Sixth Circuit agrees to rehear "heckler's veto" decision

I'm glad to hear this, since I think the dissenting judge on the panel had the much better argument. Here is the post I put up about this when the decision came down on Aug. 27:

The free speech rights here were—as in many free speech cases—the rights of pretty rude speakers, certainly ones whose message and manners I do not endorse. But the First Amendment protects the rude as well as the polite, especially given how subjective government judgments of rudeness usually end up being.

Here are the facts, from the majority opinion in Bible Believers v. Wayne County (6th Cir. Aug. 27, 2014) (some paragraph breaks added throughout the block quotes below):

The City of Dearborn in Wayne County, Michigan, has hosted the Arab International Festival … every summer from 1995 until 2012. A three-day event that was free and open to the public, the Festival welcomed roughly 250,000 attendees and featured carnival attractions, live entertainment, international food, and merchandise sales. [The panel later agreed that the festival was a "traditional public forum" at which public speech is fully constitutionally protected, rather than private property or even public property that was temporarily exclusively leased by a public organization. -EV] …

[T]he Bible Believers came bearing strongly worded t-shirts and banners:

[Chavez] wore a t-shirt with the message, "Fear God" on the front and "Trust Jesus, Repent and Believe in Jesus" on the back. Fisher wore a t-shirt with the message, "Trust Jesus" on the front and "Fear God and Give Him Glory" on the back, and he carried a banner that said on one side, "Only Jesus Christ Can Save You From Sin and Hell," and on the other side it said, "Jesus Is the Judge, Therefore, Repent, Be Converted That Your Sins May Be Blotted Out." Other messages conveyed on t-shirts, signs, or banners displayed by the [other Bible Believers] included, among others, "Fear God," "Trust Jesus, Repent and Believe in Jesus," "Prepare to Meet Thy God—Amos 4:12," "Obey God, Repent," "Turn or Burn," "Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers," and "Islam Is A Religion of Blood and Murder."

One Bible Believer carried a severed pig's head on a stick, which Chavez explained protected the Bible Believers by repelling observers who feared it. Appellants soon began preaching using a megaphone, and a small crowd formed around them almost immediately. [The police eventually told the speakers that megaphone use was forbidden by ordinance, and the speakers stopped; that restriction is not challenged here. -EV] Chavez castigated the crowd for following a "pedophile" prophet and warned of God's impending judgment. As this evangelizing continued, the crowd yelled back. At this point, a ribbon-cutting at the opposite end of the Festival occupied a majority of the [Wayne County Sheriff's Office] officers, but one officer watched from the outskirts of the crowd….

As the Bible Believers moved deeper into the Festival, the crowd—a good portion of which appeared to be minors—continued to gather and yell. Some people started throwing debris—including rocks, plastic bottles, garbage, and a milk crate—at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.

After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their safety was in jeopardy because not enough officers were available to control the crowd.

The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd. Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavez's conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival …

As Richardson insisted that the Bible Believers leave lest someone—a Bible Believer, a Festival goer, or an officer—be injured, Chavez asked if they would be arrested if they refused; Richardson replied, "Probably we will cite you." This conversation replayed several times, with Chavez pressing for an answer and Richardson replying that the Bible Believers were a danger to public safety. Chavez eventually snapped, "I would assume a few hundred angry Muslim children throwing bottles would be more of a threat than a few guys with signs."

Richardson stepped away briefly to confer with the Director of Legal Affairs for the WCSO and then told Chavez, "You need to leave. If you don't leave, we're going to cite you for disorderly. You're creating a disturbance. I mean, look at your people here. This is crazy!" Officers then escorted the Bible Believers out. Overall, the Bible Believers preached at the Festival less than one hour. The WCSO's Post-Operation Report indicated that officers arrested and cited several people for disorderly conduct and gave others verbal warnings.

