Jihad and the constitution: The first amendment implications of combating religiously motivated terrorism

Yale Law Journal

Volumn 105, Issue 5, 1996, Pages 1347-1380

  Grinstein, Joseph ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0141953558     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797178     Document Type: Article

References (181)

1. Jihad in America (WNET television broadcast, Nov. 21, 1994), available in LEXIS, News Library, Curnws File.
2. 322 U.S. 78, 87 (1944).
3. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .").
4. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).
5. See, e.g., United States v. Ballard, 322 U.S. 78 (1944) (prohibiting jury from inquiring into validity of defendants' religious beliefs).
6. See, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871) (prohibiting courts from participating in internal church debates over dogma).
7. For example, in the nineteenth century, the federal government considered Mormonism to be a socially unacceptable religion and acted to suppress some of its practices. See infra note 114.
8. Jihad is the Islamic concept of "struggle." Some radical sects interpret it as "holy war." For these sects, waging jihad often includes the use of terrorism and violence, whereby the spiritual quest to create a "universalistic Islamic state" justifies recourse to political warfare. Thus, radical Islamic fundamentalist terrorists' actions that appear to be politically motivated are really means to the achievement of larger religious goals. Furthermore, some radical Islamic fundamentalists consider jihad to be a passionate spiritual quest that knows no end until total victory is achieved. See AMIR TAHERI, HOLY TERROR: INSIDE THE WORLD OF ISLAMIC TERRORISM 14-18 (1987).
9. Terrorists and those who support them represent a tiny minority within the Islamic community. As one author has stated: A comparison could be made with the Inquisition, which, although rooted in a strict reading of Christianity, did not encompass the much wider universe of Christ's message. The vast majority of Muslims would probably not see their beliefs, hopes, and aspirations reflected in the action of suicide bombers in Beirut or the throwing into the sea of a crippled American passenger on the Achille Lauro. Id. at 11. Therefore, this Note will refer to those who engage in violent acts in the name of Islam as adherents of "radical Islamic fundamentalism" to distinguish them from the vast majority of the Muslim community.
10. See, e.g., Andrew Borowiec, Tunisia Still Fears Fundamentalism: Nation Nervously Watches Algeria, WASH. TIMES, June 29, 1994, at A14;
11. Youssef M. Ibrahim, Algeria Is Seen Edging Toward Breakup, N.Y. TIMES, Apr. 4, 1994, at A7;
12. Kim Murphy, Martyr, Schoolgirl, Soldier, Terrorist: The Battle for Egypt, L.A. TIMES, Nov. 27, 1994, Magazine, at 28.
13. Stanley Reed, The Battle for Egypt, FOREIGN AFF., Sept.-Oct. 1993, at 94, 103.
14. English transliterations of Arabic words often vary widely. For the sake of consistency, this Note will use the spellings employed in the reported pretrial decisions of the Rahman prosecution.
15. United States v. Rahman, 854 F. Supp. 254, 259 (S.D.N.Y. 1994) (pretrial order) (quoting Rahman Indictment ¶ 9).
16. See infra text accompanying notes 21-24.
17. Joseph P. Fried, Sheik Draws Life in Plot to Bomb Public Buildings, N.Y. TIMES, Jan. 18, 1996, at A1.
18. See, e.g., Robert L. Jackson, Terror Plot Trial Opens for Sheik, Eleven Followers, L.A. TIMES, Jan. 31, 1995, at A20.
19. This Note uses the word "communitarianism" to refer to activities that are group oriented.
20. This Note raises general concerns about the constitutional implications of religious sedition charges. It does not find fault with the result of the Rahman case, however. Specifically, the overt act proposal in this Note would constrain the government in a case against a more questionably "dangerous" preacher than the Sheik, but it would not have affected the outcome of the Rahman case.
21. See James C. McKinley, Jr., Mountains of Evidence Leave Some Questions, N.Y. TIMES, Oct. 2, 1995, at B5 (noting Trade Center bombers had weak ties to Sheik Rahman). Although both the Rahman plot and the World Trade Center bombing involved defendants from the same religious circles, the two trials were separate affairs.
