Free Speech

Federal Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue

The plaintiffs are claiming, among other things, "group libel."

|The Volokh Conspiracy |

I've been following an interesting case, Gerber v. Herskovitz, No. 19-cv-13726 (E.D. Mich.), and the ACLU of Michigan just filed an excellent amicus brief that I think summarizes the facts and the law very well, and explains why the plaintiffs should lose. A group of 6 to twelve protesters have been demonstrating each Saturday morning for allegedly 16 years outside an Ann Arbor synagogue, displaying pro-Palestinian, anti-Israel, and anti-Semitic signs; here is one, as alleged in the Complaint, but you can see more:

A member of the congregation, together with a member of another congregation which meets in the annex to the building have sued—apparently without the approval of the synagogue itself—claiming (to oversimplify a 95-page complaint):

The protesters' speech is "group defamation" of Jews.

The protesters' speech places the plaintiffs in a "false light."

The protesters are violating 42 U.S.C. §§ 1981 & 1982, the federal statutes that have been read as banning discrimination in contracting and property transactions based on race or ethnicity (including discrimination based on the target's being Jewish).

The City is failing to enforce city ordinances that limit placing signs on the grass by the sidewalk.

The protesters and the City are violating Michigan laws that ban discrimination in public accommodations.

The protesters and the City are violating the congregants' religious freedom rights.

[UPDATE (March 21, 2020): The day after I posted this, the federal court declined jurisdiction over the group libel claim, the false light claim, and other Michigan state law claims; they can now be refiled in state court. This isn't a decision on the merits about the state law claims; a federal court has the jurisdiction to consider state law claims that are brought to it simply because they arise from "a common nucleus of operative facts" with the federal law claims, but it has the discretion to decline to consider them. The court will continue to consider the federal claims against the protesters and the city, such as the 42 U.S.C. §§ 1981 & 1982 claim, a federal religious freedom claim, and the claim that the City is failing to enforce its ordinances.]

Here is the bulk of the ACLU's brief; you can also read the plaintiffs' Complaint, which includes a good deal of legal argument:

In this case, the ACLU agrees with the serious concerns that have been raised … about the message and tone of the challenged protests. Whatever one's views about Israel and Palestine, it is offensive, upsetting, and distasteful for activists to stage political demonstrations outside a synagogue. And while most of the demonstrators' signs are about Israel and Palestine, some have taken on a more disturbing tone that is widely seen to be anti-Semitic, such as those that read "Resist Jewish Power" and "Jewish Power Corrupts." Especially in light of alarming incidents throughout our country indicating that anti-Semitism is on the rise, leaders in Ann Arbor are right to condemn the disturbing overtones of these protests. The ACLU, too, condemns such rhetoric and urges all protesters to pursue their political aims without resorting to inflammatory tropes about an entire religion, race, or ethnic group.

But there is a big difference between condemning an offensive political protest and asking a court to shut it down. First Amendment rights are indivisible: If public officials and courts have discretion to suppress speech they don't like, then none of us truly enjoys the freedom of speech. Therefore, even the most outrageous speech on matters of public concern must be constitutionally protected. Where, as here, a small group of citizens peaceably assemble on a public sidewalk with signs and placards to publicize their political views, that activity is constitutionally protected—even though other groups of citizens are deeply offended, distressed, or hurt by the demonstrators' message….

Facts

As alleged in the complaint, for many years a small group of anti-Israel protesters has gathered along the public sidewalks in front of the Beth Israel Congregation's synagogue in Ann Arbor every Saturday morning. The protesters carry signs and placards that read "Boycott Israel," "Stop U.S. Aid to Israel," "End the Palestinian Holocaust," "Stop Funding Israel," "Free Palestine," and "No More Wars for Israel." Some of the signs bear much more disturbing messages such as "Resist Jewish Power," "Jewish Power Corrupts," and "No More Holocaust Movies." Some of the protesters personally hold the signs, while others temporarily lean the signs against folding chairs or trees and stand or sit nearby. At the end of their demonstration, the participants take their signs and chairs home with them.