The majority concluded that, under Feiner v. New York (1951), the actions of the police were permissible. First, the majority concluded, the speakers actually intended to produce violence: "The video from the 2012 Festival demonstrates that Appellants' speech and conduct intended to incite the crowd to turn violent." There was no need, in the majority's view, for a jury to determine this as a matter of contested fact. (The majority also suggested that speech that "statements 'likely to provoke violence and disturbance of good order'" might be properly suppressed, at least when they lead to such violence, "'even if no [responsive violence] be intended,'" citing Cantwell v. Connecticut (1940); the majority did not discuss Cohen v. California (1971), which seemed to limit Feiner to speech "intentionally provoking a given group to hostile reaction.") Second, the majority argued, violence was actually produced and couldn't reasonably be controlled in ways besides restricting the speech:

[T]he situation at the 2012 Festival went far beyond a crowd that was merely unhappy and boisterous; as Richardson explained to the Bible Believers, the threat of violence had grown too great to permit them to continue proselytizing. Richardson had a reasonable good faith belief that the threat of violence was too high because the Bible Believers had already been subjected to actual violence.

We reiterate that a state must not "unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions." But, here, had the WCSO wanted merely to preserve desirable conditions, they could have intercepted the Bible Believers shortly after their arrival at the 2012 Festival. Instead, they allowed the Bible Believers to proceed until the threat of "violent retaliation and physical injury" became too great, at which point they "discharge[d] their duty of preserving the peace by … by removing the speaker[s] for [their] own protection." As such, Richardson and Jaafar's threats to cite Appellants for disorderly conduct if they refused to leave do not amount to effectuating a heckler's veto. Appellees conduct was objectively necessary under the circumstances. They did not violate Appellants' free-speech rights.

The dissent sharply disagreed; some excerpts, of which the first two paragraphs strike me as especially important:

It does not take much to see why law enforcement is principally required to protect lawful speakers over and above law-breakers. If a different rule prevailed, this would simply allow for a heckler's veto under more extreme conditions. Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced.

More perniciously, a contrary rule would allow police to manufacture a situation to chill speech. Police officers could simply sit by as a crowd formed and became agitated. Once the crowd's agitation became extreme, the police could swoop in and silence the speaker. The First Amendment does not contain this large a loophole….

[When faced with a crowd that is hostile to a speaker, police] officers must make an effort to place themselves between the crowd and the speaker, and that this duty only falls away once the officers themselves face serious threats of injury. If officers never place themselves in harm's way—never make any attempt to protect the speaker—it would be difficult to say that they exercised their duties in good faith…. I would leave to the jury the matter of whether Defendants acted reasonably and in good faith, although the evidence in the record compellingly suggests that they did not.

Plaintiffs spewed hateful and bigoted words during the course of their sermonizing, but there is no statement in the record that we can point to as clear evidence of intent to incite the listening crowed to riot. Plaintiffs' speech cannot be said to have advocated in favor of crowd violence…. Plaintiffs did not seek to enlist the crowd to carry out a criminal act on Plaintiffs' behalf….

[Paragraph moved:] Yes, Plaintiffs began preaching as soon as they arrived at the Festival, and yes, their sermonizing was offensive. Plaintiffs have a response to these accusations. Israel has stated under penalty of perjury that, based on his "sincerely held religious beliefs, [he is] required to preach the Gospel of Jesus Christ, to try and convert non-believers, and to call sinners to repent." Israel's "street preaching and displaying signs, banners, and t-shirts with Christian messages and Scripture quotes" are simply an embodiment of his religious conviction. The majority effectively dubs Plaintiffs' religious beliefs a fig leaf for their true purpose at the Festival-causing trouble. Courts should step very gingerly before making adverse factual findings about a person's religious convictions….

Plaintiffs' speech does not constitute fighting words any more than it constitutes incitement. Plaintiffs' words were not likely to prompt an "average person" to respond with violence. To reach this conclusion, we need do nothing more than look at the video—the average person at the Festival did not meet Plaintiffs with violence. To hold that Plaintiffs' words meet the fighting words test, we would need to amend the standard from "average person" to "average Muslim child," as if such a person existed.

Moreover, the First Amendment strongly counsels that we should not allow the state to criminalize speech on the grounds that it is blasphemous—even so blasphemous that the average adherent to the offended religion would react with violence. "[T]he state has no legitimate interest in protecting any or all
religions from views distasteful to them." See also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001) (Alito, J.) ("[T]here is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn
another's race or national origin or that denigrate religious beliefs.")….

