"It is a telling - and alarming - sign that following Sept. 11, 2001, the two failed terror attacks involved people who were drawn to Islam while serving time in prison,"
PRISONS TO MOSQUES
Hate Speech and the American Way
By ADAM LIPTAK NEW YORK TIMES
FACIAL and religious hate speech is criminal in much of the world, but it flourishes in the United States. Even Saudi Arabia, for instance, has been signaling that it will cut back on the diplomatic visas it issues to militant Wahhabi clerics, who sometimes praise suicide attacks. But militant Wahhabism and other religious doctrines advocating violence are freely preached in the United States. It happens in mosques and churches, in schools and, especially, in prisons.
American tolerance for even the sort of dissent that calls for the violent overthrow of the government and for racial hate is unique. It is not absolute; direct advocacy of immediate violence can be a crime. Still, the international war crimes tribunal in Tanzania that convicted three men last month for using a radio station and newspaper to incite genocide in Rwanda called American law "the most speech protective" in the world and declined to use its near-absolute standards as a model.
American solicitude for almost all speech is relatively recent and rooted in a metaphor. "The best test of truth is the power of the thought to get itself accepted in the competition of the market," Justice Oliver Wendell Holmes wrote in a 1919 dissent that eventually became the basis for modern First Amendment jurisprudence. "I think that we should be eternally vigilant," he added, "against attempts to check the expression of opinions that we loathe and believe to be fraught with death."
In 1969, in overturning the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism, the Supreme Court unanimously endorsed Holmes's idea and turned it into the language of law. The Klan leader, Clarence Brandenburg, had urged his followers at a rally to "send the Jews back to Israel," to "bury" blacks, though he did not call them that, and to consider "revengeance" against politicians and judges who were unsympathetic to whites.
The government, the justices ruled, may not "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."
The line separating the two categories - abstract advocacy and incitement to imminent action - can be a little fuzzy, but in practice it has protected just about everything said from a pulpit, at a rally, on the radio and in a newspaper, no matter how ugly. There have been only a few exceptions, and some of those have used analyses that avoided the distinction entirely.
In recent years, federal appeals courts have allowed a civil suit against a publisher of a manual for mercenaries and upheld a civil jury verdict against a group that distributed Old West-style wanted posters identifying doctors who provided abortions. Last year, the Supreme Court upheld the central part of a Virginia law that made it a crime to burn crosses with a purpose to intimidate.
But the standard remains, said Floyd Abrams, the First Amendment lawyer. "The general advocacy of the violent overthrow of the government is protected," he said. "And it ought to be."
But he and others stressed that context matters, that speech that once did not seem to signal a direct exhortation to immediate violent action might, given recent history, mean something different. "In a post-9/11 context," Mr. Abrams said, "a call in a mosque for a killing might not be protected by the First Amendment."
Rodney A. Smolla, law school dean at the University of Richmond, said the distinction proposed by the Supreme Court in 1969 must be reinterpreted. "Our experience should tell us that what we thought was abstract 10 years ago may not be so abstract any more," he said.
The problem is particularly pressing and particularly tangled in prisons.
In an article in 2002 for the journal First Things, Charles W. Colson, who spent seven months in prison for his role in Watergate and is the founder of Prison Fellowship Ministries, wrote that some varieties of religious instruction in prison can transform "petty criminals into professional terrorists."
"It is a telling - and alarming - sign that following Sept. 11, 2001, the two failed terror attacks involved people who were drawn to Islam while serving time in prison," Mr. Colson wrote. He referred to Jose Padilla, accused of planning a "dirty bomb" attack and now held as an enemy combatant, and to Richard Reid, convicted of trying to blow up an airplane with a shoe bomb. Both apparently had converted to Islam in prison.
The Wall Street Journal reported a year ago that the Muslim cleric who coordinated New York's Islamic prison program for two decades recruited prisoners to a radical form of Islam and expressed admiration for the Sept. 11 hijackers. After the article was published, the cleric, Warith Deen Umar, who retired in 2000 but had continued to work as a volunteer chaplain, was banned from the prison system. He has denied making some comments attributed to him.
Driving radical doctrine from prisons is an urgent matter, says Senator Charles E. Schumer, Democrat of New York, and where to draw the line is a relatively straightforward question. "You err on the side of liberty, but you still have to protect yourself," he said in an interview. "Free speech is not absolute. Free speech is different in different contexts. Incitement has a lower threshold in prison than on, say, a dairy farm."
At first blush, limiting the spread of any religious doctrine that incites violence would seem to be easier in prison, because courts have traditionally given prison administrators great leeway in security matters.
But a law enacted in 2000 with the support of politicians ranging from Senator Orrin G. Hatch, Republican of Utah, to Senator Edward M. Kennedy, Democrat of Massachusetts, presents prison officials with additional and almost certainly unintended challenges. The law requires courts to review restrictions on religious practices in prison with heightened skepticism.
Federal appeals courts have differed about whether the law is constitutional. Prison officials argued to the only appeals court that has struck down the law that it allows "inmate gangs to claim religious status in order to insulate their illicit activities from scrutiny.''
Marci A. Hamilton, a professor at Cardozo Law School and an expert in the law of religious liberty, said Justice Holmes's marketplace of ideas may not be in business behind bars.
"Prisons are rife with fringe and very violent religions," she said. "When you get that kind of fanaticism in the prison population without the leavening of rational thought, it's a breeding ground for terrorism."
Copyright 2004 The New York Times Company |
