Free Speech

Anti-Semitic/Anti-Israel Speech Outside Synagogue Constitutionally Protected

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[One of the photos from plaintiffs' Complaint.]

From today's decision (which I think is quite correct) in Gerber v. Herskovitz, an opinion by Judge Jeffrey Sutton joined by Judge David McKeague:

Every Saturday morning since September 2003, [Anti-Israel] protesters have picketed the Beth Israel Synagogue [in Ann Arbor]. Their group typically comprises six to twelve people, and they display signs on the grassy sections by the sidewalk in front of the synagogue and across the street from it. The signs carry inflammatory messages, with statements such as "Resist Jewish Power," "Jewish Power Corrupts," "Stop Funding Israel," "End the Palestinian Holocaust," and "No More Holocaust Movies." The protests apparently target the members of the Beth Israel Congregation, as they coincide with the arrival of the congregants to their worship service on Saturday morning. The congregants and their children can see the signs as they enter their worship service. But the protesters have never prevented them from entering their house of worship, have never trespassed on synagogue property, and have never disrupted their services….

The court concluded that the plaintiffs had standing to sue over the emotional distress that this speech caused them (the district court had concluded the contrary); but on the merits, the court held against the plaintiffs:

The protesters' actions come squarely within First Amendment protections of public discourse in public fora. As in Snyder v. Phelps, the content and form of the protests demonstrate that they concern public matters: American-Israeli relations. As in Snyder, the protest location is a quintessential public forum: public sidewalks. The context of being outside a house of worship at the time of a service cuts slightly towards being a private attack, but that factor alone was not heavy enough to tip the balance in Snyder, and it is likewise too feathery here.

The congregants claim that the First Amendment does not apply to the unique features of this protest. Five considerations, they say, make this case novel: (1) the protests' proximity to a house of worship, (2) their location in a residential area, (3) the fact that the congregants are a captive audience, (4) the frequency of the protests, and (5) the exposure of congregants' children to the signs. But each of these factors is old hat under the First Amendment.

Take the first three. Courts have allowed speech restrictions based on concerns for a captive audience in a deliberately narrow context, and we see no justification for expanding it here. Snyder insisted on the concept's narrowness, applying it only to an individual's residence and declining to extend it to a church holding a funeral. Our sister circuits have likewise declined to allow restrictions on protesting near houses of worship, rejecting justifications like those the congregants offer. Expressive activity in a residential area by itself does not suffice for an exception; an individual's home itself must be the focus of the protest. Frisby v. Schultz.

The congregants' fourth and fifth factors fall readily as well. The protesters' actions do not lose constitutional protection just because they have been protesting for a long period of time. Free-speech protections do not expire over time or come with a rule against perpetuities. And the Supreme Court has repeatedly held that an interest in protecting children does not justify censoring speech addressed to adults. Reno v. ACLU.

The congregants' proposed remedy—an injunction prohibiting protests within 1000 feet of the synagogue during Saturday morning services and limiting the number of protesters and signs—likely would violate the First Amendment anyway. State action "would not be content neutral," the Supreme Court has explained, "if it were concerned with undesirable effects that arise from the direct impact of speech on its audience or [l]isteners' reactions to speech." Understandable though the congregants' reaction to the protesters' speech may be, that by itself—without physical impediments to their services or trespassing—cannot suffice as the kind of "content-neutral justification" needed to make the proposed injunction a reasonable time, place, and manner restriction. The restriction, moreover, would disproportionately affect one viewpoint on an issue of public concern, which makes us pause before concluding it would be "justified without reference to the content of the regulated speech."

Even if the request were eligible for treatment as a time, place, and manner restriction, the injunction would be overly broad. Neither the 1000-foot buffer zone nor the restriction to five protesters at any time is likely to satisfy narrow tailoring. Madsen v. Women's Health Center held that a 300-foot buffer zone was not narrowly tailored, and our circuit has held that like-sized zones are overbroad.

Judge Eric Clay would have held that plaintiffs lack standing, though he also agreed that "Plaintiffs' arguments that Protester Defendants' demonstrations are not protected by the First Amendment are completely unfounded":

Plaintiffs' allegations of extreme emotional distress fail to establish standing in this case because there is no legally protected interest in not being offended by the speech of others…. It is not "an invasion of a legally protected interest" to be presented with offensive or disagreeable speech on matters of public concern….

