Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Targeting Muslims and Civil Liberties Prevention:
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations
from having influence in the American marketplace of
ideas.
Freedom of Speech: Supreme Court Precedent
punishment of which have never been thought to raise any
Constitutional problem. These include . . . ?fighting
words?? those by which their very utterance inflict injury
or tend to incite an immediate breach of the peace.? 33 Free
Of the principal constitutional concerns with CVE is the
way in which it seeks to restrict constitutionally-protected
free speech. CVE seeks to prevent ?violent extremists and
their supporters from inspiring, radicalizing, financing or
recruiting individuals or groups in the United States to
commit acts of violence.? 30 The key problem this
definition poses is that it deems the support and inspiring
of violence as a criminal act. This is in violation of
precedent set by the Supreme Court in Brandenburg v.
speech can only be limited when there is an imminent
threat of violence. CVE programs, by and large, have
failed to demonstrate that any of their programs target
individuals or groups who have explicitly threatened
violence or used ?fighting words? as defined by this
Supreme Court decision. By nature of the unwarranted
restrictions CVE programs put upon the freedom of
expression of various Muslim communities, CVE is
unconstitutional under Chaplinsky.
Ohio (1969).
The Court?s ruling in Cantwell v. Connecticut (1940) is
Brandenburg dealt with the constitutionality of an Ohio
criminal syndicalism law, which ?punishe[d] persons who
?advocate or teach the duty, necessity, or propriety? of
violence ?as a means of accomplishing industrial or
political reform.?? 31 The Supreme Court ruled that ?a
statute which fails to to draw this distinction [between
mere abstract teaching and preparing a group to use
also relevant in examining CVE programs? stifling of
American Muslims? right to free religious speech. In
Cantwell v. Connecticut? involving a Jehovah?s Witness
proselytizer who was charged with inciting a ?breach of
the peace?? the Supreme Court delineated what could be
considered a ?breach of the peace.? The Court?s opinion
explained in part that
violence] impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments.? 32
CVE explicitly states that its focus is on the ?marketplace
When clear and present danger of riot, disorder,
interference with traffic upon the public streets, or
other immediate threat to public safety, peace, or order
of ideas? and preventing people from accessing
appears, the power of the State to prevent or punish is
?extremist? and ?radical? thought. The decision in
Brandenburg makes it clear that it is unconstitutional for a
government program to target and criminalize even the
teaching of and exposure to ?radicalizing theories,? let
obvious. Equally obvious is it that a State may not
unduly suppress free communication of views,
religious or other, under the guise of conserving
desirable conditions. 34
alone religious teachings.
The primary rationale offered for CVE programs is the
In Chaplinsky v. New Hampshire (1941), the Supreme
Court held that ?there are certain well-defined and
protection of national security and public safety. However,
CVE fails as a program to demonstrate how the Muslim
narrowly limited classes of speech, the prevention and
30. Executive Office of the President, Strategic Implementation Plan (2011), 1.
31. Brandenburg v. Ohio, 395 U.S. 448 (1969).
32. Ibid.
33. Chaplinsky v. New Hampshire, 315 U.S. 571-572 (1942).
34. Cantwell v. Connecticut, 310 U.S. 308 (1940).
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