The Volokh Conspiracy
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I wrote about the case Oct. 13; Baltimore filed an emergency appeal, and just today the Fourth Circuit affirmed "the district court's order and opinion," without any further detailed analysis. Here's my summary from when the district court decision was handed down:
From the decision by Judge Ellen Hollander (D. Md.) in St. Michael's Media, Inc. v. Mayor & City Council of Baltimore:
St. Michael's Media, Inc. … [sued over Baltimore's] denying plaintiff the right to hold a prayer rally and conference on November 16, 2021, at the MECU Pavilion …, situated in downtown Baltimore on Pier VI, in an area known as the "Inner Harbor." The City owns the Pavilion, but it is managed by SMG, a private company that operates under the name "Royal Farms Arena."
St. Michael's, a non-profit organization, "is a vocal critic of the mainstream Catholic Church," including the United States Conference of Catholic Bishops ("USCCB"). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB's Fall General Assembly.
On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael's that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.
The court concluded that MECU was either a "nonpublic forum" (government property that wasn't generally open to the public for free speech) or a "limited public forum" (government property that was limited to speech by particular classes of speakers or on particular topics). But even in such fora, the government can't discriminate based on viewpoint, and the court concluded that here such viewpoint discrimination was likely happening:
[T]he City Defendants invoked controversial, inflammatory speech by rally speakers, as well as plaintiff's alleged support of the attack on the Capitol, as grounds for cancellation of plaintiff's event. This is suggestive of viewpoint discrimination.
At length, the [City Defendants'] Opposition recounts the history of "incendiary and hateful rhetoric" of [St. Michael's CEO Michael] Voris, [political strategist Steve] Bannon, and [Milo] Yiannopoulos. Perhaps to show plaintiff's "propensity for disruption," the Opposition also describes plaintiff's position as an "active propagandist for the claim that the November 2020 Presidential Election was stolen from Donald Trump," chronicling statements by Voris "glorif[ying] the January 6 "Capitol insurrectionists." And, [the Mayor's Chief of Staff Michael] Huber averred in his Declaration that Bannon and other intended speakers "support[ed] the January 6 attack on the Capitol…." Voris subsequently testified that in August 2021, when he spoke to [Baltimore City Solicitor James] Shea about the City's decision, Shea claimed that St. Michael's had "ties" to the January 6 attack on the Capitol.
The court concluded that Baltimore's actions involved "unfettered discretion," which tends to lead to viewpoint discrimination:
"The Supreme Court has long held that the government violates the First Amendment when it gives a public official unbounded discretion to decide which speakers may access a traditional public forum." "[T]he danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use." …
"First, [unbridled discretion's] existence, 'coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.'" "Second, 'the absence of express standards' renders it difficult to differentiate between a legitimate denial of access and an 'illegitimate abuse of censorial power.'"
In Child Evangelism Fellowship of MD, the Fourth Circuit determined that the matter of unfettered discretion also applies to nonpublic and limited public forums…. "[T]he dangers posed by unbridled discretion—particularly the ability to hide unconstitutional viewpoint discrimination—are just as present in other forums. Thus, there is broad agreement that, even in limited public and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment." …
Therefore, the Fourth Circuit struck down a policy of a county public school system in Maryland that gave the system "unfettered discretion" to deny access to a procedure by which community groups could send flyers home with students. What the defendant could not do, the Court ruled, was "what it has done here: assertedly limit access to certain purportedly neutral speakers but actually reserve to itself unbridled discretion to permit or deny access to any speaker for any reason it chooses…. Because the policy offers no protection against the discriminatory exercise of [defendant's] discretion, it creates too great a risk of viewpoint discrimination to survive constitutional scrutiny." …
[T]he City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff's plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael's. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City's actions here. As far as the Court is aware, none exist….
There are, no doubt, true emergencies in the life of a city, when officials must act immediately to protect life and property. A municipality cannot anticipate every crisis or eventuality, with a written policy or guidelines in place. Therefore, the City must be afforded some flexibility in the face of unexpected events or circumstances. And, in regard to the First Amendment, nonpublic, proprietary status of a venue can confer a greater degree of discretion than in other contexts.
But, the matter at hand does not constitute an emergency. And, the occurrence is of a kind that certainly could be anticipated, especially given that the venue has been open since 1981. The need for flexibility does not preclude at least some standards for the exercise of the City's discretion in regard to Pavilion bookings….
And the court concluded that they rested on a "heckler's veto," which is likely a form of viewpoint discrimination, at least in this case:
"Historically, one of the most persistent and insidious threats to first amendment rights has been that posed by the 'heckler's veto,' imposed by the successful importuning of government to curtail 'offensive' speech at peril of suffering disruptions of public order." Berger v. Battaglia, (4th Cir. 1985).
