Whether it's the extremist Florida pastor promoting a burn-the-Quran day or conservative pundit Newt Gingrich peddling his shrill campaign against the planned Islamic community center in New York City, rising anti-Islam action within in the country is not only "ugly," but raises serious "questions about the future of religious liberty," writes a leading First Amendment scholar.

In an Aug. 27 article for the First Amendment Center, Charles C. Haynes notes a recent Economist poll that reveals 34 percent of those surveyed "say there are some places in the U.S. where it is not appropriate to build mosques, though it would be appropriate for other religions to build houses of worship."

Haynes, director of the Religious Freedom Education Project, continues:

Propaganda works. The drumbeat of anti-Islam messages this summer - often conflating Islam and terrorism - on talk radio, the Internet and at political meetings around the country has apparently convinced a good slice of the public that American Muslims do not have the same rights as people of other faiths.

Haynes notes an e-mail from a soldier serving in Afghanistan, who is Muslim. The soldier asks, "Do we not deserve the right to worship freely and mourn for the people who died on 9/11? They were our countrymen too."

Haynes concludes:

If we are unwilling to protect the right of every American to religious liberty, then we have no business sending this soldier to risk his life in the name of freedom and democracy.

[image via Wikimedia Commons]

 

A Florida pastor has found a way to garner attention - lots of it - for his otherwise unremarkable, but financially troubled evangelical church. The pastor of the fittingly named Dove World Outreach Center has planned a burning of Qurans to mark the forthcoming 9/11 anniversary. Pastor Terry Jones has dubbed the event "International Burn a Koran Day," and conceded to The New York Times that he doesn't know much about the religious text, and that the planned event is drawing donations at a time when his bank has demanded payment on the church's mortgage and its property insurance has been cancelled.

Although, Jones says he has "no experience with it [the Quran]," and only knows "the Bible," he is nonetheless convinced that Islam is "full of lies," and a religion "of the devil." The pastor's actions have drawn attention worldwide. The Council on American-Islamic Relations (CAIR) calls the planned burning an outrage. Watch video of some of CAIR's response here. Dr. Saeed Khan, a professor at the University of Florida, told The Times that Jones is "hijacking Christianity," much like "Al Qaeda hijacked Islam."

As noted here, First Amendment scholar Charles C. Haynes has maintained that the rise of anti-Islam rhetoric is not only a danger to religious liberty in the country but also plays into the hands of extremists. "Such ill-informed statements must be music to al-Qaida's ears. After all, al-Qaida has worked hard to convince the Muslim world that its political and violent ideology is the true face of Islam - and America's ‘war on terrorism' is actually a ‘war on Islam,' Haynes wrote.

[image via Wikimedia Commons]

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By Donna Lieberman, Executive Director, New York Civil Liberties Union, and Louise Melling, Deputy Legal Director, ACLU.

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Cross-posted at ACLU's Blog of Rights

"Of course you have the right to build a mosque, but it is insensitive to build it there."

This is the newest version of the call from critics of the proposed Islamic center in downtown New York City. The sentiment may at first blush seem sensitive: it recognizes the trauma of 9/11, the sacred nature of Ground Zero and the constitutional right to religious freedom. But the sentiment that the Islamic center can be built - just elsewhere - inevitably reflects a prejudice and intolerance that is in fact inconsistent with religious freedom.

To conclude that building the Islamic center near Ground Zero is insensitive, one must, consciously or not, believe that the Muslims of downtown New York City who will come to the center to pray are - by virtue of their faith - all tainted by the terrorists who committed an atrocious act in the name of Islam. How else to explain the alleged "insensitivity"?

Political leaders like Mayor Bloomberg in New York should be praised for standing up for religious freedom in the face of political pressure. But the voices of prejudice still fill the airwaves, and outright hostility toward mosques continues to flare up around the country in locations having no relation to any acts of terrorism.