As the protesters stand or sit on or near the public sidewalk in front of the synagogue and on the opposite side of the street, they direct their signs to be visible to passersby on Washtenaw Avenue, a major four-lane road (also known as Business U.S. 23) that runs through the east side of Ann Arbor. The complaint does not allege that they block sidewalks, the synagogue's driveway, or any vehicular or pedestrian traffic. It does not allege that they trespass on the synagogue's private property such as their parking lot or the area of grass and trees behind the sidewalk. Nor is there any allegation that they personally confront worshipers, make any disruptive noise, or even initiate verbal communication with anyone associated with the synagogue.

The plaintiffs' attorney asked the city to take action against the protesters. The city declined, explaining that the First Amendment protects their conduct. The plaintiffs now sue the protesters and the city, seeking damages and injunctive relief….

[II.] The protests in this case are protected by the First Amendment.

In light of the authorities cited above [the brief discussed the flagburning case, the near-funeral protest case, and more], it is clear that the protesters' speech in this case—an offensive but peaceful demonstration on a public sidewalk displaying controversial messages on matters of public concern—is entitled to maximum protection under the First Amendment….

[A.] The "targeted picketing" and "captive audience" concepts do not apply because there is no law or ordinance in place designed to limit protests in this situation.

The plaintiffs' assertion that the protesters are not protected by the First Amendment because they are allegedly engaged in "targeted picketing" rests on a misunderstanding of Frisby v. Schultz, 487 U.S. 474 (1988). In that case, the town in question had adopted an ordinance that banned picketing targeted at a residence, and the Supreme Court upheld the ordinance as a narrowly tailored "time, place, or manner" restriction on speech. Id. at 487-88. But the Sixth Circuit has made clear that, in the absence of such a law or ordinance, such picketing on a public street or sidewalk remains fully protected by the First Amendment. Dean v. Bylerly, 354 F.3d 540, 551 (6th Cir. 2004). Here, the plaintiffs allude to no Michigan statute or Ann Arbor ordinance that bans targeted picketing, so Frisby does not apply.

Dean likewise dooms the plaintiffs' assertion that the protesters' speech is unprotected because the congregants are allegedly a "captive audience." The captive audience concept has been used only to uphold a restriction on speech that is already in place, as in Frisby. See id., 487 U.S. at 487 (explaining why "captive audience" concept justified ordinance prohibiting targeting picketing). In the absence of a duly enacted regulation, it has never been recognized as justification to restrict speech in a traditional public forum that is otherwise entitled to maximum constitutional protection. Again, as the Sixth Circuit explained in Dean: "Supreme Court precedent makes it clear that citizens have the constitutional right to use streets for assembly and communication. Although the government may restrict that right through appropriate regulations, that right remains unfettered unless and until the government passes such regulations." Dean, 354 F.3d at 551.

[B.] Small group protests do not require a permit, and the city is not permitted to use its sign ordinances as a vehicle to restrict the protesters' speech.

Contrary to the plaintiffs' assertion, the protesters are not required to obtain a permit. Permits are sometimes required for large events that block streets or sidewalks, use sound amplification equipment, or require preparations for crowd control. But the Sixth Circuit has held that it is unconstitutional to require a permit for small-group protests that do none of those things. Am.-Arab Anti-Discrim. Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005). That holding applies here, as the protesters in this case are a small group who stand quietly alongside a public sidewalk without impeding traffic or causing a disturbance.

The plaintiffs are also mistaken in claiming that the protesters' conduct is not protected by the First Amendment because it allegedly violates the city code. According to the plaintiffs, when some protesters temporarily place their signs on the ground or lean them against trees or chairs, they violate provisions of the code that prohibit placing items or signs in the public right-of-way.

