The 15-judge federal court of appeals for the Sixth Circuit has just handed down an interesting and important First Amendment decision. The opinions are long, and I can’t fully do them justice, but I quote below some excerpts.
My quick thoughts: (1) Offensive and unproductive as the speech here might be, I think the majority and Judge Boggs’ concurrence are quite right.
(2) Just to anticipate the inevitable attempt to cast this as a “Democrats support the rights of the offended Muslims listeners, Republicans support the rights of the offending Christian speakers,” note that the pro-speaker majority consists of four Democratic appointees and six Republican appointees (including two who concurred in large part but not entirely), and the pro-restriction dissent consists of one Democratic appointee and four Republican appointees.
1. From the majority’s summary of its position (some paragraph breaks added throughout the quotes):
This case calls on us to confirm the boundaries of free speech protections in relation to angry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees. Set against the constitutional right to freedom of speech, we must balance the state’s interest in insuring public safety and preventing breaches of the peace.
The scenario presented by this case, known as the “heckler’s veto,” occurs when police silence a speaker to appease the crowd and stave off a potentially violent altercation. The particular facts of this case involve a group of self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some of whom responded with threats of violence. The police thereafter removed the evangelists to restore the peace. Bearing in mind the interspersed surges of ethnic, racial, and religious conflict that from time to time mar our national history, the constitutional lessons to be learned from the circumstances of this case are both timeless and markedly seasonable.
In this opinion we reaffirm the comprehensive boundaries of the First Amendment’s free speech protection, which envelopes all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result of such offense, arouses violent retaliation. We also delineate the obligations and duties of law enforcement personnel or public officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the peace that may arise when constitutionally protected speech has stirred people to anger, and even to violence….
2. From the majority’s description of the facts:
The Bible Believers … [came] to Dearborn … for the 17th Annual Arab International Festival. As they had done the previous year, the Bible Believers traveled to the Festival so that they could exercise their sincerely held religious beliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his followers to hurl words and display messages offensive to a predominantly Muslim crowd, many of whom were adolescents. These messages were written on their tee-shirts and on the banners and signs that they carried. The following is a sampling of the Bible Believers’ messages:
“Islam Is A Religion of Blood and Murder”
“Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers”
“Prepare to Meet Thy God – Amos 4:12”
“Jesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be Blotted Out”
“Trust Jesus, Repent and Believe in Jesus”
“Only Jesus Christ Can Save You From Sin and Hell”
“Turn or Burn”
In addition to the signs, one of the Bible Believers carried a severed pig’s head on a spike, because, in Israel’s own words, it would “ke[ep] [the Muslims] at bay” since “unfortunately, they are kind of petrified of that animal.” …
[Details omitted.-EV] In summary, the Bible Believers attended the 2012 Festival for the purpose of exercising their First Amendment rights by spreading their anti-Islam religious message. When a crowd of youthful hecklers gathered around the Bible Believers, the police did nothing. When the hecklers began throwing bottles and other garbage at the Bible Believers, a WCSO officer intervened only to demand that the Bible Believers stop utilizing their megaphone to amplify their speech. Virtually absent from the video in the record is any indication that the police attempted to quell the violence being directed toward the Bible Believers by the lawless crowd of adolescents.
Despite this apparent lack of effort to maintain any semblance of order at the Festival, each time the police appeared on the video — to reprimand the use of the Bible Believers’ megaphone, to suggest that the Bible Believers had the “option to leave” the Festival, to trot by on horseback while doing next to nothing, and to expel the Bible Believers from the Festival under threat of arrest — the agitated crowd became subdued and orderly simply due the authoritative presence cast by the police officers who were then in close proximity. Only once is an officer seen removing one of the bottle-throwing teens. Israel, when faced with the prospect of being arrested for disorderly conduct, observed, “and you would think we would be complaining, but we’re not.” The Bible Believers were thereafter escorted from the Festival and ticketed by a large group of WCSO officers for removing the license plate from their van….
3. From the majority’s legal analysis (endorsed fully by eight judges, and in large part by two more):
The First Amendment offers sweeping protection that allows all manner of speech to enter the marketplace of ideas. This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted. The protection would be unnecessary if it only served to safeguard the majority views. In fact, it is the minority view, including expressive behavior that is deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment. See, e.g., Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977) (recognizing First Amendment rights of Neo Nazis seeking to march with swastikas and to distribute racist and anti-Semitic propaganda in a predominantly Jewish community); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (recognizing the First Amendment rights of Ku Klux Klan members to advocate for white supremacy-based political reform achieved through violent means); Texas v. Johnson, 491 U.S. 397, 405–06 (1989) (recognizing flag burning as a form of political expression protected by the First Amendment); Snyder, 562 U.S. 443, 454–56 (2011) (recognizing a religious sect’s right to picket military funerals). “[I]f it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (citation omitted).
