The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Seattle Improperly Imposed a "Heckler's Veto" on Street Preacher at "an Abortion Rally and an LGBTQ Pride Event"

So holds the Ninth Circuit.


From yesterday's decision in Meinecke v. City of Seattle, written by Judge Jay Bybee, joined by Judges Margaret McKeown and Daniel Bress:

Appellant Matthew Meinecke's speech was not well received by his audience. On two separate occasions in June 2022—an abortion rally and an LGBTQ pride event—Meinecke sought to read Bible passages to attendees gathered in the city of Seattle. When those attendees began to abuse and physically assault Meinecke, Seattle police officers asked Meinecke to move and ultimately arrested him when he refused, rather than deal with the wrongdoers directly….

On June 24, 2022, the United States Supreme Court overturned Roe v. Wade. In response, a significant number of people gathered on Second Avenue outside the federal building in Seattle to protest the decision. Meinecke arrived that afternoon dressed in a shirt and tie and went to a public walkway adjacent to Second Avenue. According to his complaint, Meinecke "did not come to this event to condemn abortion" or even to "speak on this topic, but to convey his faith in Christianity to people who were in the area." He held up a sign, read from the Bible, and handed out Christian literature.

Protestors surrounded Meinecke after about an hour. One protestor seized Meinecke's Bible. Meinecke retrieved another Bible from his bag and continued reading aloud. Another protestor grabbed hold of—and ripped pages from—the new Bible. The altercation soon escalated. As protestors, some of whom Seattle police characterized in their written reports as Antifa, encroached, Meinecke took hold of an orange-and-white traffic sawhorse. Five protestors, some clad in all black and wearing body armor, picked up Meinecke and the sawhorse, moved him across the street, and dropped him on the pavement. One law enforcement officer who observed this interaction reported that "'Antifa' members … began to fight/assault" Meinecke.

Undeterred, Meinecke walked back to his original location by the federal building and resumed reading and held up a sign. While people gathered on the street, however, some approached Meinecke, knocked him down, and took one of his shoes.

Seattle police finally intervened. Although the officers acknowledged that the protestors had assaulted Meinecke, they took no action against the perpetrators. They instead ordered Meinecke to leave the area. The precise dictates of the officers' order are in dispute. Meinecke maintains that the officers instructed him "to go where no one could hear [his] message or read [his] sign." The City disagrees, claiming that Seattle police simply directed Meinecke to the other side of the street and that they told Meincke that he "could still display his banner and exercise his [F]irst [A]mendment rights."

Regardless, Meinecke declined to go to a different location. The officers then arrested Meinecke for obstruction under Seattle Municipal Code Ordinance § 12A.16.010(A)(3), which provides, "A person is guilty of obstructing a police officer if, with knowledge that the person obstructed is a police officer, he or she … [i]ntentionally refuses to cease an activity or behavior that creates a risk of injury to any person when ordered to do so by a police officer." The officers took Meinecke to the police precinct and kept him there for about two hours; they did not book him. Meinecke was released after the abortion protest ended….

Seattle's annual PrideFest took place on June 26, 2022, two days after the Dobbs rally. The event was held at the Seattle Center, a public park. Meinecke, again dressed in a shirt and tie, entered the park around noon and began to read from the Bible in a conversational tone.

Eventually, PrideFest attendees noticed Meinecke's presence. As the district court found, they began "dancing near him, holding up a flag to keep people from seeing him," and making "loud noises so he could not be heard." According to his complaint, "a couple of attendees stood close to Meinecke and howled and barked like dogs, and mocked Meinecke, while he read passages from the Bible. Meinecke did not engage with them." Another individual poured water on Meinecke's Bible. Meinecke kept reading aloud.

After a couple of hours, more PrideFest attendees gathered around Meinecke and began yelling. This attracted the attention of about ten law enforcement officers, who asked Meinecke "to move to a public area located outside the park." Meinecke declined and continued to read from his Bible. A PrideFest attendee shouted at the officers, demanding Meinecke's removal. The officers then told Meinecke "that they were imposing a 'time, place, and manner' restriction on him and ordered him to leave the park." Again, Meinecke declined to leave. The officers told Meinecke "that he was posing a risk to public safety," and they again demanded he leave the park. Meinecke told the officers that he was not in any danger. The officers then arrested Meinecke for obstruction.

Meinecke again was taken to the precinct. This time, though, the officers booked him. He was later released on bond. At his hearing a few days later, the City informed Meinecke that it was not pursuing the charges against him at that time, but it warned Meinecke that "it could bring up charges for this incident at a later time." …

The panel concluded that the government's actions were likely unconstitutional, and ordered that the government be preliminarily enjoined "from enforcing § 12A.16.010(A)(3) against Meinecke in public parks and streets based on the anticipated hostile reaction of an audience." The panel held that the actions were "content-based heckler's vetoes":

Our precedent on this point is clear: "The prototypical heckler's veto case is one in which the government silences particular speech or a particular speaker 'due to an anticipated disorderly or violent reaction of the audience.'" As such, it "is a form of content discrimination, generally forbidden in a traditional or designated public forum." The Supreme Court has emphasized as "firmly settled" that "the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers, or simply because bystanders object to peaceful and orderly demonstrations." … "Listeners' reaction to speech is not a content-neutral basis for regulation." …. It is apparent from the facts, including the video available from police body cameras, that the Seattle police directed Meinecke to leave the area because of the reaction his Bible-reading provoked at the Dobbs and PrideFest protests….

[T]he City maintains that the police officers merely sought to relocate Meinecke's speech rather than ban it outright…. But the government cannot escape First Amendment scrutiny simply because its actions "can somehow be described as a burden rather than outright suppression." …

Even assuming that the officers simply instructed Meinecke to cross the street, their directions burdened Meinecke's speech. Meinecke had a right, just as those participating in the anti-Dobbs rally or the celebration of PrideFest, to use public sidewalks and streets for the peaceful dissemination of his views….

And the panel concluded that this content-based speech restrictions couldn't satisfy the applicable "strict scrutiny" test, because it was not "the least restrictive means to achieve the government's interest in safety":

"If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech." … The officers could have required the protestors to take a step back from Meinecke. They could have called for more officers—as they did after Meinecke was arrested. They could have erected a free speech barricade. They could have warned the protestors that any sort of physical altercation would result in the perpetrators' arrests. And they could have arrested the individuals who ultimately assaulted Meinecke.

The City did none of those things. Instead, the police report on Meinecke's arrest simply recites that "[w]hen resources allowed in the past[,] SPD would try and keep the two opposing groups separated." That is hardly the sort of concrete proof necessary to establish that restricting Meinecke's speech was the only way to avoid violence….

Nathan W. Kellum (Center for Religious Expression) argued the case for plaintiff; Keith A. Kemper (Ellis Li & McKinstry PLLC) was also on the briefs.