He also spoke to plaintiffs' claim that the defendants speech was unprotected under Beauharnais v. Illinois (1952), which upheld a "group libel" statute:

[I]n Beauharnais, the Supreme Court, over a vigorous dissent, upheld the defendant's conviction under an Illinois statute that prohibited publication of group libel, defined as portraying a lack of virtue of a class of citizens. While the decision has never explicitly been overruled, it appears that the case has been limited to its precise facts in subsequent decisions of the Supreme Court. N.Y. Times v. Sullivan; see Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. #204 (7th Cir. 2008) ("Anyway, though Beauharnais v. Illinois, 343 U.S. 250 (1952), has never been overruled, no one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited.").

NEXT: National Law Journal Provides More Background on Luttig's Second Amendment Brief

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  1. While it’s right for conservatives to point out that Jews disproportionately use their position as Jews to advance liberal causes, I don’t know why they think it makes sense to align themselves with the Palestinians, people who are also enemies of and incompatibel with Western traditional culture.

    1. The problem is not the Jews. The problem is the German Jews. They are a real nuisance.

      1. Legalism and nitpicking is German Jewish. Instead of harassing, but frivolous legal action, the congregation should spend Sundays at the homes of the defendants with loud sound trucks, screaming, Die, Nazi Scum, Die, and also, Pavel is Coming to Get You. The neighbors will fix the defendants for them.

        1. Current testimony by sex abuse victims about FBI inaction on their complaints justifies the end of discretion for the police and for prosecutors. It can be replaced by professional standard of due conduct. They can still regulate themselves but now within reasonable limits.

          1. Discretion should be decided by an algorithm written by the legislature. It should avoid feelings, and political biases.

            1. You’re conversing with yourself again. Take your meds.

              1. This series is for your convenience. You retrieve every single of my tiniest thoughts in one location. Hope it is helping to improve the lawyer profession, 10 times more toxic than organized crime.

                1. “why are the Palestinians trapped there? Because Egypt and Jordan, also bordering on Palestinian territory, won’t let them out either.”

                  How do I know which are supposed to be the tiniest thoughts, when they’re ALL tiny?

                  You’re welcome to continue talking to yourself. It’s not a sign of mental illness that you do so. Even when you start arguing with yourself. It’s not a problem until you start losing the arguments.

          2. “Current testimony by sex abuse victims about FBI inaction on their complaints justifies the end of discretion for the police and for prosecutors.”

            Zero tolerance works so well in schools, we should have it everywhere!

            1. 15 million common law crimes. 100 million internet crimes. 10% of the first are prosecuted. None of the second are. Bank robbery is dangerous, nets $4000. Identiry theft is safe, nets $5000. Crime updated. Lawyer profession has to.

              Your profession is in failure in the first reason for government, safety.

              1. James, professional standards of due care is not zero tolerance.

                1. Neither is professional standards of due care what you just advocated.

        2. Quite apart from the dubiousness of the op’s assertion you seem to be swallowing what appears to be ignorant confusion on his part. Yiddish is related to German, but Askhenazi are not “German Jews”. The Pale of Settlement was in the Ukraine, not Germany.

          Also, reread the article and pay attention to the bits about “captive audience” this time.

          1. Do you think German Jews tend to be a little bossy?

              1. They are the smartest people in the world. They should be a little softer on us more regular people.

                1. You want them to put different laxatives in your food?

                  1. Stop running roughshod over our rights for their enrichment and empowerment.

                    1. More laxatives for you, then. So you can become an even-more-regular people.

    2. Nisiiko, I am no fan of the Palestinians, but here is the answer to your question: For the same reason some Southern whites supported ending Jim Crow even though keeping Jim Crow was in their economic best interest. They believed it to be an unjust policy, and fighting injustice was more important to them then the pure tribalism of who benefits.

      1. Did the blacks in the Jim Crow South want to drive the whites into the sea?

        1. Some of them probably did, and not all Palestinians want to drive Israel into the sea. But that’s all beside the point. It is possible to acknowledge that people with bad ideologies have bad ideologies while at the same time recognizing that they also have basic human rights.

          1. Of the Palestinian Question was simply a foreign matter, I’d say let them work it out themselves. But if there were (say) a movement in this country which promoted an anti-Israel double standard vis-a-vis the Palestinians, backed by boycotts, etc., then such a hypothetical movement would be wrong and should be opposed.

            1. There certainly is a double standard, but it definitely is not anti-Israel (hint: one side in the conflict gets $4 billion per year in US taxpayer subsidies + advanced US weapons systems, and it sure isn’t the Palestinians).

              1. OMG $4 billion! That’s less than 1/100th that Biden sent out in stimmies to Democrat Party voters.

                1. I mean, yeah, one is the government helping its own citizens, the other is the government funding the military of a different country. Hope this distinction clarifies things.

                  1. Giving people money to buy cell phones and flat screen TVs while stiffing their landlords doesn’t count as “helping its own citizens.”

