A Muslim 'Reformer's' Idea of Free Speech
by Andrew Harrod
KARAMAH is a self-proclaimed group of "Muslim women lawyers for human rights" that "contributes to the understanding and promotion of human rights worldwide, particularly the rights of Muslim women under Islamic and civil law." On March 19, 2013, KARAMAH hosted at Howard University School of Law in Washington, DC, in conjunction with the local chapter of theMuslim Law Students Association (MLSA), the presentation "The Limits of Free Speech in a Global Era: Does America's Free Speech Model Endanger Muslim Americans?" Strangely enough for a self-professed "human rights" organization, this presentation outlined precisely a legal understanding restricting freedom, namely with respect to speech. In all, the evening lecture called into question the commitment of Muslims to human rights and only highlighted the opposition worldwide to the unhindered debate and discussion protected in America.
The evening's speaker was Qasim Rashid, described by KARAMAH as an "award winning member of the Muslim Writers Guild of America [MWGA] and emerging legal scholar." Rashid spoke on the basis of his paper "In Harm's Way: The Desperate Need to Update America's Current Free Speech Model." In introducing Rashid, KARAMAH's assistant director of programs,Eugene Hummel, stated that this paper had received "very good reviews" from legal scholars.
Rashid set the lecture's tone with a displayed Powerpoint paper abstract stating that the "American current free speech model is archaic." This model had the effect of "leaving innocent third parties dangerously exposed to harm" while the "instigator has zero responsibility." Thus a model change was "necessary" under which "free speech is not unjustly chilled."
Rashid's prime exhibit in his analysis is the March 20, 2011, burning of a Koran by the previously obscure Gainesville, Florida, pastor Terry Jones. Due to such "malicious speech," Rashid explained, "innocent lives are lost and real harm is done" in a world in which no one is "isolated" given modern technology. Outraged rioting and killing Muslims in Afghanistan claimed 16 lives. Rashid argued that Jones "targeted" with "foreseeable" results people in Afghanistan with his Koran burning, including translations into local Afghan languages for his online video presentations.
On the basis of this example, Rashid argued that "vitriolic speech" should not destroy the "privilege of free speech." Rashid, though, denied wanting an "anti-blasphemy law" that would punish "innocent or innocuous differences of opinion" concerning religion. In this context Rashid cited the "horribly restrictive" blasphemy laws of his ancestral Pakistan persecuting, among others, Ahmadiyya Muslims. Rather, quoting Justice Oliver Wendell Holmes, Jr.'s 1919 Schenk v. United States Supreme Court opinion, Rashid sees evaluation of speech as a "question of proximity and degree." Rashid's model would prohibit speech with a "violent proximate impact" in a "surgical decision" while leaving other discourse untouched.
Rashid analyzed American history and foreign law to support his general conclusion that "reasonable restriction" of speech is "not unwarranted." Like his fellow Huffington Post blogger and friend Craig Considine (see the article comments section here), Rashid cited George Washington's Rules of Civility (Rules 49 and 65, specifically) transcribed by him according to the Colonial Williamsburg Foundation "sometime before the age of 16." Drawing upon Considine's previous nonsensical comparison of George Washington with Islam's prophet Muhammadcritiqued by me, Rashid thus sought original intent constitutional interpretation in Washington's adolescent writings.
Rashid also cited the common proverbial paraphrase of Holmes Schenk opinion against "shouting fire in crowded theater." Yet as one analysis notes, Holmes reversed himself in a dissent the same year in Abrams v. United States, writing of the "free trade in ideas." The 1969 Brandenburg v. Ohio decision, meanwhile, overruled Schenk with the standard that speech in opposition to a law was prohibited only when "inciting or producing imminent lawless action." At any rate, Alan Dershowitz analyzed in 1989 that Holmes' flawed "shouting fire" analogy was merely the legally unprotected verbal equivalent of a "kid who pulls a fire alarm in the absence of a fire."
The rest of Rashid's American legal analysis is equally off point. Quoting again Holmes' Schenk opinion involving opposition to World War I conscription, Rashid stated that when a "nation is at war, many things that might be said in time of peace…will not be endured so long as men fight." Rashid found the Koran burning unacceptable as speech that "inspires the enemy" in Afghanistan. Such a standard, though, would call into question any speech in America such as anti-war protests that could inspire any American enemy anywhere at any time.
