In my Civil Rights Law class this week we've been discussing freedom of expression and what limits can be set on it. We've been particularly looking at the question of speech that is felt to pose a threat to public safety or national security.
We've looked at a series of 20th century cases starting from the period of World War I and continuing through the Vietnam War. For those who are familiar with the field or interested in looking them up, the cases we've studied include Schenk v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616 (1919); Gitlow v. New York, 268 U.S. 652 (1925); Dennis v. United States, 341 U.S. 494 (1951); Brandenburg v. Ohio, 395 U.S. 444 (1969); United States v. O'Brien, 391 U.S. 367 (1968); and Tinker v. Des Moines, 393 U.S. 503 (1969).
Schenk, Abrams, Gitlow, and Dennis were all socialists or communists and were charged with plotting against the government in various ways. Schenk urged people to resist the draft (during WWI), while Abrams, Gitlow, and Dennis were all advocating for an overthrow of the capitalist system in the United States and for the establishment of a socialist or communist system. Brandenburg was a member of the Ku Klux Klan who organized a KKK rally, while O'Brien and Tinker protested the Vietnam War, O'Brien by burning his draft card and Tinker by wearing a black armband to school.
The Supreme Court applied various tests to these cases to determine if the laws that criminalized these peoples' speech were unconstitutional. The basic principle is that speech that presents a danger to public safety may be prohibited. But what is the definition of dangerous speech? Is it any speech that is intended by its speaker to create tumult, even if it doesn't actually have that effect, or that advocates unpopular or offensive ideas, even if no action is called for? Is it speech that advocates wrongful action such as the use of force or the violation of law, again, even if the speakers never take those actions? Or is it only speech that incites imminent lawless conduct?
Obviously, this question is very timely today because of the war in Iraq and, more generally the war on terrorism. How great is our right to dissent?
But these lessons were interesting to me for another reason, because it echoed an article on Islamic law that I read a few months ago called Freedom of Expression in Islam: An Analysis of Fitna by Mohammad Hashim Kamali. The Arabic word "fitna" has a general meaning of "trouble" or "tumult". It expresses very well the idea of disorder and danger that the Supreme Court was looking at in the cases that I mentioned.
Here are some highlights from the article:
...The Shari'ah ... confines the scope of restrictions [on expression] to measures necessary to repel an imminent danger to normal order in society. The individual's freedom to investigate facts and ideas and to formulate and express an opinion are integral to Islam's approach to the dignity of the individual and the quest for ascertaining the truth... ...Seditious (i.e., political) fitnah is an abuse of the freedom of expression that threatens the legitimacy of a lawful government as well as the collapse of a society's normal order. This theoretical characterization may appear fairly uncontroversial, but problems arise when it is translated into practice. Defining its scope and establishing a correct balance among conflicting values often tend to be problematic. For instance, while sedition by definition undermines the authority of a legitimate government, the very legitimacy of the government in question is not always self evident, as in the case of the Soviet-installed regimes that ruled Afghanistan during the 1980s (Kamali 1985). Such regimes often imprison and persecute their internal opponents on charges of sedition and other crimes against the state. It should also be noted that words and acts constitute fitnah only if they succeed, or are likely to succeed, in posing a threat to a society's normal order. An isolated opinion that remains ineffective and does not incite opposition to a lawful government would therefore fail to qualify as fitnah... ...Abu Zahrah thus concluded that the imam(leader) may not fight the rebels over mere differences of opinion unless they break the peace and embark on violence... ...'Awdah ... outlines the rights and duties of those whose views are in opposition to those of the community and its legitimate government. The opposition has the right to propagate its views through peaceful means and enjoys the freedom, within the limits of the Shari'ah, to say what it wishes. The community also has the right to refute such views. If either side verbally or otherwise violates the Shari'ah's injunctions pertaining, for example, to blasphemy and slander, the perpetrator can be punished under the normal rules of law as an ordinary offender. The opposition is entitled to assemble, provided that it does not renounce obedience to the imam or obstruct or violate the rights of others. This is based on the precedent of 'Ali and his treatment of the Kharijites who, although isolating themselves from the rest of the community in Nahrawan, still obeyed his regional governor. The caliph fought the Kharijites only after they murdered his governor. They then refused to surrender the murderer to the authorities on the grounds that it had been a communal act committed by every one of them. Faced with this open challenge to his authority, 'Ali declared war...As you can see from this, Islamic law approaches the question in very much the same way that the U.S. Supreme Court has done. Kamali calls on the governments of Muslim countries to follow this model in order to guarantee freedom of expression for their citizens.