22. Richard Bernstein, Trade Center Bombers Get Prison Terms of 240 Years, N.Y. TIMES, May 25, 1994, at A1.
23. United States v. Rahman, 854 F. Supp. 254, 259 (S.D.N.Y. 1994) (pretrial order) (quoting Rahman Indictment ¶ 9).
24. One of the defendants in the Rahman case, El Sayyid A. Nosair, stood trial for this assassination in state court and was convicted only on weapons charges. He was then convicted for the murder in the federal Rahman case. Joseph P. Fried, Bomb Trial Ends: Jury Finds Men Planned Four-Year Campaign of Urban Violence, N.Y. TIMES, Oct. 2, 1995, at A1.
25. Eleanor Randolph, "Megatrial" Prompts Questions of Fairness, WASH. POST, Nov. 20, 1994, at A25.
26. Robert D. McFadden, Eight Seized as Suspects in Plot to Bomb New York Targets and Kill Political Figures, N.Y. TIMES, June 25, 1993, at A1.
27. The seditious conspiracy statute provides: If two or more persons . . . conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than $20,000 or imprisoned not more than twenty years, or both.
28. U.S.C. § 2384 (1988), amended by 18 U.S.C.A. § 2384 (West Supp. 1995). Rahman was convicted under the 1988 version of the seditious conspiracy statute quoted above.
29. Seth Faison, Prosecutors Pick a Law From Past, N.Y. TIMES, Aug. 26, 1993, at B5.
30. Kevin Fedarko, The Imaginary Apocalypse: A U.S. Court Finds a Blind Muslim Cleric and Nine of His Followers Guilty of "Seditious Conspiracy" to Conduct a Bombing Spree Throughout New York City, TIME (int'l ed.), Oct. 16, 1995, at 46, 46 (quoting Fordham University Law Professor Tracy Higgins).
31. Commenting on the Rahman case, the American Bar Association Journal noted: "Charging a defendant with sedition in the modern-day United States might seem as archaic as making him walk the plank." Jeff Barge, Sedition Prosecutions Rarely Successful, A.B.A. J., Oct. 1994, at 16, 16.
32. See Faison, supra note 26, at B5 (noting that law enables prosecutors to "cast a wider legal net"); Richard Pérez-Peña, A Gamble Pays Off as the Prosecution Uses an Obscure 19th-Century Law, N.Y. TIMES, Oct. 2, 1995, at B5 (noting prosecutors feel seditious conspiracy statute provides them with several advantages in attacking terrorism).
33. See PAUL MARCUS, PROSECUTION AND DEFENSE OF CRIMINAL CONSPIRACY CASES § 2.02 (1995) (noting that proof of agreement is essential to conspiracy).
34. The taped evidence revealed that at one point Rahman's actions almost amounted to the specific formulation of a plot. When asked by a conspirator if an attack on the United Nations building would be "'licit or illicit,'" Rahman responded that it would be "'licit'" but "'bad for Muslims.'" He suggested that the plotters instead "'inflict damage on the American Army itself.'" Joseph P. Fried, Sheik and Nine Followers Guilty of a Conspiracy of Terrorism, N.Y. TIMES, Oct. 2, 1995, at A1, B4. Characteristically, however, Rahman carefully framed the question as one involving an interpretation of Islamic law.
35. The federal seditious advocacy statute, which criminalizes advocating the violent overthrow of the government, is relevant to this type of criminal activity. See 18 U.S.C.A. § 2385 (West Supp. 1995) ("Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States . . . [s]hall be fined under this title or imprisoned not more than twenty years . . . ."). In Rahman's case, the seditious conspiracy statute operated as a charge of seditious advocacy, convicting him for advocating violence and inciting his followers rather than reaching specific criminal agreements with them. See Pérez-Peña, supra note 29, at B5 (noting government saw seditious conspiracy charge as means of prosecuting Rahman even though he could not be tied to any specific criminal acts and did nothing more than talk about plot). Using the same evidence, prosecutors might have been able to charge Rahman under the federal seditious advocacy statute, except that the plot in which Rahman was involved was aimed more at "levying a war" - one of the targets of the seditious conspiracy statute - than at "overthrowing the government" - the target of the seditious advocacy law. Compare 18 U.S.C. § 2384 (1988), amended by 18 U.S.C.A. § 2384 (West Supp. 1995) (referring to "levying war") with 18 U.S.C. § 2385 (1988), amended by 18 U.S.C.A. § 2385 (West Supp. 1995) (referring to "overthrowing the government").
