Is building a mosque similar to yelling "fire"?

This article, which appeared in the Atlanta Journal Constitution on Wednesday, August 18, 2010, concerns opinions about the planned mosque and community center to be built near the World Trade Center site in lower Manhattan. The article reports the views of various religious leaders and academics concerning the proposed mosque. I want to draw our attention to an argument attributed to John Witte Jr., director of the Center for the Study of Law and Religion at Emory University.

My opposition to building the mosque is not driven by politics or emotion or anti-Muslim prejudice, but by a constitutional logic of religious freedom," he said. "Expressions of religious freedom are always subject to valid time, place and manner regulations. And the right to build a religious building is always judged against the rights and needs of others. Just as freedom of speech does not allow you to shout "Fire" in a crowded theater, so freedom of religion does not allow to build a church or mosque in a place that's inappropriate.

Witte is asserting that there is an important analogy between the freedom of speech and the freedom of religion. It is well-accepted that there are important limits on the freedom of speech granted by the First Amendment and the example of yelling “fire” in a crowded theater is often appealed to as a readily accepted instance in which speech should be subject to restrictions. Witte is suggesting that there are similarly cases in which the freedom to practice religion must also be curtailed. However, it is far from obvious that the instance at hand, that of the planned mosque near the WTC site, is analogous to yelling “fire” in the theater.

The argument is fairly straightforward; but just so that we can very clearly understand its structure, let’s re-write it as follows:

Premise: Freedom of speech does not allow one to scream “fire” in a crowded theater.

Conclusion: In the same way, freedom of religion does not allow a religious group to build a place of worship in an inappropriate place.

Part of the problem concerns the word ‘inappropriate.’ It is not clear what constitutes an inappropriate place for a religious building. But let’s put this issue to one side and just grant, for the sake of argument, that, in some sense of ‘inappropriate’ the proposed site is inappropriate for a religious site. [I sympathize with those who would argue that I am granting too much here, that we really do want to understand what makes the site inappropriate for a mosque. And certainly the onus is on Prof. Witte to explain what is inappropriate about this site. But I think that there are other more serious concerns with this argument; so let’s leave it to one side for now.]

The problem with the argument is that there is a relevant dis-analogy between the two cases. In the theater case, the person who yells “fire” stands to cause a great deal of physical harm, possibly including death. And it is precisely this tendency to cause serious bodily harm that is usually cited as the reason that this kind of speech is not protected by the First Amendment. [Notice also that the fact that someone might be offended by a person’s words is not typically cited as a legitimate reason to restrict speech. That I might be offended by the words of a neo-nazi is not a reason to forbid him from publishing his book.] In the mosque case, however, there is no obvious way in which the presence of this building will cause bodily harm to anyone. Undoubtedly some people will be offended by the presence of the mosque. But causing offense is not the same as causing bodily injury or death.

Since there is this dis-analogy, and since the dis-analogy occurs precisely with respect to the very feature that, in the theater case, is supposed to be the reason that the restrictions are legitimate, Prof. Witte’s argument commits the fallacy of weak-analogy. The two cases are importantly different and thus what is true about the first case is not necessarily true about the second.  Perhaps Prof. Witte has additional reasons for thinking that the two cases really are analogous. If so he should present them, unless he does, the argument will remain in critical condition. [And to be fair to Prof. Witte, the article only quoted part of what was undoubtedly a longer interview. We have every reason to expect that he would have more to say in defense of his conclusion. However, as it is presented in the AJC article, the argument does commit the weak analogy fallacy.]