Religious views are no different. “After all, much political and religious speech might be perceived as offensive to some.” Morse v. Frederick, 551 U.S. 393, 409 (2007). Accordingly, “[t]he right to free speech . . . includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker’s message may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716 (2000). Any other rule “would effectively empower a majority to silence dissidents simply as a matter of personal predilections,” Cohen v. California, 403 U.S. 15, 21 (1971), and the government might be inclined to “regulate” offensive speech as “a convenient guise for banning the expression of unpopular views.” We tolerate the speech with which we disagree. When confronted by offensive, thoughtless, or baseless speech that we believe to be untrue, the “answer is [always] more speech.”
Despite the First Amendment’s broad sweep, not all speech is entitled to its sanctuary. There are a limited number of categorical exclusions from the comprehensive protection offered by the Free Speech Clause. These exclusions are rooted in history and tradition, and include only those forms of expression that are “long familiar to the bar” as falling outside the confines of First Amendment protection. Two areas of unprotected speech that have particular relevance to the interaction between offensive speakers and hostile crowds are “incitement to violence” (also known as “incitement to riot”) and “fighting words.” …
[Incitement:] The right to freedom of speech provides that a state cannot “proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Advocacy for the use of force or lawless behavior, intent, and imminence, are all absent from the record in this case. The doctrine of incitement has absolutely no application to these facts.
The Bible Believers’ speech advocated for their Christian beliefs and for harboring contempt for Islam. This advocacy was purportedly intended to convince Muslims at the Festival that they should convert to Christianity. Regardless of the wisdom or efficacy of this strategy, or of the gross intolerance the speakers’ conduct epitomized, disparaging the views of another to support one’s own cause is protected by the First Amendment….
Wayne County relies on Feiner v. New York, 340 U.S. 315 (1951), to support the proposition that the Bible Believers’ speech was subject to sanction, and that such sanction does not offend the Constitution. In Feiner, the Supreme Court upheld a conviction for breach of the peace where, in the context of a civil rights rally, a speaker “gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights.” The majority, over a vigorous dissent, supported its holding by relying on police testimony that the crowd had become restless, “and there was some pushing, shoving and milling around.” Id. The majority described the scenario as a “crisis.” Thus, it has been said that Feiner “endorses a Heckler’s Veto.”
The better view of Feiner is summed up, simply, by the following truism: when a speaker incites a crowd to violence, his incitement does not receive constitutional protection. See Glasson v. City of Louisville, 518 F.2d 899, 905 n.3 (6th Cir. 1975) (“For over twenty years the Supreme Court has confined the rule in Feiner to a situation where the speaker in urging his opinion upon an audience intends to incite it to take action that the state has a right to prevent.”). Feiner lends little support for the notion that the Bible Believers’ speech amounted to incitement. The Bible Believers did not ask their audience to rise up in arms and fight for their beliefs, let alone request that they hurl bottles and other garbage upon the Bible Believers’ heads.
Subsequent Supreme Court precedent illustrates that the speaker’s advocacy in Feiner itself could no longer be sanctioned as incitement. See, e.g., United States v. Williams, 553 U.S. 285, 298–99 (2008) (“To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) (“[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (citation omitted)); Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 450 (1974) (rejecting the notion that “any group that advocates violen[ce] . . . as an abstract doctrine must be regarded as necessarily advocating unlawful action”); see also 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 20.39(a) (5th ed. 2013) (noting that “[t]he authority of Feiner has been undercut significantly in subsequent [Supreme Court] cases”)….
The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech. The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile reaction of a crowd does not transform protected speech into incitement.
[Fighting words:] A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” We rely on an objective standard to draw the boundaries of this category — no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.
The Bible Believers’ speech cannot be construed as fighting words because it was not directed at any individual. Furthermore, the average individual attending the Festival did not react with violence, and of the group made up of mostly adolescents, only a certain percentage engaged in bottle throwing when they heard the proselytizing.