But the Sixth Circuit has clearly held that local ordinances may not be used in this way to interfere with peaceful demonstrations. In Tucker v. City of Fairfield, 398 F.3d 457 (6th Cir. 2005), protesters used an inflatable rat balloon (a symbol of protest against unfair labor practices) as part of their demonstration in a public right-of-way. Id. at 460. They placed the balloon on the ground during their protest, which lasted one to two hours, and temporarily secured it with stakes to make sure it did not tip over. Id. Although a local ordinance prohibited placing "structures" in the public right-of-way, the Sixth Circuit held that enforcing the ordinance against the protesters' use of the balloon violated the First Amendment. Id. at 460, 464. The balloon was temporary and easily movable, did not create a safety hazard or obstruct traffic, and was integral to their speech in a traditional public forum. Id. at 462-64.

In light of these authorities, in this case the city was required, and certainly entitled, to interpret its own code as neither prohibiting the protesters' activities or requiring them to obtain a permit, either by the code's own terms or because its enforcement under the circumstances would violate the First Amendment. See Am. Compl. ¶ 69. Notably, the plaintiffs' complaint contains no allegation that the city treated the protesters in this case more favorably than similarly situated protesters with a different message or at a different location. In fact, when a city generally interprets and applies its ordinances so as not to prohibit small-group protest activity of the kind described here, taking action against any individual protest group based on the complaints of those who are outraged by the content of their speech would effectuate a "heckler's veto" and therefore violate the First Amendment. See Bible Believers, 805 F.3d at 247.

[C.] A protest does not lose First Amendment protection when others think it is racist, bad for children, or has gone on too long.

It is not hard to see why the plaintiffs perceive the protests to be anti-Semitic. Whatever one's views about Israel and Palestine, it is disturbing to see that the protesters have resorted to offensive messages about "Jewish power" and "Holocaust movies" outside a synagogue on a Saturday morning. Speaking out against Jews as a group, in front of a synagogue, is not an effective or appropriate response to the perceived misdeeds of Israel or the United States.

The merit of the plaintiffs' legal claims, however, cannot be contingent upon the disturbing content of the protesters' speech. It is a moral obligation in our community to advocate tolerance and respect for others, but the First Amendment does not allow the government, or this court, to censor speech for not adhering to those values. As the Supreme Court made clear in R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992), censoring speech for expressing negative views on the basis of race, religion, and other "disfavored topics" is unconstitutional viewpoint discrimination. "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).

Nor does the protesters' speech lose its protection under the First Amendment because it is alleged to be bad for children. It has been clear for decades that the First Amendment does not allow the government to broadly prohibit speech directed to adults for the sake of protecting children. See Reno v. ACLU, 521 U.S. 844, 875 (1997); Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126-28 (1989). As the Supreme Court recognized more than fifty years ago, the government may not "reduce the adult population of Michigan to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957).

The First Amendment also protects the protesters even though they have been demonstrating for a long period of time and the plaintiffs have grown weary of their activities. Some citizens perceive injustices that demand their sustained, vocal opposition for years on end; the First Amendment does not allow those who remain unpersuaded by their opponents' speech to decide that "enough is enough." Although it is easy to understand why the plaintiffs in this case want the protesters to go away, "we cannot react to that pain by punishing the speaker." Snyder, 562 U.S. at 461. First Amendment rights do not have an expiration date.

[C.] The protesters are not engaged in intimidation, harassment, or obstruction that falls outside of First Amendment protection.

The plaintiffs' complaint is also peppered with references to allegations that they and other congregants are being intimidated or harassed by the protesters. There is no reason to doubt that the plaintiffs and other congregants are genuinely distressed by the protest activity. But when political activity is involved, courts must protect speech even when it causes distress, anger, outrage, and pain. See Snyder, 562 U.S. at 457-61. Although true intimidation or harassing conduct would not be protected by the First Amendment, the protesters' alleged activity in this case falls squarely on the constitutionally protected side of the line.

For intimidation, the constitutional standard is governed by Virginia v. Black, 538 U.S. 343, 360 (2003): "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." A true threat is one in which the speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Id. at 359. Whatever else may be said about the protesters' speech in this case, it does not come close to meeting the standard of true threats or "constitutionally proscribable" intimidation.

