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