[Content discrimination:] “Listeners’ reaction to speech is not a content-neutral basis for regulation,” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992), or for taking an enforcement action against a peaceful speaker. See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966) (“Participants in an orderly demonstration in a public place are not chargeable with the danger . . . that their critics might react with disorder or violence.”). Therefore, we find that Wayne County’s actions were decidedly content-based. It is indisputable that the WCSO acted against the Bible Believers in response to the crowd’s negative reaction. Deputy Chief Richardson told Israel, “your conduct especially is causing this disturbance;” “part of the reason they throw this stuff . . . is that you tell them stuff that enrages them;” “apparently what you are saying to them and what they are saying back to you is creating danger;” and therefore, “[i]f you don’t leave we’re gonna cite you for disorderly.”
The sum of Wayne County’s counter-argument to the charge that the Bible Believers’ expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan was content-neutral, and that the WCSO’s only consideration was maintaining the public safety. This contention fails in the face of abundant evidence that the police have effectuated a heckler’s veto. It is irrelevant whether the Operations Plan is content-neutral because the officers enforcing it are ordained with broad discretion to determine, based on listener reaction, that a particular expressive activity is creating a public danger. Cf. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 97 (1972) (“[B]ecause of their potential use as instruments for selectively suppressing some points of view, this Court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity.”); see also Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008) (“If the statute, as read by the police officers on the scene, would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’” (citing Bachellar v. Maryland, 397 U.S. 564, 567 (1970))).
[“The Heckler’s Veto and Police Obligations:”] It is a fundamental precept of the First Amendment that the government cannot favor the rights of one private speaker over those of another. Accordingly, content-based restrictions on constitutionally protected speech are anathema to the First Amendment and are deemed “presumptively invalid.”
An especially “egregious” form of content-based discrimination is that which is designed to exclude a particular point of view from the marketplace of ideas. The heckler’s veto is precisely that type of odious viewpoint discrimination.
Both content- and viewpoint-based discrimination are subject to strict scrutiny. No state action that limits protected speech will survive strict scrutiny unless the restriction is narrowly tailored to be the least-restrictive means available to serve a compelling government interest. Punishing, removing, or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose. A review of Supreme Court precedent firmly establishes that the First Amendment does not countenance a heckler’s veto. [The court discusses Supreme Court cases from Cantwell v. Connecticut (1940) and Terminiello v. City of Chicago (1949), to Edwards v. South Carolina (1963), Cox v. Louisiana (1965), Gregory v. City of Chicago (1969), as well as some Sixth Circuit cases, and concludes:]
The Supreme Court, in Cantwell, Terminiello, Edwards, Cox, and Gregory, has repeatedly affirmed the principle that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Watson v. City of Memphis, 373 U.S. 526, 535 (1963) (citations omitted). If the speaker’s message does not fall into one of the recognized categories of unprotected speech, the message does not lose its protection under the First Amendment due to the lawless reaction of those who hear it. Simply stated, the First Amendment does not permit a heckler’s veto….
Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas . . . by . . . [the] dominant political or community groups.” Democracy cannot survive such a deplorable result.
When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of th[at] right.” If the speaker, at his or her own risk, chooses to continue exercising the constitutional right to freedom of speech, he or she may do so without fear of retribution from the state, for the speaker is not the one threatening to breach the peace or break the law.
However, the Constitution does not require that the officer “go down with the speaker.” If, in protecting the speaker or attempting to quash the lawless behavior, the officer must retreat due to risk of injury, then retreat would be warranted. The rule to be followed is that when the police seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker….
[Applying these principles to the facts:] “[T]he Constitution demands that content-based restrictions on speech be presumed invalid and that the [g]overnment bear the burden of showing their constitutionality.” Wayne County has not come close to meeting that burden in this case. There was a force of approximately fifty officers at the Festival — nineteen of whom were purposely unassigned so that they could respond to changing circumstances. A crowd made up predominantly of adolescents began hurling plastic bottles and other trash at the Bible Believers.
Law enforcement officers, despite their numbers, were virtually nowhere to be found, save for a few brief appearances. One of these appearances was solely for the purpose of telling the Bible Believers that they could no longer use their megaphone. At a later encounter, an officer came over not to reprimand the troublemakers, but to inform the Bible Believers that they were free to leave the Festival. Each time that an officer appeared, the adolescents’ lawless behavior relented, despite the lack of official reprimand.
Throughout the harassment and violence directed at them, the Bible Believers remained calm and peaceful. While the Deputy Chiefs conferred with Corporation Counsel, and prior to the Bible Believers being forced to leave the Festival, there were approximately a dozen officers milling about in the background. Many of those officers were sufficiently unoccupied to follow the Bible Believers and observe their fellow officer ticket them for driving a vehicle without a license plate.
