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.)