…the building of Cordoba House represents a symbolic victory for America’s enemies, and blocking it would constitute a symbolic victory for America’s self-defense.
The question, then, is whether a symbolic display may ever properly be proscribed legally. My initial reaction is to say no; the First Amendment properly protects symbolic expression, and only actions (including active provocation of violence) properly may be criminalized.
I submit that it is precisely this obsessive agonizing over Cordoba House that reflects a posture of defeat and surrender. Why would people spend one minute of their time trying to get rid of some damned prayer center, when they could spend that minute urging the United States government to take decisive action against America’s true enemies? What exactly are our priorities, here?
As disgusting as the idea of a mosque being built in the vicinity of what was once the WTC is, it remains a symbolic victory for Islamists. Leonard Peikoff – in his podcast (transcript) – and Amy Peikoff – in her post – seem to suggest that this symbol represents an existential threat to America. Had someone other than Peikoff taken this position, I would have ignored it. But on more thought, there is something to it. As a rational person driven by logic rather than emotion, I do not attach much significance to symbols. But the same certainly cannot be said about the radical or even moderate Islamists. If a symbol can inspire radical Islamists to further violence – and a mosque on property that was destroyed by Islamic terrorists is certainly a powerful symbol – does it still remain “just a symbol”? I hold that the state cannot legitimately curtail a merely symbolic expression because a symbolic expression is an expression of ideas and not of action. Does that principle still hold when one deals with enemies who do not make that distinction? I am not really sure.
There’s an odd sort of contradiction at the heart of the argument in favor of cajoling a zoning board into denying the land owners the right to build. It consists in saying that the government will not use legitimate anti-terror laws to prosecute the owners if they support terrorism, but it will use illegitimate, non-objective laws and processes to accomplish the same ends. But if officials lack the will to use legitimate means to go after terrorists, why would they possess the will to use illegitimate means? Supporting this effort seems destined to fail, in which case those who have done so have thrown away principle for nothing at all. And if government is willing to go after the terrorists, why would we ever support using illegitimate means when we could support using legitimate means? Trusting the government with arbitrary power is always a bad bet.
It is clear that trying to prevent the construction of the mosque by taking recourse to bad zoning laws is a bad idea. But I don’t think that is the point of contention. The real question is – Is this really an issue of the right to property or the right to free expression? As Peikoff notes in his podcast, property rights are contextual. They presume a context of a mostly rational, freedom respecting society. It would be impossible to apply them in a society where people do not respect even the right to life. When one is dealing with precisely such enemies, does the context remain unchanged?