                    1. Lmao ok so you’re just a full-on clown huh? Ok, no sense in discussing further.

                    2. That’s called buying votes with taxpayer’s money.

                    3. LiborCon, pretty much.

                    4. “Giving people money to buy cell phones and flat screen TVs while stiffing their landlords doesn’t count as “helping its own citizens.””

                      It does if your citizens sell cell phones and flat-screen TVs. Hint: “flat-screen” is the only kind of TV there is.

                2. “OMG $4 billion! That’s less than 1/100th that Biden sent out in stimmies to Democrat Party voters.”

                  Those checks went to people who aren’t “Democrat Parry” members. But you knew that, and went ahead and cashed it anyway, didn’t you?

            2. ” if there were (say) a movement in this country which promoted an anti-Israel double standard vis-a-vis the Palestinians, backed by boycotts, etc., then such a hypothetical movement would be wrong and should be opposed.”

              So if a group (or an individual) decides not to spend THEIR money on Israeli products, then somebody (say the government) should take their money and turn it over to the Israelis? That’s your idea of freedom?

          2. “But that’s all beside the point.”

            Nope. Southern blacks just wanted equal rights, the Arabs want to drive the Jews out.

            You know a Jew cannot buy land in PLO controlled territory? Its the Arabs who are like the racist southern whites.

            1. Bob, assume you’re right (though I’m far from convinced that you are). You’ve told us multiple times that you’re completely unprincipled and tribal, and so long as your side wins, that’s all you care about.

              So why should you take umbrage at Arabs who basically have the same philosophy that you do? If the end justifies the means when your side comes out ahead, aren’t they just as entitled to the same world view.

              1. Politics is not genocide.

                Plus, we are discussing the stupidity of pro Arab Jews.

                1. All genocides have been commanded by politicians. You can’t draw that line.

                2. Oh come now Bob. You don’t like the idea of pushing Israel into the sea because you’re Jewish so it’s your tribe. But suppose you were Arab, and the best way for your tribe to win would be to push Israel into the sea. Based on everything you’ve told us about winning is the only thing that matters and the end justifies the means, within your paradigm, what possible argument would there be to tell you not to do it?

                  Plus one can argue that the settlements are basically the Israelis doing the same thing. They may not be committing genocide in the strict sense of the term, but it’s certainly a form of ethnic cleansing.

                  1. “The settlements are a form of ethnic cleansing”?!

                    Wow.

                    Next you’ll be saying illegal immigration is a form of ethnic cleansing.

                    1. Bingo!

                    2. No, because nobody is being driven out. If Americans already here were being removed to make room for illegal immigrants, then you’d have a point.

                    3. So, if there was an area that was previously populated by American citizens…but now is populated almost entirely by illegal immigrants and their descendants…

                      That would be ethnic cleansing according to you?

                      I wonder if we can find any such areas.

                    4. Well, that depends. Were the previous inhabitants removed at the point of a gun, or did things follow normal migration patterns?

                      Humans have been moving around for a long time, and it’s not unusual to find that the demographic group that previously was the majority in a given area no longer is. It’s only ethnic cleansing if people are being forced out; not if they’re following normal migration patterns. But then, you already knew that; you’re just playing stupid.

                    5. “So, if there was an area that was previously populated by American citizens…but now is populated almost entirely by illegal immigrants and their descendants…

                      That would be ethnic cleansing according to you?”

                      They traded those lands for lands in the rez, fair and square and the army with their horses and rifles had nothing to do with it.

                  2. Dunno if he’s Jewish. But Israeli politics these days is of his tribe regardless.

                    1. Fine by me. Israel and clingers can sink together. Taking the Saudis with them, I hope.

                    2. Cute! Artie the bigot conflates issues with the state of Israel to his muddled understanding of “palestine” as if it really exists.

                    3. Sarcastr0….Maybe you should look into the composition of the Knesset = But Israeli politics these days is of his tribe regardless.

                  3. Bob already pointed out, “we are discussing the stupidity [Nislike: “why they think it makes sense”] of pro[-]Arab Jews”, not whether it is sensible of Arabs to try to kill Jews (which has, btw, worked out so well for them for so long).

                  4. You don’t like the idea of pushing Israel into the sea because you’re Jewish…

                    I suppose, by that standard, Hitler’s “final solution” should not have bothered anyone who wasn’t Jewish. You’re a real humanitarian!

                    1. Ed, there’s a logical fallacy called “undistributed middle”. Google it. It will enlighten you as to why your statement is wrong.