True harassment outside the protection of the First Amendment would be conduct that invades the rights of others, such as repeatedly and personally accosting individuals who express a desire to be left alone. See Hill v. Colorado, 530 U.S. 703, 718 (2000) (discussing the problem of "persistent 'importunity, following and dogging' after an offer to communicate has been declined" (quoting Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 204 (1921))). But in this case, there is no allegation that the protesters personally confront, follow, or initiate communication with worshipers or anyone else associated with the synagogue. As with intimidation, the complaint alleges no true harassment in the "constitutionally proscribable" sense of that word.

Nor are the protesters alleged to be engaged in other types of obstructive or disruptive conduct that falls outside the First Amendment's protections. In Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court partially upheld an injunction against abortion clinic protesters because they had repeatedly blocked the entrance and exit to the clinic, and their disruptive use of loudspeakers and bullhorns could be heard by vulnerable patients inside the facility. Id. at 758, 769, 772. By contrast, in this case the complaint does not allege that the protesters block the sidewalks, the synagogue's driveway, or any vehicular or pedestrian traffic; it does not allege that they trespass on the synagogue's private property; and it does not allege that the protesters make any disruptive noise. Therefore, the protesters' speech remains fully protected by the First Amendment….

[III.] The plaintiffs' claims should be dismissed.

Because the demonstrations in this case are protected by the First Amendment, the plaintiffs' claims should be dismissed for failure to state a claim.

[A.] Civil rights statutes do not prohibit peaceful political protest on a public sidewalk even when the speech is perceived to be racist.

The plaintiffs' complaint asserts that their rights are being violated under various federal and state civil rights statutes, such as 42 U.S.C. §§ 1981 and 1982 and the Elliott-Larsen Civil Rights Act (ELCRA), which in various forms prohibit discrimination in access to goods, services, property, contracts, and public accommodations on the basis of race, religion, and ethnicity. These civil rights statutes are the foundation of our national commitment to equal opportunity under the law. But they cannot be used to silence constitutionally protected speech, even when some of that speech is perceived to be in tension with the values of equality and non-discrimination that our civil rights laws are designed to protect.

The leading case in this area is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), where the Supreme Court held that a public accommodations law could not be used to prevent private parade organizers from excluding an LGBT group from marching. As a general matter, the Court observed, laws prohibiting discrimination based on sexual orientation are perfectly valid, and could be applied without difficulty to prevent discrimination in the provision of publicly available goods, services, and public accommodations. Id. at 572. But because parades are inherently expressive, the public accommodations law could not be applied to alter or censor the message of the parade's private organizers, as doing so would violate their First Amendment rights to control their own message in a traditional public forum. Id. at 568-69, 572-73.

Here, the same principle applies. The protesters are not engaged in the type of activity validly regulated by federal or state civil rights laws, such as commercial transactions or operating a public accommodation. Nor are they preventing others from using or accessing synagogue property, and they are not even confronting individual worshipers on their way to or from services. Instead, they are engaged in quintessentially expressive activity in a traditional public forum—the precise conduct that the First Amendment protects, regardless of whether the message is "misguided, or even hurtful." Id. at 574. The civil rights protections cited by the plaintiffs are profoundly important in commercial activity and public accommodations, but they cannot be used, as the plaintiffs are advocating here, to censor the peaceful expression of views on a public sidewalk because they are perceived to be racist or anti-Semitic.

[B.] The city does not violate the law by choosing not to restrict political protesters' speech.

The plaintiffs' complaint also asserts that the city is liable for failing to stop the protests. These claims fail for several reasons.

First, private citizens do not have a freestanding constitutional right to demand that state and local officials enforce their laws or protect citizens from unlawful conduct by others. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). Therefore, even if the protesters were violating a city ordinance as the plaintiffs allege, the city's non-enforcement of that ordinance is not actionable.

