Intisar A. Rabb
Chilling Effect for Me, But Not for Thee
by Andrew E. Harrod
“I don’t apply the same standards” as in the United States, the Muslim Harvard Law School professor Intisar A. Rabb stated at a November 21, 2013, Georgetown University conference with respect to “hate speech” restrictions and Islam abroad. In connection with her concern about an American Muslim’s terrorism conviction “chilling speech,” Rabb’s acceptance of “just a different legal regime” abroad revealed troubling double standards towards Islam.
Raab addressed the final panel of “Muslim-Christian Relations in the 21st Century: Challenges & Opportunities,” a controversial conference (see here, here, and here) marking the 20th anniversary of Georgetown’s Prince Alwaleed bin Talal Center for Muslim-Christian Understanding (ACMCU). Rabb opposed a recent appeals court conviction affirmation for Tarek Mehanna, as elaborated in an amici curia brief in Mehanna’s appeal. Therein Rabb and others warned of a “serious chilling effect” on speech from convicting Mehanna for translating the book 39 Ways to Serve and Participate in Jihad for the website at-Tibyan.
The federal government considered the book, website, and Mehanna’s “disfavored political and religious beliefs” all supportive of Al Qaeda. The appellate opinion noted that Mehanna had a First Amendment right to praise Al Qaeda, but Al-Qaeda-coordinated advocacy was terrorism support. “Under the Government’s theory,” amici curia warned, “translating an al-Qa’ida text is lawful, as is espousing beliefs…supporting al-Qa’ida,” but together these “legal acts gives rise to criminal liability,” a particular concern for scholars researching terrorism.
Rabb at Georgetown therefore demanded that action beyond speech underlie any terrorism support conviction. Yet, unmentioned by Rabb, Mehanna had traveled in 2004 to Yemen, irrespective of any translation work charge. The appeals court rejected his “rose-colored glasses” presentation as a “devoted scholar…protected by the First Amendment” and found a jury conclusion “virtually unarguable” that Mehanna “went abroad to enlist in...terrorist training.”
Legal issues aside, amici curiae did not consider Mehanna’s reading and website choices objectionable. At-Tibyan, for example, “primarily” concerned “Abu Muhammad al-Maqdisi…a theologian and a jurist” who “endorses rebellion against…illegitimate Muslim regimes.” Among “innumerable mainstream theological texts,”39 Ways also involved “basic…Sunni jurisprudence,” namely the “individual duty (fard ‘ayn) incumbent on all Muslims” to “contribute to wars of self-defense.” “All collections of the words and deeds of the Muslim Prophet Muhammad (hadith) and all Islamic law books” endorsed this “standard position in all Sunni legal schools.”
The amici curiae cited a 2003 fatwa from “mainstream Muftis” at OnIslam, “[o]ne of the most popular websites in the English-speaking world devoted to Islam.” The muftis considered whether for Muslims it is “necessary to fight alongside Afghans” or otherwise resist American-led forces in Afghanistan. Citing Quran verses legitimating fighting against non-Muslims, the muftis answered that the “Muslim Ummah (nation) is considered one body, which if a single organ aches all the other organs will share the feelings of agony.”
Robert Spencer of the website Jihadwatch could not have explained such doctrines of jihad in a more troubling manner. Questions in the brief about targeting civilians aside, the cited Islamic doctrine justified the killing of military personnel “attacking” Muslim nations, cold comfort to, among others, beheaded British soldier Lee Rigby or the 13 Americans of the Fort Hood shooting. Rabb’s brief could only confirm the criticisms of Islam by individuals like Spencer or Holland’s Geert Wilders and incite Terry Jones to burn another Quran.
Unlike Rabb, though, Spencer has faced exclusion from the United Kingdom and Wilders criminal prosecution in Holland for their comments on Islam, while destroying a Quran is prohibited hate speech in countries like Belgium. Such domestic legal actions accord with the longstanding international agenda of majority-Muslim nations in the Organization of Islamic Cooperation (OIC) to prohibit criticizing Islam. This agenda has culminated in the March 24, 2011, United Nations Human Rights Council Resolution 16/18 with troubling implications for free speech even after Western-induced modifications.
In this context, Rabb’s invocation of the proverbial “chilling effect” on free speech prompted my question about criticizing Islam. Rabb’s “each regime is different” response allowed for “dignity laws” as a “prerogative” for other democracies dealing with anti-Islam speech grouped by her with Nazism. Muslim-majority countries also had such laws, Rabb indicated, a worrying statement in light of Islamic blasphemy laws.
Critical issues involving Islam, however, were not absent from the conference. George Soros-financed leftist evangelical Richard Cizek, for example, recalled during a panel how a fellow evangelical had once told him that “insults in Lynchburg produce riots in Lahore.” Convicted terrorism financier Sami Al-Arian, meanwhile, discussed with me in the audience viewing the conference’s morning segment before going home to comply with his house arrest.
“Islamophobia” critic Nathan Lean was also in the audience. Called a “stalker” by Spencer, Lean has repeatedly tweeted an article supposedly containing Spencer’s address and wife’s picture, a “clear attempt to intimidate me.” Addressed by me on this matter, Lean curtly replied that it is “not appropriate” to discuss Spencer at a Christian-Muslim understanding conference and walked away.
Thus Lean, Rabb, and others, concerned about fundamentally necessary anti-terrorism laws infringing intellectual inquiry in the United States, exhibited little principled concern about uninhibited discussion of Islam. Yet as the conference and Mehanna’s conviction show, the needs of security and liberty demand robust debate precisely with respect to Islam.
Andrew E. Harrod is a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. You may follow Harrod on twitter at @AEHarrod. This article was sponsored by The Legal Project, an activity of the Middle East Forum.