36. McKinley, supra note 19, at B5.
37. See, e.g., Dennis v. United States, 341 U.S. 494, 502-08 (1951) (arguing that speech may not be protected by First Amendment if it creates danger to nation); STEPHEN M. KOHN, AMERICAN POLITICAL PRISONERS 22 (1994) (noting that sedition laws still remain in force).
38. James C. McKinley, Jr., Sheik's Talk at Issue in Trial, N.Y. TIMES, Mar. 1, 1995, at B2.
39. Gail Appleson, Sheik Heard Endorsing Terrorism Against Foes, CHI. SUN-TIMES, Feb. 3, 1995, at 25.
40. Eleanor Randolph, "Jihad" Plot Defendants Facing Trial, WASH. POST, Jan. 8, 1995, at A14.
41. See supra note 8.
42. Nadia Abou el-Magd & David Kocieniewski, Sheik Urged "City Battles," NEWSDAY (New York), Mar. 1, 1995, at A21 (quoting attorney Abdeen Jabara's reference to Rahman's speeches read by prosecution to jurors).
43. See, e.g., Ron Martz, Experts See New Trends in Terrorism, ATLANTA J. & CONST., Aug. 5, 1994, at A8 (quoting FBI counterterrorism expert Oliver Revell: "'Islamic fundamentalists, without question, are one of the greatest threats to the United States . . . .'");
44. Pierre Thomas and Thomas W. Lippman, U.S. Plans New Ways to Fight Terrorism, CHI. SUN-TIMES, Nov. 14, 1993, at 31 (arguing that, as sole remaining superpower, United States now faces increased threat of terrorism).
45. See Jihad in America, supra note 1. The U.S. Islamic community has heavily criticized this documentary for presenting a biased picture of Muslims in the United States. For commentary on the program, see Jihad in America, WASH. TIMES, Nov. 18, 1994, at A24.
46. See Jihad in America, supra note 1. Of course, these groups do not represent the peaceful and law-abiding mainstream Islamic community in the United States.
47. See Colleen O'Connor, Abortion Clinics Face Increase in Violence, DALLAS MORNING NEWS, Jan. 30, 1994, at 1A (noting influence of Christian fundamentalism on rising abortion-clinic violence).
48. See Alison Mitchell, Citing Increased Bias and Crime, Jewish Militant Groups Live, N.Y. TIMES, Mar. 2, 1992, at B1 (describing rise of Jewish militant groups in United States). Jewish militants have their own "summer camps" for teaching young boys military skills.
49. See Joe Sexton, Assassination of Rabin Raises Alarm Over Role of Kahane's Violent Followers in U.S., N.Y. TIMES, Nov. 13, 1995, at A10.
50. See, e.g., PETER MATTHIESSEN, IN THE SPIRIT OF CRAZY HORSE 39-40 (1991) (describing spiritual roots of American Indian Movement, radical Native American organization that had violent confrontations with federal government in 1970s).
51. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).
52. 98 U.S. 145, 166 (1878) ("Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.").
53. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983) ("This Court has long held the Free Exercise Clause of the First Amendment to be an absolute prohibition against governmental regulation of religious beliefs . . . ."); McDaniel v. Paty, 435 U.S. 618, 626 (1978) ("The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such."); Sherbert v. Verner, 374 U.S. 398, 402 (1963) ("The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.").
54. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714 (1981): The determination of what is a "religious" belief or practice is more often than not a difficult and delicate task . . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. See also United States v. Ballard, 322 U.S. 78, 86 (1944) ("Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.").
55. Marci A. Hamilton, The Belief/Conduct Paradigm in the Supreme Court's Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious Conduct, 54 OHIO ST. L.J. 713, 728-31 (1993). The four cases are Wooley v. Maynard, 430 U.S. 705 (1977) (striking down conviction of Jehovah's Witnesses for refusing to carry New Hampshire's slogan, "Live Free or Die," on their automobiles' license plates); Torcaso v. Watkins, 367 U.S. 488 (1961) (invalidating Maryland statute requiring political candidates to declare belief in God); United States v. Ballard, 322 U.S. 78 (1944) (prohibiting jury instruction requiring jurors to assess validity of defendants' religious views); and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (annulling statute mandating salute of flag in schools because of objections of Jehovah's Witnesses).
