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Martha Minow, Tolerance in an Age of Terror, 16 S. Cal. Interdisc. L.J. 453 (2007).

Abstract: Law review articles and public interest group advocacy charge the United States since 9/11 with overreaction that jeopardizes legal and cultural commitments to tolerance; recent books and articles addressing several European nations allege under-reaction, preserving often in the name of multicultural tolerance too much space for intolerant and even murderous individuals and groups to plan and enact violent acts. Thus, reports charging excessive restrictions of civil liberties and governmental checks and balances in the United States contrast sharply with warnings of inaction and negligence by European countries that allegedly extend freedoms and decency to potential terrorists and hate mongers who constrict or attack the very systems that support them. The apparent pattern of overreaction in the United States and under-reaction in Europe may reveal simply the two risks facing democratic societies that confront terrorism. But in fact the stories of under-reaction resonate within the United States and the narrative of overreaction may have its echo in Europe. It is possible to view the U.S. as under-regulating hate speech and political activity aiming to overthrow democracy when compared with the French and Germany hate speech bans, and the German prohibition prevent political parties that would challenge liberal democracy. That such steps would violate the U.S. constitution from some perspectives is simply further evidence of U.S. failures to address terrorist risks seriously. Similarly, the U.S. may appear to under-respond when compared with Britain's extensive use of face recognition cameras and national I.D. cards with bio-metrics. Failures to devise increased security measures in the United States for chemical plants, water works, cargo shipments, and nuclear material that could end up in terrorist hands also look like under-reaction, given security analyses and expert recommendations. Reading the narratives or over- and under-reaction together, observers could conclude that any liberal democracy could be criticized both for over- and under-reacting to terror. A more productive lesson is to examine whether misdirected policies constrain liberties and target minorities without increasing safety for resident populations. The reversibility and simultaneity of narratives of over- and under-reaction could be a clue to a defect in the analysis that links security and tolerance. Policies invading civil rights and civil liberties can in fact distract from costly and difficult security measures that would not impair rights. Looking at the narratives of under- and over-reaction together, we could come 1) to focus on measures to increase security without increasing intolerance, and 2) address dis-satisfactory reception of minorities and treatment of immigrants without confusing these with security issues. The result might focus on steps not yet taken in the U.S. that would make us more secure without jeopardizing freedoms or tolerance. Reprinted as a chapter in: Top Ten Global Justice Law Review Articles: 2007 Annual Review (Amos N. Guiora ed., Oxford Univ. Press 2008).