More on Incitement

Thanks to Professors Guiora and Cliteur, and my colleague and friend Chris Borgen, for their helpful responses to my posts. I find that I can agree with some important aspects of Prof. Cliteur’s most recent response. For example, he advocates a theoretical approach to the problem of religious terrorism – “a scholarly understanding of its nature” rather than the “judicial reactions” to it. Such an approach could be very fruitful. I agree with him that religious convictions can incite violence. As Weber – and, more recently, Huntington –recognized, religions can have profound, and profoundly different, social consequences. Some religious ideologies encourage violence and others do not; it would be very interesting to study religious ideologies empirically and see why, precisely, some rather than others pose a threat to liberal democracy. With respect, though, that is not the goal Prof. Guiora has set for himself in Freedom From Religion. Prof. Guiora does focus on the proper judicial reaction to terrorism and treats “religion” as a general category. I remain unconvinced that the religious/non-religious distinction is very helpful in that context. In any case, as I said in my last post, I don’t think it would be constitutionally permissible to treat extreme religious expression less favorably than extreme non-religious expression.

A word about Professor Guiora’s response to the thought experiment I proposed in my last post. I believe he begs the question when he responds by pointing out that the extremists who incited the murder of Yitzhak Rabin were religious, not ultra-nationalist. I understand that. My question is whether we can’t imagine a situation in which non-religious extremists incite followers to murder. Such a situation seems entirely possible to me. For example, in 2007, the Turkish-Armenian journalist Hrant Dink was murdered by an ultra-nationalist who was offended by Dink’s references to the Armenian Genocide. Dink had been prosecuted under a law criminalizing statements “insulting Turkishness”; this prosecution made him a target of ultra-nationalist groups who regularly issued death threats against him. Does it make a difference that the extremists who incited Dink’s murder were non-religious?

Let me close by saying thanks again to the folks at Opinio Juris for inviting me to this symposium. I have enjoyed this interchange and learned a lot.