech that will cause harm. I think the religious hate laws is closer to the mark though.

[NousDefionsDoc]

Depends on what the "congregation" does afterward. In other words, does his "sermon" lead to action. Remember the Paladin Press case?

[2VP]

A little OT here but there was a special on the TV about how prisons and jails have/could become major recruiting posts for Islamic fundamentalists. Apparently the places of worship aren't regulated well and many of the spiritual leaders in these prisons practice the extreme form of Islam and teach the prisoners this as well. Waahabism I think.

[Gypsy]

Originally posted by NousDefionsDoc
Depends on what the "congregation" does afterward. In other words, does his "sermon" lead to action. Remember the Paladin Press case?

Is my google strong? Is it this case?

In 1993, a triple murder was committed in Montgomery County by a man who was alleged to have used this book, Hit Man, as his guide. He was caught and convicted and sentenced to death. Wanting to profit from their loved one's murder, and realizing that the murderer himself was too poor to be worth suing, the family of those killed by the hit man sued Paladin Press, the publisher of the book Hit Man, saying Paladin Press "aided and abetted" the murder.

May 21, 1999, Paladin Press settled the case, giving the families of those killed by the hit man several million dollars, agreeing to destroy the remaining 700 copies of the book in their possession, and surrendering any rights they have to publish and reproduce the work. While the families were successful in profiting from their loved one's death, they have not been successful in stifling the book. With the surrender of the publishing rights by Paladin Press, the book has entered the public domain, and was published on the Internet

[NousDefionsDoc]

That's the one. If I remember right, Paladin's argument was free speech and that they weren't responsible for the actions of their readers.

Where's that lawyer at?

[Gypsy]

Wow...look what I found.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=case&no=962412P&exact=1

[Roguish Lawyer]

Originally posted by NousDefionsDoc
Where's that lawyer at?

I'm sure we'll get an eloquent con law lesson from AL shortly.

[Jimbo]

I prefer not to be intimidated by ideas and speech. If his followers take action, prosecute them. Additionaly however, and I think this has been our greatest failing in the GWOT, you need to beat the idea that he is putting forward.

[Roguish Lawyer]

Originally posted by Jimbo
I prefer not to be intimidated by ideas and speech. If his followers take action, prosecute them. Additionaly however, and I think this has been our greatest failing in the GWOT, you need to beat the idea that he is putting forward.

I agree.

[NousDefionsDoc]

you need to beat the idea that he is putting forward.

And just how are you going to do that? It is an intepretation of the tenet of their faith indoctrinated probably before they can walk.

[Airbornelawyer]

Hypothetical:

Man calls report to invite him to cover a meeting.
Reporter shows up with camera crew to cover meeting.
Meeting consists of about a dozen men, most armed.
At meeting, speakers all preach racial and religious hatred.
Main speaker, the one who called the reporter, describes the meeting as an organizational meeting.
He claims support of thousands of others in cells around the country.
He states that if the government does not change its policies, vengeance will be taken.
He tells the group to prepare to move on Washington, DC
Free speech?

[Jimbo]

That sounds a similar to bin Laden's interview with Peter Bergen.

[Guy]

Jimbo,

Right you are!

AL,

That is "inciting" hatred which leads to "violence." Especially against those who are innocent.

[Airbornelawyer]

Originally posted by pulque
I just found out that it has been illegal in Canada to incite religious hatred since the 1970's, and that Britain is now trying to pass amendments that would make their laws more level. In Britian right now, it is illegal to incite violence, to incite racial hatred, and to incite religious hatred against jews and sihks (but not christians and muslims). What up!!

Also, US states have "hate laws" but I dont know if these cover inciting violence. Incitement to violence is more than saying violence is good or even recommending violence. It is taking actions with the intent of causing violence where there is a reasonable expectation that violence will ensue.

This, BTW, is Section 319 of the Criminal Code of Canada, covering "Public incitement of hatred" and "Wilful promotion of hatred": (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

Defences: (3) No person shall be convicted of an offence under subsection (2) -

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.An "identifiable group" is "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." There is also Section 318, "Advocating genocide": "Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."

Section 318, or any US state law modeled on it, would not pass muster under the US Constitution.

Most US "hate crime" laws require a separate offense, and not just the hate itself. New York's Hate Crimes Act of 2000, for example, states:"A person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct." Specified offenses are things like assault, homicide, kidnapping, stalking, rape, burglary, arson, etc.

The California Penal Code has a similar offense making hatred an aggravating factor for various felonies, and also has a provision stating: "No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of those characteristics." Note that most of the actions there would be criminal acts regardless of whether race or religion were a factor.

[Airbornelawyer]

Originally posted by Jimbo
That sounds a similar to bin Laden's interview with Peter Bergen. It was actually a guy named Brandenburg and his conviction under Ohio law for inciting violence was overturned. It is the source for the current rule: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

It is a two-part test: (1) the statements must be "directed to inciting or producing imminent lawless action" and (2) it must be "likely to incite or produce such action." The imminence requirement is the most important and is rooted in the "fire in a crowded theater" principle 2VP mentioned. This rule comes from Justice Oliver Wendell Holmes opinion in Schenck v. United States:But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Schenck v. United States, 249 U.S. 47, 52 (1919) (internal citations omitted)

This was the case that gave us the "clear and present danger" test.

Under RL's hypo, the issue is what he means by "Encourages violent jihad." On the slim facts provided, the Brandenburg test would seem to cover this.

A far better case for incitement to violence could be made against Al Sharpton, Morris Powell and Sikhulu Shange in the Freddy's Fashion Mart murders. But apparently Sharpton is now the conscience of the Democratic Party ("During the primaries, there was one person who consistently was always there, keeping the peace and the compass going in the right direction, and that was Al Sharpton." - John Kerry).

[Martin]

There's an objective news paper in Sweden called Svenska Dagbladet or SvD.

At one time one of their reporters sat down to listen to a surmon in a Mosque in Stockholm, conventiently translated to english too. The english version preached for the need of UN resolutions and pressure on the US to get out of Iraq, democratic order and alike.

The reporter, as it turns out, also happens to speak arabic.
The other side of the coin was for the death and destruction of all infidels and to force all western, and US in particular, forces out of the middle east, or if it was the holy land.

How about that case, covered by the freedom of speech?

(the result was: A bit talking, a bit whining, but this news paper couldn't keep the pressure up alone - thus the politicians didn't act. There has been trouble with more anti-semitic violence and speech too, but it is still not above the politicians threshold.)

"I'm more muslim than you! I pray every day!"
-A guy at school

"No, you can go out. Lebanon is just like Sweden. See, when I go over there, nobody stops me from going out."
-Tosche mosh v schkolie. (another man at school)