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
and advocacy in the realm of ideas.? 39 Therefore, in order hate crime or terrorist attack.? 41 These conspiracy statutes
for CVE to be constitutional, it would need to prove that it have been used previously by the Justice Department in
was targeting individuals and groups that present a ?clear hate crime and domestic terrorism cases. Relevant
and present danger,? and only those targets? the program conspiracy statutes include those that deem illegal a
must be narrowly tailored.
?conspiracy to injure, threaten, or intimidate a person in
free exercise or enjoyment of any right or privilege secured
CVE has failed to demonstrate that it specifically targets
under the Constitution or U.S. laws? and ?conspiracy to
only individuals who present a ?clear and present danger.?
defraud the United States.?
CVE?s primary intent is to ?[prevent] violent extremists
42 These statutes operate in line
with previous Supreme Court precedents, which delineate
and their supporters from inspiring, radicalizing, financing
the necessity of a ?clear and present danger? or an
or recruiting individuals or groups in the United States to
commit acts of violence.? 40 ?imminent threat of violence? before restricting First
In furtherance of this aim,
Amendment rights of free speech, expression, and exercise
CVE has targeted individuals with no criminal history,
of religion. Given that such statutes exist and have proven
based upon deeply flawed markers of extremism like their
successful in the prevention of terrorism and
community, religious, and school affiliations. The Court
extremism? without targeting an entire community? CVE
has ruled that even extremist ideology is protected speech
cannot be considered the least restrictive means of
not subject to government intervention. Therefore, even if
preventing extremism. Because CVE programs as policy
a Muslim community espouses extremist ideology, it
are neither narrowly tailored nor the least restrictive means
cannot be targeted by CVE, even in light of a valid
of furthering the government?s national security interest,
national security interest more broadly. Though the
they must be considered unconstitutional.
government may argue that it has had some limited success
with the CVE, this does not make the policy constitutional Establishment Clause Violation: Anti-Muslim Animus
since it is not narrowly tailored and impacts the entire
CVE programs are influenced by anti-Muslim animus and
Muslim community.
can therefore be found unconstitutional for violating the
The final prong of the strict scrutiny standard is whether Establishment Clause of the United States Constitution.
the policy at issue is the least restrictive means of The radicalization theories that CVE programs are based
preventing terrorism in order to advance the government?s on directly target the religious practices and congregation
interest in national security. It is not. There are already sites of American Muslims as indicators of extremism,
federal statutes that the Justice Department and law undoubtedly compromising the strict neutrality towards
enforcement agencies could use to target violent religion guaranteed by the Establishment Clause. Perhaps
extremists. For example, scholar Michael German argues the most explicit evidence of anti-Muslim animus are the
that ?conspiracy statutes provide substantial recourse to Trump administration?s statements against Muslims and
charge individuals before they successfully complete a his intention to ?rename [Countering Violent Extremism]
39. Ibid., 341 U.S. 502.
40. Executive Office of the President, Strategic Implementation Plan (2011), 1.
41. Michael German and Sara Robinson, "Wrong Priorities on Fighting Terrorism " (New York: Brennan Center for Justice at New York University,
2018), 13, https://www.brennancenter.org/sites/default/files/2019-08/Report_Wrong_Priorities_Terrorism.pdf.
42. Ibid.
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