Second, as discussed above, the city had a good reason not to enforce its code against the protesters in the manner the plaintiffs advocate: Doing so would violate the First Amendment. See Tucker v. City of Fairfield, 398 F.3d 457, 460-64 (6th Cir. 2005). As the Sixth Circuit recognized in Tucker, when an easily movable item like a protest sign is temporarily placed on the ground and does not create a safety hazard or obstruct pedestrian or vehicle traffic, prohibiting the activity through enforcement of a local sign ordinance is not a narrowly tailored means of serving a significant government interest. The city cannot be held liable for complying with controlling Sixth Circuit law on this issue.

Third, the facts alleged do not plausibly support a claim that the city is treating the plaintiffs differently based on their religion. There is no allegation, for example, that the city enforces its sign ordinance against protesters whose demonstrations affect different religious groups or non-religious groups, while allowing protests affecting the plaintiffs to continue unabated. To the contrary, the city allows (as it must) any and all protesters to demonstrate in a traditional public forum, without regard to whether the nearest building happens to be a synagogue, a mosque, a restaurant, or city hall. So there is no equal protection or free exercise violation. See Prater v. City of Burnside, Ky., 289 F.3d 417, 429 (6th Cir. 2002).

In fact, singling out the protesters for restrictions is exactly what the city cannot do. If the city adopted a practice of treating some protesters differently based on complaints of other citizens who were outraged by the protesters' message, doing so would effectuate a "heckler's veto" in violation of the First Amendment. See Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation."). Therefore, the city is not liable. {For similar reasons, the plaintiffs fail to state claims against the city for violating the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).}

[C.] Political protesters are not state actors.

The court should reject the plaintiffs' attempts to hold the protesters liable for constitutional violations, as such liability can attach only to state action. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001); Lansing v. City of Memphis, 202 F.3d 821 (6th Cir. 2000). Political activists staging a demonstration on a public sidewalk cannot be deemed state actors merely because actual state actors choose not to stop the protest activity.

There are three tests to determine whether a private entity can be liable for state action: the public function test, the state compulsion test, and the nexus test. Lansing, 202 F.3d at 828. None is satisfied here. Plainly, the protesters are not performing a public function "such as holding elections or eminent domain." Id. Nor has the city coerced the protesters to take the action that the plaintiffs believe violate their rights. See id. at 829. And there is no "sufficiently close nexus" between the city and the protesters such that the acts of the protesters "may be fairly treated" as those of the city itself. Id. at 830-34.

Similarly, the allegations in the plaintiffs' complaint do not plausibly support their claims that there is a "conspiracy" between the protesters and the city so as to subject the protesters to liability for any alleged violation of the plaintiffs' constitutional rights. See Siefert v. Hamilton Cty., __ F.3d __, 2020 WL 1023010, *11 (6th Cir. 2020); Revis v. Meldrum, 489 F.3d 273, 290-91 (6th Cir. 2007). Inaction by the city does not plausibly suggest a conspiracy, nor does the city communicating with the protesters regarding their legal rights. See B & B Entm't, Inc. v. Dunfee, 630 F. Supp. 2d 870, 881 (S.D. Ohio 2009).

[D.] The First Amendment protects political protesters from state-law tort claims.

The Supreme Court has repeatedly recognized that in a free society, those who are deeply offended or angered by political speech cannot circumvent the First Amendment by artfully pleading common-law torts under state law. Snyder, 562 U.S. at 451; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988). Here, too, because the protesters' speech is constitutionally protected, the plaintiffs' defamation and related state-law tort claims must be dismissed.

"Whether a statement is actually capable of defamatory meaning is a preliminary question of law for the court to decide," and "can be resolved on the pleadings alone." Ghanam v. Does, 845 N.W.2d 128, 141, 143 (Mich. Ct. App. 2014). Although true defamation is not protected by the First Amendment, a "statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). "Rhetorical hyperbole" and "exaggerated language" are not defamatory. Greenbelt Co-op Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970); Hodgins v. Times Herald Co., 425 N.W.2d 522 (Mich. Ct. App. 1988). A statement must be "provable as false" to be actionable. Ireland v. Edwards, 584 N.W.2d 632, 637 (Mich. Ct. App. 1998). "Claims of defamation by implication … face a severe constitutional hurdle." Locricchio v. Evening News Ass'n, 476 N.W.2d 112, 129 (Mich. 1991).

