Free Speech

Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue Thrown Out

The First Amendment protects "'anti-Israeli, anti-Zionist, [and] antisemitic" speech, the court correctly observes.

|The Volokh Conspiracy |

From today's decision by Judge Victoria A. Roberts in Gerber v. Herskovitz (E.D. Mich.), in a case I blogged about in March:

Marvin Gerber and Dr. Miriam Brysk ("Plaintiffs") allege a group of protestors infringes on their federal and state rights by regularly protesting in front of a Jewish synagogue where Plaintiffs attend religious services. Plaintiffs also allege the City of Ann Arbor … and several of its employees contribute to this infringement by failing to enforce the Ann Arbor City Code ….

There are two groups of Defendants: (1) the protestors; and (2) the City and several of its employees (collectively "Defendants")….

Every Saturday since September 2003, Defendant Henry Herskovitz leads a group of protestors. They typically place 18-20 signs, posters, and placards on the grass section adjacent to the sidewalk in front of the Synagogue, as well as on the grass section across the street, facing the Synagogue. They also lean them against trees and portable chairs that the protestors bring with them. The protestors also carry signs in their hands or attach them to twine hanging from their necks.

The signs display statements such as "Resist Jewish Power," "Jewish Power Corrupts," "Fake News: Israel Is A Democracy," "Stop Funding Israel," and "End the Palestinian Holocaust." [I reproduce one of the signs above. -EV] Plaintiffs say these signs are anti-Israeli, anti-Zionist, and antisemitic.

They show up every Saturday morning—the Jewish Sabbath—at approximately 9:30 AM, position their signs, and stay until approximately 11:00 or 11:30 AM. This time period coincides with the time Synagogue members arrive to conduct and participate in Sabbath service. The signs are readily visible to Synagogue members and their children.

Plaintiffs describe the signs as offensive; causing anger and extreme emotional distress significantly diminishing their enjoyment of attending Sabbath services; and, adversely affecting their willingness to attend Sabbath at this location.

Plaintiffs say this conduct violates the Code because it requires the protestors to have a permit to place the signs on the grass sections. They do not have one. Further, Plaintiffs say the protestors would not even qualify for a permit. The City Defendants disagree. They believe the Code does not prohibit the protestors' activities, nor does it require them to obtain a permit….

Plaintiffs allege that because of Defendants' conduct and speech, they suffer "extreme emotional distress," and that the conduct interferes with their right to practice their religion without being "harassed" under the Free Exercise Clause of the First Amendment. They say the protestors' conduct is not protected by the First Amendment, that placement of signs and placards on the grass sections violates the Code, and the City's failure to enforce its Code against the protestors contributes to Plaintiffs' injury.

Even taking all of these allegations as true, Defendants say Plaintiffs fail to demonstrate an injury in fact. They say Plaintiffs' allegation that they were injured by having to walk past the protestors' signs as they entered Synagogue property does not rise to the level of an "actual concrete particularized injury."

Plaintiffs certainly assert a particularized injury. "For an injury to be 'particularized,' it 'must affect the plaintiff in a personal and individual way.'" However, the Supreme Court repeatedly makes clear that "an injury in fact must be both concrete and particularized." A "concrete" injury must be "'de facto'; that is, it must actually exist." …

Although the Supreme Court held that intangible injuries can be concrete, it instructs that when determining whether an intangible harm constitutes injury in fact, "both history and the judgment of Congress play important roles," and "it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Congress can identify intangible harms that meet the minimum Article III requirements for standing; however, even when Congress elevates intangible harms, that "does not mean that a plaintiff automatically satisfies the injury-in-fact requirement," because "Article III standing requires a concrete injury even in the context of a statutory violation." …

The Supreme Court is emphatic about the path to standing when it comes to First Amendment litigants: "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." "A subjective chill, without more, does not confer standing on a party."

There is no allegation that the protestors prevent Plaintiffs from attending Sabbath services, that they block Plaintiffs' path onto the property or to the Synagogue, or that the protests and signs outside affect the services inside. Plaintiffs merely allege that the Defendants' conduct causes them distress and "interferes" with their enjoyment of attending religious services. This is the "subjective chill" that is "not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum (1972). This type of "chill" does not confer standing and is not actionable….