                    2. You’re assuming Special Ed 2.0 cares if he’s wrong, much less why he’s wrong.

                  5. And if the Palestinians really did push the Jews into the sea, would life be better for them? Probably not. But better to rule in Hell…

                    1. Darth, you’re exactly right. If all Jews disappeared tomorrow, the Palestinians would still have most of the problems they still do. That, however, does not excuse the awful things the Jews do to the Palestinians. I’m frankly disgusted with both sides and the older I get, the less I see that we have a dog in the fight.

                    2. It’s almost like perpetuating a cycle of injustice is ultimately futile in the long -term.

                    3. What justifies the awful things it that the Palestinians keep launching murderous attacks on Israel at every opportunity. What you’ve got there is the same as if Arnold Schwarzenegger were keeping Don Knots in a full Nelson because every time he tried to let him go Don went after his throat with a switchblade.

                      Don’t forget, before they put up that wall, Israel was dealing with Palestinians walking into daycares with bombs, and they’re still continually detecting and collapsing invasion tunnels, and are the world’s experts in missile defense from dealing with continual rocket bombardments.

                      Palestinian schools literally teach genocide in K-12.

                      Finally, why are the Palestinians trapped there? Because Egypt and Jordan, also bordering on Palestinian territory, won’t let them out either.

                    4. “why are the Palestinians trapped there? Because Egypt and Jordan, also bordering on Palestinian territory, won’t let them out either.”

                      And THAT’S why it’s OK to mistreat them.

                3. “we are discussing the stupidity of pro Arab Jews.”

                  I’m not affiliated with either group, but it seems like taking the position “look, maybe we should stop giving these people new reasons to hate us” isn’t categorically stupid.

              2. Krychek_2….The fact is, Bob from Ohio is correct about the palestinian laws passed by their legislature prohibiting the sale of land to Jews. See link (law penalties upgraded in 2014).

                https://www.timesofisrael.com/abbas-toughens-law-against-palestinians-selling-land-to-jews/

        2. Driving Miss Daisy meets Chappaquiddick?

            1. Sigh…driving whites into the sea.

              1. Not as clear or (therefor) as funny as you imagined.

                1. I thought it was fairly clever, though I’ll admit it took a moment for me to get it.

                  1. Does anyone need any more proof that it wasn’t that clever? Beyond Brett’s endorsement, I mean?

        3. “Did the blacks in the Jim Crow South want to drive the whites into the sea?”

          Undoubtedly some of them did. Perhaps they learned from Sherman.

      2. And do you think the anti-Semites actually care about the Palestinians or their “justice?”

        1. Fun fact: The Palestinians are also Semitic peoples.
          So, no, the anti-Semites do not care about the Palestinians.

          1. You should take a moment to learn what anti-Semite means. It does not mean hatred of Semites. English is funny that way,

            1. “English is funny that way,”

              Apparently, it’s not your first language. How is English spoken over there?

    3. For where do you get that these are “conservative” protesters?

      1. I don’t. I’m just pointing out that it’s legitimate for conservatives to oppose organized American Jewry on the grounds that it’s disproportionately leftist.

        1. Actual believing Jews aren’t overwhelmingly leftist

          From what I can tell, they even lean a bit right

          it’s the “cultural jews” who are hard Left

          1. Yes, that is true. But the “cultural Jews” call on their Judaism when propagating their leftist values, and will even go as far as dressing their liberalism up with some religious overtones to make them sound like “Jewish values.”

            “We need to grant automatic citizenship to every refugee in the world, because we were once strangers in the Land of Egypt!”

            “We need to tax the rich at 90% to for “tikkun olam” (repair the world).”

            1. The US has problems to fix, but things are better off than ever before, as has been going on for decade after decade, thanks to freedom.

              If you, you know, do stupid things like measuring the actual health and longevity and wealth of the average person, that is.

              Our worst medical issue is the historically laughable novelty of too much cheap, high calorie food.

              1. Let the racists fight over exactly which type of racism is the “best” or “proper” racism.

          2. “Actual believing Jews aren’t overwhelmingly leftist”

            No true Scotsman is what?

      2. For where do you get that these are “conservative” protesters?

        FWIW, I actually know one of these loons–and he’s WAY to the left. Also a conspiracy theorist. And, as it happens, has a math PhD. Definitely not a conservative. His kids went to school with mine (and they turned out to be quite normal, as is his wife). Certainly they have a right to protest and, by now, the congregation should have long ago stopped noticing (as we have when we happen to drive by).

      3. “For where do you get […]”

        apostrophes and grammar are both tools that require intelligence and skill to use correctly.

  2. Baseball fans never sue each other for hating the other team, what gives with the jews? Chosen people can’t be hated? Public criticism of funding of a jewish state can’t be criticized? Seems to be a pretty frivolous case brought by the chosen to muzzle the goy dislike for them.

