It does not take much to see why law enforcement is principally required to protect lawful speakers over and above law-breakers. If a different rule prevailed, this would simply allow for a heckler’s veto under more extreme conditions. Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced.
More perniciously, a contrary rule would allow police to manufacture a situation to chill speech. Police officers could simply sit by as a crowd formed and became agitated. Once the crowd’s agitation became extreme, the police could swoop in and silence the speaker. The First Amendment does not contain this large a loophole….
[When faced with a crowd that is hostile to a speaker, police] officers must make an effort to place themselves between the crowd and the speaker, and that this duty only falls away once the officers themselves face serious threats of injury. If officers never place themselves in harm’s way — never make any attempt to protect the speaker — it would be difficult to say that they exercised their duties in good faith…. I would leave to the jury the matter of whether Defendants acted reasonably and in good faith, although the evidence in the record compellingly suggests that they did not.
Plaintiffs spewed hateful and bigoted words during the course of their sermonizing, but there is no statement in the record that we can point to as clear evidence of intent to incite the listening crowed to riot. Plaintiffs’ speech cannot be said to have advocated in favor of crowd violence…. Plaintiffs did not seek to enlist the crowd to carry out a criminal act on Plaintiffs’ behalf….
[Paragraph moved:] Yes, Plaintiffs began preaching as soon as they arrived at the Festival, and yes, their sermonizing was offensive. Plaintiffs have a response to these accusations. Israel has stated under penalty of perjury that, based on his “sincerely held religious beliefs, [he is] required to preach the Gospel of Jesus Christ, to try and convert non-believers, and to call sinners to repent.” Israel’s “street preaching and displaying signs, banners, and t-shirts with Christian messages and Scripture quotes” are simply an embodiment of his religious conviction. The majority effectively dubs Plaintiffs’ religious beliefs a fig leaf for their true purpose at the Festival—causing trouble. Courts should step very gingerly before making adverse factual findings about a person’s religious convictions….
Plaintiffs’ speech does not constitute fighting words any more than it constitutes incitement. Plaintiffs’ words were not likely to prompt an “average person” to respond with violence. To reach this conclusion, we need do nothing more than look at the video — the average person at the Festival did not meet Plaintiffs with violence. To hold that Plaintiffs’ words meet the fighting words test, we would need to amend the standard from “average person” to “average Muslim child,” as if such a person existed.
Moreover, the First Amendment strongly counsels that we should not allow the state to criminalize speech on the grounds that it is blasphemous — even so blasphemous that the average adherent to the offended religion would react with violence. “[T]he state has no legitimate interest in protecting any or all
religions from views distasteful to them.” See also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001) (Alito, J.) (“[T]here is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn
another’s race or national origin or that denigrate religious beliefs.”)….
I see little evidence that Defendants behaved reasonably and with objective good faith as they dealt with the situation before them. To find that Defendants acted reasonably, the majority puts a pro-Defendant gloss on several key facts. The majority sees officers “hover[ing] at the edges of the crowd,” and even sees “some mounted units attempt[ing] to quell the crowd.” I saw no such police presence — apart from a few officers standing around doing next to nothing. As for the mounted units, they simply rode through the crowd at one point, making no obvious attempt to “quell” anything.
Further, the majority apparently accepts Defendants’ contentions that they did not have enough officers at the Festival to provide any security for Plaintiffs whatsoever. I seriously doubt that Defendants would have needed a sizeable police presence to control a crowd of children. But even if more officers were needed, the record suggests that those officers were available. Defendants themselves aver that they dedicate more police to the Festival than they do to a presidential visit or the World Series. There were also enough officers on hand for about a dozen of them to mill about Plaintiffs’ van as it was stopped for not having a license plate.
In my view, the video tape shows that Defendants did just about nothing to control the crowd as it grew and became agitated. Defendants only stepped in to inform Plaintiffs that the police were powerless and that Plaintiffs needed to leave under threat of arrest. This is not good faith — it is manufacturing a crisis as an excuse to crack down on those exercising their First Amendment rights. Jurors, not judges, should decide this issue.
Regrettably, law enforcement officers have a track record of chilling the free speech rights of proselytizers at the Festival. See Saieg v. City of Dearborn, 641 F.3d 727, 740–41 (6th Cir. 2011). The majority’s holding in this case effectively undermines this Circuit’s prior holdings which have sought to protect First Amendment interests in Dearborn under difficult circumstances.