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Judge Endorses Heckler’s Veto

Judge Endorses Heckler’s Veto May 18, 2013

The Dearborn Arab International Festival has been the site of many clashes between the police and Christian evangelists who go there to preach to the mostly Muslim crowd. This has resulted in several arrests that ended in acquittals and lawsuits that vindicated the protesters and forced the city to apologize. But in one case from last year, a federal judge has endorsed the heckler’s veto and dismissed a lawsuit by a Christian group that was arrested and charged with disorderly conduct after Muslims at the festival through bottles and other things at them. The ruling describes what happened:

At the 2012 Festival, “Plaintiffs peacefully engaged in their expressive activity along the public sidewalks and other public areas where pedestrian traffic was permitted.” Members of the Bible Believers donned t-shirts or carried banners with messages such as “Only Jesus Christ Can Save You From Sin and Hell,” “Fear God and Give Him Glory,” “Trust Jesus, Repent and Believe in Jesus,” “Turn or Burn,” “Jesus is the Way, the Truth and the Life. All Others Are Thieves and Robbers,” “Islam Is A Religion of Blood and Murder,” and “Muhammad is a . . . liar, false prophet, murderer, child molesting pervert.” One member of the Bible Believers carried a pig’s head on a stick. Another brought a megaphone so as to amplify the group’s street preaching. In order to capture the events, Fisher carried a small hand-held video camera.

Video footage from the event shows members of the Bible Believers entering the Festival near the carnival-style rides at approximately 5:50PM. The group stops at what appears to be the edge of the Festival and Israel begins preaching on a megaphone. Israel proclaims: “Your prophet is nothing but an unclean swine, your prophet married a seven-year-old girl, your prophet is a pedophile, and your prophet teaches you not to believe in Jesus as the Christ.” At this point, a small crowd of what appears to be mostly children begins forming around the Bible Believers and members from the crowd can be heard objecting to Israel’s speech. Israel, undaunted by the crowd, announces to the swelling crowd that “your religion will send you to hell.” According to Israel, this is because the crowd believes in “a prophet that is a pervert” who “molested a child.” At this point, the crowd becomes increasingly upset, admonishing Israel for the views he is expressing. Israel continues to denounce the Islamic faith and the Prophet Muhammad.

Eventually, members of the crowd begin hurling objects at the Bible Believers. No member of the Bible Believers responded with violence. The preacher does, however, indicate that members of the Islamic faith have only violence and murder in their heart. The street preaching continues, as does the bottle-hurling, and someone in the crowd can be seen encouraging the group of mostly children to disperse.

The first time a law enforcement official is captured on film is when a member of the Sheriff’s Office walks up to the Bible Believers. The official, speaking directly to Israel, explains that Dearborn has an ordinance prohibiting the use of megaphones and that if the group continues to use it, a citation will be issued. Israel explains that the group used the megaphone the previous year but the official repeats his request.

Eventually, the Bible Believers move from the Festival’s perimeter and push further along Warren Avenue. Despite the movement, the aggression directed towards the Bible Believers continues. During the video, law enforcement officials are seen trying to quell the crowd and stem the violent conduct. These efforts, however, were not entirely successful as even with several officers standing in front of the Bible Believers and after the mounted units made several passes by the Bible Believers, debris was thrown at the Bible Believers. Officials are also seen yanking children from the crowd if seen throwing items.

Plaintiffs engaged in their expressive activities for approximately one-and-a-half hours. For most of that time, Festival attendees are seen arguing with and throwing objects at the Bible Believers. Eventually, Richardson pulled Israel aside to ask that the group leave. He stated that there was a real risk that somebody – either a member of the

Bible Believers, a Festival attendee, or someone with the Sheriff’s Office – would be injured if the Bible Believers did not cease their activity. Israel indicated that he had a right to be there and asked Richardson whether he would be arrested should he choose to stay. Richardson indicated that he could not be sure whether there would be an arrest but did indicate that if the Bible Believers did not leave, disorderly conduct citations would be forthcoming. Upon hearing this, Plaintiffs departed the Festival.

Now, if there is an ordinance against the use of megaphones and it is enforced across the board, then that’s fine. They can make them stop using a megaphone. But as even the judge’s ruling indicates, all of the violence came from the Muslim crowd, not from the group that was threatened with arrest for that infamous catchall “disorderly conduct.” This is an absolutely clear cut case of the police violating the First Amendment rights of those protesters and failing to do their job. But the judge nonetheless dismisses the case, even after agreeing that the speech here is clearly protected under the First Amendment:

The first step is to determine whether Plaintiffs’ activities constitute protected expressive conduct. Conveying religious messages on signs, banners, and t-shirts and orally disseminating religious beliefs fall under the purview of the First Amendment. The First Amendment also generally protects controversial speech.

The judge also agrees that this is a “traditional public forum,” which is accorded the highest protection for free speech under Supreme Court precedent. And the judge even says up front that the police cannot censor speech due to the violent reactions of others:

The Supreme Court has repeatedly held that police may not interfere with orderly, nonviolent expressive activities merely because they disagree with the content of the speech or because they fear possible disorder.

And that the law does not permit the police to violate free speech rights due to the heckler’s veto:

Similarly, it is axiomatic that the First Amendment “knows no heckler’s veto.” …“speech cannot be…punished or banned[] simply because it might offend a hostile mob”

Despite all that, he then clearly and obviously contradicts this by endorsing the heckler’s veto as a means of preventing others from exercising their rights:

Far from being an unlimited, unqualified right, the societal value of speech must, on occasion, be subordinated to other values and other considerations…

An examination of the video evidence reveals a mounting threat to public safety. Plaintiffs “freely engaged” in

“expressive activity” for well over an hour even though many Festival attendees reacted negatively to Plaintiffs’ message soon after Plaintiffs’ arrival. The negative reactions are evidenced by the throngs of mostly children

surrounding the Bible Believers who hurled epithets at the Bible Believers in addition to water bottles and other debris. The safety threat is evidenced by the fact that Israel is captured on video with a small amount of blood

trickling down his forehead…

The Court finds that the actual demonstration of violence here provided the requisite justification for Defendants’ intervention, even if the officials acted as they did because of the effect the speech had on the crowd. As in Feiner, where the Supreme Court approved of a breach of peace conviction for the reaction the speaker’s speech engendered, Defendants were not “powerless to prevent a breach of the peace” in light of the “imminence of greater disorder” that Plaintiffs’ conduct created.

In short, the judge said that the actions of the police were reasonable because of the violent reaction from the crowd that was angered by their message. You don’t need to be an ACLU attorney to recognize the danger here. If the way to shut someone up who is saying something that angers you is to react violently, you’re basically giving them the blueprint to censor others by being violent in response. You are inviting violence.

Think I’m wrong? Then imagine that the protesters were not Christians but atheists. Or that they were gay rights activists protesting at a Christian festival. Or a civil rights march threatened by racist protesters. In every case, the principle is exactly the same — the job of the government is to protect the right to free speech, not to arrest them because other people are reacting violently.

They filed an immediate appeal of this ruling. I sure hope they win.

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