    1. Pavel, when and where were you bar mitzvahed? Did you trek to the Holy Land for that sacred ritual of Jewish manhood? Please, note, lawyers, that ritual is after 13, which supports the contention, 14 is adult.

      1. “Please, note, lawyers, that ritual is after 13, which supports the contention, 14 is adult.”

        Both of you are evidence that “adults” can be childish, and extremely so.

    2. The loons who think services at a synagogue is a peachy place to yell about Israel every Saturday morning aren’t, I think, representative of an “other team” called “the goy”. The congregants are much more likely to think of you as “the Nazis”.

      1. There’s two types of people in the world: Those who divide people up into two types, and those who don’t.

        Side joke:
        there’s 10 types of people in the world, those who understand binary and those who don’t.

        Second side joke:
        There’s three kinds of people in the world, those who are fuzzy about the dividing lines between groups, and those who are not.

    3. “Baseball fans never sue each other for hating the other team”

      Nah. Cheering for the wrong team just gets you saturated with expensive beer.

  3. But MAGA hats are evil insurrectionist racist sexist displays of violence which have to be met with violence, right?

    1. What are you referring to, here? Do you think a court has held Antifa’s actions as constitutionally protected?

      1. I know that Democrat politicians, including Democrat prosecutors, Mayors, and Governors, have refused to stop Antifa, or punishing them when they are arrested.

        You know that, too

        1. Damn. That’s a toxic stew you put out there. Do you want to try to provide evidence for that nonsense or just stick with “everybody* knows”

          *”everybody” is restricted to people who agree

          1. Anyone who at this point is demanding “evidence” that Prog politoscum have refused to punish BLM etc. rioters is beyond the reach of mere facts.

            1. Threads about Israel bring out a special breed of commenters here.

              1. Yes, it does. There seems to be more now than 10 years ago.

            2. “Anyone who at this point is demanding “evidence” that Prog politoscum have refused to punish BLM etc. rioters is beyond the reach of mere facts.”

              Perhaps. This doesn’t change the fact that you can’t seem to produce any.

    2. MAGA hats, is that “Make America (G)sick Again”?

      You walk around saying that America isn’t great, you’re going to get some feedback from actual Americans…

  4. These boors sound as bad as many anti-abortion protesters.

    Boorish misfits have rights, too.

    1. This was (and in some places still is) a common occurrence outside of LGBT businesses and events. Small groups of protesters with signs quoting Bible verses, bull horns, and a constant stream of insults. The goal being to provoke an altercation and set up a legal claim. The protesters made their annual income off of this.

      (I don’t know if the anti-Semitic protestors are in it for the cash or not. But the bible-thumping anti-LGBT ones sure are.)

      1. Gee. i might actually be bothered by that, if it weren’t for Arlene’s Flowers, Masterpiece Cakeshop, etc. et. al. getting legally harassed / businesses destroyed by LGBT thugs who just won’t let them be in business in peace.

        But so long as your’e at war with us, we’ll be happy to be at war with you

        1. If you want to try to use your religion to get special legal status not enjoyed by other businesses, you definitely aren’t the good guys.

          That said, no one is at war with you. Your persecution complex is showing.

          1. I cannot agree with this assessment. Historically, disregarding religion, or attacking it as inherently evil is probably responsible for several gigadeaths, of the estimated 70 billion people who have lived for as long as some great ape could reasonably be called human.

            Religion as argument for power isn’t over. It has just put on sheep’s clothes and declared itself atheist, while harboring attempted legal actions to attack it.

            As an atheist, I recognize the religious impulse wielded by those in power.

            If you want to try to use your religion to get special legal status not enjoyed by other businesses, you definitely aren’t the good guys.

            Neither you, nor they, are the good guys, when you use your religion, including atheism, to hurt other religions.

            And like all religions, you do it proudly and with the approval of your own conscience. “Surely we have it right this time!” the pol preens to the crowd. “We are the good guys feeling little positive strokes of approval!”

            1. “‘If you want to try to use your religion to get special legal status not enjoyed by other businesses, you definitely aren’t the good guys.’

              Neither you, nor they, are the good guys, when you use your religion, including atheism, to hurt other religions.”

              There’s making a law that is directly intended to harm a specifically religious perspective, such as, say, declaring that you’re going to put a picture of Mohammed on a postage stamp, and inviting the citizenry to choose between fat Mohammed and thin Mohammed. Laws that target a religious expression should be blocked, no matter what religion they are targeting. Laws that forbid an action, say, keeping ocelots as pets, should be kept even when some ocelot-loving jackass comes forward and claims that keeping an ocelot is how he maintains his relationship with God.