Indeed, the First Amendment more than protects the expressions by Defendants of what Plaintiffs describe as "anti-Israeli, anti-Zionist, [and] antisemitic." Peaceful protest speech such as this—on sidewalks and streets—is entitled to the highest level of constitutional protection, even if it disturbs, is offensive, and causes emotional distress. McCullen v. Coakley (2014). The Defendants do nothing that falls outside of the protections of the First Amendment, since "a function of free speech under our system of government is to invite dispute," Terminiello v. City of Chicago (1949). In public debate we must tolerate "insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos v. Barry (1988).

In principle, this should still leave plaintiffs free to file their purely state-court claims (perhaps for intentional infliction of emotional distress, if they'd like) in state court (see this post for more); the court here holds only that any emotional distress caused by the signs isn't enough to create standing to sue over alleged interference with the plaintiffs' religious freedom. But for the reasons given in the court's concluding paragraph, I think the plaintiffs' emotional distress claims will fail in state court as well.

And even if the city isn't properly enforcing the sign code against the defendants (which I'm far from certain is true), I don't think the plaintiffs would have standing even in state court to object to such underenforcement. (Perhaps other speakers against whom the sign code is enforced in similar circumstances, if any such speakers exist, could claim that they are being discriminated against based on viewpoint, but that's not the plaintiffs' claim here.)

NEXT: ConLaw and Property Classes #1: "Foundational Cases on Constitutional Structure" and "Mechanics of Adverse Possession"

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  1. The solution is for the congregation to do the same thing to the local Mosque. “Mohamed was a Child Molester” ought to do it, although “Fuck Allah” and “Nuke Mecca” would probably fill out the criminal complaint.

    Because you know what would happen next — THEY would be arrested because of the (real) fear of a violent Muslim response. (Remember the “Draw Mohamed” contest violence?) And the standard police response is to arrest the “troublemakers” even when they are the ones in the right.

    And short of a RICO suit against the Islamic faith — which may not be a bad idea — Jews (and Christians) become second class citizens because they comply with laws against murder. It’s supposed to be a level playing field and it isn’t — and in purporting that it is, the law is an ass.

    Yeats put it best — and the middle shall cease to hold.

    1. When Yeats wrote “the worst are full of passionate intensity,” he was talking about you, Ed.

      1. More of a “No country for old men”, I suspect.

        Also, it is “centre” not “middle”

    2. What on earth does the local Mosque have to do with this case? Do you have a cite for your assertion that similar actions would not be allowed outside a mosque? Remember when you said you didn’t make things up?

      That’s all the questions I have for now.

    3. “and the middle shall cease to hold”

      Pointers on “the middle” from anti-social right-wing bigots with violent fantasies are always a treat.

    4. As Yeats also said, “What a putz.”

  2. Interesting. If they were picketing a store for selling shoddy goods, you could base justice on whether they were right or not (“They claim 3 ton lifting capability but won’t hold half a ton”). If they were picketing Nazis or Marxists, they’d get more sympathy (“They want to rule the world”). While their picketing is certainly obnoxious, it’s hard to see what direct harm they have committed. I don’t think it’s targeted enough to claim emotional distress leading to psychiatric bills.

    Of course, IANAL. Show the harm, that’s my motto, and if you allow emotional distress claims for this, where do you draw the line?

    1. A long, long time ago, in a democracy long since vanished, there was a saying –
      “Never again”

      1. Longtobefree, I can think of an even more immediate issue.

        Imagine someone doing this outside the local NAACP branch office. That would be considered a “hate crime” and any scuffle between demonstrators and NAACPers (is that a word?) would be prosecuted as a racist hate crime.

        Some people apparently are more equal than others….

        http://www.naacp.org/wp-content/uploads/2016/06/MA.pdf

        1. Imagine someone doing this outside the local NAACP branch office. That would be considered a “hate crime”

          No, it wouldn’t. You are really really really really bad at this.

