Crescents and Crosses at Ground Zero

I have two principal reactions to the Park 51 Islamic Center controversy.  The first is that the legal issues are pretty clear cut. The government cannot deny approval t0 – or move to block construction of – the center because its Muslim character would be seen as offensive or insensitive. This would apply, I think, to any effort to transparently manipulate historical preservation laws to block or restrict the project.

The second is that those who are concerned about the project ought not to be dismissed as nativists or bigots. One can acknowledge that the attackers on 9-11 represent a small slice of a huge religion and remember that Muslims died that day as well and still think that a prominent Islamic Center that close to Ground Zero is insensitive and subject to misinterpretation,. One can wish it wouldn’t be built without unmooring oneself from our traditions of tolerance and religious liberty. (To be clear, I, like the President, take no position on the matter and, for reasons, set forth below. worry that not going forward at this point would be problematic.)

I wonder if the controversy represents a larger problem in our interconnected society – one that the law is ill prepared to address. We generally believe that the state cannot restrict speech in deference to a heckler’s veto. But should we be concerned about the private consequences of public outrage?

The capacity of a highly motivated minority to harass and deter speech is not new. There is a line of Supreme Court cases addressing when otherwise permissable laws requiring the disclosure of an organizations donors may become constitutionally problematic because they will be exposed to ostracism. The issue has become more salient recently as other efforts to “restrict” the ability of persons and organizations to spend money on politics have been struck down or limited and disclosure has increasingly become seen as a vehicle for both public education and the deterrence of speech. We have seen concerted campaigns to “out” supporters of California’s Proposition 8 and, locally, to identify those who contribute to independent campaign ads and to boycott those who are identified.

I have argued elsewhere that this hyperpoliticization of society, while within our free speech rights, is an unfortunate thing.  But we have constitutional doctrine to address  how the government may or may not facilitate such activity.  The Park 51 Islamic Center – or, for that matter, the Arizona immigration law, are more difficult problems.  The government has arguably done nothing to faciliate organized responses seeking to pressure the speaker to stand down.

One view is that it’s no problem at all. You speak at your peril. As long as whatever adverse consequences you suffer are not aided or supported by the state, the ensuing give and take is just a feature of an open society. To a large extent, this must certainly be true.

But, still, I can’t help but believe that an open society also requires a spirt of tolerance – not just for differing demographic groups – but for those with whom we disagree.  If I am right, then even those who might believe, at first blush, the the Park 51 was a bad idea, ought to hesitate in celebrating its demise (if that’s what happens) in the face of public opinion?  Of course, public opinion often brings about results in democratic and open societies. That’s what makes them democratic and open. But how concerned should we be when the result that is brought about is that someone refrains to exercise protected constitutional rights?

I can’t see a legal answer to this question. Nor is a cultural response easy to define. I don’t think that people in an open society are charged to be accepting and uncritical of whatever emerges from the zeitgeist.  Maybe the best we can do is remember, contra the slogan of my childhood, that the personal is not always the political and of the many freedoms we have, the right to be free of offense is not one of them.

This Post Has 3 Comments

  1. Rick Sankovitz

    Very thoughtful post, Rick.

    I think government has a role to play in keeping the public forum alive, in keeping the public discourse civil, and in keeping a critical mass of the electorate talking and listening to each other about their conflicting views. Otherwise we have a democracy in name only, in which factions tune out other factions and leaders speak only to, and listen only to, their political bases.

    Government includes the courts, although I agree with you that there isn’t exactly a legal tool for the government to use in sustaining true discourse among factions with conflicting views. You could fashion a First Amendment argument against government interference with a property owner’s right to build a mosque as part of a development project, but it might be superfluous to an argument based merely (merely!) on property rights.

    At the very least, though, elected leaders should exhort the public, and definitely lead by example.

    The tone of your comment is the tone I wish we would hear more from our leaders.

    1. Richard M. Esenberg

      Thanks, Rick. I do think that there is a way in which the courts supplement property rights. If an otherwise proper governmental decision can be shown to have been targeted at a particular religious use or practice, it violates the Free Exercise Clause. Had NYC used historic landmark status to block the project and had I been fortunate enough to be retained by the plaintiffs in a 1983 action, I would have immediately told me wife to call the contractors because our sun room would soon be remodeled!

  2. Rick Sankovitz

    Maybe if NYC had made a big enough blunder, there would be room in that sun room for a little mosque of your own?

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