56. See, e.g., McDaniel, 435 U.S. at 626-29 (invalidating state prohibition against ministers' serving as elected officials as an impermissible regulation of religious conduct, but explicitly refusing to do so on grounds that prohibition hampered religious belief).
57. See Thomas v. Review Bd., 450 U.S. 707, 718 (1981).
58. See Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1127 (1990) (noting disparity and claiming that "[t]he 'compelling interest' standard is a misnomer").
59. Goldman v. Weinberger, 475 U.S. 503 (1986).
60. Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
61. Bowen v. Roy, 476 U.S. 693 (1986).
62. Braunfeld v. Brown, 366 U.S. 599 (1961).
63. Wisconsin v. Yoder, 406 U.S. 205 (1972).
64. McDaniel v. Paty, 435 U.S. 618 (1978).
65. Sherbert v. Verner, 374 U.S. 398 (1963).
66. See McConnell, supra note 53, at 1111 (describing petition for rehearing "joined by an unusually broad-based coalition of religious and civil liberties groups from right to left and over a hundred constitutional law scholars").
67. 494 U.S. 872 (1990).
68. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)).
69. Id. at 881. Scalia distinguished Yoder, for example, by arguing that the case involved both free exercise rights and parents' rights "to direct the education of their children." Id.
70. See Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993) (invalidating facially neutral ordinance administered so as to prohibit ritual animal sacrifice by Santeria religion).
71. Smith, 494 U.S. at 877 (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)); see also Lukumi, 113 S. Ct. at 2227 ("[A] law targeting religious beliefs as such is never permissible . . . .").
72. 374 U.S. 398 (1963) (forbidding denial of unemployment benefits to Seventh Day-Adventist discharged for refusing to work on her Sabbath).
73. 406 U.S. 205 (1972) (allowing Amish children to leave school after eighth grade because of parents' religious beliefs).
74. 430 U.S. 705 (1977) (permitting Jehovah's Witnesses to refuse to display state slogan, "Live Free or Die," on license plates because slogan contradicted their moral, political, and religious beliefs).
75. Mark Tushnet, The Constitution of Religion, 18 CONN. L. REV. 701, 717 (1986);
76. see also Gabriel Moens, The Action-Belief Dichotomy and Freedom of Religion, 12 SYDNEY L. REV. 195, 209 (1989) ("[I]f the [successful] claims of the Amish defendants [in Yoder] had been based only on philosophical and personal rather than religious rejection of contemporary secular values . . . these claims would have to yield to the exigencies of ordered liberty."). Although these exemptions occurred in cases involving conduct motivated by belief, rather than pure belief itself, the discrepancy between the Court's treatment of religiously inspired actions and politically motivated actions nevertheless highlights the special status of religious belief.
77. Compare McDaniel v. Paty, 435 U.S. 618 (1978) (invalidating prohibition on ministers) with American Communications Ass'n v. Douds, 339 U.S. 382 (1950) (upholding prohibition on Communists).
78. See United States v. Ballard, 322 U.S. 78, 86 (1944) ("Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others."); infra notes 129-38 and accompanying text.
79. See A. Stephen Boyan, Jr., Defining Religion in Operational and Institutional Terms, 116 U. PA. L. REV. 479, 490 (1968) ("Government officials have no special competence to judge the beliefs of other men which relate them to their fellow men and the universe, and which help them distinguish right from wrong. . . . The competence of government, according to the Constitution, is with public affairs.").
80. See, e.g., Elrod v. Burns, 427 U.S. 347, 357 (1976) (arguing that debate on secular ideas needs to be open and vigorous); Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (noting that unacceptable secular ideas should be ferreted out by marketplace).
81. See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (arguing "debate on public issues should be uninhibited, robust, and wide-open"); Jones v. Opelika, 316 U.S. 584, 594 (1942) (identifying "principal bases of democracy" as "knowledge and discussion").
