Jihad and the First Amendment

Free government cannot exist without free speech. This is not a controversial proposition. Without the liberty to speak our minds publically, we cannot oppose a government seeking to infringe upon our rights, or collect the information we need to vote intelligently, or participate in what we now call “civil society.” Americans have recognized this relationship between speech and government since at least 1765.

Since about 1917, however, we have become more ambivalent about this idea. Americans began to see the world as a more threatening place, or rather, to see our government as less threatening than other governments or other people. During World War I, in defense of the draft (which raises questions of its own) the government passed a law prohibiting speech which might undermine the operations of the US military. (The further irony here is that the “Founding Fathers,” as they were, opposed the very existence of a standing army, as inherently dangerous to liberty. That the government would then create a draft and a law restricting the freedom of speech to defend the draft would have been beyond abhorrent.) Although the First Amendment says that “Congress shall make no law abridging the freedom of speech or of the press,” the federal government, including the Supreme Court, declared that when there is a “clear and present danger” to the government, people can be arrested for speaking their minds. From that time forward, the “clear and present danger test” has been assumed to be a fundamental part of our constitution.

Since 2001, our social acceptance of such restrictions has increased, especially when the people being restricted are Muslims. To be Muslim and utter the word “jihad” has become virtually illegal. Muslim leaders who don’t constantly reassure the public that they do not seek to blow us all up are treated with scorn and suspicion. Even those who do make assurances are subject to the kind of resistance met by the mosque in New York City.

In March, The New York Times Magazine did a story on Yasir Qadhi, an American Muslim who considers himself a Salafist but also a loyal citizen of this country. He wants to make the case, both to the American government and to young Muslims, that those two things are not mutually exclusive. As Andrea Elliott wrote,

[Qadhi] is the rare Western cleric fluent in the language of militants … steeped in the same tradition that spawned Osama bin Laden’s splinter movement. Arguably few American theologians are better positioned to offer an authoritative rebuttal of extremist ideology. But to do that, Qadhi says he would need to address the thorny question of what kinds of militant actions are permitted by Islamic law. It is a forbidden topic for most American clerics, who even refrain from criticizing their country’s foreign policy for fear of being branded unpatriotic … Engaging in a detailed discussion of militant jihad – a complex subject informed by centuries of scholarship – risks drawing the scrutiny of law enforcement.

In other words, this is not just an academic matter. Not only are our citizens less well-informed as a result of such informal restrictions, but our national security suffers. Qadhi might be a highly useful instrument is convincing potential terrorists that violence is not the answer. As he said himself, “how angry and overzealous are you that you simply forget everything and you think that this is the way forward?”

He’s not only talking to jihadis, is he?