Additionally, "it is constitutionally required that a statement be made 'of and concerning' the party allegedly defamed for a cause of action in defamation to lie." QSP, Inc. v. Aetna Cas. & Sur. Co., 773 A.2d 906, 916 n.14 (Conn. 2001); see also Hazime v. Fox TV Stations, Inc., 2013 WL 4483485, *7 (E.D. Mich. Aug. 19, 2013). A plaintiff can be a member of a small group defamed by a statement, but "where [a] group is large—in general, any group numbering over twenty-five members— … courts … have consistently held that plaintiffs cannot show that the statements were 'of and concerning them.'" Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983).

Here, the plaintiffs' allegations regarding the protesters' "End the Palestinian holocaust" sign, see Am. Compl. ¶ 204, fails to state a claim for at least two reasons. First, whether events or conditions arising from ethnic strife can be characterized as a "holocaust" is a matter of opinion. See Milkovich, 497 U.S. at 20. No "evidence" could prove or disprove it as a "fact," as using the term is not "saying something definite enough to allow a jury to determine whether what you are saying is true or false." Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). Emotionally charged terms like "Palestinian holocaust" are widely recognized as a kind of "rhetorical hyperbole," or "loose, figurative" and "exaggerated language," part "of the conventional give-and-take in our economic and political controversies," and thus not reasonably deemed a factual assertion susceptible to defamation claims. Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974).

Second, the statement fails the individualized "of and concerning" requirement because it cannot be reasonably interpreted as accusing the plaintiffs, personally, of committing atrocities. Curtis v. Evening News Ass'n, 352 N.W.2d 355, 356 (Mich. Ct. App. 1984). No reasonable observer would think that the protesters' "End the Palestinian holocaust" sign implies a factual accusation that the plaintiffs, Marvin Gerber or Dr. Miriam Brysk, are personally responsible, in a factual sense, for the deaths of Palestinians. Expressing political opinions about Israel, Palestine, and American foreign policy near a synagogue may be offensive and wrong, but it is not defamation.

For the same reasons, the plaintiffs' remaining state-law tort claims, such as false light and intentional infliction of emotional distress, must also be dismissed. "When the alleged tortious conduct is a defendant's utterance of negative statements concerning a plaintiff, privileged speech protected by the First Amendment is a defense." Sarkar v. Doe, 897 N.W.2d 207, 232 n.24 (Mich. Ct. App. 2016); see also Snyder, 562 U.S. at 458-60; Hustler Magazine, 485 U.S. at 56; Ireland, 584 N.W.2d at 640-41. Because the First Amendment protects the protesters' speech, it requires dismissal of all state-law tort claims.

Conclusion

There are good reasons to condemn the protesters who are being sued in this case, and to empathize with the plaintiffs and their congregation. Whatever one's views about Israel and Palestine, the protesters' decision to express their views by demonstrating in front of a synagogue on Saturday mornings is unseemly and distasteful—particularly when some of their signs and placards appear to speak out against Jews as a group.

But this case is not about whether we approve of the protesters' message or tactics. To protect unobjectionable speech, the First Amendment is rarely needed. "In fact, it is the minority view, including expressive behavior deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment." Bible Believers, 805 F.3d at 243. "This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted." Id. And to deny that protection is to gamble with the liberties we cherish for all: "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." Id. at 264 (Boggs, J., concurring).

The protesters in this case are a small group of citizens who demonstrate "peacefully on matters of public concern at a public place adjacent to a public street." Snyder, 562 U.S. at 456. If we are to maintain a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), then the offensive, distressing, and even outrageous nature of their demonstration cannot justify any of the relief the plaintiffs seek here….

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  1. IANAL – Why does this go to a federal court and not state?

    I get it’s an 1A issue, but can’t that be handled at the state level too?