              So, if your religion prohibits you from eating bacon, then no bacon-cheeseburger for you, even if a local burger joint offers a bacon cheeseburger at an attractive price. Now, the fact that YOU are religiously prohibited from downing any sweet, juicy, bacon cheeseburgers does not imply that nobody else can have one either, even if there are a lot of you no-baconites living in town. The decision to eat that bacon cheeseburger or not eat a bacon cheeseburger is a series of individual decisions made by the various townspeople. So, you and your buddy no-baconites get together and vote a town ordinance that nobody can sell bacon within the town limits, specifically including when served with a cheeseburger wrapped around the bacon. If the state makes it a law that bacon is, too legal. Is too, Is too! everywhere in the state, you’re still quite free to not eat any bacon. And no, your religious beliefs have not been infringed because you weren’t allowed to impose them on people who aren’t believers in your chosen religion.

              1. It suddenly occurs to me that it is past lunchtime.

              2. “So, if your religion prohibits you from eating bacon, then no bacon-cheeseburger for you, even if a local burger joint offers a bacon cheeseburger at an attractive price.”

                Very good.

                Now, the thing is, if my religion prohibits me from eating bacon, so I refuse to sell bacon-cheeseburgers at my burger joint, then you can’t force me to do it.

                No matter how much you like bacon-cheeseburgers.

                And if my religion forbids me to participate in same sex “marriages”, or any other celebration of homosexual behavior, you can’t force me to do it.

                Because I own my effort, not you, and not the State

                1. “Now, the thing is, if my religion prohibits me from eating bacon, so I refuse to sell bacon-cheeseburgers at my burger joint, then you can’t force me to do it.”

                  You keep saying things like this as if they mean something. Hint: Nobody cares.

          2. “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

            If you think nobody is at war, you should read the Supreme Court’s holding in Masterpiece Cakeshop. They threw out the state governments action because it was motivated by improper animus against the owner’s religion.

            1. “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

              Never been impressed with that quote. Because, realistically, once the law abandons that equality, it ain’t the poor who will benefit from the disparate treatment.

              Equality is the best the poor can hope for.

              ” They threw out the state governments action because it was motivated by improper animus against the owner’s religion.”

              Excessively open improper animus. They stopped just short of saying, “Don’t confess why you’re doing it, just do it!”.

            2. Because it violated 1A. Which protects freedom of religion. Pretty simple. IMO it should have been broader and thrown out based on free will.

              If a baker refuses to bake a cake for someone who in unvaxxed is that a problem? Probably not since the unvaxxed are an enemy to the present regime.

              1. The bioweapon terrorists are an enemy to all the regimes.

                1. The bioweapon terrorists are an enemy to all the regimes.

                  So you want to go after the CCP for creating Covid?

                  Fauci for helloing to fund it?

                  The Biden Admin for importing thousands of Covid+ illegal aliens, and tens of thousands of unvaccinated illegal aliens?

                  No, you want to go after black Americans who don’t trust the government.

                  Because you really are a wretched monster

                  1. You’re really bad at reading.

                    1. No, James, the problem is that I’m actually good at reality, and you aren’t.

                      So you keep on saying really stupid things that blow back on your own side, and I keep on pointing it out

                    2. You’re WAY better at self-delusion, though, aren’t you?

                    3. ” you keep on saying really stupid things that blow back on your own side, and I keep on pointing it out”

                      First problem, Mr. “better at reality”, is that you’re clearly not connected to reality. For example, in your imagination, things I say keep blowing back on my side. Thing is, I’m a non-partisan, so which side is getting the blow-back?

                      You’re a belligerent asswipe idiot, and this bothers you, but not enough to change.

              2. ” 1A. Which protects freedom of religion.”

                It also protects freedom from religion.

                1. Yep, it does.

                  You don’t have to visit my church. i don’t have to make you something that violates my religion.

                  Just like my freedom to control my own sexuality doesn’t give me the right to force you to be heterosexual, or you the right to force me to be gay.

                  But you’re a monster. So you just can’t accept the idea that someone should be allowed to disagree with you, and act on it

                  1. ” i don’t have to make you something that violates my religion.”

                    maybe, maybe not. Depends on which state you happen to be in.

                    1. No, it doesn’t.

                      Because the 1st Amendment applies to the entire nation

                    2. Hint for Mr. “good at reality”: If you want to lecture anybody about what the 1A does, you might first want to learn what the 1A does. Special Hint because you’re bad at reading: It limits Congress.

                      Limits on the states come from the 14A.