Additionally, Koran burnings would not so much inspire hostile militant Muslims such as those in Al Qaeda but rather anger them or, alternatively, have no effect, given Rashid's contradictory understanding that "terrorists are irrational." Although dismissed by Rashid as an "apples to giraffes" comparison involving "extremists," I indicated to Rashid that dangerous Muslims groups like the Muslim Brotherhood (whose motto declares the Koran "our law") revere the Koran as their chief ideological document. Jones' burning of the Koran is thus akin to Americans burning Mein Kampf during World War II.
What Rashid really meant by inspiration, however, was that Jones would anger previously non-hostile Muslims who would then give their "hearts and minds" to America's enemies in a counterinsurgency campaign of global dimensions. As I have written before, this entails in Rashid's analysis that Western military action in Iraq and Afghanistan, "rather than projecting freedom into these countries, is at times having precisely the opposite effect, holding the freedom of Western societies hostage to the well-being of individual citizens abroad."
In the national defense context, Rashid also discussed dangerous leaks of intelligence to the media during World War II as well as the Obama Administration's refusal to release photos of Osama bin Laden's corpse. Yet such governmental control of sensitive information is distinct from the discussion of ideas presented by Jones.
Turning towards civilian analogies, Rashid discussed various illegal inflictions of "emotional distress" such as bullying and racist cross burnings. To quote Holmes in Schenk again, though, such intimidation involves "words that may have all the effect of force." Alternatively, "fighting words" defined by the Supreme Court in the 1942 Chaplinsky v. New Hampshire decision "by their very utterance, inflict injury or tend to incite an immediate breach of the peace" and "are no essential part of any exposition of ideas." By contrast, any potential observers may choose to ignore Jones' symbolism. Rashid's reference to "hate speech," meanwhile, something also curiously cited by the presiding judge in a recent Washington, DC, case involving anti-jihad subway advertisements, has no definition in American jurisprudence.
Citing various data, Rashid also argued that contemporary American liberal views on free speech were "recently developed." Moreover, Rashid rightfully noted that the "unique" liberality of America's free speech regime in comparison to other democracies. Yet Rashid did not explain how a policy's uniqueness or novelty relates to its rightness.
Among the most troubling aspects of Rashid's presentation was its vagueness beyond his solitary discussion of the Jones case. Multiple questions by me sought an application of his model to numerous free speech controversies such as Christian blasphemy (e.g. Piss Christ, available for Internet viewing without any reported riots here), Nazi rallies, the "anti-Islam rants and tirades" (Rashid) of Dutch politician Geert Wilders, and burning of the American flag (in wartime or not). In response, Rashid evasively rejected any "verdict" in my "hypotheticals" inappropriately calling for "pinpoint" decisions. Rather, Rashid sought undefined "case by case," not "broad brush," decisions.
Rashid's free speech analysis with its outdated legal precedents ultimately makes no more sense than that of his fellow Ahmadiyya Muslim Community USA spokesman and Huffington Postblogger Harris Zafar, who, like Rashid, previously wrote of free speech as a "privilege" at the Washington Post's website. As I previously analyzed, Zafar's incoherent rambling condemned various critics of Islam as "enemies of peace," yet still protested a respect for their speech rights. Building upon a similar attribution of crimes to the individuals whose ideas offended the perpetrators, Rashid has gone beyond the analysis of his colleague Zafar with the all-too logical step previously foreseen by me of prohibiting such speech. As the event title's reference to "American Muslims" suggests, moreover, Rashid's model will encompass not just the angry reactions of Muslims abroad in places like Afghanistan, but also domestically.
The end result in America would be little different from the Pakistani blasphemy laws decried by Rashid whose provisions punish any desecration of the Koran with life imprisonment. Surprisingly, the "human rights" organization KARAMAH has given a venue to a person who wants to "get the message out" about what he sees as existing and future limits on this divine right in the name of Islam. If the best such self-proclaimed Islamic human rights organizations can offer are Three Stooges of Islamic naiveté and domination like Considine, Rashid, and Zafar, the prospects for freedom coexisting with the faith of Islam are poor indeed.
Andrew E. Harrod serves as a Legal Clerk for The Legal Project, an activity of the Middle East Forum. Mr. Harrod is also a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. This article was commissioned by The Legal Project.
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