I see little evidence that Defendants behaved reasonably and with objective good faith as they dealt with the situation before them. To find that Defendants acted reasonably, the majority puts a pro-Defendant gloss on several key facts. The majority sees officers "hover[ing] at the edges of the crowd," and even sees "some mounted units[] attempt[ing] to quell the crowd." I saw no such police presence—apart from a few officers standing around doing next to nothing. As for the mounted units, they simply rode through the crowd at one point, making no obvious attempt to "quell" anything.

Further, the majority apparently accepts Defendants' contentions that they did not have enough officers at the Festival to provide any security for Plaintiffs whatsoever. I seriously doubt that Defendants would have needed a sizeable police presence to control a crowd of children. But even if more officers were needed, the record suggests that those officers were available. Defendants themselves aver that they dedicate more police to the Festival than they do to a presidential visit or the World Series. There were also enough officers on hand for about a dozen of them to mill about Plaintiffs' van as it was stopped for not having a license plate.

In my view, the video tape shows that Defendants did just about nothing to control the crowd as it grew and became agitated. Defendants only stepped in to inform Plaintiffs that the police were powerless and that Plaintiffs needed to leave under threat of arrest. This is not good faith—it is manufacturing a crisis as an excuse to crack down on those exercising their First Amendment rights. Jurors, not judges, should decide this issue.

Regrettably, law enforcement officers have a track record of chilling the free speech rights of proselytizers at the Festival. See Saieg v. City of Dearborn, 641 F.3d 727, 740-41 (6th Cir. 2011). The majority's holding in this case effectively undermines this Circuit's prior holdings which have sought to protect First Amendment interests in Dearborn under difficult circumstances.

Some general thoughts:

1. I also sympathize with people who want to have a festival at which they don't have to face political and religious messages that they understandably find offensive. But under well-settled First Amendment law, a street festival held on the public streets, which remain open to the public, is still a traditional public forum in which speech is fully protected. If the festival took place on private property, or even on public property leased for the organizers' exclusive use for the occasion, the organizers would have broad rights to exclude whatever messages they wanted, whether anti-Muslim messages, anti-Christian messages, unpatriotic messages, or whatever else; but that's not so on the public streets.

2. I also sympathize with the police officers, who understandably want to prevent injuries. But I think the dissent is exactly right in noting that allowing a "heckler's veto"—speech suppression justified by the violence or threatened violence of the audience—simply provides (a) an incentive for more such violence, and (b) an incentive for government officials to suppress speech they dislike.

Behavior that gets rewarded gets repeated. People who are willing to use violence to suppress speech will learn that such behavior is effective, at least when the police don't come down particularly hard on the thuggery. Indeed, they may find at times that even merely threatening violence might suffice to suppress speech they dislike. And of course this message will be easily learned by the potentially violent of all religious and political stripes (again, so long as they suspect that the police won't make the thuggery too costly).

There are already plenty of rewards for this sort of violence and threatened violence. First, it can feel emotionally satisfying on its own to lash out against speakers who offend you. Second, many speakers will give in to the private violence quite apart from police orders to leave; that too can be emotionally satisfying to those who see that their power has gotten results. Third, the violent will see benefits to their political and religious cause, as the message gets out that their opponents are in danger (and maybe even those who host their opponents, say in private lecture halls or rented government buildings).

But the "heckler's veto" gives the violent hecklers extra bonuses. They get to see the speakers suppressed by the government itself. They get to feel the extra pleasure and validation of feeling that the government has stepped in on other side. And they get to block speech even by those who don't fear physical attack, but who understandably don't want to be arrested and prosecuted.

The society we live in stems from the incentives we create. Incentives for violent speech suppression mean more violent speech suppression. That, I think, will be the consequence of the Sixth Circuit panel decision, if it is not reversed by the en banc Sixth Circuit or by the Supreme Court.

[End of the original post—note again that it was put up on Aug. 27, after the panel decision, which the Sixth Circuit has just (on Oct. 23) agreed to rehear en banc.]