Throughout our history, Jews, Protestants, Catholics and Muslims have all been victims of fear and discrimination. In the end, tolerance and fairness generally prevail. So should it here. But that means speaking up for fairness, opposing religious discrimination rooted in cultural stereotyping, and resisting those who seek to trade away our most precious values for political advantage. It means letting our political leaders know that discrimination is a losing proposition, and that adherence to the Constitution is not optional.

For our part, the ACLU will continue to defend the right of all religious denominations - from majority faiths to unpopular religions - to establish places of worship, and for Americans to pray, or not, as they choose. We will also continue to defend the right for those who object to speak their mind. At the same time, we will continue to remind people that, even as we are still healing from an indescribable wound, we cannot abandon our core values or we will have lost everything.

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By Sahar Aziz. Ms. Aziz is the author of Sticks and Stones, Words That Hurt: Entrenched Stereotypes Eight Years After 9/11 published in the New York City Law Review. She is a Legal Fellow at the Institute for Social Policy and Understanding and serves as counsel to the Bill of Rights Defense Committee.

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The political backlash and opportunism surrounding President Obama's defense of Muslims' First Amendment rights jeopardizes religious freedom for all Americans.

On August 13, 2010, the White House sponsored the annual Iftar, a tradition started by President Clinton in 1996, commemorating the month of Ramadan. Diplomats, members of Congress, and community leaders from diverse backgrounds celebrated America's venerable support for religious diversity and freedom.

At the dinner President Obama accurately summarized the Founders' intent to preserve religious freedom in America, for native-born and immigrant alike. He commendably stated, "As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan."

Republicans were quick to criticize President Obama for "endorsing" of what has misleadingly come to be known as the "Ground Zero Mosque." Facing a tough reelection, Senate Majority Leader Harry Reid broke with Obama, joining those who call for the mosque to be built somewhere else. Leading critics claim that they aren't opposed to building the community center and mosque per se, but rather its location. But their claim is belied by growing protests against mosques in cities across the country, not to mention escalating religious bigotry on the internet and a scheduled Koran burning on September 11. Statements from major figures like Newt Gingrich comparing supporters of the community center to Nazis make it clear that, in fact, all Muslims are being falsely tarred with the brush of extremism.

Some cite polls indicating that the majority of Americans oppose the project, but we should ask ourselves whether opinion polls should be our compass when it comes to the Bill of Rights and the exercise of religious freedom in America? Indeed, such rights were promulgated by the Founding Fathers precisely to shield minority faiths from persecution by those in the majority. In our history we have nevertheless seen the systematic persecution of Catholics, Jews, Mormons and Quakers. But in each case, the persecution was ultimately repudiated and support for the Constitution restored. That elected officials have forgotten this fundamental American principle is baffling given many of their constituents self-identify as staunch defenders of religious freedom.

This paradox illustrates two important lessons.

First, the fundamental right to religious freedom rings hollow for all if it is only applied selectively. There is nothing in the charter of the Cordoba Center that can be cited as an offense to the memory of the thousands of Americans, including Muslims, murdered on September 11, 2001. And if opinion polling is sufficient to stop an otherwise lawful plan to build a community center and house of worship for Muslims, we are setting a dangerous precedent. By the same logic, predominantly Christian communities might similarly be allowed to oppose the building of a synagogue or temple.

Second, the integrity of our Constitution depends on a meaningful enforcement of the Bill of Rights. When our founding principles are not put in practice, the rule of law is systemically undermined and our Constitution becomes nothing more than a dated piece of paper.

Critics like Gingrich like to suggest that only when Saudi Arabia allows a church or a synagogue to be built in Mecca should we allow the Community Center to be built. But do we really want to cede leadership on religious pluralism, a hallmark of American freedom, to Saudi Arabia or other Mideast states?

Take for instance the issue of religious freedom in Egypt. Article 40 of the Egyptian Constitution states, "All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion, or creed." Yet the 2009 U.S. State Department human rights report highlights the difficulties Christians face in building new churches and renovating existing ones, due in large part to political opposition by a segment of the Muslim majority population. And in Saudi Arabia the state dictates the practice of religion.

