Israel Matzav

Like shouting fire in a crowded theater?

There's been an exchange of letters over the weekend between Newsweek's and CNN's Fareed Zakaria and the Anti-Defamation League (Hat Tip: Memeorandum and Memeorandum). In anger over the ADL's position against the construction of a mosque at Ground Zero, Zakaria has decided to return the ADL Hubert H. Humphrey First Amendment Freedoms Prize, which was bestowed on him by the ADL in 2005. Here's Zakaria:

I was stunned at your decision to publicly side with those urging the relocation of the planned Islamic center in lower Manhattan. You are choosing to use your immense prestige to take a side that is utterly opposed to the animating purpose of your organization. Your own statements subsequently, asserting that we must honor the feelings of victims even if irrational or bigoted, made matters worse.

This is not the place to debate the press release or your statements. Many have done this and I have written about it in Newsweek and on my television show – both of which will be out over the weekend. The purpose of this letter is more straightforward. I cannot in good conscience hold onto the award or the honorarium that came with it and am returning both. I hope that it might add to the many voices that have urged you to reconsider and reverse your position on this issue. This decision will haunt the ADL for years if not decades to come. Whether or not the center is built, what is at stake here is the integrity of the ADL and its fidelity to its mission. Admitting an error is a small price to pay to regain your reputation.

And here's the ADL's Abraham Foxman in response:

I hope you have read our statement on the proposed Islamic Center at Ground Zero and, more importantly, understand our position. We did not oppose the right for an Islamic Center or a mosque to be built. What we did was to make an appeal based solely on the issues of location and sensitivity. If the stated goal was to advance reconciliation and understanding, we believe taking into consideration the feelings of many victims and their families, of first responders and many New Yorkers, who are not bigots but still feel the pain of 9/11, would go a long way to achieving that reconciliation.

ADL has and will continue to stand up for Muslims and others where they are targets of racism and bigotry, as we have done at the request of and on behalf of Imam Faisal Abdul Rauf.

I am holding on to your award and check in hope that you will come to see that ADL acted appropriately and you will want to reclaim them.

I have largely avoided this issue, because I don't live in or near New York City or the US anymore (in fact, my younger kids were awestruck when they heard I had actually been in the World Trade Center). But having taken two semesters of Constitutional law in Law School, I know that American law includes what we refer to in Jewish law as the 5th part of the Shulchan Aruch: common sense.

In 1919, writing for a unanimous Supreme Court in the case of Schenk v. United States, Justice Oliver Wendell Holmes wrote the following regarding the limitations on free speech under the United States constitution.

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Schenk was limited in the 1960's in a case called Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). That's not the point. What Schenk set out was a standard of common sense. You don't shout fire in a crowded theater unless there is one. You don't allow pornography shops to open next door to an elementary school. And you don't open a mosque on, or next to, the grounds of two buildings where 3,000 people were murdered in the name of Islam.

Foxman has it right.

posted by Carl in Jerusalem @ 12:06 AM