A Broader Question From a Questionable Case

I am not sure just what it is with the Thomas More Law Center, but since Ed Thompson left, they’ve done some strange things. First was a silly law suit challenging the TARP act because some of the recipients had shariah-compliant lending programs. Now, it has filed suit complaining that the Department of Homeland Security report on the “dangers” presumably presented by some ill-defined assembly of right-wing groups violates their First and Fifth Amendment rights.

To be sure, the report is an embarrassing piece of work, essentially saying that there are right-wing groups who feel very strongly about a number of issues and, even thought there is no evidence that any of them are planning any violent or unlawful activity, . . . you know, they could because there has been domestic terror associated with the right wing in the past. What is particularly disturbing about the report is the broad brush with which it treats “right-wing” groups. It takes little or no care to distinguish groups that are seen to be, in the report’s words “anti-government” or opposed to “abortion” or “immigration” from those unnamed and, apparently, so far nonviolent groups that might suddenly become terrorists. There is little guidance for law enforcement agencies receiving the report. It conveys little information other than the supposed need to monitor “right-wing” political groups. It certainly could move some official somewhere to questionable conduct, as it apparently already has.

But is the report unconstitutional? I hardly think so. Certainly the government can criticize certain groups and the mere possibility that this criticism might be followed by unconstitutional behavior can’t provide the basis for a constitutional claim. Shouldn’t there be more than words before relief is warranted?

I think this case is DOA. But it prompts some broader musings. In a piece that is forthcoming in the William & Mary Bill of Rights Journal, I argue that, while we ought to abandon the endorsement test in Establishment Clause jurisprudence, there may nevertheless be some level of hostile government speech directed at a group of believers or nonbelievers that amounts to a constitutional violation. I offered as an historical example the Nazi policy of Gleichshaltung which villified Jews as an adjunct to and in preparation for more coercive and directly repressive policies, including, eventually, extermination.

That is, of course, an extreme example, but might some lesser form of state condemnation legitimately raise constitutional concerns? And might that same principle apply to government speech singling out groups and individuals on the basis of their speech and beliefs? I don’t believe that the DHS report comes close, but what of a concerted government effort to brand opponents to a war as unpatriotic and subversive and potentially traitorous? Can it rise — in the absence of any further action — to a violation of the First Amendment?

This Post Has 2 Comments

  1. Keith Schmitz

    What, us worry? Why don’t we just disregard the chatter that is out there among right wing talk shows and others in the milieu that is talking about this administration and president in inflammatory ways, urging adherents to stock up on weapons.

    As for the military, a little careful reading would indicate that the report talks about elements within the military who would be susceptible to violent actions, not as the rest of the sensible public realize, everyone in the military.

    As Charles Blow pointed out Saturday, there certainly is reason to be concerned about some, get that some, members of the ex-military getting swept up — http://tinyurl.com/cwvk9r.

    As Blow says in the column, you have thrown “a knee-jerk hissy fit.”

  2. Sean Samis

    If hostile governmental speech directed at a group on the basis of their religious beliefs can amount to a constitutional violation, would the same be true of hostile governmental speech directed at groups on the basis of their political beliefs or their associations also amount to a constitutional violation?

    Under this hypothetical scheme, might a government official’s questioning the patriotism of certain persons who resist or criticize government policy amount to a constitutional violation?

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