Further Thoughts About Park 51

I've already posted on this issue a couple of times, and have had on FB a lengthy exchange with two old friends--both supportive of my position, one a staunch liberal, the other an equally staunch conservative. It seems to me that two points which I glancingly addressed there deserve some more nuanced explanation.

First, many of those attacking Park 51--the current name for Cordoba House, after weeks of right wing attacks--claim to be doing so on the basis of sensitivity, or decency, while claiming that nobody has challenged the First Amendment right of the Center to open. Simply put, that is a lie; those who have said it are glossing over two lawsuits, Rick Lazio's threats to use his position as Governor (if he is elected) to close it down, and a series of calls for local, state and federal government action to shut it down. So the notion that the project's critics came in peace, tried to use sweet reason, and only turned to protest as a last resort? Untrue. Only as their ham-handed efforts to misuse the law have been eviscerated by anybody who was awake in First Amendment class have they tried the "come, let us reason together" approach. And even that is accompanied with a barrage of baseless assaults on the character of Imam Faisal Abdul Rauf. Very good way to work out a compromise, no? Well, no, actually. But the point is that the legal efforts to quash Park 51 through the coercive power of the state are ongoing. There is a very real First Amendment issue here.

A second question was raised by one of my good conservative friends, a man who has investigated the Park 51 project and reached the conclusion that it is well-motivated and that no evidence to the contrary has been made public. He raised the question of what if Rauf, et al were later shown to be accepting funds from and aiding in the work of terrorist organization--would the First Amendment cloak such behavior in constitutional privilege?

It's a reasonable question; let me unpack it.

First, if Rauf/Park 51 were merely preaching anti-American hate, and its funds were all raised from organizations compliant with American law, then the answer is simply, no. It's Brandenburg v. Ohio (1969) again, and the answer is "suck it up."

But if Park 51 were involved in assisting, even if only through otherwise protected speech, terrorist groups, then under the recent Supreme Court decision in Holder v. Humanitarian Law Project, they could be prosecuted. Similarly, accepting funding from such organizations would raise significant legal problems for Park 51, as well. In other words, the Government is not disabled from addressing criminal activity by a religious institution, even if the institution limits its own overt behavior to abetting illegal behavior through what would normally be protected activity.

Finally, courtesy of a good Libertarian friend, a good analysis of why the attacks on Park 51 are problematic to anybody who believes in freedom, from Jon Stewart

The Turner Diatribes

I see that right-wing agitator and Government informant (!) Hal Turner was convicted of threatening to kill three judges for issuing an opinion of which he disapproved. According to the New York Law Journal:

Mr. Turner was arrested in June 2009 after writing on his blog that Judges Richard Posner, William Bauer and Frank Easterbrook "deserve to be killed" for their opinion in N.R.A. v. Chicago, 08-4241, which upheld handgun bans in Chicago and Oak Park, Ill.

"If they are allowed to get away with this by surviving, other judges will act the same way," Mr. Turner wrote. "Their blood will replenish the tree of liberty…A small price to pay to assure freedom for millions."

Mr. Turner, a white supremacist who hosted a weekly Webcast from his North Bergen, N.J., home, also posted the judges' photographs, work addresses and phone numbers.

The waters were muddied by Turner's activities as an FBI informant. According to the Times:

As in the previous trials, defense lawyers for Mr. Turner, who is known as Hal, have focused attention on his long and complicated relationship as a paid informant for the Federal Bureau of Investigation.

The federal agents who worked with him often encouraged his fiery language, reasoning that it could help draw information about the white supremacist movement, and told him that the statements would be protected by the First Amendment as long as no one was actually hurt, said his lawyer, Peter Kirchheimer.

After three trials--the first two resulted in deadlock--the Government has secured a conviction.

From a First Amendment perspective, this one goes very close to the line. Under the leading case, Brandenburg v. Ohio, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." On the one hand, there's no doubt that Turner's language comports with the Brandenburg test; viewed objectively, it clearly called for violence, and even furnished information which would facilitate committing violence.

And yet--Turner challenged both his specific intent that violence result imminently, and that it was likely to produce such action. But for the provision of the judge's personal data, the speech, through reprehensible morally, would be a much easier case, clearly an instance of protected speect under Brandenburg. As it is, the facts require a more complicated analysis.

