The First Amendment Must Be Upheld Consistently, or It Can't Be Upheld at All

05/07/2015 09:35 am ET | Updated May 07, 2016
Getty Images

Being consistent about the First Amendment says a lot. It proves you truly stand behind, and with, the First Amendment. I am using this consistency to make a point here about the First Amendment. Consistency when it comes to rights matters for the protection of that right.

Remember when a group of Muslims wanted to build a mosque near ground zero in NYC? Pam Geller, who is now standing on the First Amendment in the Texas cartoon controversy, led the charge against it.

I had a view about that mosque being built at ground zero, too. I was opposed to its construction there but I took this unpopular -- but First Amendment position -- on GretaWire:


So a few points. Yes, Muslims (like everyone else!) have a First Amendment right -- not only to free speech but to freedom of religion, both key components of the Constitutional clause. But as noted above, and as noted in my previous comments about the cartoon contest in Garland, Texas, "just because you (the Muslims in that instance) have the right to do something, doesn't mean you should."

In other words, and this is important, using good judgment with rights is wise.

So yes, I agreed with Pam Geller a few years ago that there should be no mosque at ground zero in NYC but agreed with her for a different reason. She wanted to deny the Muslim group their First Amendment rights. As a real advocate for the First Amendment with a proven record (I often represented protesters as a young lawyer), I would not stomp on those Muslims' First Amendment rights (or anyone else's) solely because I disagreed with them. I knew that stomping on Constitutional rights was wrong and eventually it comes back to haunt you when suddenly you want to claim the protection of that right. Under our Constitution, you can not "pick and choose" who gets rights and who does not.

Rather than build that mosque near Ground Zero, I wanted those Muslims to do the right thing, to respect others in light of the sensitivity of the location, and to use good judgment. In looking at that controversy, I was not willing to stomp all over the First Amendment simply because I didn't agree with the location. I know about rights and I know there are effective ways to achieve goals without stomping on rights.

If you truly support the First Amendment, and not just to hide behind it, you have to be willing to defend it all the time -- not just when it is convenient, or something you agree with. The First Amendment was specifically placed in the Constitution to defend the minority from the tyranny of the majority... .and it is available to everyone, not just some.

So yes, of course, I defend the cartoonists on First Amendment grounds to hold their event in Texas and express themselves (although I don't think we are even going to destroy ISIS with crayons and I want to destroy ISIS), but I think their judgment was flawed. It was bad judgment to put those police in Garland, Texas at great risk. Remember, while the police are the ones outside protecting, those doing the provoking, even if protected by the First Amendment, are safely inside.

This Texas terrorist attack is different from the Paris/Charlie Hebdo slaughter for several reasons -- but notice is a big one. A bulletin by the FBI and Homeland Security was put out in late April warning of danger in Texas at this event and there were remarks on social media that might suggest this was going to happen. This ugly terrorist was not unexpected.

Using good judgment might have led to a different way to hold this contest (and preserve the First Amendment of the cartoonists and Geller). Rather than put the Garland police at high risk against assault rifles (I assume the Garland police is not a trained SWAT team with assault weapons), why not an online contest? We got lucky that this event did not result in any death other than that of the terrorists.

Yes, I know, the police go into this work to protect -- and I thank them -- but we citizens should likewise use our good judgment not to overload them with danger if not absolutely necessary.

Finally, mocking an entire religion is just wrong. My first thought when I saw this is that there are Muslims like Amir Hekmate, a U.S. Marine now rotting in a prison in Iran. This Muslim Marine fought for us in Iraq. He risked his life for us and the Iranians are holding him -- first sentenced to hanging, and now ten years -- for defending his and our country, the United States!

Whether you agree with U.S. Marine Hekmati's religious affiliation or not, he is a Muslim who worked to protect all of us. There are many, many very good Muslims and mocking them is wrong. I am not telling you to agree with their religion, or anyone else's, but to respect their First Amendment right of freedom of religion and not unfairly bully them. It is right there in the Constitution. Mocking an ENTIRE religion is wrong.

Finally, the war (and it is real) is with radical Islam and with ISIS. I am sick of their cruelty -- their beheadings, their efforts to destroy an ENTIRE religion.

We must destroy ISIS (and all the other like minded terrorists). Crayons and a spitting fight over the First Amendment sure won't do it. If people want to use their First Amendment right to fight ISIS, it can be done. Remember the protests against the Vietnam War? Peaceful protests outside the White House about ISIS (and let's make sure we include Al Qaeda and Boko Haram and others) and all the horrible things they are doing to Jews, Christians, journalists etc. would get "you know who" to step up what the United States is doing about this growing danger.

And if someone is arrested for peaceful protests, I might even dust off my old DC Bar card and return to Superior Court to represent that person's First Amendment right in Court.

Let's be smart.