The vitriol and specious arguments being made against building the Cordoba Center should serve as a wake-up call. Once we start down the slippery slope of compromising religious liberty to accommodate majority opinion or the winds of political opportunism, we proceed at our own peril. Pressuring minority faiths to opt out of their rights under the U.S. Constitution can render those rights meaningless for all.

The freedom to practice one's religion is a founding principle of our nation and is embedded in the First Amendment. "And that has been upheld ever since," noted President Obama. Let this not be the day when we focus more on its inscription than its enforcement.

[image via robethuffstutter]

 

As noted by First Amendment scholar Charles C. Haynes, anti-mosque rhetoric is not unique to the situation unfolding around the construction of the Islamic center in New York City. The Washington Post reports on strife surrounding plans for construction of an Islamic center in Murfreesboro, Tenn., not far outside Nashville. Local officials, The Post notes, approved the project in the spring, but the affair has been turbulent. The newspaper also cites similar controversies developing in California and Florida as well as a recent Time poll showing that "43 percent of Americans hold unfavorable views of Muslims, far outpacing" unfavorable views of other religious groups.

The planned construction of an Islamic worship center in Murfreesboro, which The Post describes as "a quiet town of 100,000 people, largely white conservative Christians," drew especially heated opposition. Jim Daniel, a former county commissioner, told the newspaper, "What I sense is a certain amount of fear fueling the animosity," and that residents worry "the Muslims coming in here will keep growing in numbers and override our system of law and impose sharia law." TV preacher Pat Robertson helped stoke the sentiment on his "700 Club," broadcast asserting that it was "entirely possible," for Muslims to bribe Murfreesboro officials to help push the project forward.

Akbar Ahmed, head of Islamic studies at American University, told The Post, "We are becoming aware that the gap between Muslims and non-Muslims is wider than it was after 9/11, and that's a frightening prospect."

In a recent column for FindLaw, constitutional law expert Marci Hamilton wrote that furor over the construction of the Islamic center in NYC revealed a troubling threat to a core American value - religious liberty. "The United States has established the most remarkable principle in the history of cultures - an absolute right to believe whatever you want," she wrote.

[image via commons.wikimedia.org]

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Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.

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When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.

In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.

False Statements of Fact As A Less-Protected Category

Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.

Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error'."

The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)

The majority, in my view, had the better of the argument because it looked beyond dicta to the facts and holdings of the cases. Past decisions upholding punishment for lies involved harms beyond mere disapproval of lying. These include the financial losses that accompany fraud, the obstruction of justice that flows from perjury or false swearing, or the injury to psyche caused by defamation. Even Oliver Wendell Holmes' famous remark from US v. Schenck that the First Amendment does not protect "falsely shouting fire in a theatre and causing a panic" includes harm in the form of a panicky crowd that can stampede. Falsely shouting fire on a lonely beach is a different matter. On this understanding, the majority correctly concluded that the less-protected categories defined thus far are what they purport to be.

The use of an alias provides a good example. I. Lewis Libby tells people his name is "Scooter," and Marshall Mathers presents himself as "Eminem," although both are demonstrably false statements of fact regarding their names that can be disproved through government birth records. One is free to use an assumed name so long as it is not done as part of a scheme to defraud. The same should apply to a false statement about receiving a medal, which can be disproved through government records in the same way. Indeed, the ease of proving falsity makes it suitable for correction in the marketplace of ideas, as seen at the Medal of Honor Imposters website.

Truth Police

Our free speech alarms should ring especially loudly whenever an utterance is banned purely out of official disapproval. If speech could be banned merely because it were false, Congress could ban assertions in favor of creationism or evolution. Galileo's assertion that the earth revolved around the sun was a factual assertion that was once deemed officially false. The government should not be the truth police in the absence of other harm.

