Is Ground Zero mosque a First Amendment issue?

I've been reading a lot of interesting things about the Cordoba Mosque. Some interesting, some amusing, some disturbing, but all hyped up and full of hyperbole:

Paul Shmelzer of the Minnesota Independent reports that Muslim groups are upset that Minnesota Governor Tim Pawlenty said the Ground Zero mosque is "inappropriate."

I would say he's probably right. If it is really being placed there to build bridges, it's planners need to wake up, because it is having the opposite effect. National head of the Anti-Defamation league Abraham H. Foxman used the example of the Carmelite convent established near Auschwitz as a model(1) for how the mosques planners should act:

The lessons of an earlier and different controversy echo in this one. In 1993, Pope John Paul II asked 14 Carmelite Nuns to move their convent from just outside the Auschwitz death camp. The establishment of the convent near Auschwitz had stirred dismay among Jewish groups and survivors who felt that the location was an affront and a terrible disservice to the memory of millions of Jews who died at the hands of the Nazis in the Holocaust.

Just as we thought then that well-meaning efforts by Carmelite nuns to build a Catholic structure were insensitive and counterproductive to reconciliation, so too we believe it will be with building a mosque so close to Ground Zero.

Is it really that hard to understand? The Carmelites had no connection to Hitlers death camps, yet Pope John Paul II understood that the location of the convent was an afront to the Jewish community and that it should be moved. Feisal Abdul Rauf should be able to understand the same of his Cordoba mosque.

I even read a translated Arabic article that said the U.S. government should confiscate all funds set aside for the mosque. But while I agree that the mosque should not be built two blocks from Ground Zero and that it is offensive to many, we have a document that says our federal government cannot stop it's being built. Unless there is proof that it will be a haven/planning center for terrorists, no one will argue that it is not being built by an established religion. As such the First Amendment to the Constitution applies.

If a project with the stated purpose of "building bridges" causes this much controversy and animosity, it needs to be re-evaluated. It's obviously heading in the wrong direction at the outset.

 

(1)Mr. Foxman didn't include the entire Carmelite Auschwitz story. The convent was moved, but the controversy is ongoing.

OUR VIEW; 'GROUND ZERO' MOSQUE? OFFENSIVE, BUT AMERICAN.(Editorials): An article from: The Santa Fe New Mexican (Santa Fe, NM)

Yahoo operates using 'situational rights'

David Kravets of the 'Threat Level' blog at Wired.com reports that Yahoo is "arguing out of both sides of its web portal" in it's response to a suit filed by Chinese dissidents whose information was surrendered to Chinese authorities by Yahoo - resulting in their arrest and torture.

Yahoo is claiming that all it did is follow Chinese law - and that the First Amendment protects its right to deal with the Chinese government. Yahoo further argues that U.S. courts are not the proper place for the case, despite a U.S. statute allowing exactly this type of case. Kravets quotes Yahoo as saying:

"This is a lawsuit by citizens of China imprisoned for using the Internet in China to express political views in violation of China law. It is a political case challenging the laws and actions of the Chinese government," Yahoo told the court. "It has no place in the American courts."

That sounds legitimate, I suppose, from a corporate standpoint. If you ignore the fact that they would not have been imprisoned, or at least not as soon, if Yahoo hadn't ratted, er, provided the Chinese government with the information needed to locate them. It looks worse when Kravets provides a little background info on Yahoo's fress speech claims:

Yet two years ago, while citing the First Amendment, Yahoo went to the U.S. courts in a bid to prevent it from having to pay millions in fines levied by a French court for allowing French citizens to barter Nazi paraphernalia on its auction site _ a practice against French law.

That sounds like Yahoo wants to argue that free speech should be protected if you're selling stuff on their site, but not if you're complaining against your repressive government. Ignoring problems I have with the idea that selling = free speech, it sounds to me like Yahoo is having a serious case of corporate double standard. What do you think?

Lying is protected First Amendment speech (don't tell the kids)

In a decision filed on July 16th (pdf - p1, p2 etc refer to the pdf pages) US District Judge Robert E. Blackburn stated:

The matter before me is defendant’s Motion To Dismiss Information [#13] 1 filed December 2, 2009. Having considered the motion and response and their supplements, as well as the arguments and authorities presented by amicus curiae, 2 I find and conclude that the statute under which defendant is charged is unconstitutional as a content-based restriction on First Amendment speech that is not narrowly tailored to serve a compelling government interest. Accordingly, I grant the motion. (p1)

Sounds fair. Let's see just what this protected speech is:

The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. By the instant motion, defendant seeks to dismiss these charges, arguing that the Act is facially invalid as a content-based restriction on free speech. (p2)

So the judge is dismissing the charges because the statute the defendant is charged under violates the First Amendment. Without even looking at what the statute says, based on the above paragraph, the judge appears to be saying that lies are protected free speech. What is the statute, and what does it say? It's Section 18 Section 704 of the United States Code. Part 'a' states:

(a) In General.— Whoever knowingly wears, purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. (from US code at Cornell Legal Information Institute)

Sections 'b' and 'c' covers specific fake medals. This law says that it is illegal to pass yourself as a member of the armed services, and to pass yourself off as having earned awards you have not.

What in the world does this case have to do with free speech? It has to do with lying and misrepresenting yourself. According to this decision I can pass myself off as a cop. Or a doctor. Do I even have to worry about committing perjury?

To make matters worse, the judge admits that he can find only one other case that examines the First Amendment implications of this act - and that case upheld it:

The only other court that appears to have addressed the constitutionality of the Stolen Valor Act relied on a similar rationale in rejecting a defendant’s First Amendment challenge to the statute. (See id. App, Exh. A (Order Denying Defendant’s Motion To Dismiss, United States v. Alvarez, CR 07-1035(A)-RGK).)

I am not so sanguine. The government’s argument, which invites it to determine what topics of speech “matter” enough for the citizenry to hear, is troubling...  (p3)

Judge Blackburn goes on to mention a few First Amendment cases that really don't relate. He quotes from Riley v. National Federation of the Blind of North Carolina:

The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners. (p3-4)

This case is not about guarding the public mind or regulating any aspect of press, speech or religion. It's about people committing fraud, pretending to be decorated service men and women to gain benefits they would not otherwise gain from the people around them.

Well, I'm not going to go through the entire 14 page pdf here. He goes on to quote other cases and talks about what he considers the biggest weakness of the law:

The principal difficulty I perceive in trying to shoehorn the Stolen Valor Act into the First Amendment fraud exception is that the Act, although addressing potentially fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations. (p6)

Ok, we're not talking about a guy staging a play. We're talking about Rick Glen Strandlof. According to the Denver Post he is a man used an alias and made false claims about being at the Pentagon on 9/11 and in Iraq. Apparently he never served at all. Somehow, despite the fact that he misled hundreds, if not thousands, of people and solicited money from them under false pretenses - damaging the image of anyone coming after him trying to raise awareness of and/or money for veterans issues - the ACLU and this judge have decided that he harmed no one by falsely claim to be a decorated veteran.

An article in the Huffington Post ends with a wonderful quote from ACLU attorney Christopher P. Beall:

The government position was that any speech that's false is not protected by the First Amendment. That proposition is very dangerous," Beall said.

Ok, I guess I can see why he says that, but it still ranks as one of the most ridiculous on-the-face-of-it quotes I've seen in a while. Especially when used in defense of someone who undertook to commit a long term, detailed and potentially very lucrative fraud.

If you'd like to read the rest of the decision, you can download the pdf here.