          1. Maura Healey disagrees.
            https://www.mass.gov/service-details/protections-against-hate-crimes

            The scuffle would be the underlying criminal offense, the signs would be the offender’s intent, and Black would be the protected characteristic.

            1. Nothing in that link says that Maura Healey disagrees. And of course if she did, she’d be wrong, so what difference does it make?

            2. That link offers a definition of hate crime that clearly excludes your example. Do you even read these things before you paste them in, or are you actually that stupid?

        2. Why the fuck are you posting addresses of NAACP branches?

          1. Why the fuck are you posting addresses of NAACP branches?

            1: Did you not notice the “www.naacp.org”? It’s the NAACP’s website — THEY are posting the addresses — I just posted a link to their website.

            2: People accuse me of making stuff up — and I don’t.

            3: What the fuck is wrong with posting the addresses? These aren’t battered women shelters, the NAACP *wants* people to know where they are. The one I am thinking of has a sign hanging out in front of it, not new nor fancy but a circa ’70s plastic lightbox style sign.

          2. Congratulations, Dr. Ed 2, for a new low in the comments section.

            1. What is wrong with posting a link to the NAACP’s website?

              1. By the person who routinely roots in these comment sections for white supremacists to shoot blacks? Gee, I dunno.

                (Yeah, I know: you’re not rooting for it. You’re just predicting it with overt glee.)

        3. I’m starting to think that the “civility standards” Prof. Volokh describes when censoring liberals might be illusory.

          1. We’ve been waiting for you to start thinking for many years. Your assertion that it has happened now is clearly false.

            1. Well played, Vinni

      2. Holocaust exception to the 1A?

  3. More 1A “Golden Age” in all its glory.

    1. That’s right, Bob. The proof of a golden age is that it protects the rights of even the most vile, undeserving people. Less than that may make you happy for other reasons, but it’s not a flourishing of the First Amendment.

  4. One other thing — there is an anti-abortion outfit that has large and quite graphic pictures of an abortion. The sort of gristly stuff that you’d see in a bad auto accident — they were outside CPAC a few years back.

    I can state with absolute certainty that they would not be permitted to post their signs on the sidewalks outside a Massachusetts abortion clinic. With the first complaint, the local police would mandate a 25 foot buffer zone on the basis that the protesters were “impeding access” to the clinic. And anyone who didn’t immediately comply would both be arrested and be facing serious felony charges.

    The allegation here is that the protesters were impeding access to the synagogue and I don’t see how that is any Constitutionally different from impeding access to an abortion clinic. Why is anti-semetic speech more protected than pro-life speech?

    This is content-based censorship.

    1. The allegation here is that the protesters were impeding access to the synagogue

      No, it isn’t.

      1. “Plaintiffs describe the signs as offensive; causing anger and extreme emotional distress significantly diminishing their enjoyment of attending Sabbath services; and, adversely affecting their willingness to attend Sabbath at this location.”

        That would constitute impeding access to an abortion clinic, particularly the “adversely affecting their willingness to attend Sabbath at this location.”

        1. That would constitute impeding access to an abortion clinic,

          No, it wouldn’t.

          Quoting Massachusetts v. Coakley: “To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from “the direct impact of speech on its audience” or “[l]isteners’ reactions to speech.” Ibid. If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech.”

          1. Notwithstanding that ”Impede” is defined as “to obstruct, block, detain or render passage impossible, unsafe or unreasonably difficult.” [emphasis added]

            “adversely affecting their willingness to [obtain an abortion] at this location” would constitute “unreasonably difficult.”

            See: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter266/Section120E1~2

            1. Peaceful protest speech such as this—on sidewalks and streets—is entitled to the highest level of constitutional protection, even if it disturbs, is offensive, and causes emotional distress.

              Read the case, Ed.

              1. Try talking to a Massachusetts cop, Sarcast0.
                Try living in the real world. You’d be arrested.

                1. Good legal citation. The law doesn’t say it and you don’t have any evidence, but you have a hypothetical conversation with a nonexistent person doing an unconstitutional thing to support your claim.

