Freedom from Religion: Rights and National Security

by Amos Guiora

Thank you to Prof Movsesian, Prof Cliteur and Rev. Lentz for their thoughtful and informed comments in response to my initial posting. With respect to Prof Movsesian’s concern regarding my identification of religious extremism as posing the primary threat today, I would suggest that analysis of contemporary terrorism clearly suggests that religious extremist actors (in all three monotheistic faiths) are, in the main, today’s terrorists. While–as Prod Movsesian correctly suggests—secular terrorism previously presented direct threat to civil society the danger today is posed by religious extremists.

 It is for that reason that I propose limiting the freedom of speech of religious extremist faith leaders because of the incitement in which they engage. Yigal Amir’s assassination of then Prime Minister Rabin is but the clearest manifestation of clerical incitement. Rabbi’s who issued a ‘pulsa denura’ (‘lashes of fire’) calling for Rabin’s murder because of the Oslo Peace Process directly incited Amir.

 Similar examples of direct incitement abound in other faiths; to that end, Prof Cliteur’s distinction between religious terrorism and secular terrorism is profoundly important because it highlights the fundamental distinction between the two. Religious extremists are motivated by their understanding—largely facilitated by the interpretation of religious texts by faith leaders—of ‘divine command’ (to quote Prof Cliteur) which is distinguishable from secular terrorism.

With respect to Rev Lentz’s comments, addressing incitement/limits of free speech is inherently problematic, whether with respect to religious speech or secular speech. However, because of the ‘clear and present’ danger posed by religious extremist faith leaders the present focus must be on religious extremism. The question—raised by both Prof Movsesian and Rev Lentz–is to what extent does society protect itself. While freedom of speech and freedom are both constitutionally guaranteed they are not absolutes; the question is under what conditions, circumstances, standards and criteria can limits be imposed.

Clearly, because I share many of the concerns raised by the comments, I recommend imposing limits subject to strict scrutiny with an eye to protecting both society and guaranteed rights in the context of the threat posed.

http://opiniojuris.org/2010/09/30/freedom-from-religion-rights-and-national-security-2/

One Response

  1. Response…
    In terms of human rights law, freedom of transnational speech is already subject to several limitations, e.g., in the International Covenant on Civil and Political Rights, art. 19(3); and freedom of religion is similarly limited, e.g., in id., art. 18(3).  From a U.S. constitutional perspective, is the issue raised whether we should tolerate intolerance when it is highly likely that such can lead to unlawful violence? The current Brandenburg test hinges on direct and immediate incitement to lawless violence — an imminent lawless violence test that adopts a far higher threshold than that concerning limits under human rights law.  Which is preferable?  I would tend to err on the side of current U.S. consitutional standards, but it is an interesting issue.

    Jordan J. Paust

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