82. See Douds, 339 U.S. at 396 ("Speech may be fought with speech. Falsehoods and fallacies must be exposed . . . .").
83. See, e.g., Hamilton, supra note 50, at 766-67; Moens, supra note 70, at 210.
84. See Douds, 339 U.S. at 409-10 (rejecting creation of secular First Amendment "fetish of beliefs"). This disparity may originate from the intent of the framers of the First Amendment to single out religious thought for special protection as a check against the rampant secular authority of the state. See Harrop A. Freeman, A Remonstrance for Conscience, 106 U. PA. L. REV. 806, 808-13 (1958).
85. See Hamilton, supra note 50, at 763 ("[W]ithin the solitary spaces of the inner soul there is freedom.").
86. See Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 495-96 (1991).
87. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
88. See, e.g., Gillette v. United States, 401 U.S. 437, 454 (1971) (emphasizing "individual conscientious belief, not . . . sectarian affiliation"); Welsh v. United States, 398 U.S. 333, 339-40 (1970) (determining religious nature of belief by significance to individual, rather than by institutional standard); United States v. Seeger, 380 U.S. 163, 176 (1965) (defining religious belief as individual relationship with higher "power or being").
89. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977) (prohibiting state from forcing citizen to express "Live Free or Die"); Torcaso v. Watkins, 367 U.S. 488 (1961) (forbidding state from compelling public officials to declare belief in God); Barnette, 319 U.S. at 624 (prohibiting state from requiring Jehovah's Witness schoolchildren to salute flag).
90. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-6, at 1184 (2d ed. 1988).
91. 454 U.S. 263, 269 (1981); see also William P. Marshall, Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 MINN. L. REV. 545, 560 (1983) ("[T]he Court implied that the religious aspects of the litigant's speech in Widmar would be constitutionally irrelevant to the litigant's claim. After Widmar, religious speech is speech - no more, no less.").
92. See, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943) (protecting free expression aspect of door-to-door religious solicitation); Cox v. New Hampshire, 312 U.S. 569 (1941) (permitting ban on unlicensed religious parade as valid time, place, and manner restriction).
93. See Tushnet, supra note 70, at 714; see also Philip B. Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1, 40-41 (1961) (applying this analysis specifically to Cox case).
94. See Tushnet, supra note 70, at 730-35. For a fuller discussion of the influence of liberal thought upon American institutions, see generally LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA (1955).
95. See Timothy L. Hall, Religion and Civic Virtue: A Justification of Free Exercise, 67 TUL. L. REV. 87, 125-26 (1992).
96. See Tushnet, supra note 70, at 731-32.
97. See generally Richard H. Fallon, Jr., What is Republicanism, and Is It Worth Reviving?, 102 HARV. L. REV. 1695 (1989) (analyzing republican theory); Tushnet, supra note 70, at 735-38 describing tradition of civic republicanism).
98. For a discussion comparing the liberal and republican traditions, see MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 4-17 (1988).
99. See, e.g., Hall, supra note 89, at 93; Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1558 (1988).
100. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1132 (1991).
101. See Tushnet, supra note 70, at 730.
102. See Ronald R. Garet, Communality and Existence: The Rights of Groups, 56 S. CAL. L. REV. 1001, 1008-09 (1983).
103. See Hall, supra note 89, at 133. Although individualism may be the hallmark of some faiths, particularly Protestant ones, it certainly is not a universal value. Many other Christian groups, for example, place communality above individualism. See 2 ERNST TROELTSCH, THE SOCIAL TEACHINGS OF THE CHRISTIAN CHURCHES 993-1013 (Olive Wyon trans., MacMillan Co. 1931) (1931) (surveying differences in values among Christian groups).
104. See, e.g., John H. Garvey, Churches and the Free Exercise of Religion, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 567, 588 (1990);
105. see also Joseph M. Dodge II, The Free Exercise of Religion: A Sociological Approach, 67 MICH. L. REV. 679, 726-27 (1969).
106. See 2 TROELTSCH, supra note 96, at 1006-07; Dodge, supra note 97, at 697-98.
107. See PAUL G. KAUPER, RELIGION AND THE CONSTITUTION 22-23 (1964).
108. See Garvey, supra note 97, at 581-82.
109. See id. at 588.
110. See Dodge, supra note 97, at 725-28. At times, the Court inadvertently has recognized the group-oriented nature of belief: "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (emphasis added).