            2. “adversely affecting their willingness to [obtain an abortion] at this location” would constitute “unreasonably difficult.”

              No, Ed. You don’t get to make up fake laws.

              1. I don’t. But cops do.
                Try living in the real world for a while.

                1. Cops do what? Name this cop who you have talked to who has said what you claim. Full name, badge number, department.

                  1. Is Nieporent’s claim that government officials never violate the First Amendment by enforcing neutrally-worded statutes in a discriminatory manner based on the content of the speech in question? It may be different elsewhere, but here in NYC, the mayor says openly that regulation of public speech depends on its content. https://www.courthousenews.com/conservatives-sue-to-get-black-lives-matter-style-mural-in-nyc/

                    1. When it’s government speech, that’s true.

    2. Another example — Massachusetts law prohibits any campaign sign, bumper sticker or even button within 150 feet of the *entrance* of the polling place — in most cases this includes not only both sides of the street but some ways down it. Some towns go so far as to paint a yellow circle on the street & sidewalks.

      How is this Constitutionally permissible?

      Within the building, fine.
      Not impeding access to the building, again, fine.
      But a 150 foot buffer zone?

      1. See Burson v. Freeman and Minnesota Voters Alliance v. Mansky.

    3. Dr. Ed 2: Help me out here. You (1) infer that Massachusetts would suppress signs depicting aborted fetuses, if someone displayed them outside an abortion clinic. (Just an inference; you don’t have any instances you cite.) You then (2) conclude that Michigan not suppressing anti-Semitic and anti-Israel words outside a synagogue is therefore part of a system of “content-based censorship,” on the theory that “anti-[Semitic] speech” is “more protected than pro-life speech.”

      How does that work, exactly? By the way, for real cases involving gruesome images of aborted fetuses — on which I’ve written a whole law review article — outside abortion clinics in Michigan, see this federal case, which describes how (1) someone got parking tickets for parking a 34-foot bus containing such images outside an abortion clinic, but (2) “[s]ince switching from bus to [17-foot-long cargo] van” that “contains some of the same materials that appeared on the bus,” “has not received any citations and has been able to conduct his affairs without disruption.”

      I might well agree with your criticizing Massachusetts for suppressing particular kinds of anti-abortion speech, if you can point to specific instances of their actually (not hypothetically) doing it. But I don’t see how you’re getting from that to criticism of Michigan.

      1. You don’t understand how out of control the cops are in this state.
        I’ll email you something I once received from a town cop and you’ll see what I mean.

        1. Dr. Ed 2: Whatever gripe you have with Massachusetts, how does that affect the soundness of this judgment in Michigan, or of the Michigan city’s decision not stop these protests?

        2. A fairly regular, kind of nuts guy called Greg Hill’s morning show on WEEI on Monday around 7. Mid-rant, his mother picked up the upstairs cordless extension and said “[unintelligible] you sound like an angry white man – what the [unintelligible] is going on?! Hello?
          Hello? Guy hung up. Merciless mocking carried the next 3 show hours.
          Dr. Ed, was that you?

  5. I think the plaintiffs have standing – they allege a particularized injury in fact – but their lawsuit loses on the merits because the defendants’ conduct is protected by the First Amendment.

    Whether conduct is legally protected or not is independent from whether a plaintiff finds it injurious or not. Article III existed before the First Amendment was passed. And before the First Amendment was ratified, a lawsuit like this could have won.

    1. I think Snyder v. Phelps controls here. In that case, the Supreme Court decided the First Amendment question on the merits. It necessarily found standing in order to do so. So I think that’s the outcome required here.

      That said, while I think they have standing for the underlying conduct per Snyder v. Phelps, I don’t think they are injured by a failure to get a permit, especially if getting one would be a pure formality. It wouldn’t make any practical difference. If the city doesn’t have the ability to deny them a permit, then I agree no injury has been caused.

  6. What if the jews complained about a cross on the church across the street from the synagogue…..sounds like same argument. I don’t like what I see, therefore the goy is bad?