    1. There are federal statutory claims, under 42 USC 1981 and 42 USC 1983; that is enough to provide federal jurisdiction. (The state claims remain in the case because they arise from the same circumstances as do the federal claims.)

  2. “Whatever one’s views about Israel and Palestine, it is offensive, upsetting, and distasteful for activists to stage political demonstrations outside a synagogue.”

    Why would a synagogue differ from a concert venue, coffee shop, day care center, medical clinic for women, brewpub, lobbyist office, pizzeria, or bookstore in this context?

  3. Take their pictures, post them on social media

    lawsuit is a waste of trees

  4. With only 6 to twelve protesters, you’d think there could be larger counter-protests to shoo the protesters away.

    1. Why would a counter-protest shoo the protesters away? Perhaps it would just make them feel they’re getting more attention. (Not to say that the lawsuit is the right solution, either.)

  5. The protesters deserve to win in this case. They also deserve to be publicly identified as the nasty little anti Semitic fascist they are. The Left is fond of labeling anyone who disagrees with then as followers of The Despicable Austrian, but they are the ones who most deserve the title.

    1. How do these protests (or protesters) differ from those regularly conducted outside Planned Parenthood locations and other ladyparts clinics? Should the treatment differ?

      1. “ladyparts clinics”

        I suppose this misogynistic language isn’t surprising considering that at least half (and probably more) of aborted fetuses are female.

    2. If, as you assert, the Left deserves to be labeled as Nazis, and assuming the congregants of the targeted synagogue are politically representative of American Jews, you must believe the protestors are performing a public service.

    3. “The Left is fond of labeling anyone who disagrees with them [sic]. . .,” sez the guy who just called a group of people, “nasty little anti Semitic fascist(s).”

  6. IANAL but I would argue that continued protesting that is not in response to something those being protested did themselves, by definition, should be considered targeted harassment. I also think the Court should consider the effect of a decades long protest effort on synagoguge membership. If I had alternative congregations to go to and I didn’t want to see that garbage every Saturday morning for 16 years, I would pray elsewhere. That affects both the financial well-being of the congregation as well as their ability to freely exercise their religion. Finally, while this is a stretch, I would argue that the government refusing to prosecute individuals who interfere with free exercise is the same as Congress passing a law that explicitly prohibits free exercise.

    1. Has there ever been a good comment that started with “IANAL but”?

      1. Elitist much? Are you saying you would rather we all lie and only lawyers comment on matters of morality? I’m saying that I feel the law is inadequate and should consider such aspects of the issues.

        I believe the best way to maintain principles in society is to address their failings as honestly as possible. Telling someone there is simply nothing that can be done about such hateful rhetoric is absurd. Part of the reason some countries like Germany criminalize Holocaust denial is that, outside of making a cultural statements about national responsibility, there is an objective problem that occurs when people lie about something that serious. Sunlight is the best disinfectant only when you assume that man is infallible. People will inevitably make mistakes and that’s what neo-Nazis have relied upon for decades to increase their influence. These protesters know they aren’t convincing many people to join them, yet they’ve been at it for 16 years. Do you feel comfortable putting a number on how many people have become more sympathetic to them after seeing their protest? How about 10%? 15%?

        The first statement I made about harassment was not a legal assessment. It’s a recommendation I think the law should consider. I personally find it absurd that we protect “protesting” someone for something they didn’t even do. It makes sense if you decided to protest me for what I just said, but if you protested me because I’m Jewish and Israel is an apartheid state in your opinion, how is that not religiously based harassment? I didn’t actually do anything; you’re just going after anyone you can guilt by association because you’re biased and hateful. I hardly consider that to be a legitimate protest.

        Right now, I know that free exercise doesn’t spare you from currently lawful, public protest. That’s why everything I focused on is about changing the law and how we view the issue. I don’t think 1A is a blank check to say whatever you want at any time and I reject the slippery slope argument. The fact that lawyers even make that argument on a regular basis is a tacit admission that they know there are societal ills caused by defining such actions as speech, yet they can’t come up with the legal justification to censor it, so they cower and hide instead of owning the issue and being honest.

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