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King Hearings Are Inconsistent With First Amendment Values

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The House Homeland Security Committee is planning to hold hearings that threaten to chill freedom of religion and speech protected by the First Amendment. The Committee, headed by Representative Peter King, is scheduling a series of hearings on "radicalization" of the American Muslim community that raise serious constitutional concerns.

There is no doubt that Congress should look at the problem of al Qaeda recruitment of individuals to commit terrorist acts. This particular House committee has held hearings on that problem for years. And U.S. law enforcement continues working to catch and stop terrorists before they put their plans into action.

However, hearings about the "radicalization" of American religious communities are fundamentally different. While "radicalization" (or "extremism") is not defined, it appears that these hearings will focus on religious beliefs and communities of faith, rather than on criminal acts. If so, they will threaten fundamental First Amendment freedoms of religion and speech and association.

Religious liberties are protected by the First Amendment's command to respect individual rights by limiting government authority. While Congress has broad and necessary powers of oversight and inquiry, they are not unlimited. As the Supreme Court held in 1957 in one of the cases arising out of the McCarthy hearings, congressional inquiries, like legislation, may not tread on First Amendment freedoms.

The Supreme Court has just reaffirmed that even the most offensive speech by individuals is protected by the First Amendment, finding that the Westboro Baptist Church can't be sued for protesting at soldiers' funerals because it is protected speech. Accordingly, the First Amendment protects those who criticize or attack another's religion; it protects individuals questioning the "true nature of Islam," even when they express offensive and false views, just as it protects individuals who may hold religious beliefs deemed "radical" by others.

Thus, the FBI may not target individuals for investigation based simply on their "extremist" statements -- whether anti-Muslim or anti-U.S. -- because those statements, however hateful, are protected by the First Amendment. Of course, when individuals engage in criminal acts of violence inspired by their views, they forfeit First Amendment protections and are fully subject to investigation and prosecution. And the government may properly investigate and prosecute those who are suspected of planning such terrorist acts, as the planning itself is a crime.

The Framers well knew the tendency of all governments to seek to suppress minority, dissenting, or "radical" views, especially on religious matters. The First Amendment recognizes that in order to protect religious freedom the government must distinguish between religious views, which must be protected from government interference, and criminal acts of violence, which may be punished.

The proposed hearings threaten to impermissibly blur this distinction. The individual identified to date by Chairman King as a potential witness has been very critical of what he labels as "Islamic" beliefs. Ironically, one of his claims is that Islam fails to respect the appropriate boundary between government and theology, a boundary these hearing themselves risk trespassing. The witnesses' views are, of course, protected by the First Amendment; and the tenets of Islam, like the tenets of Catholicism, are properly publicly debated. But creating a government platform and the appearance of government endorsement for one set of views, through the process of congressional hearings, is a different matter. A congressional committee, through its choice of witnesses and its questions, should not be seen as taking sides on matters of religious doctrine. Congress should not conduct an inquiry into the true nature of Islam, or whether there exists an "ideology" of "political Islam," or what individual Muslim Americans have said about these controversies. By analogy, it's doubtful that Congress would consider it appropriate to investigate a Christian pastor labeled as "radical" by other Americans for suggesting the government should be run based on particular Christian principles. (And the fact that one-time followers of such a pastor may have committed crimes "in the name of their faith" would not change that conclusion.)

The core of the First Amendment is that the government should not be seen as favoring or disfavoring particular religions or religious doctrine. The congressional hearing described by Chairman King is likely to result in all the evils the First Amendment is meant to protect against: to burden the free exercise of religion, to give the appearance of official endorsement of one set of religious beliefs over another, and to chill both free association and free speech. A congressional inquiry puts enormous pressure on private groups and individuals who are singled out for scrutiny. This is especially true where the hearings focus on the beliefs of minority religious communities, who have already been the targets of both hate speech and actual violence.

Consistent with First Amendment values, congressional committees should not use their government power to target individuals or communities based on their religious beliefs -- whether characterized as "radical," "extremist," or "fundamentalist." Instead the Homeland Security Committee should focus on al Qaeda's criminal efforts to recruit Americans.