4

In general, religious beliefs can be as free under the first amendment as they come. You can believe in any god or pantheon, or nothing at all in pretty much any fashion. Very free indeed. But is it truly unlimited? So to illustrate, let's take a look at a fictitious religion that is defined by how repulsive it is:

Welcome to the world of Marvel Comics, where people like Reverend William Stryker create fringe cults with bloomy names like Purifiers that propagate hatred, demand genocide and hunt humanoid people for their cause since 1982.

The ideology of the purifiers is simple in its core tenet: People carrying a specific gene shall be found and killed. For that they develop technology to combat those individuals.

While most of the shadow-hidden acts that the purifiers do in the comics are crimes in themselves (abduction, mutilation, murder, genocide...), the Purifiers also are alluded to have a more public-facing side: They preach a rather fundamental offshoot of Christianity, heavily infested with their core tenet to kill mutants.

Now, does that make the religious belief to kill the mutants protected by the Freedom of Religion? At what point does preaching the need for some kind of religious killing from a protected activity to unprotected speech and a crime?

Trish
  • 50,532
  • 3
  • 101
  • 209

2 Answers2

3

As edited, this asks two different questions:

  1. Is it legal to have a religious belief that killing mutants is a moral necessity?
  2. Is it legal to preach a religious belief that killing mutants is a moral necessity?

The answer to the first question is pretty clearly yes. Your right to think whatever you want is essentially ironclad under the First Amendment, under both the Free Exercise and the Free Speech clauses.

The answer to the second question is more nuanced. Although it can be tricky to actually apply, there's little question that merely advocating for murder is generally protected under the First Amendment:

The teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future

Noto v. United States, 367 U.S. 290, 298 (1961)

Over time, the courts have developed a two-part test for evaluating whether the advocacy of crime can itself be criminalized. We now assume that speech advocating for the commission of a crime as protected under the First Amendment, unless and until that speech is: (1) intended to cause imminent lawless action; and (2) likely to actually result in imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444, (1969).

So if Rev. Stryker meets Charles Xavier for a televised debate on the merits of killing all mutants, that speech would likely be protected by the First Amendment. Although he may sincerely hope his words will inspire others to kill mutants, the time between speaking them and any resulting murder is too great to say they are either intended or likely to cause imminent lawless action.

But if the X-Men confront Rev. Stryker on television, and Rev. Stryker urges his studio audience to storm the stage and kill them all, that's more likely to result in immediate violence, and therefore more likely to be considered unprotected incitement.

There's of course a lot of middle ground between those two options, so the tough part for judges and juries is figuring out the speaker's actual intent and how imminent is too imminent.

bdb484
  • 66,944
  • 4
  • 146
  • 214
0

The religious belief of the requirement to kill the mutants is protected protected by the First Amendment. Advocacy of mass murder is protected by the First Amendment. The line that you are looking for is the "imminent lawless action test", first defined in Brandenburg v. Ohio and tuned up in Hess v. Indiana because there is no evidence that statement was "intended and likely to produce imminent disorder". The cert. denied case of Stewart v. McCoy draws attention to the question of whether particular

speech “was mere abstract advocacy” that was not constitutionally proscribable because it did not incite “imminent” lawless action

but Stevens makes the striking comment that

the same justification does not necessarily adhere to some speech that performs a teaching function. As our cases have long identified, the First Amendment does not prevent restrictions on speech that have “clear support in public danger.” Thomas v. Collins, 323 U.S. 516, 530 (1945). Long range planning of criminal enterprises–which may include oral advice, training exercises, and perhaps the preparation of written materials–involves speech that should not be glibly characterized as mere “advocacy” and certainly may create significant public danger.

This is, of course, just a "comment" and not a legal holding, but it does indicate a possible direction for a move that restricts freedom of speech in the US – a resurrection of the "clear and present danger" test.

user6726
  • 217,973
  • 11
  • 354
  • 589