111. See Boyan, supra note 73, at 487-88 (promoting adoption of institutional definition of religion in addition to more individualistic or operational notion); Glendon & Yanes, supra note 80, at 537 (arguing for consideration of associational and individual aspects of religious freedom).
112. See Garet, supra note 95, at 1012; Hall, supra note 89, at 122.
113. 454 U.S. 263 (1981).
114. Id. at 269-70.
115. 249 U.S. 47, 52 (1919) (emphasis added).
116. Holmes first expressed his disapproval of the Court's application of his test in Abrams v. United States, 250 U.S. 616, 627-28 (1919) (Holmes, J., dissenting) (arguing that majority incorrectly applies clear and present danger test to case with no showing of imminent threat to national security arising out of defendant's speech). He repeated his criticism in Gitlow v. New York, 268 U.S. 652, 672-73 (1925) (Holmes, J., dissenting) (criticizing Court for upholding conviction without proof of immediate danger to state).
117. See Tom Hentoff, Note, Speech, Harm, and Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91 COLUM. L. REV. 1453, 1455-57 (1991).
118. Brandenberg v. Ohio, 395 U.S. 444, 447 (1969); see also Yates v. United States, 354 U.S. 298, 324-26 (1957).
119. See supra text accompanying notes 85-87.
120. The pretrial rulings in the Rahman case support a reading of the Supreme Court's jurisprudence that would allow the state to attack seditious religious speech using secular speech principles. In denying Rahman's motion to dismiss his indictment because the charges involved the performance of his pastoral functions, U.S. District Judge Michael Mukasey ruled: "[T]hat speech - even speech that includes reference to religion - may play a part in the commission of a crime does not insulate such crime from prosecution. '[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself.'" United States v. Rahman, No. S3 93 Cr. 181, 1994 WL 388927, at *1 (S.D.N.Y. July 22, 1994) (denying motion to dismiss) (second alteration in original) (quoting United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)).
121. See supra text accompanying notes 98-101. Of course, Rahman probably deserved such a penalty. The danger created by Rahman's teachings likely left the government no choice but to put an end to them.
122. Congress's attack upon Mormonism in the nineteenth century represents one notable, though dated, exception to this claim. In an effort to suppress the practice and doctrine of polygamy, Congress revoked the corporate charter of the Mormon Church and confiscated much of its property. The Supreme Court's opinion upholding this legislation is notable for the remarkable level of contempt that the Justices displayed for the religious philosophy of the Mormons. See Late Corp. of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 48-49 (1890). Since the Court decided the case well before it developed the bulk of its free exercise jurisprudence or the "clear and present danger" standard, however, the case is of limited usefulness for illuminating the modern shape of religious liberties. Nevertheless, the case does illustrate the Supreme Court's willingness to characterize regulations attacking religious doctrines as implicating conduct and not belief.
123. See, e.g., Edward Egan Smith, Note, The Criminalization of Belief: When Free Exercise Isn't, 42 HASTINGS L.J. 1491 (1991) (describing effect of state law on Christian Science belief in faith healing).
124. Leo Pfeffer, The Supremacy of Free Exercise, 61 GEO. L.J. 1115, 1131-32 (1973) (footnotes omitted).
125. TRIBE, supra note 84, § 14-6, at 1184 (footnotes omitted).
126. Sherbert v. Veraer, 374 U.S. 398, 402 (1963) (citation omitted).
127. See United States v. Ballard, 322 U.S. 78, 86-88 (1944).
128. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (striking down conviction of Jehovah's Witness for addressing religious meeting in local park).
129. McDaniel v. Paty, 435 U.S. 618, 627 n.7 (1978).
130. For example, although the Court recently has struck down a local ordinance discriminatorily applied to eliminate the worship practice of animal sacrifice, it acknowledged that a narrower law applied neutrally could be used to regulate such sacrifices for reasons of hygiene and public health. See Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217, 2229-30 (1993). If the Court extended absolute protection to all worship practices, the state would be powerless to regulate sacrifices in the interests of public health.
131. See supra text accompanying notes 61-66.
132. The cleric may deserve some form of additional protection, but he or she should not be completely immune from prosecution. See infra Part IV.
133. 344 U.S. 94, 109 (1952).
