A professor and the Arizona community college system he teaches for won an important victory for academic freedom this past week.
Professor Nicholas Damask was teaching a course on world politics that included some material about Islamic terrorism. He assigned a text that discussed Islamic terrorism and he asked a question about the text on a quiz. The quiz asked, among other things, whether the primary meaning of jihad is understood in the Arab world to be violent warfare or just a spiritual struggle. A Muslim student was offended by the text and the quiz and ran straight to CAIR [the Council on American-Islamic Relations]. CAIR filed suit in federal court on the student’s behalf.
A federal judge rejected all of the plaintiffs’ arguments and dismissed the case. The judge’s reasoning is instructive.
The student’s first argument was that Professor Damask’s actions as the government violated the Establishment Clause of the First Amendment to the U.S. Constitution by expressing disapproval of a religion. The court rejected this argument, saying that some disapproval is not enough under long-standing case law to make out a constitutional violation; it must be the government’s primary purpose to inhibit the practice of a religion, in this case Islam, to violate the Establishment Clause. But, here, the primary purpose was to teach a course in world politics. The material on Islamic terrorism was only one module out of six, and it was presented in the context of explaining terrorism, not criticizing religion. Moreover, the plaintiffs had cherry-picked the material in presenting their case; the Professor had also included a quote from another scholar to the effect that only Muslim extremist groups interpret Islam to condone terrorism.
The student’s second argument was that the government’s actions violated the First Amendment Free Exercise Clause by forcing him to denounce his religion in choosing the correct answer about the primary meaning of jihad on the quiz. The court rejected this argument, also, saying the requisite coercive effect was missing. The quiz merely asked the student to demonstrate his understanding of the course material, not to adopt any particular viewpoint. The court cited a prior case for the proposition that course material that merely conflicts with a student’s religious beliefs does not, by virtue of that fact alone, violate the Free Exercise Clause. The prior case rejected the argument of Christian students that the practice of their religion had been burdened by having to read about gay couples for a class. There’s a difference between merely exposing students to views contrary to their beliefs, on the one hand, and actually interfering with the practice of their religion on the other, the court said. Mere exposure to contrary attitudes was deemed not to interfere with the Christians’ beliefs in the prior case or with the Muslim’s student’s beliefs in the Arizona case.
That’s it for the court’s First Amendment analysis. There are three other issues worth mentioning.
First, the judge tossed CAIR out of court on separate grounds, ruling CAIR lacked standing to be there. It could not show any injury to its organization that could get it through the courthouse door. Its claim that it had to divert resources to deal with this case was unproven, and the fact that it had to hire a religious scholar to craft arguments about Islamophobia for this case was nothing beyond the kind of ordinary advocacy CAIR undertakes every day. No injury, no standing.
Second, the court found that prior cases are in disarray so that Professor Damask was not on notice he was possibly running afoul of the Constitution. There were no prior cases clearly establishing beyond debate that what he was doing violated the Muslim’s student’s constitutional rights. Without such notice, the court said that Professor Damask would have had qualified immunity even if the plaintiffs had been able to make their constitutional arguments stick.
Finally, let’s go back to the part of the court’s opinion about government action that merely offends religious beliefs not violating the Free Exercise Clause. This is important for what it implies for free speech regarding Islam. The Muslim student in this case was essentially saying he was offended by the contrary material. That’s the crux of the argument Muslims make in wanting to shut down all criticism of Islam. They want to stop all speech they find offensive in this regard, even if the content of the speech is true. Under sharia law, libel is anything that insults Islam or causes any Muslims to take offense about their religious beliefs. Truth is not a defense to libel in sharia law, as it is under American law. Muslims around the world feel perfectly justified in rioting in ‘Days of Rage’ if they are offended by what a speaker said, even if what the speaker said was true. They are essentially saying we should all keep our thoughts to ourselves so Muslims don’t go on a rampage. We call that the ‘heckler’s veto under American concepts of free speech and it’s unacceptable under our constitutional jurisprudence. Unfortunately, European speech codes have moved in the direction of shutting down speech that offends Muslims for any reason. Let’s hope that European speech codes never come to America. I’m glad the judge in the Arizona case came down on the side of saying that, even if Muslims are offended by what is said about their religion, it does not mean that the Constitution has been violated or that Muslims get to shut down all debate about Islam in America.