By the WCSO’s own admission in its postoperation report, the totality of the officers’ attempt to enforce the law constituted only a few verbal warnings being directed at the lawless adolescents and one individual being cited. Wayne County disputes the sufficiency of their manpower to quell the crowd, but this contention is specious. The video record evinces next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience. The record also indicates a substantial police presence that went virtually unused.
Wayne County claimed to have assigned more law enforcement personnel to the Festival than had previously been assigned to crowd control when the President of the United States visited the area. We cannot justifiably set the bar so low for the police officers sworn to protect our communities (and occasionally the President) that there is any debate as to whether it is reasonable that the result of a purportedly sincere effort to maintain peace among a group of rowdy youths is few verbal warnings and a single arrest.
We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival.
If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO officers could have called for backup — as they appear to have done when they decided to eject the Bible Believers from the Festival — prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.
The Bible Believers attended the Festival to exercise their First Amendment rights and spread their religious message. The way they conveyed their message may have been vile and offensive to most every person who believes in the right of their fellow citizens to practice the faith of his or her choosing; nonetheless, they had every right to espouse their views. See Cantwell, 310 U.S. at 309 (“The record played . . . would offend not only persons of [the Catholic] persuasion, but all others who respect the honestly held religious faith of their fellows.”).
When the message was ill-received, the police did next to nothing to protect the Bible Believers or to contain the lawlessness of the hecklers in the crowd. Instead, the WCSO accused the Bible Believers of being disorderly and removed them from the Festival. On this record, there can be no reasonable dispute that the WCSO effectuated a heckler’s veto, thereby violating the Bible Believers’ First Amendment rights.
[Conclusion:] [It is] easy to understand Dearborn’s desire to host a joyous Festival celebrating the city’s Arab heritage in an atmosphere that is free of hate and negative influences. But the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow….
4. From Judge Rogers’ dissent (endorsed by 5 judges):
Today’s holding provides a roadmap that effectively advises how to force the police to help disrupt a minority’s speech and assembly rights. It is as if we are advising as follows:
Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols — the more offensive the better. The object is to stir up some physical response.
Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It’s a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.
Only a formalistic application of First Amendment doctrines, from substantially different cases, could lead to a result so inconsistent with the core of the First Amendment. This is not a case where the Bible Believers faced punishment or liability for their speech. The only punishment threatened was a citation for refusing to move away from a physical altercation. That fact distinguishes this case from most of the cases that the Bible Believers rely upon.
To disruptive hecklers, the irony of using a “heckler’s veto” doctrine to empower them in their heckling must be sweet. As demonstrated below, the great cases that admirably condemn a “heckler’s veto” are profoundly different from this case. They involve criminal prosecution of speakers on the basis that the speech, itself, constituted a breach of the peace. [Details omitted; see the full opinion for them.-EV] …
In sum, the Supreme Court has consistently distinguished between prosecuting a person for exercising his First Amendment rights — which is unconstitutional — and insisting that a person comply with a police officer’s order to leave the scene of an ongoing physical altercation so as to prevent further injury — which is constitutional. It cannot be that every police officer’s direction to a citizen to do something requires strict scrutiny just because speech is also involved. Strict scrutiny does not apply, for example, to pulling over a truck for a traffic violation just because there was a message on the side of the truck. Nor could strict scrutiny reasonably be applied to telling two brawling teenagers to separate before they get hurt, even if the brawl started with a verbal argument about some issue. Police officers should not be made to pay damages in such circumstances. This case is no different….
[The dissent also disagrees with the majority’s characterization of the facts and the police response; here’s a quick summary:]
Strict scrutiny applies to rules about speech that allegedly could cause a brawl, not to efforts to control a brawl. The Bible Believers spoke loudly and freely throughout the festival for over an hour. Indeed, for some of that time, the presence of police officers actually made it possible for the Bible Believers to speak without being accosted by the crowd. The officers’ instruction to leave, moreover, only occurred once there was an altercation that left one of the Bible Believers bleeding from his head. This is not a case about “the mere possibility of violence.” The video evidence shows plastic bottles, rocks, and other hard objects such as a milk crate being thrown at the Bible Believers, and not just by children. Indeed, as the majority describes the video, it shows that “a barrage of bottles, eggs, and other debris [was] hurled upon the Bible Believers” and “[a]t some point during the deluge, Israel was struck in the face.” Violence had broken out when the police stepped in. The only question confronting police at that time was how to handle it….