    1. 1: Cross is on private property.
      2: Church got a building permit to erect it.
      3: Church is in compliance with Muni Codes.
      4: It’s not a gauntlet between their synagogue and the public way.

      I think the third is most important because it impedes access to the property.

    2. Seems like they’d lose that case too!

  7. How is this different than Snyder v. Phelps, conceptually?

    1. It’s not; good cite.

      There’s a long line of cases about this that’s been gratifyingly steady 1A libertarianism for a while. Cross burnings, company towns, etc.

      1. Yeah, these protesters piss me off, hassling Jews on Shabbat when they are attending services. But 1-A means something.

        Still though.

        1. Maybe someone could invite the protesters in to join the services?

      2. Alito’s dissent in that case is part of the reason I’m more of a fan of Alito-Breyer style pragmatism than originalism.

        I mean come on. Your free to express a hateful and disgusting view. But in that context? Really?

        1. What does “originalism” have to do with Snyder?

    2. Well, I guess the biggest difference is these protesters are near the synagogue, whereas Phelps was actually so far away that his protest couldn’t be seen from the funeral. (Snyder didn’t know what their signs said until he saw them on the news.)

  8. “Resist Jewish Power,” “Jewish Power Corrupts,” “Fake News: Israel Is A Democracy,” “Stop Funding Israel,” and “End the Palestinian Holocaust.”

    The First Amendment ruling is certainly correct. If the Nazis can march in Skokie, these clowns can picket with their signs.

    But this sure puts the lie to the argument that “We don’t hate Jews, we just are against Israel.”

    1. “If the Nazis can march in Skokie, these clowns can picket with their signs.”

      The Skokie march never happened. It was all just a stunt to stage a Chicago protest.

      1. I know, but the court ruled they were entitled to under the First Amendment. And that was correct as a matter of First Amendment law, and so is this.

  9. Bigots have rights, too.

  10. The city should sell the land around the synagogue to the congregation, and the congregation can then have the protesters arrested for trespassing….

    Some civil libertarians think that it’s great that we have “public streets and sidewalks” where people can protest. I think in circumstances like these, we have people who are unwilling listeners having speech forced upon them. Same with people who picket in front of people’s houses, abortion clinics, funerals, etc. It’s less a case of wanting to express their views “in public” then intentionally targeting audiences who don’t want to listen, but because the streets are “public”, they have no choice. No one in their right mind, if given the chance, would choose a neighborhood where their house could be picketed over one where that was prohibited, which means there is something askew in First Amendment law when we require the opposite.

    1. Isn’t all protesting about unwilling listeners having speech forced upon them? If it isn’t pushing anyone’s boundaries it’s performance, not protest.

      The Bill of Rights is about setting some things aside are important enough we don’t leave them to governmental regulation, even if it creates suboptimal economic conditions.

      I’m not saying it’s not a steep price, but I don’t know if I like the alternatives of making protests bannable when they make someone uncomfortable. Though perhaps I did not quite understand your alternative.

      1. It’s one thing to wander past a protest for a few seconds or minutes while you are your way some place else. That’s quite different from having the protest come to you, purposely forcing me to listen, by being outside my house, funeral, synagogue, business, etc. People of course have the right to say whatever they want. That doesn’t mean that have to have the right to say it wherever they want, including where they have “captive” unwilling listeners.

    2. On campus protests are also a headache.

  11. Yeah, David, please flesh that out, because I’m not following. Sell the adjoining land? Sure, if the price is fair and there aren’t legitimate objections I’m unaware of. But “something askew in the First Amendment?” What are you arguing for? Amend the FA? Overturn a line of cases?

  12. “Every Saturday since September 2003, Defendant Henry Herskovitz leads a group of protestors.”

    A guy named Herskovitz who protests “Jewish Power” in front of a synagogue?

    I checked the Internet, and it seems like this fellow is Jewish, albeit not what we might call mainstream Jewish.

    You’d think if Ann Arbor’s mainstream Jews had as much power as Herskovitz alleges, they’d find a way to suppress his demonstrations.

  13. Exactly what we want you to think.

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