Monday, December 20, 2004

The United States should criminalize a root cause of terrorism: hate speech teaching that indiscriminate murders are morally justified to further a crazed religious, racial, ethnic or political cause. Europe has been more perspicacious than the United States on that score. The splenetic epithets heard in many madrassas or mosques or taught in many Islamic textbooks are exemplary of the evil. The grisly carnage and generations of conflict born of such appeals to madness justifies the prohibition. Freedom of speech does not include expression that hopes to provoke violence in order to destroy democracy, the rule of law or human rights. As Supreme Court Justice Robert Jackson warned in Terminiello vs. Chicago (1949), the Bill of Rights is not a suicide pact.

The Intelligence Reform Act initialed last week by President Bush featured commendable anti-terrorism provisions. Terrorist offenses were added to the category of crimes carrying a presumption of no bail. The definition of “material support” for a terrorist organization was clarified and expanded. So-called lone-wolf terrorist suspects were made subject to foreign intelligence surveillance warrants. Receipt of military-type training at a terrorist camp was made a federal crime. But attacking terrorism closer to the source was neglected.

It is born of psychologically warped minds. As John Locke observed, the mind begins like a blank slate. There is no predisposition towards terrorism. But neither is mankind born with natural virtue. Moral acuity and decency must be cultivated to prevent civilization from degenerating into anarchy and a war of all against all. As Hamlet observed, “There is nothing either good or bad, but thinking makes it so.”

The causes of human behavior are too complex to know with absolute certainty the constellation of motivations and circumstances that culminate in terrorism. Osama bin Laden and Timothy McVeigh defy a common explanation. But the overwhelming majority of Islamic terrorism — which dwarfs all other terror in magnitude and gruesomeness — is sparked by indoctrinating Muslims to despise Christians and Jews as infidels, and the United States and Israel as enemy states. Imams in madrassas and mosques around the world regularly instruct their followers in the necessity of jihad. Islamic textbooks frequently teach scorn or contempt for Christianity or Judaism.

These Islamic fulminations do not ordinarily provoke instant violence. They aim to plant seeds of fanatical hatred in the expectation that time will ripen those vile thoughts into terrorism against the alleged infidels. And the mullah success rate in breeding Islamic terrorists is too great for the law to ignore. Think of the September 11 wretches, Richard Reid or Zacarias Moussaoui.

The United States should thus make criminal the advocacy of jihad or sister terrorist activity against any nation or racial, ethnic, religious, or political group with the specific intent of provoking such terrorism. To borrow from the Supreme Court in Chaplinsky vs. New Hampshire (1942), like obscenity and fighting words, “Such utterances are no essential part of expression of ideas, and are of such slight social value as a step to truth that any benefit derived from them is clearly outweighed by the social interest in order and morality.”

When terrorism is the goal, the argument made by Justice Louis Brandeis in Whitney vs. California (1927) that “the fitting remedy for evil counsels is good ones” is unpersuasive. Those indoctrinated in jihad live in a demented intellectual universe. They characteristically insist that September 11 was perpetrated by the CIA and Jews to provide an excuse for the United States to steal Arab oil. They are beyond reason. Osama bin Laden cannot be talked into civilized behavior.

Justice Brandeis also trips in declaring that advocacy is shielded from punishment under the First Amendment unless it aims at immediate or imminent serious violence. The Supreme Court later embraced that maxim in Brandenburg vs. Ohio (1969). It declared that “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 law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” No explanation is forthcoming, however, as to why a democratic State should be arrested in fighting those who would destroy democracy, free speech, and every other earmark of civilized life by banning the punishment of advocacy with a delayed time fuse. Although the wildest ravings of Adolf Hitler did not invariably produce immediate violence against Jews, they set the stage for Kristallnacht. Weimar Germany was destroyed by speech celebrating violence and terror.

Freedom of speech is cherished because it facilitates the search for political truths and peaceful changes in the law in accord with majority sentiments. It should not protect advocacy that champions change through terrorism.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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