Shariah’s Black Box

In Noto v. US, 367 U.S. 290 (1961), the fourth of the Smith Act cases to come before the Court and a companion case to Scales, the Court overturned the conviction because it found that the nexus between the theory of violence and the actual call to violence too remote. Quoting from its opinion in Scales, the Court explained that the advocacy must be:

“not of . . . mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to . . . action” immediately or in the future. Yates v. United States, supra, at 316. In that case we said:

“. . . The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to violence as ‘a rule or principle of action,’ and employing ‘language of incitement’ . . . is not constitutionally protected . . .. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it: ‘Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.’” Id., at 321-322.[237]

Given this judicial backdrop to the language of the Smith Act, the lawyer representing a U.S.company which retains Shariah authorities must be critically aware of several threatening circumstances. One, if the Shariah authorities advocate the Law of Jihad against the U.S., this advocacy is likely to fall well within the requisites of the Smith Act as refined by the Supreme Court. The rationale for this rests on two prongs. (A) The Shariah authorities are not mere advocates of theory or theology but authorized religious leaders who have been retained by the U.S. company precisely because their legal rulings and pronouncements are authoritative and respected. Moreover, the call to violence at some point in the future when Shariah-adherent Muslims have the logistical opportunity to conduct Jihad is captured by the Smith Act as the Court explained when it stated that advocacy is an actual call to violence whether it advocates violence “immediately or in the future”.[238]

(B) The Shariah authorities are not speaking as advocates to an empty auditorium but as jurists who issue normative and instructional commands to the members of their group – i.e., Shariah-adherent Muslims. Further, these Shariah authorities are chosen because the Shariah faithful listen and act upon their legal rulings. Thus, the call to violence is very likely to result in violence. Evidence of this direct nexus can be observed in numerous terrorist and violent events which occur immediately after Shariah authorities issue legal rulings calling for violence. One relatively recent event was the violence over the publication of cartoons in a Danish paper which satirized Mohammed. The cartoons had been public for several months and it was not until certain leading Shariah authorities called for a “day of outrage” and “worldwide protest” that protests, violence, and murder erupted en masse.[239]