Cuccinnelli vs. The First Amendment

Does the Islamic School have the right to teach what it believes are the fundamental tenets of Islam, namely the teaching of violence?


AG to be Ken Cuccinelli wrote a letter to Mr. Abdalla Al-Shabnan, Director-General of the Islamic Saudi Academy questioning his teaching that it is permissible “to kill adulterers and converts from Islam.” Cuccinelli obtained his source from the Washington Times. The relevant portions of Cuccinelli’s letter is as follows:


“I call on you and each member of your Board of Directors to publicly . . . (2) affirm that it is not acceptable for your students to be taught lessons which if acted upon would violate US law and (3) that such lessons are not being taught at ISA.”


What violation of law is Cuccinelli, our future attorney general perhaps, referring to? The First Amendment unequivocally proscribes: “Congress shall make no law . . . abridging the freedom of speech, . . .”


The word “abridge” means to reduce or lessen. Its usage in the text indicates no qualification of how much a law may lessen or reduce speech. In other words, the usage is broad and consequently, so must be our application of the prohibition.


While this is rather clear and would seem to answer the question, for those who wed themselves to the opinions of men, note that Supreme Court opinions have evolved the use of the “clear and present danger” or “imminent danger” tests to determine whether certain types of “speaking” can be abridged. In brief, it is the O. W. Holmes’ “there’s a fire in the theater” type of statement. But that particular “fire” isn’t an opinion or speech in the sense of advocating a position. It is an incitement to cause theater goers to vacate the premises in a flurry. Today, and consistent with the “fire in the theater” prohibition, Supreme Court opinions seem to have settled on the rule that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. NAACP V. Claiborne Hardware Co., 458 US 886, 926-932 (1982).


Apparently, the Islamic Saudi Academy is teaching within the protections of the First Amendment. If the law as I have stated it is correct, then what in the world is Cuccinelli talking about? If this statement of the law is correct, does Cuccinelli possess the requisite knowledge to know what he’s doing? To make this more clear, let us assume yet another fact pattern.


Assume a private school teaches that it is biblically acceptable for the civil authority to stone adulterers and kill openly declared members of Al Quaeda or moderate politicians. Assume further that the private school teaches its students that if the civil authority fails as a government to do this, “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” And, in the course of such teaching, the school further tells the students that “they have full Power to levy War, . . .”


Does the state have the power to reduce or lessen the content of such opinions and abridge the teaching of those opinions? In case you didn’t recognize the quotes above, they derive from the text of the Declaration of Independence. The conclusion follows that the State does not have the right to prohibit such teaching.


In an attempt to be fair to Mr. Cucinnelli, he doesn’t cite which provisions of the ISA’s lessons violate the law. But we can’t be fair here. We have to assume he made his press release with full knowledge of the facts, right? Based on what Cucinnelli has written, it seems he would have rejected the Virginia Resolutions drafted by Madison and Jefferson and approved the 1789 Sedition Act that made it a crime to


“write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”


Make no mistake. I do not subscribe to the false belief system known as Islam. It is as evil as communism. However, I do believe in freedom and liberty and have confidence in the power of free ideas. Mr. Cucinnelli, your press release is troubling even though you thought it politically expedient. Principles aren’t politically expedient and I call upon you to recant it.

Published in: on June 20, 2008 at 5:44 pm  Comments (1)  
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  1. […] 20, 2008 by CK The Old Right blog has published a very interesting article asking Ken Cuccinelli to retract his press release on […]

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