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Vikram David Amar and Alan Brownstein

Is Monitoring Moslem Religious Services Without Particularized Suspicion Constitutional?


Friday, December 4, 2009

In this column, we examine recurring constitutional questions about the role that religion and clergy may play in the incitement of terrorist acts. The issue is very ripe (and very raw) these days because of the recent disclosure of communications between the accused perpetrator of the multiple murders at Fort Hood and a radical imam. If some clergy and houses of worship of a particular faith are thought to be sowing the seeds of violence or other unlawful conduct, how can the government respond, under our Constitution, to this alleged threat?

It goes without saying that clear evidence of incitement or a conspiracy to engage in unlawful conduct justifies government intervention – even if the offending individuals are clergy, and even if the location where the plotting of violent acts occurs is a house of worship. Nothing in the First Amendment's right to practice religion grants a right to plan or practice violence, and searches and seizures are generally reasonable under the Fourth Amendment when they are based on specific and credible evidence of a palpable threat.

By contrast, the hard questions involve government surveillance of religious institutions and leaders of particular faiths to determine whether illegal conduct is being planned or promoted in the absence of specific evidence of wrongdoing by the individuals or houses of worship under scrutiny.

To put things more specifically and bluntly in the modern context, do our cultural and constitutional commitments to religious liberty and freedom of speech prohibit government agents, in the absence of particularized suspicion, from attending and monitoring Moslem religious services and programs in houses of worship to determine whether clergy or congregants are involved in the incitement of violence or other unlawful conduct?

The answer lies at the intersection of First Amendment and Fourth Amendment guarantees. (One of us wrote about some of these issues in a prior column analyzing a surveillance policy that then-President Bush announced shortly after 9/11. Interested readers may profit from looking at that earlier analysis as well.)

The Arguments for Each Side in the Clergy Monitoring Debate

Defenders of government monitoring of religious programs and activities will argue that such surveillance – performed either by identified or covert government agents -- is permissible because the government is simply listening to public speech expressed at a public event which is open to everyone. There is no constitutional intrusion, they will say, because non-members are invited by the church, and there is no violation of legitimate expectations of privacy because the public nature of the service undermines any claim to confidentiality. In short, they contend that there is no burden on speech or religion simply because a religious practice or expression engaged in before dozens, or even hundreds, of persons in attendance is also witnessed by government officers.

The premises underlying this argument are subject to challenge, however. The contention that a religious service at a house of worship is a public event or meeting is both unpersuasive and troubling. It is true that few houses of worship will turn away people who seek solace and inspiration with their walls, but a house of worship remains a private institution on private property. It is, in short, open to those who are not members of the congregation only under implicit conditions: People are only permitted and invited to enter for particular purposes related to worship and religious practice.

There is simply no unconditional invitation for outsiders to enter the sanctuary for whatever purpose they may have in mind – including goals that may be antithetical to the conducting of worship services by the sponsoring faith. Government agents engaged in surveillance have not been invited to services any more than outsiders who enter a church are invited to have a picnic and play loud party games in the pews on Sunday morning.

A Key Point: The Chilling Effect on Free Speech and the Free Exercise of Religion

Moreover, there is good reason to believe that government intrusions of this kind into religious sanctuaries will indeed burden the speech and religious exercise of clergy and congregations alike. The knowledge that one's religious services are under surveillance is likely to create a pronounced chilling effect – one that cripples the authenticity and spontaneity of worship, and that interferes with the salutary role that religion is expected to play in the constitutional scheme of things.

This latter point is crucial to our inquiry. Religion under our Constitution is supposed to be a source of independent values in our society. As such, it often operates as a counter-majoritarian check on the abuse of government power. In fulfilling that function, clergy and congregations need the freedom to be critical of government policy, and as William Lloyd Garrison demonstrated, that prophetic voice may be (and we're paraphrasing a bit here) "as harsh as truth and as uncompromising as justice." Religion played this helpful role in both the abolitionist and civil rights movements.

This role, of course, does not permit religious persons or institutions to engage in incitement of unlawful conduct or conspiracies to commit violence. But the line between harsh criticism, on the one hand, and impermissible advocacy to lawlessness, on the other, while clear in theory, is uncertain in practice. The great opinions from Justices Holmes and Brandeis in the 1920's repeated this admonition. "Every idea is an incitement," they wrote. And "[e]very denunciation of existing law tends in some measure to increase the probability that there will be a violation of it."

Current constitutional doctrine is designed to temper government attempts to punish abstract advocacy as incitement. Advocacy cannot be punished, said the seminal 1969 case of Brandenburg v. Ohio, unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The application of this standard to particular facts may often be unclear, however, until after an appellate court rules on the validity of a prosecution and conviction. When we add government surveillance of unpopular minorities to a constitutional standard that is already indeterminate in its application, the result will undoubtedly be the chilling of protected speech and religious exercise.

A Possible Counterargument: With So Many Listeners, Religious Speakers Know that the Government Will Learn of Anything They Say

Some would counter our analysis here by arguing that speech in houses of worship will not be altered from the present state by surveillance, because so many congregants and guests already witness what is said and done that everyone is already on notice that their actions may be reported to outsiders, including the media and the government.

