With images of the carnage in Paris and the shuttering of Brussels flashing on every screen, it is hard to take to heart the president’s urgings not to give in to fear. A global terror alert does not help. The front-page pictures of all the homegrown terrorists make it harder still. How could these young men have grown up among us, as Americans, and be full of such hatred that they would choose, as we are being warned, targets where they can kill as many people as possible?
I remind my students, when we talk of such things, that 99.9 percent of the Muslims in the world do “not” belong to ISIS or al-Qaida, that they are part of communities all over our country, living and working beside us. If violence that they also deplore is infecting their young people, then it is a curse that they have every bit as much interest in wiping out as we do. If they are not always as vocal as we on the outside would like, it may be because their fear is even greater than ours.
I know, easier said than done. If there are two security lines at the airport, and one has young men who appear to be Muslim in it and the other has a couple of white guys in suits, which line do you choose? Is it racist to want to get to your gate faster?
Of course, no one will say that Muslim-looking men are subject to enhanced scrutiny, just like no police department will ever admit that they engage in racial profiling. But if you survey your friends and neighbors about who has been stopped by police, as I do with my students every year, I’ll bet you dollars to donuts that you’ll find that gender matters and age matters and yes, race matters, maybe the most of all.
Every year, my white female students have the class laughing at stories of outrageous behavior that resulted, at most, in warnings. My black students, meanwhile, have stories of police officers instructing them, “Keep them at 10 and two. Hands on the wheel.” This is when they’ve been stopped for such offenses as a headlight supposedly being out.
It is hard to avoid stereotypes that are both unfair and accurate. Ninety-nine percent of Muslims are not terrorists, but 100 percent of the terrorists we fear are radical Islamists. It is true that we must never, as a country, cave in to the culture of fear terrorists try to create; but it is also true that, as an individual, I am glad my kids aren’t studying abroad this year. One of the doctors I respect most in the world, a man who travels internationally all the time, told me yesterday that he had just cancelled a trip to Europe. I didn’t say, “How dare you give in!” I probably would do the same thing, not because the risk of terrorism is so high (it’s probably lower than the risk of an accident driving around Los Angeles during the same period), but because the anxiety defeats the very purpose of a vacation.
In law school, we teach our students that hard cases make bad law. Hard times, when we are afraid, do as well. If you look at the history of First Amendment law, you see the pattern clearly: When we are afraid, we arrest people for seditious speech, and we have, to our discredit, put Japanese-Americans in camps; when we feel secure, we go to great lengths to respect freedom of speech and religion and to demand equal treatment by authorities. Courts are loath to lose their legitimacy; judges are also people. Civil liberties are easily lost in times of terror, given up too quickly by the frightened majority, to the detriment of those who are wrongly feared. Look at what is happening in France.
Since 9/11, we have struggled as a nation to find a new balance between fear and freedom. We have been far from perfect in drawing those lines, and the courts, as well as political leaders, have rightly pointed that out. But the fact remains that we are safer, and have more freedom, than people anywhere in the world. “We are so grateful to live in this country,” a Russian immigrant sitting at the next table tells me. So am I. Our struggle is the noble one. God bless America.