Cases like the one before us properly call for a balancing of the speakers’ First Amendment interests and the community’s need for safety and order. Of course, police should not be allowed to treat every outbreak of violence as cover for suppressing speech, and where it is reasonably possible to vindicate a speaker’s First Amendment rights, police should do so. But it will not always be possible to do so, taking into account all of the factors peace officers must consider, such as the nature of the crowd, the resources available to police at the time, and other factors bearing on law enforcement’s ability to control the scene around a speaker.
Drawing a rigid line based on abstract doctrinal principles robs police officers of the discretion and judgment that is essential to law enforcement. If the police may stop the altercation, they may do it in a reasonable way, under the circumstances as actually presented. If bringing in a larger police force is not a then-available option in the reasoned view of the peace officer on the scene, separating the parties is reasonable.
In the context of this case, separating the parties meant escorting away the less numerous group. This was a practical and reasonable thing to do — not prohibited by the First Amendment unless the First Amendment rigidly requires peace officers to determine which side threw the first stones or punches, and thereafter to protect the other side as the brawl continues….
It is unfortunately ironic for the Bible Believers to succeed in their tactics in this case based on towering but distinguishable cases involving minority civil rights protests. In the greater Detroit community, it is the minority’s cultural expression that loses from today’s decision. The disrupters here came from a different part of a larger community to disrupt the First Amendment activity of Arab-Americans — a sometimes feared, misunderstood, or despised minority within that larger community. Realistically viewed, the Bible Believers were hecklers seeking to disrupt the cultural fair. The police visibly attempted to reconcile the First Amendment rights of festivalgoers and the Bible Believers. There may have been much better ways for the police to handle this situation, but there was no First Amendment violation.
5. And from Judge Boggs’ concurrence:
[T]he motivations of the Bible Believers, and their status as a “majority” or “minority,” are of absolutely no importance as to their legal rights or the legality of the government’s actions….
Judge Rogers characterizes the speakers [in this case] as the disruptors, imposing themselves upon and unsettling unsuspecting passersby. That may or may not be a fair characterization, but it is in no way different from most free-speech cases that arise in public. All of the quotations above are from cases where the speakers upset other people. The Jehovah’s Witnesses in Cantwell, for example, played phonographs criticizing the Roman Catholic Church in a largely Catholic neighborhood, much like the Bible Believers criticized Islam at the Arab International Festival. They may do it out of love or out of hate, but it makes no difference to the First Amendment….
Judge Rogers argues, if the police cannot force speakers to leave, those speakers will be able to “get the police to help [them] attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so.” The pellucid flaw in Judge Rogers’s dystopian scenario is that there is no police obligation to assist speakers in communicating their message. The law simply requires the government to refrain from silencing speakers. Requiring officers to refrain from interfering with speech can hardly be equated with affirmatively enlisting unwilling officers to “help” speakers.
Judge Rogers’s opinion also has the disturbing implication that courts should decide who is a majority and who is a minority, and accord lesser rights to those whom judges deem a majority and greater rights to those whom they deem a minority. The dissent makes explicit what may be implicit in the views of some: that First Amendment rights only belong to those who “speak truth to power” and not those who “speak power to truth”; to those who “question authority” and not those who would “question those who question authority.” This is wrong both as a matter of doctrine and of practice. Again, no Supreme Court case indicates that your rights depend on whether you are “punching up” or “punching down,” and indeed virtually all of them hold to the contrary.
Further, in this specific circumstance it is highly dubious that the plaintiffs here, representatives of what most would consider an extreme and ill-mannered evangelical group, are imposing themselves on a minority. They were outnumbered in the immediate area, in a political jurisdiction (Dearborn) in which the “minority” is in a clear preponderance, and in a wider area (Wayne County) whose political leanings are clearly shown by the actions of the police both in this circumstance and in the previous correspondence in the record. It is both dangerous as a matter of doctrine and misleading on the facts to make anything at all in this case rest on the concepts of “majority” and “minority.”
Judge Rogers concludes his dissent by observing that it is “unfortunately ironic” that the Bible Believers could invoke “cases involving minority civil rights protests.” But the real irony is that the very principle he articulates to allow the suppression of speech could just as easily be used against civil-rights protesters challenging racism or religious intolerance.
The beauty of our First Amendment is that it affords the same protections to all speakers, regardless of the content of their message. If we encroach on the free-speech rights of groups that we dislike today, those same doctrines can be used in the future to suppress freedom of speech for groups that we like. I would have thought that if anything was “clearly established” in First Amendment law, it is that our view of “irony” does not trump the Constitution.