S.J. Quinney College of Law

by Amos N. Guiora

This essay will examine whether Houses of Worship should be subject to surveillance by law enforcement officials. Focusing on Houses of Worship is not intended to cast aspersions on religion or people of faith. It is, however, important to highlight dangers posed by unabated religious extremist incitement and to propose measures minimizing its impact. The question of government intervention in the face of extremism is of extraordinary importance, not to mention controversy and dilemma.

In many ways, its resolution requires addressing, and hopefully resolving, the balancing of individual rights with state rights. After all, both are legitimate; however, the harm posed by extremism requires examining to what extent certain freedoms will be curtailed, if not minimized.

In discussing extremism, the key questions are: to whom is a duty owed and what are the limits of intolerance that are to be tolerated? While freedom of speech and freedom of religion are vital to democracies, these guaranteed freedoms are not unlimited. Where to draw the line between permissible and impermissible is inherently complicated. The public must determine to what extent it protects itself from extremists while ensuring that extremists’ rights are not violated

That is, to what extent does the nation state guarantee protection of freedom of religion and freedom of speech to those who would minimize freedoms for and of others? The question is whether threats to national security and public order justify minimizing free speech. American history has demonstrated a ready willingness to answer in the affirmative. However, disregarding legitimate threats to national security is also dangerous.

My introduction to the extraordinary tension between free speech and incitement was as an Israeli citizen, watching, deeply concerned, as the religious and political right -wing engaged in vitriolic incitement against Prime Minister Rabin.^[1] Incitement, as was made clear on November 4, 1995 when a Jewish religious extremist in Tel Aviv assassinated Rabin, is not abstract. A terrible price was paid for tolerating incitement and intolerance. State agents failed to robustly enforce existing law or legislate laws in response to ‘clear and present threats’. In doing so, they respected the rights of those openly, constantly and loudly inciting against Prime Minister Rabin. The former Israel Defense Forces Chief of Staff and Prime Minister was called a “traitor” and “murderer”.

The inciters were, primarily, right wing rabbis deeply opposed to the Oslo Peace Process. Their unrelenting incitement was hate filled, vitriolic and vocal and clearly a clarion call for someone to do something. Ultimately, Yigal Amir did something: he assassinated Rabin at the conclusion of an enormous gathering in Tel Aviv in support of Rabin and the peace process.^[2] The incitement against Rabin represents the danger posed when a perfect confluence exists between speaker and audience: the speaker (rabbis) knows his audience (right-wing religious nationalists) extremely well and the audience (Amir) knew what the speakers expected of him.

The freedom to exercise religion involves two primary rights—the right to free speech and the right to practice religion that extends beyond mere belief. Because of my profound concern regarding religious extremist speech, I recommend it be subject to the same careful scrutiny as secular speech. If that means intelligence and security agencies attend religious services with pen and paper in hand akin to the surveillance of secular speech, so be it.

Conducting surveillance in Houses of Worship has the potential to chill participation in religion.  Not only may potential members hesitate to join, but also preachers, rabbis, imams and other religious leaders may not feel free to fully express their messages. However, given the clear and present posed by religious extremist faith leaders monitoring and surveillance of houses of worship is both legitimate and essential, subject to a number of conditions. The monitoring and surveillance must not be arbitrary or capricious; rather, they must be conducted only if compelling evidence, including intelligence information, suggests that a particular faith leader is inciting in the house of worship. Sober analysis is essential; otherwise the inevitable chilling effect will be unwarranted and therefore unconstitutional.

While legal to conduct surveillance in Houses of Worship, concerns regarding stifling religious speech and religious worship require that significant attention be focused on how the surveillance is conducted.  Deception is important to law enforcement in gathering information; the tension is between conducting surveillance openly at the risk of gathering less information versus disguising law enforcement agents as worshipers who may be able to gather more information but do so in a deceptive manner.

The test, in many ways, is predicated on pre-emption and anticipatory self-defense. There can be no more immunity granted to priests, rabbis, and imams. When congregants believe these leaders speak directly to God, and for Him, their power to influence the actions of their members can become dangerous. This danger cannot go unchecked.

Amos N. Guiora is a Professor Law at the University of Utah S.J. Quinney College of Law Co-Director, Center for Global Justice. Professor Guiora  teaches Criminal Procedure, International Law, Global Perspectives on Counterterrorism and Religion and Terrorism.