Volokh's amicus brief recognized this peril, and proposed that false statements of fact could not be punished if made when discussing the government, history, or science. But if false statements are presumptively proscribable, it becomes difficult to construct a legal principle to explain the exceptions to the exception. The Alvarez majority approach is conceptually cleaner and provides better guidance in separating proscribable from protected false statements.

Controlling Speakers to Control Listeners' Thoughts

Freedom of speech, like freedom of religion, is also about freedom of thought. When despotic governments have acted as truth police, they punish perceived untruths in large part to ensure conformity of thought in society at large. The Stolen Valor Act shares that vice. The tip-off is in Congress's statement of purpose, which is "to protect the reputation and meaning of military decorations and medals." Congress wants to control what everyone thinks military medals mean.

People should be allowed to decide for themselves what meaning to attach to symbols - especially symbols of government. This is the lesson of Texas v. Johnson and US v. Eichman, which rejected any valid interest in dictating how the flag must be perceived as "a symbol of nationhood and national unity." As we know from West Virginia State Board of Education v. Barnette, "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The dangers of government as truth police outweigh any damage that may come from the imposters who tell obnoxious but not harmful lies about themselves. Faced with these charlatans, we should take a deep breath and remember Justice Jackson's statement from US v. Ballard that the price of free speech "is that we must put up with, and even pay for, a good deal of rubbish."

While conservative pundits, such as Sarah Palin and Newt Gingrich, are loudly fighting the planned Islamic center and mosque in New York City, legal scholars and First Amendment experts are noting the hypocrisy of the attacks on the planned religious site, the harm the attacks have on democracy, and the fact that the law appears to be squarely on the side of permitting the project to go forward.

As noted here yesterday, the First Amendment scholar Charles C. Haynes has said that the rising "anti-mosque rhetoric," is reminiscent of other periods in the country when disfavored religious groups were the victims of intolerance - Haynes notes, for instance, anti-Catholicism that festered throughout the nation during the 19th Century.

In a recent column for The Washington Post website's "On Faith," Haynes writes:

Since 9/11, demonization of Islam has become a cottage industry in America, aided and abetted by some evangelical leaders and a growing number of politicians. Much like the anti-Catholic hysteria of the 19th century, the current outbreak of Islamophobia is based on the paranoid fantasy that Islam in America is a threat to democracy and freedom.

Haynes, the First Amendment Center's senior scholar and director of the Newseum's Religious Freedom Education Project, adds that what is truly at stake is the nation's commitment to religious freedom, for all:

It's time for people of conscience to look beyond what's happening in Manhattan and pay closer attention to the growing anti-mosque movement around the nation. Although extreme voices now dominate the debate in many local communities, I am hopeful that most Americans will have the courage to stand up for their Muslim neighbors and fellow citizens by speaking out for religious freedom.

Constitutional law expert Marci A. Hamilton, in an article for FindLaw, maintains that "crude politics has polluted the American values that must be vindicated."

Hamilton, a law professor at Benjamin N. Cardozo School of Law, writes:

Sadly, the American Center for Law and Justice (ACLJ) and the Anti-Defamation League (ADL) have each made an exception to their usual full-throated defense of religious interests, and publicly come out against the mosque proposal. The ACLJ joined the conservative commentators, like Sarah Palin, who have tried to transform this land- use application into a way of energizing the base over terrorism. Yet, the only apparent connection between the application and 9/11 is their co-residence in the wide universe of Islamicism. It's like saying that Jim Jones's Peoples Temple Christian Church Full Gospel, which resulted in the largest mass suicide in history, was Christian. The two groups have thus turned this into an instance of identity politics, rather than any kind of sincere honoring of America's war dead.

Hamilton, no fan of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), notes that the law was supported by both ACLJ and ADL. RLUIPA requires, in part, that "No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution," unless the government can show that it has a "compelling governmental interest" in doing so and there is not a less burdensome way to achieve its interest. Hamilton has maintained that the law is heavy-handed and that the First Amendment provides sufficient protection for religious liberty. Supporters of RLUIPA counter that the law is needed because the Supreme Court has overturned precedent making it easier for government to take action that infringes on the free exercise of religion.