134. See supra text accompanying note 110.
135. See Hentoff, supra note 109, at 1455 (stating that test requires harmful consequences of speech to be "imminent" and "grave").
136. See supra text accompanying notes 74-77.
137. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 593 (1940), overruled on other grounds by West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (expanding scope of religious liberty beyond that of Gobitis).
138. United States v. Ballard, 322 U.S. 78, 86-87 (1944) ("Religious experiences which are as real as life to some may be incomprehensible to others. . . . [T]hey may be beyond the ken of mortals . . . .").
139. See, e.g., John H. Mansfield, The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 CAL. L. REV. 847, 869 (1984) (demonstrating difficulty courts could encounter in ascertaining meaning of simple Jewish term "kosher").
140. German Reformed Church v. Seibert, 3 Pa. 282, 291 (1846).
141. Bonacum v. Harrington, 91 N.W. 886, 887 (Neb. 1902).
142. Zechariah Chafee, Jr., The Internal Affairs of Associations Not for Profit, 43 HARV. L. REV. 993, 1024 (1930);
143. see also MILTON R. KONVITZ, RELIGIOUS LIBERTY AND CONSCIENCE 79 (1968) ("It is impossible to see how American courts could possibly permit themselves to investigate theological mysteries.");
144. Arlin M. Adams & William R. Hanlon, Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment, 128 U. PA. L. REV. 1291, 1328 (1980) ("Although civil courts have an expertise in the tasks of interpreting documents and discovering the intentions of parties to contracts, that expertise presumably does not extend to ecclesiastical matters.").
145. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976) (arguing that courts must defer to highest ecclesiastical tribunals within church when resolving disputes over doctrine); Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871) (holding that courts cannot participate in internal church debates over dogma).
146. Thomas v. Review Bd., 450 U.S. 707, 716 (1981).
147. See United States v. Ballard, 322 U.S. 78, 86-87 (1944).
148. See Dausch v. Rykse, 52 F.3d 1425, 1432 (7th Cir. 1994) ("Indeed, a cause of action for clergy malpractice has been rejected uniformly by the states that have considered it. . . . [T]his unanimity is based on the difficulty that would be encountered in evaluating such a claim without entangling the civil courts in extensive investigation and evaluation of religious tenets.").
149. See generally JAMES A. AHO, RELIGIOUS MYTHOLOGY AND THE ART OF WAR (1981) (surveying violent images contained in world religions).
150. Psalms 7:11-13 (emphasis added).
151. Qur'an 9:73 (Muhammad Zafrulla Khan trans., 1970).
152. Revelations 19:19.
153. Qur'an 17:15-16 (Muhammad Zafrulla Khan trans., 1970).
154. In such an instance, this defense might be fallacious because the passage is written from the standpoint of God and not Muslims in general. This interpretation of the passage, however, is itself certainly open to debate.
155. For a discussion of the history of violent imagery in the Judeo-Christian tradition, see AHO, supra note 139, at 80-100, 165-81, 194-217.
156. See William W. Emilsen, Wrestling the Serpent: Gandhi, Amritsar and the British Empire, 24 RELIGION 143, 147 (1994).
157. See William W. Emilsen, RELIGION id. 24, 147 (1994)
158. See id. at 149.
159. 367 U.S. 290, 297-98 (1961).
160. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969).
161. See supra text accompanying notes 95-99.
162. Worshipers in some religions often work themselves into a frenzied passion. For a discussion of religious enthusiasm in various Christian sects, see Douglas Davies, Christianity, in WORSHIP 35, 54-56 (Jean Holm & John Bowker eds., 1994).
163. Although the government may not criminalize teaching about violent religious creeds as an academic subject, religious belief requires dissemination in a religious environment in order to serve its purpose. Marxism need not lose its persuasive appeal when studied in a political theory class. In the classroom, students can reach their own conclusions about the worth of Marxism and can decide whether to order their political lives around its theory. Hence, political theory taught in the secular classroom does not lose its political character. A comparative religion class, by contrast, might strip Islamic fundamentalist ideas of their religious appeal. College classes would secularize the faith and turn it into nothing more than sociology, thus performing none of the spiritual functions of religious beliefs.
