You’d think the city of Dearborn would have learned by now that the First Amendment actually does apply to their city. They’ve now lost another lawsuit over their attempts to restrict the free speech rights of anti-Islam activists, this one over a demand that those holding a legal rally in their city be required to indemnify the city against anything that happens.
This is another case involving Terry Jones, a vile bigot who burns Qurans and generally tries to get attention (and money, I’m sure). But the fact that he’s a loathsome character doesn’t mean his speech isn’t protected. In this case, the city of Dearborn refused to issue him a permit for an event on public property across from a mosque if he didn’t sign an agreement agreeing to indemnify and hold the city harmless for absolutely anything remotely related to the event. He filed suit, with the help of the Thomas More Law Center, and federal Judge Denise Page Hood has now granted summary judgment against the city.
As this Court ruled in its order granting a temporary restraining order, the clause in the agreement itself requiring Plaintiffs to “RELEASE AND FOREVER DISCHARGE the City of Dearborn … from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property” is an unconstitutional clause which impedes Plaintiffs’ First Amendment rights to free speech and assembly. The Court held that the clause encompasses not only liability for physical harm to the Plaintiffs, but also for deprivation of Plaintiffs’ constitutional rights. “We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.” The clause also requires permittees to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City. The ordinance requiring the indemnity agreement and the “Hold Harmless” agreement presented toPlaintiffs are unconditional and violate the First Amendment to the United States Constitution as to Plaintiffs and others who wish to exercise their rights to speak and assemble in the public fora.
This is a tactic that was used in the 60s against civil rights protests. Particularly in the south, cities would require civil rights groups to indemnify them, charge them for police protection and require them to purchase very expensive insurance policies. They effectively priced them out of being able to exercise their free speech rights. The same thing is happening here. And as Judge Hood notes, the indemnification agreement requires the group asking for the permit to pay the legal fees of the city if they are sued for conduct that the permittee has no control over, like police brutality.
What really baffles me is that even after the court granted a preliminary injunction in the case and said that the ordinance is unconstitutional, the city still made a motion for summary judgment in their favor. Did they really think they were going to win on that? Dearborn has a terrible track record on this, violating the rights of protesters multiple times over the last few years and losing in court every time. Maybe they should read the Bill of Rights and start following it. You can read the full ruling here.