2A: California ban on hi-capacity magazines holding more than 10 rounds unconstitutional (9th Circuit panel)
1A: Trump appeals to Supreme Court to allow him to block users on Twitter
6A: Scott Peterson death penalty overturned; dismissing jurors who disagree with the death penalty but say they could vote to impose it violated Peterson’s right to an impartial jury in the penalty phase
1A: Project Veritas sues to vindicate rights of undercover journalists in Oregon; secret recording currently criminal in the state
Amendment: activist nets cool $10M from Twitter CEO to push constitutional amendment to “prohibit racism”, i.e., attack freedom of the press, association, and speech
1A: 4th Circuit holds federal anti-riot act partially constitutional - OK to prohibit traveling or organizing for actual incitement, but not OK to prohibit speech that promotes or encourages violence in general
1A: San Diego stops enforcing 1918 ordinance prohibiting “seditious language” as process to repeal it begins; clearly unconstitutional under modern Brandenburg standards
1A: 6th Circuit greenlights case of Cleveland EMT who was fired after posting comments about the shooting of 12-year-old Tamir Rice; matters of public concern are protected
1A: Ferguson grand juror loses First Amendment challenge to state’s grand jury secrecy law (8th Circuit)
1A: chancellor of ‘Dear Old CU’ refuses to cancel visiting scholar law prof for writing op-ed questioning Kamala Harris natural born citizenship
1A Petition Clause: it’s unconstitutional to penalize nonfrivolous litigation
4A: 1st Circuit upholds affirms conviction for conspiracy to violate civil rights and use excessive force in deliberately injuring man arrested on DUI charge
In March, I told you about a book raising the troubling question of whether Muslim politicians can truly follow their oath of office to support the U.S. Constitution. The question arises because sharia law conflicts with the Constitution in so many ways. The book is Islamic Doctrine Versus the U.S. Constitution: The Dilemma for Muslim Public Officials, written by Stephen Kirby and published by the Center for Security Policy.
Since March, I have been working with the author and other activists on the Muslim Oath Project to bring attention to this issue. The Muslim Oath Project resides on my personal website, Liberato.US. Dr. Kirby sent questionnaires to 233 Muslim office-holders and candidates across the country asking whether they would express support for the Constitution. Only 16 expressed support for our founding document. That means 93 percent of all Muslim politicians contacted would not.
Which leads to the following obvious question: If Muslim politicians won’t express support for the Constitution, why should they get to lead us? Remember: Muslims believe sharia law is the supreme law of the land, above any human law or Constitution. Evidently, 93 percent of Muslim politicians in America prefer a code that imposes amputation for theft, stoning for adultery, and death to apostates to a document which limits the powers of government and guarantees individual rights. A cancer is growing in the body politic; the list of Muslim office-holders is very long in states like New Jersey, Michigan, and Minnesota. Virginia, New York, Illinois and several other states are not far behind.
Dr. Kirby, with the help of other activists, has just completed a 10-part video series exploring the conflicts between sharia law and the U.S. Constitution. The video series is also on Liberato.US. Each video is about seven minutes long and explores a different constitutional issue like the oath of office, slavery and the 13th Amendment, freedom of speech, freedom of religion, and cruel and unusual punishment.
Dr. Kirby and others have been called racists and Islamophobes for raising these questions. Islam claims to be above all criticism, even criticism based on constitutional grounds. But, as Dr. Kirby likes to point out, CAIR itself says, "It is not appropriate to label all, or even the majority of those, who question Islam and Muslims as Islamophobes." (Documentation here.) Dr. Kirby and those helping him are not engaged in rants. Every point is factual, often from Islamic sources considered authoritative by Muslims themselves. Not only is everything Kirby says factual, but the material examines some of the most fundamental questions that ought to concern every American - Is the U.S. Constitution the supreme law of the land or not? Are we to be governed by a theocracy where the mullahs control every aspect of your life, right down to which hand to use when you’re going to the bathroom? Do we really want a country where there is no free speech for anybody or no equal protection of the law for women? Where barbaric punishments like chopping people’s hands off and stoning them to death are allowed by law? Or do we want to continue the American Idea with limited government and individual rights, as set forth in the Constitution? This is not a rant; this is exactly the ground that we as Tea Partiers need to be fighting on.