164. See Dennis v. United States, 341 U.S. 494, 509 (1951) (upholding conviction for advocating overthrow of government before any overt acts were undertaken in furtherance of goal).
165. See United States v. Rodriguez, 803 F.2d 318, 320 (7th Cir. 1986) (acknowledging that seditious conspiracy statute requires no overt act).
166. See Dennis, 341 U.S. at 590-91 (Douglas, J., dissenting) (arguing that First Amendment requires overt act before speech can be criminalized).
167. See William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91, 137 (1984) (arguing that standard should require "complicity" in illegal acts rather than simple advocacy).
168. Dennis, 341 U.S. at 509.
169. See supra text accompanying notes 74-77.
170. At times, the Court has alluded to the possibility of applying the "clear and present danger" test to religious activities, but it never has fully applied the standard. See, e.g., Taylor v. Mississippi, 319 U.S. 583, 589-90 (1943) (denying that religious defendants posed "clear and present danger" to state); Cantwell v. Connecticut, 310 U.S. 296, 308-09 (1940) (acknowledging that state can punish speech that causes "clear and present danger" but denying that religious defendants uttered such speech).
171. Sheik Rahman's codefendants were arrested while mixing explosives for a bomb.
172. In this sense, the overt act requirement for religious sedition proposed by this Note would function like the overt act traditionally required in conspiracy prosecutions. Because criminal agreements can be difficult to pinpoint, the state often must prove the occurrence of an overt act as evidence that the conspiracy actually exists. See United States v. Offutt, 127 F.2d 336, 340 (D.C. Cir. 1942) (arguing that overt act is a "manifestation that a conspiracy is at work"). Similarly, the overt act in the religious sedition context would confirm the existence of "dangerous" beliefs.
173. Since most free exercise cases require a threshold determination of whether a claimant is religious, courts have created neutral tests that help them make this decision without delving too deeply into particular religious doctrines. See, e.g., Africa v. Pennsylvania, 662 F.2d 1025, 1036-37 (3d Cir. 1981) (holding philosophy of MOVE organization did not amount to religion); Malnak v. Yogi, 592 F.2d 197, 213-14 (3d Cir. 1979) (determining that school course called "Science of Creative Intelligences - Transcendental Meditation" involved religious instruction); Brown v. Pena, 441 F. Supp. 1382, 1385 (S.D. Fla. 1977) (determining that plaintiff's preference for cat food did not amount to religious creed).
174. These objective criteria to determine sincerity include inconsistent prior acts of the claimant, the size and history of the religion, and the existence of evidence indicating the presence of material incentives to fraudulently profess a belief. See International Soc'y for Krishna Consciousness v. Barber, 650 F.2d 430, 441 (2d Cir. 1981).
175. See Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (arguing that courts cannot evaluate truthfulness of beliefs but can determine whether they are religious and whether they are sincerely held); see also United States v. Seeger, 380 U.S. 163, 185 (1965) (noting that courts must weigh sincerity and religiosity in deciding religious claims).
176. In most instances, the reasonability standard probably would be unnecessary because prosecutors would be highly unlikely to bring sedition charges against clearly law-abiding preachers for the subversive actions of their deranged followers.
177. Cf. Barber, 650 F.2d at 441 (describing neutral criteria that can be utilized to determine religious sincerity).
178. Of course, the speech in question would have to pass the court's threshold determination of religiosity to obtain enhanced constitutional protection under this proposal. In the instance of "clear" sedition unencumbered by spiritual trappings, such a determination might be a difficult hurdle to clear.
179. The twentieth-century experience with advocacy-based attempts at preventing subversive actions has been less than encouraging. Although during World War I the government brought 2000 speech prosecutions aimed at subversive defendants, see William T. Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 CORNELL L. REV. 245, 256 (1982), "'[n]ot a single first-class German spy or revolutionary workingman was caught and convicted of an overt act designed to give direct aid or comfort to the enemy,'"
180. ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 513 (1946) (quoting Charles Beard). Similar prosecutions in the 1950s and 1960s were equally unsuccessful. See Mayton, supra, at 256-57.
181. See Mae M. Cheng, Verdict Stirs Fears: Muslims in Queens Wary of Hysteria, NEWSDAY (New York), Oct. 2, 1995, at A14.