It is a fundamental principle of First Amendment jurisprudence that the "[l]isteners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement (1992) (invalidating ordinance that allowed county administrator to adjust parade permit fees based on anticipated cost of security); Ovadal v. City of Madison (7th Cir. 2005) (a content-based restriction of speech is likely when "every proffered justification" for the restriction is "directly related to the reactions" of the audience).
"Speakers of protected speech—even speech that is offensive to many listeners—may not be punished because their critics 'might react with disorder or violence.'" Deferio v. City of Syracuse (N.D.N.Y. 2018) (quoting Brown v. Louisiana (1966))…. Indeed, "[s]peech that stirs passions, resentment or anger is fully protected by the First Amendment."
Fourth Circuit case law makes clear that permitting a heckler's veto is a content-based restriction on speech. See, e.g., Rock for Life-UMBC v. Hrabowski (4th Cir. 2010) ("Courts have recognized a heckler's veto as an impermissible form of content-based speech regulation for over sixty years."). But, to my knowledge, the Fourth Circuit has not clarified whether or when the heckler's veto amounts to viewpoint discrimination. This is important because, as discussed, content-based regulations may be permissible in the context of a nonpublic or limited public forum, but viewpoint-based restrictions are not.
However, other circuits that have addressed this issue have concluded that a heckler's veto can, at least in some contexts, implicate viewpoint discrimination. In Bible Believers, the Sixth Circuit squarely held that "[t]he heckler's veto is precisely that type of odious viewpoint discrimination." And in Seattle Mideast Awareness Campaign, the Ninth Circuit remarked that concerns regarding a heckler's veto "do not carry the same weight" outside of a traditional or designated public forum, but may sometimes raise concerns as to viewpoint discrimination. "A claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker's point of view. That might be the case, for example, where the asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed." …
Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler's veto….
The City's invocation of a heckler's veto … raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City's decision. And, at the hearing, counsel for the City placed considerable weight on the City's concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the "persistent and insidious threat[s] to first amendment rights" discussed in Berger: the "successful importuning of government to curtail 'offensive' speech at peril of suffering disruptions of public order." …
To my knowledge, the concept of the heckler's veto is applicable even as to a nonpublic forum. As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when "used as a mere pretext for suppression expression" based on viewpoint. This includes, for example, "where the asserted fears of a hostile audience reaction are speculative and lack substance."
Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.
Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment. The relevance of any of the City's discussion of plaintiff's stance regarding the January 6 events to the City's public safety concerns is attenuated at best. This is underscored by the fact that the City never accuses St. Michael's of actual involvement in the events of January 6, 2021. Rather, it is critical of plaintiff for its coverage and support of the occurrence. Likewise, the City mentions racist rhetoric by Yiannopoulos, with little clear connection to public safety concerns.
Without question, many people might be offended by plaintiff's alleged support for those who stormed the Capitol, or for plaintiff's alleged promotion of the belief that Mr. Trump was the true winner of the 2020 presidential election. But, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989).
Finally, the court dismissed several other justifications that Baltimore offered during the litigation:
[T]he City added as a consideration the understaffed, burdened Baltimore Police Department. The shortage of police officers is documented in separate litigation between the Baltimore Police Department, the City, and the Department of Justice, which culminated in a consent decree. The City also expressed concern about the litigation risk the City could face if violence were to ensue. In this regard, it suggests that this concern is quite legitimate, given the suit now pending against the City in federal court, arising from property damage to businesses as a result of the riots in 2015 that followed the death of Freddie Gray while in police custody.
The City also now focuses on the size of the 2021 event as the basis for a safety concern. But, the size of the crowd was not mentioned in the Huber Declaration or the Shea Declaration. And, if size were actually the City's concern, it could have made an effort to limit the size of the event, instead of blocking it entirely.
As mentioned, no case law has been cited by plaintiff to suggest that the City was required to disclose to plaintiff any basis for its decision, or every ground on which its decision was premised. But, the City did provide a reason. That reason related to provocative speakers and St. Michael's alleged support for the assault on the Capitol on January 6, 2021. The appearance during the litigation of additional justifications, not reflected in the evidence regarding the City's concerns when it made the decision to cancel the rally, creates an inference of post hoc rationalization. This is especially so because the City presented no evidence to rebut that inference.
Post hoc rationalizations by a government can be evidence of viewpoint discrimination. As the D.C. Circuit has said, in the context of a decision to close a forum: "[I]f the Government proffers one reason when closing the forum but another when it later defends the closing, then that in itself is evidence of pretext."
The concern regarding post-decision justifications that surface during litigation also aligns with the importance of standards to prevent viewpoint discrimination. "Without [such] guideposts, post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression." …
The court rejected the St. Michael's Media breach of contract claim, though, concluding that no enforceable contract had yet been formed.
Congratulations to Marc Randazza and David Wachen, who represent St. Michael's Media.