08/28/2010 11:06 am ET Updated May 25, 2011

'But' Nothing: Why the Right to Build a Mosque Trumps the "Heckler's Veto"

Many of those opposed to the proposed Islamic cultural center (and mosque within) say they're all for religious freedom -- and then comes the "but." But not Islam. But not there. But not if it offends 9/11 families.

"But" is un-American.

The entire point of the First Amendment's protections of freedom of speech, assembly and religion is that these rights can't be restricted based on their substance. Of course there are "time, place and manner" restrictions on speech and prayer -- so people are not entitled to talk at 120 decibels in a residential neighborhood no matter their religion or views. Zoning laws can prohibit incompatible or dangerous activities, like a liquor store near a school. And obviously government can punish the bad conduct of anyone claiming to act in the name of a religion or group: For example, would-be Times Square bomber Faisal Shahzad or anyone conspiring with him.

What we cannot do, however, is condition speech or religion based on its content. That's the bedrock of the First Amendment.

Going further, courts have ruled against what's called the "heckler's veto." Whether a speaker is, say, for or against birthright citizenship, an audience member cannot shout him or her down; otherwise, speech would be contingent on the whim of any mob or critic. So, as painful as it was, our laws permitted Nazis to march though a community of Holocaust survivors near Skokie, Illinois in 1978.

Which brings us back to "but."

The opponents of the Park51 project claim this is not about rights -- it's about the difference between "right and wrong."

However, no group or momentary majority can be allowed to veto another's right, as Judge Vaughn Walker ruled in the protracted battle over same-sex marriage in California. If the proposed Islamic center is effectively shouted down because it's unpopular or the murderous acts of a few are attributed to an entire religion, then why can't community sentiment stop any religion with some members who've done awful things? "But" is the exception that swallows the first amendment's rule.

Nor can there be a "compromise" because of 9/11. Having been a city-wide official on that calamitous day, I am sensitive to the sensibilities of victims' families; they are sincere and upset. But while buildings fell that morning, our system of constitutional law did not. In America, legal questions are decided by juries or judges, not aggrieved parties.

But -- there's that word again -- what about "hallowed ground"? Beyond the unarguable reality that the proposed center is north and out of sight of Ground Zero, even that sacred site now has a huge, new commercial building being erected on its footprint. The city could have tried to make the whole area a cemetery to commemorate that day and those deaths. But by rebuilding, Mayor Bloomberg -- and the city as a whole -- instead properly chose to focus on the future of lower Manhattan, not its past.

Frustrated that the law and the facts are not on their side, many prominent conservatives are now resorting to absurd analogies and hysterical assertions. Islam and this planned mosque, however, are not comparable to Nazis, Pearl Harbor, Saudi Arabia, Carmelite nuns at Auschwitz, or liquor stores near schools. When Fox's Glenn Beck declares that after "you've killed 3000 people, you're going to now build your mosque?", Dick Morris concludes that it will be "a command center for terrorism", and Sean Hannity nightly attempts to "Sherrod" the Imam behind it with similar out-of-context attacks, they're all just assuming that those behind the mosque are terrorists. Any serious evidence? None of them has yet to explain why Bush 41's State Department (and now Obama's) chose to send Imam Feisal Abdul Rauf to Arab countries because, as a New York Times profile last Sunday documented, his entire life has been as a bridge-building moderate Muslim between East and West.

(That eloquent accelerant, columnist Charles Krauthammer, on Friday finally blamed, of course, "liberals" for playing the bigotry card. It's a verbal gimmick to blame the mirror for reflecting reality --if it's intolerant to point out intolerance, then civil rights workers in the '60s were apparently the racists.)

Here's the deal -- because of the values of the very first amendment, Fox News and Islam should both be allowed to say and pray as they wish without getting permission from offended dissenters. Curiously, they're alike in that both have about three million American followers as well as lots of angry critics.

Those who have been saying but-not-this-religion now have to be called out for their Muslim McCarthyism. Once again, demagogues and fear-mongers - Newt Gingrich, Sarah Palin, Peter King, Rudy Giuliani, George Pataki, Rick Lazio, Rush Limbaugh, Beck, Hannity, O'Reilly, Krauthammer, et. al. -- are using guilt-by-association, innuendo, sophistry and sheer lies.

Now as anti-Muslim protests spread around the country far beyond the location of 9/11, two Republicans especially stand out with the potential to shift the axis of debate. With the credibility to have a Nixon-to-China moment.

One is Rupert Murdoch. He has the editorial choice of allowing Fox's slanderous attacks to continue or establishing a more fair and balanced approach that could help calm the hysteria. The other is George W. Bush, who as the President attacking two Muslim nations made clear that America was fighting al Qaeda, not all of Islam. This is the perfect moment for them to speak out and remind everyone why the new World Trade building at Ground Zero will be exactly 1776 feet tall.

Originally posted at