                  2. “you just can’t accept the idea that someone should be allowed to disagree with you”

                    You’re the one whining about people disagreeing with you.

                    1. No, I’m “whining” about people trying to destroy other people’s businesses, and lives, for disagreeing with them.

                      You really can’t be so stupid that you can’t grasp the difference between the two, so why do you pretend that you are?

                    2. “No, I’m “whining” about people trying to destroy other people’s businesses, and lives, for disagreeing with them.”

                      Whatever you’re whining about, is accomplishing nothing.

                  3. “you just can’t accept the idea that someone should be allowed to disagree with you, and act on it”

                    I point out when you write something stupid, which seems to just keep happening. If having someone on the Internet point out that you’ve written something stupid gets your panties all twisted, you might try not writing stupid things on the Internet.

          3. If you want to stamp out all religions you disagree with, you definitely aren’t the good guys.

            That said, no one is at war with you. Your persecution complex is showing.

            He said, while celebrating people trying to drive people like me out of business.

            You are a pathetic a$$

            1. “People like you”???

        2. How long have you been at war with proper apostrophe placement?

          1. Sadly, I’ve been at war against good typing for most of my life

            1. If English was good enough for Jesus, it’s good enough for you, you heathen

              1. That was actually funny. Well played

      2. I guess I’d like to see some examples. The pickets I see on the news come from one noisy group with a small number of members.

        I know about the “legal claim[s]” against “anti-LGBT” businesses.

        And what’s with the bull horns? Are they Mithras followers?

        1. “The pickets I see on the news come from one noisy group with a small number of members.”

          Which suggests that you may need some more varied sources of news.

    2. “Boorish misfits have rights, too.”

      Yeah, stand up for yourself.

    3. Aw Artie shows up to connect disparate protests as if they have meaning in his bigoted mind.

      If you agree, please flush and then reconsider your opinion.

      1. OK, you’re (see, Greg, that’s how you do THAT) flushed.

        1. Half the commenters on this thread show up as muted for me, and now I can add one more.

          1. Such tremendous math skills you have!

            1. I’m just okay at math, and you weren’t the one I was muting.

              1. “I’m just okay at math”

                But you can add one more!

                “you weren’t the one I was muting.”

                Like I care

    4. Arthur, I just want to say thanks for contributing.

      There’s nothing more to say. Free speech applies most to speech that we find unappealing and intolerable. Doesn’t mean we have to like it, but blocking it would be worse.

    5. They do indeed, Arthur. 🙂

  5. Can’t they just contact the city and buy up the sidewalk in front of the synagogue?

    If they can’t even do that, they’re not a very powerful group of Jews, if you ask me.

    In general, if they can’t even stop a group of annoying picketers, maybe there are limits to “Jewish Power.”

    We’re looking in the wrong place, people. All this time it’s been the Illuminati. /sarc, or is it?

    1. Depending on the city, owning the land under the sidewalk gives you approximately no power over it. (But just try, say, leaving snow on it, or letting the sidewalk crack.)

  6. The next disgusting protest outside a synagogue, and we should deploy our Jewish Space Laser(tm) or weather machine against the protesters…

    1. But remember, the Lizard People get to borrow the weather machine on Saturday when you’re resting.

      1. If the laser begins firing before Friday sundown, we can keep it shooting all day Saturday.

        1. Just set it up like the elevator that stops on all the floors, and shoot the laser at everything all day Saturday. The people who don’t want to be shot by the space laser can just get out of the way.

    2. But remember, the Lizard People get to borrow the weather machine on Saturday when you’re resting.

      1. It wasn’t that funny the first time, and repetition didn’t improve the joke.

        1. What are you, the joke police?

          1. Now YOU’RE funny!

            EVERY TIME!

            1. OK, Mr. Joke Policeman, what’s your badge number?

              1. Are you just going to keep repeating until I give you an answer?

            2. OK, Mr. Joke Policeman, what’s your badge number?

              1. It’s pi raised to the e times i power.

  7. I’m entirely opposed to these protesters

    They sound like scum

    I’m happy that they get to continue protesting, because I think letting them give their message makes them worse than anythign else I could do to them

    I note the Left doesn’t behave this way. (Not try to censor all who they disagree with this)

    Which tells me that even Leftists know their ideas and positions are utter sh!t

    Because if what you are pushing is not garbage, you’re not afraid of having to debate it

    1. Confronting people protesting outside of religious services is not a “debate” or anything approaching or resembling a “debate.” Nor is there any real ground for debate if the basis for their protest is anti-Semitism.

      1. Actually, the fact that someone is grossly wrong is not incompatible with there being “real” ground for debate. E.g., my grounds for debating you are altogether real.

