The Ghost, The Building, The Battle

Jason St. James, Albany Government Law Review Member

On September 11, 2001 the collective consciousness of the United States of America was forever shattered.  Gone was the visage of invincibility, replaced by feelings of disbelief, heartache, shock, and awe, the likes of which had not been felt since the attack on Pearl Harbor on December 7, 1941.  While almost seven decades separate these catastrophic events, one common thread still exists: the spirit of America was underestimated.  In the wake of the unimaginable, President George W. Bush stated, “[o]ur enemies have made the mistake that America’s enemies always make.  They saw liberty and thought they saw weakness.  And now, they see defeat.”[1] Another conflict now looms on the horizon.  This battle is not being waged by the use of arms, but through a clashing of ideals.  The ambitious Park51 Project acts a lithmus test of U.S. resolve to learn and move past the 9/11 tragedy.

Park51, originally designated as the “Cordoba House,” is a proposed fifteen-story Muslim community center located approximately two city blocks from the World Trade Center site[2] in Lower Manhattan. Imam Feisal Abdul Rauf and Soho Properties Chairman and CEO, Sharif El-Gamal, are heading the project.  The Park51 Project has been controversially referred to as the “Ground Zero Mosque” because it will contain a Muslim prayer space capable of holding between 1000–2000 people.[3] However, the community center design also includes a 500-seat auditorium, theater, performing arts center, fitness center, swimming pool, basketball court, child care area, library, culinary school, art studio, food court, and a September 11 memorial.[4] The proposed community center will be replacing an 1850’s Italian-style structure that was being used as both a Syms and Burlington Coat Factory, until the building was damaged during the September 11 attack on the World Trade Center.[5] One possible obstacle to the construction was the discussed conferment of landmark status upon the current 1850’s building, but on August 3, 2010, New York City’s Landmarks Preservation Commission voted 9–0 against granting landmark status and historic protection to the building, thus clearing the way for the building’s demolition.[6]

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Snyder v. Phelps: The Freedom of Speech v. Funeral Sanctity Showdown in the U.S. Supreme Court

Elizabeth Trachy, Albany Government Law Review Member

Introduction

A case is pending in the Supreme Court that will put to the test whether the First Amendment to the Constitution protects offensive speech just as rigorously as it protects the speech we value.  On March 3, 2006, Lance Corporal Matthew Snyder was killed in the line of duty in Iraq.  At his funeral, the Westboro Baptist Church, a Kansas-based church known for its “fire and brimstone” fundamentalist religious faith, protested with signs bearing phrases such as “God Hates the USA,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.”[1] Albert Snyder filed suit against the Phelps and the Westboro Baptist Church alleging five state tort claims — defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  A jury returned a verdict in favor of Snyder, awarding him $2.9 million in compensatory damages and a total of $8 million in punitive damages.[2]

On appeal, the Fourth Circuit reversed, holding that the Phelps’ expression was protected speech under the First Amendment and was therefore not subject to tort liability.[3] The Fourth Circuit’s decision, and the upcoming decision by the United States Supreme Court, has commanded the attention of the nation, which has widely condemned the actions of the Westboro Baptist Church.  The dilemma is that the First Amendment protects speech regardless of its offensive nature and the effect it may have on its audience, because to punish offensive speech may lead to the censorship of unpopular ideas.  “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.  Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”[4]

The Supreme Court, which heard oral arguments on the case on October 6, 2010, will attempt to set aside its emotional reactions and decide the legal issue of whether Albert Snyder can recover under a speech-based tort claim for the injury he suffered as a result of the Phelps’ behavior or whether the Phelps’ egregious conduct is constitutionally protected.  If the Justices cannot set their emotional responses aside, we may see a decision which crafts a “funeral exception” to the First Amendment’s right to freedom of speech, thus beginning a long journey down a slippery slope that slowly erodes the fundamental principle that the First Amendment protects individuals’ opinions—no matter how offensive or disagreeable they may be.

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