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By Neema Trivedi & Marjorie Heins

The terrorist attacks of 9/11 killed nearly 2800 people and caused unfathomable physical and emotional pain. They also challenged the vitality of American democracy and its accompanying freedoms. Yet our democratic system survived the attack. That is, of course, unless we choose not to protect the very liberties targeted by the terrorists on 9/11.

In New York City, there is currently an effort to do just that. Under pressure from Governor George Pataki and some families of 9/11 victims, the Lower Manhattan Development Corporation (LMDC) announced on August 11 that the Drawing Center, one of the four cultural institutions that was chosen for the World Trade Center (WTC) site after a lengthy process of public debate and review, was finding it difficult to comply with a vague new censorship test laid down by Governor Pataki, and was looking for space elsewhere. Another of the chosen groups, the International Freedom Center (IFC), would now be subject to a new round of inquiry to determine if its plans are politically acceptable. By September 23, LMDC will decide if IFC can occupy the space it was assigned in the World Trade Center's planned Snohetta cultural building.

The IFC, which was created expressly for the WTC site, has three primary components: a museum dedicated to exploring "crucial themes in the history of freedom," an educational and cultural center meant to encourage conversation and debate on freedom in our world today, and a civic engagement network to connect and provide resources for individuals working for freedom in their local communities.

LMDC's decision resulted from a campaign led by outspoken family members of 9/11 victims, who say that Ground Zero should be solely devoted to commemorating the dead. As reported in The New York Times, they "fear that the center might be used as a forum for anti-American debate and want nothing in the memorial area that is not related directly to the terrorist attacks."

But allowing the space to serve as a cultural venue, open to public debate and the sharing of international history and experience, is the best tribute to those who died.

Recognizing this, Mayor Michael Bloomberg and Deputy Mayor Daniel Doctoroff decided back in April 2002 that the redevelopment of Lower Manhattan would be open to and guided by public input. From April 2003 to June 2004, the LMDC invited cultural institutions to submit proposals, which then were subject to public debate. After a thorough selection process that specifically took into account the input of New Yorkers, the LMDC announced in June 2004 that the IFC, the Drawing Center, the Joyce Dance Theater, and the Signature Theater Company would be the four cultural institutions at the WTC site.

Plans proceeded as scheduled until June 2005, when The Wall Street Journal published an op-ed by Debra Burlingame, the sister of one of the pilots who lost his life on 9/11. Burlingame blasted the IFC for having an inclusive board that includes civil rights and civil liberties advocates, and for proposing to give visitors to the site what she considered "a didactic lecture on the meaning of liberty in a post-9/11 world."

Her views drew a following, and thus was born the "Take Back the Memorial" campaign - an effort to persuade local officials to scrap plans for cultural expression at the WTC site. Governor Pataki agreed. In late June, he attacked the Drawing Center for an exhibit in another part of town that seemed to criticize Bush Administration foreign policy. And he announced that all cultural institutions must now guarantee that their exhibits will not offend 9/11 families or others who visit the site. He said: "We will not tolerate anything on that site that denigrates America" or "denigrates New York or freedom."

LMDC followed suit, announcing on August 11 that the Drawing Center would not be at Ground Zero after all, and that the IFC would be subject to further scrutiny to see if it can "comply with the requirements that have been laid down that they would never present anything that might be offensive to the families' of 9/11 victims." To date, the LMDC has not released any document explaining what these requirements are. But the message is clear: all cultural expression at the site will be subject to the veto of Debra Burlingame and her organization.

The LMDC thus dismissed the two years of public input that resulted in a consensus that the victims of 9/11 could best be honored by a memorial that celebrates the American tradition of information and debate on public issues. As Mayor Bloomberg protested, the LMDC has now unilaterally changed decisions that were made via a "deliberative process that tried to involve all parts of the community."

The LMDC's actions not only run afoul of American ideals; they also raise legal concerns. Certainly, as a matter of First Amendment doctrine, the government could decide to devote its property to a memorial that excluded all controversy, educational displays, or political discussion. But once it has decided to invite cultural institutions onto the site, it may not censor them based on what political viewpoints are expressed. This doesn't mean that all manner of speech must be permitted: the WTC site is not a "public forum" where all speakers must be allowed. But even in a "nonpublic forum" like the WTC, the government can't discriminate based on political viewpoint. In our democracy, this is as it should be - and nowhere is this principle more important than at the hallowed 9/11 site.

In her article, Burlingame lamented that the IFC's exhibits would focus on "man's inhumanity to man." What makes little sense is how she finds this theme to be unrelated to the events that transpired on 9/11, events that dramatize the need to study the persistence of inhumanity in our world today.

She further complained that the space would be used to tell the stories of Native American genocide, lynchings and cross-burnings in the Jim Crow South, the Third Reich's final solution, and the treatment of prisoners in Abu Ghraib. But if she finds the honest telling of world history to be inappropriate and offensive, what would be allowed - and who would decide? Burlingame's argument for the stifling of all free expression at Ground Zero, ironically, would accomplish just what the terrorists sought - a trampling of the very freedoms that form the foundation of our democracy.

For a chronology of these events, click here.

August 30, 2005

Update: In the month since this commentary was written, the International Freedom Center was subjected to increasing pressures to self-censor, and finally on September 28, 2005 Governor Pataki unilaterally decided to bar the Center, specifically created as part of a 9/11 memorial, from the World Trade Center site.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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