        1. Accepting your concession that you are grossly wrong.

      2. Shawn. Perhaps you understand. By letting these jerks protest with their signs, we let them expose themselves to world. I would much rather a horrid racist post their stances publicly so that I can properly avoid them.

        Them outing themselves is a worse punishment anything we can possibly do to them directly.

        1. Exactly. In fact, I would make it a point to widely publicize the protestors involvement. Their names, pictures, etc. I am actually a little surprised that has not happened already. Perhaps it should.

          If 1-A stands for anything, it protects speech I absolutely despise (these protestors). That doesn’t mean their speech is free of consequence. Perhaps Canary Mission will take notice of these protestors, and name them.

    2. “I’m entirely opposed to these protesters

      They sound like scum”

      So you’re conflicted. On the one hand, you don’t like protests, but on the other hand, these are people who are just like you.

      “Because if what you are pushing is not garbage, you’re not afraid of having to debate it”

      This is awfully brave of you, given your utter inability to debate.

  8. This is, of course, the largest challenge to those who strongly support the First Amendment. You have to be as strong (if not stronger) in your support of the rights of hatemongers, bigots, Nazis, religious zealots, and other loathsome people as good people saying nice things.

    That inevitably leads to accusations of you supporting the speech itself, not the right.

    1. I’ve repeated this numerous times in recent months during discussions of “the marketplace of ideas”: the great benefit of the First Amendment isn’t that there’s high value in every last burp barked from the piehole of every pus-drooling yokel with a heartbeat.

      It’s in denying those in power, especially nascent dictators, their best club in the golf bag of tyrants: censorship.

      1. Tiny detail: The first amendment doesn’t prevent censorship, it (attempts to) prevent censorship by the government. If (to pick entirely at random), say Clear Channel decides that callers who want to claim the 2020 election was totally fair and not fraudulent will not get on air, guess who will need to find another radio station to talk to? (the problem isn’t actually with the owner(s) of the station(s), it’s with the syndicator(s) of the program(s), but yeah, that sports call-in show doesn’t have to take your call about how (insert team) totally rules and how (other team) drools.

    2. “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.” (H. L. Mencken)

      1. ol’ H.L might have been right, but it’s a mistake to assume that all laws that are aimed at scoundrels are (or will be) oppressive.

  9. Lawrence Tribe suggested that these congregants could be prosecuted for acting under color of law to deprive these protesters of their civil rights.

    1. Then Tribe is once again being a moron. A suit that garners a published appellate decision is and ought to be immune from such a claim.

      1. Then he’s an even bigger idiot. The purpose of speech is to have an effect on other people, and alter their behavior.

        He doesn’t like the results. Ergo righteousness demands censorship.

      2. You do realize that Ejercito is being sarcastic here, right? Tribe actually made that argument about anybody who sues under SB8.

        Michael is just pointing out what you’d get if the reasoning were generalized, rather than just a specific excuse to attack one law.

        1. In short form, Tribe is once again being a moron.

          1. For having a name you could remember long enough to attribute a spurious legal claim to?
            Yeah, what a maroon.

    2. I think Tribe is losing it. Seriously, I do. Some of the arguments he’s been coming up with lately just make no sense at all.

      1. It’s almost like he hasn’t actually made some of the claims advanced with his name attached to them.

  10. Comment threads like this should come with a shower stall.

    1. Plus biohazard placards.

  11. Of course it is. 1A is as close to absolute as you can get.
    Just like racist BLM speech is protected

    1. ” 1A is as close to absolute as you can get.”

      Seriously? It’s written like it should be, but it turns that that “Congress shall make no law…” is interpreted to mean “OK, so Congress can make SOME laws”

      1. It’s as close to absolute as you can get when the relevant judiciary are nominated and confirmed by the exact people the text they’re interpreting is meant to constrain.

        1. Partisan nonsense from Brett? check.

          Disassociated from reality? check.

          Should be ignored by everyone who isn’t Brett? check.

  12. There would be tremendous savings of time and money if people could just read:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Do you see an exception for anti-Semitic speech? I don’t.
    Just read and if you disagree then you need to amend.

    Ah, but its so much easier to get an activist judge to claim that there is invisible ink which states certain speech is not OK

    1. Hey, it worked with Joseph Beauharnais (and the Supreme Court agreed!).

    2. “Do you see an exception for anti-Semitic speech? I don’t.”

      Nor is there a carve-out for obscenity. or for cryptographic codes, or methods of defeating cryptographic codes that protect copyrighted material, but all of those have been and/or still are abridged by federal laws passed by Congress.

  13. It seems a straightforward corollary of Snyder v. Phelps.

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