The final video is a call to action. Ways to get involved can be found on the Muslim Oath Project pages. Maybe you think it doesn’t hurt bad enough yet, but the problem with waiting until it does is, by that time, it will be too late. Tackling the situation now gets my vote.
Discrimination: federal judges temporarily block Trump administration’s transgender healthcare rule and Idaho’s attempt to prevent transgenders from competing in female school sports; Bostock looms (even though Gorsuch promised it wouldn’t)
Emoluments: 2nd Circuit won’t review emoluments case en banc; three cases ready for Supreme Court to take up
Emergency Powers: could Congress or the President force everyone to wear masks in the pandemic? Law prof says no.
1A Religion: community college professor in Arizona prevails against CAIR-backed Muslim student who objected to being tested on factual course material unfavorable to Islam; not an ‘establishment’ of religion
1A: Law prof says protests outside particular homes can be banned, but restrictions must be content-neutral and not prevent marching through a neighborhood
1A: 8th Circuit upholds restrictions on grand jurors’ speech; compelling state interest in preserving grand jury secrecy meets strict scrutiny test
1A: Iowa State University stops professor from threatening to expel students from class who argue against gay marriage, abortion, BLM, etc.
2A: Ninth Circuit holds California gun magazine ban and confiscation scheme unconstitutional; Biden wants the same gun magazine limit the Ninth Circuit just knocked down
14A DP/EP: Maryland high court upholds Baltimore’s 300-foot restriction on food trucks
14A EP: 5th Circuit finds all-male draft constitutional under controllling precedent, but signals different treatment of women might not withstand another Supreme Court look because they are now combat-eligible
Shame! on the rioters who tore down a statue of George Washington near L.A. city hall. Evidently, they would prefer living under a King and Britannia ruling the waves
My friends, the rise of the authoritarian Left is the central challenge of our time.
We saw it when they rammed Obamacare down our throats and we see it again this summer with Antifa rioting and cracking heads in the streets. On another front, the ACLU is suing a Catholic hospital to force it to perform transgender surgery against its beliefs. Nothing against transgender people, but the authoritarian Left is using them to come after your religious liberty.
If the authoritarian Left gets ahold of the reins of power, we will no longer be a free people.
My friends, this is why the Constitution matters. It is worth fighting for, it is worth dying for.
We are still a free people, in no small part because of the Constitution.
We govern ourselves. We don’t have a king or a tiny elite ruling over us. We have popular sovereignty, thanks to the Constitution.
We have the Rule of Law in this country. We are not governed by the whims of a tyrant or a small group of self-appointed masterminds, thanks to the Constitution.
We have individual rights. We are free to speak our minds. We have the right to bear arms which shall not be infringed, thanks to the protections in the Constitution.
Our rights don’t come from government. We are born with these rights. The truth of the matter is that government’s rights come from us, thanks to the Constitution.
We have limited government with powers derived from the consent of the governed, thanks to the Constitution.
Not so in the autonomous zones we saw in Seattle and elsewhere this summer.
There, power grew out of the barrel of a gun, just like Chairman Mao said.
There was no Rule of Law, no consent of the governed.
There were no elections, no guaranteed rights.
The individual was not protected, just like communism.
Self-appointed warlords carrying assault rifles told everybody what to do, just like the Soviet communists did in Ukraine when they were stealing all the grain in the Holodomor famine that killed millions in the 1930s.
This concentration of power in the hands of a few is exactly what our Founders warned us about.
You put too much power into the hands of too few people and bad things happen.
You put too much power into the hands of too few people and pretty soon 100 million people are dead, as under communism.
Too much power got into the hands of too few people in Seattle’s autonomous zone and people got shot. One died. One too many. That wasn’t limited government; that was might makes right and its inevitable result when the Rule of Law breaks down and raw, naked power is the only game in town.
At a basic level, the dispersal of power is what the Constitution is all about. That’s why there are checks and balances, separation of powers in three branches of government, and powers divided between Washington and the states under federalism under the 10th Amendment. The whole point is to divide up power in as many ways as possible, so the few can’t take over everything, and the many are left in peace to enjoy their liberty and their natural rights.
