The United States holds a unique advantage in the fight against radical Islam: buttressed by the First Amendment, Americans' freedom to speak and write about the Islamist threat is unmatched anywhere in the Western world. However, such protections can suffer at the hands of judges who seek to mold the Constitution according to their own personal preferences. With Sonia Sotomayor nearing confirmation to the Supreme Court, there is no better time to explore which judicial approaches are most likely to weaken First Amendment rights.
Three qualities in particular should set off alarm bells for those concerned about free speech:
- Advocacy of the "living Constitution" model. When judges are "amending the Constitution and other laws as the judges see fit," a straightforward statement such as "Congress shall make no law … abridging the freedom of speech, or of the press" can become disturbingly pliable. If legal reasoning could be found to restrict political speech (e.g., McCain-Feingold), could not the same fate befall other types of speech?
Citation of foreign law. This increasingly popular trend on the Supreme Court should put fear in the heart of anyone intent on protecting anti-Islamist speech, as practically every Western country has hate speech laws on the books, many of which have been employed against critics of Islamism. Just ask Ezra Levant, Mark Steyn, Oriana Fallaci, Geert Wilders, and a host of others.
Fixation on group identity. Those who see the group, not the individual, as the central building block of society are more likely to curtail individual rights for the purpose of mollifying certain racial, ethnic, gender, or religious groups. Such thinking undergirds European-style hate speech laws.
Unfortunately, all three of the above qualities are reflected, to some extent, in Sotomayor's past remarks. A sampling: "Our society would be strait-jacketed were not the courts … constantly overhauling the law," she wrote in 1996, effectively offering a thumbs-up to legislating from the bench — where, as she once put it, "policy is made." Furthermore, she asserted recently that "foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system"; she also has cited foreign cases in her decisions. Finally, her musings on the virtues of the "wise Latina woman" and the possibility that gender and ethnicity "will make a difference in our judging" do not bode well on the identity politics front.
Radical Islam will never be defeated without the freedom to discuss faith and culture frankly — even if it means offending some Muslims. With hate speech laws and grievance tribunals, much of the West is on the wrong path. America must not follow — not for a single step.