Volokh on Muslims and Civil Liberties

Eugene Volokh is one of the top First Amendment scholars in the country and he was asked to testify at a hearing for the U.S. Commission on Civil Rights about the civil liberties environment for Muslims and Arabs in America after 9/11. He has been a strong advocate for the equal rights of Muslims, strongly criticizing those who tried to stop the Park 51 mosque, for example. But he also points out that we have had problems with attempts to censor anti-Muslim speech as well. Here is the text of his testimony:

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San Francisco State University’s College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags, which contain the word “Allah” in Arabic. The students were apparently unaware of the flags’ Arabic content, but the students’ symbolic expression of contempt for Hamas and Hezbollah would be constitutionally protected even if they knew what the flags contained — Hamas and Hezbollah are not immunized from such expressions by the religious content of their flags.

Yet offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting a university “investigation” that lasted five months. The university defended the process, noting that the complaint was not “about the desecration of the flag,” but about “the desecration of Allah.” It took a federal lawsuit and an injunction by a federal judge to strike down the unconstitutional speech code under which these complaints were filed.

Likewise, at Century College, a public school in Minnesota, administrators ordered a professor to take down copies of the Mohammed cartoons that she had posted on a bulletin board outside her office. At Purdue University, Muslim students claimed that a professor’s statements criticizing Muslims on his Facebook page were “discrimination” and “harassment,” and called for his firing; it took several months for the university investigation to absolve the professor of these charges.


At UC Santa Barbara, the student government refused to let the College Republicans participate in a program that funds student group events, apparently because the Republicans’ proposed event was a speech by the noted conservative and critic of radical Islam, David Horowitz. This refusal likely violated the First Amendment, because the Supreme Court has held that student government groups may not discriminate based on viewpoint in such funding decisions.

At UC Berkeley, the student government likewise tried to limit the student newspaper’s funding based on its viewpoint: When the newspaper ran a cartoon, not long after the 9/11 attacks, showing “two turbaned terrorists ready to ‘meet Allah and be fed grapes,’ but finding themselves instead burning in hell,” the student government demanded that the newspaper apologize; when the newspaper refused, the student government tried to raise the newspaper’s rent, with the coauthor of the bill arguing that the cartoon “perpetuated the kind of ignorance that would lead to harassment.” And at San Diego State University, some Muslim students seized and destroyed several thousand copies of the student newspaper because they “depicted Iraqi President Saddam Hussein and Palestinian leader Yasser Arafat as camels with President Bush in the middle, thinking, ‘Definitely time for a regime change.’”

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