Today we have an executive branch of government that has yet to correctly label the most serious threat to our freedoms that exists. We have a legislative branch with a somewhat better understanding of that threat, as evidenced by its action in July denying use to purveyors of a tactic from abroad aimed at inhibiting free speech by Americans at home.
But what is most worrisome is we have a judicial branch, which at a lower level, has already submitted to the threat. And a recent interview with a Supreme Court justice suggests the curtailing of 1st Amendment rights in the future.
The threat is Islam’s Sharia law. While some view the threat existing only within context of the violent application of Sharia by extremists and the terrorism it generates, the threat goes beyond that. Wherever Sharia law—whether promoted by extremist or moderate Muslims—encounters U.S. law, eroding the latter, this threat exists. And, we are already seeing signs of erosion.
The executive branch has yet to identify the threat, even in its extremist form, seeking to avoid any reference at all in its national security guidelines to words such as “Islamism” or “Islamic extremism.”
To its credit, the legislative branch recently took note of a tactic being used by “moderate” Muslims who were financially supporting extremist efforts. American writers who were identifying such moderates in their works were being sued in foreign courts for libel by those they identified. Winning judgments against the writers, such moderates would then seek enforcement in U.S. courts.
This tactic—shopping for favorable international venues to win judgments to enforce in the U.S.—came to be known as “libel tourism.” The tactic was effectively used by Saudi billionaire banker Khalid bin Mafouz in dozens of lawsuits against U.S. writers to create a “chilling effect” on their investigative reporting. While most defendants folded when Mafouz sued, one decided to challenge the tactic.
In 2003, Rachel Ehrenfeld wrote Funding Evil: How Terrorism Is Financed and How to Stop It in which she identified Mahfouz as providing financial support to extremist Muslim causes. In 2005, Mahfouz sued her in a British court for libel, winning a default judgment. As her book was not marketed internationally, Ehrenfeld refused to accept the British court’s jurisdiction.
Members of Congress took up her cause, in July passing the “Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act.” This law prohibits recognition and enforcement in the U.S. of foreign defamation judgments where the foreign court fails to afford a defendant at least as much freedom of speech and press protection as would U.S. courts.
We look to our judicial branch of government to reel in our executive and legislative branches whenever they act contrary to our constitutional protections. But recent actions and statements by the judiciary are cause for concern.
Earlier this year, a Muslim husband in a New Jersey criminal case, accused of rape, acknowledged nonconsensual sex with his wife but raised the defense that under Sharia a wife must submit to a husband’s sexual demands. Accordingly, he argued he lacked intent to rape as he was pursuing his husbandly right to her submission.
Obviously, state criminal law—under which the husband was clearly guilty of rape—conflicted with religious precept under Sharia. The judge bought the defense, accepting the latter as negating the former—effectively removing legal protection against rape for any wife married to a Muslim husband. Though reversed on appeal, this judge has opened a door to Sharia.
More recently, in the aftermath of Pastor Terry Jones’ threat to burn copies of the Koran, Supreme Court Justice Stephen Breyer, during an interview, shared a possible new direction for the court concerning 1st Amendment rights. Quoting Supreme Court Justice Oliver Wendell Holmes’ 1919 finding that the 1st Amendment does not allow one to “falsely shout ‘fire’ in a crowded theater,” Breyer suggests the age of the Internet has made the world a “crowded theater.”
Thus, any speech fomenting violence by anyone for any reason might fall outside 1st Amendment protections. Breyer seems to forget Holmes’ concern in his ruling focused on how “reasonable” people would react out of fear for their own lives. Breyer wants to extend the focus to protecting against the violent reactions of “unreasonable” people. In doing so, he ignores the “reasonable man” standard so much a part of U.S. jurisprudence.
It is tragic at a time our Constitution is under serious attack from a foreign body of law that seeks to erode its very foundation, members of the judiciary entrusted with preserving that sacred document lay fallow the ground for such erosion.