We acknowledge that chilling effects cannot be empirically measured and are grounded on intuitions about social reality, but we are not persuaded by this argument. Ongoing surveillance by the government in particular-- as opposed to by other church members or persons contemplating membership -- will influence personal behavior, expressive and otherwise. Anyone who doubts this should imagine what his or her life would be like if a government agent placed him or her under continuing surveillance the moment he or she left home each day, and then continued watching and recording his or her actions whenever they occurred in a public place open to the view of others.

Put simply, being in a public location, on one hand, and being in a public location under police surveillance, on the other, are experienced differently – particularly when it is clear that the government isn't watching everyone in the community, but rather has fixed its gaze on you or a group of which you are a member.

Examples that Illustrate Why Government Surveillance Is Special and Different

One way to test our intuitions about the impact of government surveillance on religious freedom is to conduct a series of thought experiments in which we change the identity of the organizations whose infiltration is under discussion:

To begin, if government agents, instead of monitoring Muslim churches today, undertook surveillance of black churches during the beginning of the civil rights movement, would we presume that their presence would have no chilling effect on the activities of clergy challenging segregation policies through mass protests and civil disobedience?

But perhaps that is an imperfect analogy because the severity of the potential wrongful conduct at issue in this example – acts of nonviolent civil disobedience – is utterly dwarfed by the severity of the violent acts of terrorism our society confronts today.

So consider another example. Suppose the police have some general reasons to think that the perpetrators of violent attacks against clinics providing abortion services, including the murder of physicians who perform abortions, had previously attended fundamentalist Protestant churches and may have been inspired to act as they did by the sermons they heard and the virulently anti-abortion comments of co-congregants. Would this general information and instinct justify the government's sending agents into all churches known to condemn abortion as the murder of innocent humans in order to monitor their activities? And wouldn't the presence of government agents in the pews be thought to chill the expressive religious activities in these houses of worship?

Yet this analogy, too, may be challenged. Anti-abortion violence deserves to be condemned and punished, and anyone who incites imminent acts of violence is subject to prosecution. But even the farthest fringe of the anti-abortion movement presents a qualitatively different kind of threat to our society than the dangers presented by Islamic terrorists. The former involves enraged and aberrant individuals acting as individuals, and acting without foreign support. One could not under any terms describe these wrongdoers as being at war with the United States, as much as one might condemn them.

Islamic terrorism, it may be argued, poses a threat of a far greater and deeper magnitude. In this setting, we have organized clandestine groups, supported and trained from abroad, engaging in indiscriminate violence for the purpose of overthrowing our entire way of life. That threat arguably requires a different response than the measures employed by our government against domestic fanatics, however murderous those individuals may be. On this argument, constitutional and cultural constraints that are appropriate in the anti-abortion context may be inapplicable in the war against terrorism.

The Argument Based on the Greater Magnitude of Islamic Terrorism: Not To Be Dismissed Out of Hand, But Also Not New In Our History

While we do not discount this argument entirely, we do point out that there is nothing new about it, and that we have been down this road (albeit in the political, rather than the religious, sphere) before. In the early 1950's, in Dennis v. United States, the United States Supreme Court upheld the conviction of Communist Party leaders who were charged with violating the federal Smith Act by advocating the overthrow of the government by force and violence. While there was no clear majority opinion in the case, many Justices openly reasoned that the conventional protection provided to freedom of speech was appropriate to deal with isolated speakers on soapboxes in a public park, pamphleteers, and sparsely-attended parades by zealots, but that the dangers posed by the Communist Party posed a vastly different problem.

With respect to Communism, these Justices urged, the defendants were the leaders of "a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders
. . . felt the time had come for action." These facts, "coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom . . . [the defendants] were … ideologically attuned" required a different analysis -- one that was less protective of freedoms of speech and association and more deferential to the steps taken by the government to combat this menace.

Although Dennis has not been formally overruled, many constitutional commentators would argue that it (like the infamous Korematsu ruling permitting race-based internment of Americans of Japanese descent) has been implicitly repudiated by subsequent cases. The war on terror may challenge that assumption. Once again, our society and courts may have to decide whether we live under the constitutional regime suggested by Brandenburg or that reflected in the Communist Party cases from a generation earlier. Such decisions are never easy, for as Justice Holmes noted 90 years ago, in our commitment to First Amendment freedoms, "we have to wager our salvation upon some prophecy based upon uncertain knowledge."

The Rules on Monitoring for Incitement of Terrorism Will Not Necessarily Mirror the Rules for Monitoring for Child Sex Abuse

We add one important addendum: Although our column focuses on violent acts by Islamic terrorists, other religious institutions, as we have intimated, have been responsible for inflicting and enabling other kinds of important criminal activity. Disclosures of child abuse by Catholic priests and efforts by church leaders to conceal such crimes – most recently documented in investigatory reports in Ireland – demonstrate that the issue here extends beyond Islam and the so-called "war on terror."

While the underlying issue of how aggressively our government may monitor and investigate religious institutions when it has knowledge of potential wrongdoing may be similar at some level, each situation will require independent analysis. Thus, the kind of monitoring that is appropriate in child abuse cases may bear little resemblance to the other situations we have described.

This is so in part because each kind of crime creates its own unique threats to society. It is also so because the crime of child molesting is unrelated to religion's ability and obligation to criticize government abuse of power. The crimes – and the chilling effects resulting from their investigation – are very different in the various settings.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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