This is why the authoritarian Left hates the Constitution so much. The Constitution is in their way. The Constitution stands between them and what they want to do to you. This is why they want to interpret it out of existence or get rid of it altogether. The Constitution prevents them from seizing all power and imposing their will on us.
The Constitution with its Bill of Rights is what stands between you and AOC, the Squad, the self-declared socialist Bernie Sanders, the Antifa goons whose roots are in communism, and the admitted ‘trained Marxists’ of Black Lives Matter.
My friends, the authoritarian Left is coming for you and your rights.
Will you be ready? We will ALL have to be ready if we are to prevail and remain a free people.
Ten-part video series on sharia and Constitution explains the conflicts between sharia and the Constitution (Constitution news round-up)
Ten-part video series on sharia and Constitution explains the conflicts between sharia and the oath of office, freedom of speech, freedom of religion, the constitutional guarantee against cruel and unusual punishment, etc. The series concludes with action steps you can take regarding the 93 percent of Muslim politicians who won’t express support for the Constitution.
Article II,12A: Here we go again - Is Kamala Harris a “natural-born citizen”?
Discrimination: Bostock Strikes Again! Cited to decide bathroom case though Gorsuch professed his opinion would not be deciding anything of the kind.
1A: Road to Litigation - street paintings of Black Lives Matter YES, but Preborn Lives Matter, Back the Blue, and No One is Above the Law NO
1A: Big constitutional problems with asking faculty and students to sign a Black Lives Matter loyalty oath and social justice warrior pledge (aka ‘antirracism’); non-signers could be subject to retaliation.
Free Expression: 45 heavy-weights hit back against cancel culture, ask Americans to sign ‘Philadelphia Statement’ declaring offensive speech is not ‘violence’
Free Expression: Professor at left-dominated school fights to offer course critical of Marxism to all students
1A: K-12 student speech rights not limited to political speech (1st Circuit)
2A: Article discusses gun rights of the formerly mentally ill - should a teenage girl who spent time in a psychiatric hospital for an eating disorder be forever barred from owning a firearm?
6A: COVID-restricted proceedings with spectators watching on streamed video comports with Public Trial Clause (federal judge, Alabama)
8A: Louisiana Supreme Court declines to intervene in case where defendant got a life sentence for stealing a pair of hedge clippers (he had priors)
14A Equal Protection: allowing dining but not weddings at COVID-restricted restaurant is unconstitutional selective enforcement (federal judge, NY)
Two North Carolina judges create free, online course about the U.S. Constitution for high school students
1A, Equal Protection, Due Process: federal judge finds voters were disenfranchised and orders New York to count mail-in ballots that were not postmarked or arrived late in June congressional primary. What a mess!
1A: Sixth Circuit upholds Ohio law requiring in-person collection of ballot petition signatures, despite pandemic
1A: prosecutors to drop condition of release ‘don’t attend any more protests’ in Oregon cases (the constitutional question is complicated)
1A: President’s executive order on social media does not give private right of action when account targeted
Free Expression: UK Muslims throw Christian woman to the ground for criticizing Islam
1A/2A: California uses red flag law to take gun from man who ‘posted racist rhetoric and propaganda online’ (predictions of future dangerousness from people whose politics we don’t like? WOW! Sounds like a European speech code to me.)
2A: “Gun Stores Have Standing to Raise Their Customers' Second Amendment Rights” (4th Circuit)
14A Due Process: Kansas Supreme Court strikes down state knife statute as vague and overbroad - what is a “dangerous or deadly cutting instrument of like character”?
Shame and Kudos - Shame! on two entire NBA teams for taking a knee during the National Anthem and Kudos! to the two NHL teams who stood for the Anthem at season openers
‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government
Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them. Lieu called these ‘police state’ tactics.
The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure. The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future. Oregon lost.
The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves. But this case was different because the plaintiff was the state of Oregon, not a protester. Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past.
Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself. The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles. The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged. However, the Oregon Attorney General overstated the evidence. The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure. The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles. The state let that assertion go. Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base. He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents.
He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters. The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation.
The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens. Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street. The state had no evidence of any of this, and thus failed to establish these are widespread practices. Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled.
So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business. This was not a close question. Oregon had to know they didn’t have a legal leg to stand on. So the question becomes, why did they pursue it?