Commentary: Rights, passions collide
Is Muslim mosque case Boston's Skokie?
by David Yas
Massachusetts Lawyers Weekly
June 11, 2007
In the late 1970s, members of the National Socialist Party of America, part of the American Nazi Party, planned a march in Skokie, Ill.
The very thought of a swastika in a Jewish neighborhood stirred powerful emotions in the many Holocaust survivors who lived in Skokie. In Holocaust memorials across the country, Jews pledge that such a horrible day will return "Never Again. " An oft-repeated mantra is the Hebrew word Zachor, meaning simply "Remember. "
Skokie citizens, fire in their eyes, fought the march publicly and in the courts. Their legal challenge ultimately bowed to the First Amendment, but the march was moved to a different location.
Three decades later, we are again pondering a case that involves the First Amendment and the deep-rooted fears and passions of Jewish people.
In a case that was mind-bending in its complexity, the Islamic Society of Boston faced a lawsuit over the discounted land deal that delivered the spot for a mosque from the City of Boston. The ISB, in turn, sued citizens and media outlets for defamation after loud concerns were raised that the ISB had troubling ties to Muslim extremists.
Late last month, the parties mutually agreed to drop the lawsuits. Both sides declared a version of victory. The mosque will rise, but the voices of concern would not be silenced.
Was this indeed a case of citizens making the public aware of lurking danger? Was this Boston's Skokie?
"We implore our kids to ask questions about hate speech," says Boston's Jeffrey S. Robbins, who represented The David Project, a defendant in the defamation case. "Do you want kids to do that, or do you want to teach kids, 'Don't raise your hands. ' We better decide. ... [Those are] the societal implications of this kind of a lawsuit. "
Robbins, who is Jewish, worked on the case with his Mintz Levin colleagues on an "almost entirely pro bono" basis. ("A stunningly vast investment of resources," he remarks.) He insists that the defamation case "was simply a bare-knuckled attempt to intimidate journalists and citizens alike. "
Samuel Perkins of Boston's Brody, Hardoon, Perkins & Kesten, who represented Jim Policastro, the named plaintiff/citizen in the original lawsuit to stop the mosque, says the defamation case was "a sideshow; I'm glad it's over. "
And, says Robbins, "ironically, the filing of a libel case dislodged second, third and fourth-level information about the ISB that one might imagine they would not want to have dislodged. " (Legendary First-Amendment lawyer Floyd Abrams, who represented defendant Steven Emerson in the case, cautioned in a Wall Street Journal op-ed last Wednesday: "[T]hose who think about suing for libel should think again before doing so. And then again once more. ")
Robbins was not the only lawyer who was incensed at what was going on here, and he was not the only Jewish lawyer to appreciate the larger meaning of the case. When there are even whiffs of evidence about jihadism and suicide bombings, one had better speak out, goes the thinking.
To wit, the ISB submitted an affidavit signed by Professor John L. Esposito, director and founder of the Center for Muslim-Christian Understanding at Georgetown University. It explained that Sheik Yussef Qaradawi, who had been linked to the ISB, should not be considered a "radical" even though he advocated suicide bombings against Israelis.
Esposito wrote that "Qaradawi has repeatedly denied that his position on suicide bombings in Israel makes him anti-Semitic or anti-Jewish. " He further quotes Qaradawi as saying: "We do not fight the Israelis because they are Jews but because they took our land, killed our children and profaned our holy places. "
Among the team of lawyers who opposed the ISB, there were conversations filled with anger. How could there even be a discussion in a Boston court as to whether suicide bombings are "radical"?
Says David A. Bunis of Boston's Dwyer & Collora, who represented defendant Ahmed Mansour in the case: "No matter what our roles of advocates are, there should be no disagreement that suicide bombings in Israel or anyone are radical and unacceptable. "
Bunis, who is Jewish, continues: "It's unacceptable anywhere in the world, and especially, I'd like to think, in a courtroom in Boston, Massachusetts. "
And, yet, was the battle over the Roxbury mosque that simple?
Lined up on the other side of the "v. " were lawyers who were equally passionate about the ISB's right to build a mosque. And in some cases, equally Jewish.
Max D. Stern of Boston's Stern, Shapiro, Weissberg & Garin, who represented the Muslim-American Society, said that the Jewish voices of opposition in this case hardly represented the mainstream.
"It was one Jewish group," says Stern, referring to The David Project. "The extreme right wing. They hate Muslims. Other Jewish groups opposed them and a lot of them stood on the sidelines. What [The David Project] did was shameful. "
Stern, who is Jewish, says his clients endured "very intense and very horrific attacks by their opponents, which really can be described as McCarthyism. In doing the research for this case, in fact, a lot of the McCarthy-era cases came up. "
What the defendants in the defamation case saw as worrisome were, to Stern, "completely remote connections. "
Howard Cooper of Todd & Weld, counsel to the ISB, remarked: "We have a duty to protect basic civil rights in our society, and, in this instance, it was basic civil rights of area Muslims to build a place of worship that was under attack. "
Cooper, who is also Jewish, says: "Representation of a minority group attempting to build a place of worship is in keeping with the highest values and tradition of Jewish culture, whether religious or secular. The Jewish community knows very well how important religious freedom is for all of us. "
Albert L. Farrah Jr. of Boston's Corwin and Corwin, who worked with Cooper on the case, says that "there is a way and a time to speak up. And no one is, or should be, denied the right to speak up. But I don't think the defendants can, with a straight face, say that by hiding behind Jim Policastro [the named plaintiff in the original lawsuit] they were speaking up in a way they should be speaking up. "
Farrah continues: "My clients were really just trying to build a cultural center. Forces collided, but we weren't looking for a fight. Everybody involved is glad the case settled. "
Zachor indeed. The fight over the mosque will be remembered for years. But lawyers may never agree on how it should be remembered.