Turner's speech is an example of what I have called "'directed advocacy' which involves speech urging a particular action be taken in a specific situation.'" (First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004) at 190). Directed advocacy is the context most easily allowing for the imputation of the listener's act to the speaker--hypotheticals or veiled urging (which I term indirect advocacy) and merely depicting a form of behavior as good (undirected advocacy) are each further from the Brandenburg paradigm than were Turner's statements.

However, not all direct advocacy of illegal conduct is subject to criminal sanction. Turner claims that he lacked the intent that violence ensue. However, his making the carrying out of violence by providing the judge's personal data would support a finding that he did, in my opinion.

That doesn't answer the ultimate question, though. There is still the problem of imminence. Under Brandenburg where, as here, the listener has time to reflect, to consider--to decide for himself or herself whether to follow the suggestion, some kind of principle-agent relationship or other power dynamic such that "a pre-existing relationship creates a context whereby the speaker knows that the command, if spoken, will be acted upon" is needed. (First Am., First Princip. at 244). That seems, from all that I have seen here, to be lacking in this case.

The First Amendment took a serious blow in Rice v. Paladin Enterprises, when the Fourth Circuit allowed for the imposition of civil liability for undirected advocacy--a "murder manual" called Hit Man: A Technical Guide for Independent Contractors. The conviction of Hal Turner is not as the kind of body blow to free speech as was that decision (which is inconsistent with later Supreme Court precedent, I was relieved to report). But it does mark an erosion of the bright line drawn by Brandenburg and its progeny, and that should give all of us pause, especially in light of the Government's role in fostering that speech.

"Storming the Mercy Seat"

Yesterday evening we had our first guests in our new home--it was a work-related event for the Lady of the House, and many neighbors streamed into our backyard. So many, in fact, that the number was more than I (novice at the grill) would have been overwhelmed. One of the guests was a grill artist, and he jumped in and took over; another guest, and old friend of mine, used her cooking school skills to liven up our food. I was as much guest as host, and was taken by the generosity and warmth of my new neighbors.

One of the guests told us, near the end of the evening, about how her faith had helped her through a series of illnesses afflicting her husband. Her voice took on a preacher's cadences as she described herself praying with her husband's doctors. And then she used that great phrase, describing herself as "storming the mercy seat" on her husband's behalf. (He was there, by the way, a gentleman with a quiet, dry sense of humor).

So often we see emotion in church abused, or coupled with a suspect "enthusiasm" (from Charles Chauncy on to the present. A reminder of the salutary face of it--the power of the Spirit in the daily lives of people of faith--is like a shot of vitamins to a spiritual pilgrim. And a reminder that the intellectual side of Christianity, powerful and vital though it is, is not the whole of the faith. Not by a long shot.

Pastiche? or Pistache?

I haven't written for a month because, quite frankly, the Anglican Wars are in a groove which seems to me predictable, if not inevitable.

So, let's reopen the blog with three visions of "suavity" (hey, if it's good enough for T.S. Eliot):

1. Period: Apologies to PG Wodehouse:



Wodehouse's Bertie sees himself as fitting the lyrics; the images selected by the compliler and the lyrics make the same point that Jeeves's puncturing of Bertie's self image does.

2. Period: Rex Stout's Turn:



Archie actually does fit the lyrics, so this lacks the irony of the Jeeves & Wooster video. Interestingly, my significant other thinks BBVD is perfect music to score Stout by.

3. Sci Fi: So Wrong it's--nah. Still Wrong. But Funny.



So, er, what's my point? Other than the fact that I think the use of the Big Bad Voodoo Daddy original song to heighten the original character's strengths and weaknesses is both amusing and successful--the application of that music to each character lends the soneg a different shade of meaning, and illuminates a facet of the character that a casual viewer/reader could miss--Bertie's fantasy of being a cool man of action, Archie's rather successful (though imperfect; he has to win Lily Rowan back at the end!) stab at it, and Baltar's dated self image in a futuristic world masks his more serious version of Bertie's fantasies.

BBVD has its own video--and they use their retro sound to pastiche old movies:

Big Bad Voodoo Daddy - Mr. Pinstripe Suit
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