But Hamilton concedes that in this instance "if RLUIPA were to protect the mosque project from its opponents - who are acting on vicious, groundless, stereotypes alone - then the law might, this once, actually be doing justice." She adds, however, that the law "would prove its worthlessness as well, because the First Amendment plainly prohibits the invidious discrimination against belief that he ACLJ and ADF are now urging the government to embrace."

Hamilton concludes, however, that a core value of religious freedom for all must be defended. She says we should "stand in front of the world and proclaim our devotion to our right to believe and our tolerance of those whose beliefs we do not share or even fear."

The jurors in the federal prosecution of former Illinois governor Rod Blagojevich were only able to render a conviction on one count - lying to the FBI. The jury could not reach a unanimous verdict on the slew of other more serious charges, including the one that he attempted to sell the Senate seat vacated when Barack Obama was elected president. In an op-ed for The New York Times, best-selling author and attorney Scott Turow says the jury's action can be traced to the Supreme Court's recent rulings on regulations of corporate campaign financing.

Turow writes:

I suspect the jury's indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

Turow notes that in a 5-4 decision last summer, the high court said a West Virginia Supreme Court judge should have recused himself in a case involving Don Blankenship, head of the Massey Coal company, because of Blankenship's enormous amounts of campaign contributions to the judge. But Turow continues, the high court "pointedly refused to require the same of other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them."

Then the Supreme Court, earlier this year, issued its headline-grabbing decision in Citizens United v. FEC, which concluded that corporations can spend freely on campaigns.

Turow notes:

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

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In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court's elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying.

Turow suggests a constitutional amendment may be needed to reverse "the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?"

 

The rising rhetoric and increasing rallies aimed at disparaging Islam represent "a new threat to the religious freedom of Muslims in America," writes the First Amendment Center's Charles C. Haynes.

Haynes, the director of the Newseum's Religious Freedom Education Project, notes that "anti-Muslim rhetoric has taken an ominous turn in recent months as a growing number of political and community leaders - some with tea-party affiliations - have begun warning of a ‘Muslim takeover' of America."

Haynes cites numerous anti-Muslim rallies from Tennessee to California, including the loud opposition to the construction of an Islamic center in New York City.

Haynes writes:

In recent months, tea-party groups in New York have also helped organize opposition to mosques in Manhattan (the controversial plan to build an Islamic center two blocks from ground zero), Brooklyn and Staten Island. Tea-party meetings in Tennessee, Texas and California feature speakers warning of the ‘Islamization of America.'

In an ironic twist reminiscent of the anti-Catholic rallies of the 19th century (warning against ‘Romanism' seeking ‘despotic control' of America), anti-mosque protests in Murfreesboro, Temecula and elsewhere feature groups of citizens invoking their First Amendment rights to freedom of speech and assembly to call for denying another group of citizens First Amendment protection.

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If the anti-mosque protests are any indication, Islamophobia - the fear and loathing of Islam as a ‘violent political ideology' - is a growing threat to religious freedom in the United States. And in many communities, some tea-party activists are actively encouraging and supporting this dangerous trend.

[image via commons.wikimedia.org]

The students at ACS's University of Nebraska College of Law chapter are adding to the stock of ACS podcasts available for those looking to "jog to the soothing cadence of Harvard Law professor Lawrence Lessig."

The members of the student chapter have launched a law-interviews podcast series, and ACS student hosts have already recorded interviews with an impressive set that includes Lessig, Eugene Volokh, Jen Moreno and Josh Blackman.

Starting this fall, the students will interview guests twice a month. Would-be guests, or fellow law students who want to get involved, can e-mail the chapter at amoreperfectpodcast@acslawnebraska.org.

The national headquarters' series of podcasts and videos are available on our website here or via iTunes here.