Sixth Circuit rejects 'heckler's veto' as to anti-Islam speech by 'Bible Believers'

by Eugene Volokh
Washington Post
October 28, 2015

https://www.legal-project.org/4442/sixth-circuit-rejects-heckler-veto-as-to-anti

The 15-judge federal court of appeals for the Sixth Circuit has just handed down an interesting and important First Amendment decision. The opinions are long, and I can't fully do them justice, but I quote below some excerpts.

My quick thoughts: (1) Offensive and unproductive as the speech here might be, I think the majority and Judge Boggs' concurrence are quite right.

(2) Just to anticipate the inevitable attempt to cast this as a "Democrats support the rights of the offended Muslims listeners, Republicans support the rights of the offending Christian speakers," note that the pro-speaker majority consists of four Democratic appointees and six Republican appointees (including two who concurred in large part but not entirely), and the pro-restriction dissent consists of one Democratic appointee and four Republican appointees.

1. From the majority's summary of its position (some paragraph breaks added throughout the quotes):

This case calls on us to confirm the boundaries of free speech protections in relation to angry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees. Set against the constitutional right to freedom of speech, we must balance the state's interest in insuring public safety and preventing breaches of the peace.

The scenario presented by this case, known as the "heckler's veto," occurs when police silence a speaker to appease the crowd and stave off a potentially violent altercation. The particular facts of this case involve a group of self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some of whom responded with threats of violence. The police thereafter removed the evangelists to restore the peace. Bearing in mind the interspersed surges of ethnic, racial, and religious conflict that from time to time mar our national history, the constitutional lessons to be learned from the circumstances of this case are both timeless and markedly seasonable.

In this opinion we reaffirm the comprehensive boundaries of the First Amendment's free speech protection, which envelopes all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result of such offense, arouses violent retaliation. We also delineate the obligations and duties of law enforcement personnel or public officials who, in the exercise of the state's police power, seek to extinguish any breaches of the peace that may arise when constitutionally protected speech has stirred people to anger, and even to violence....

2. From the majority's description of the facts:

The Bible Believers ... [came] to Dearborn ... for the 17th Annual Arab International Festival. As they had done the previous year, the Bible Believers traveled to the Festival so that they could exercise their sincerely held religious beliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his followers to hurl words and display messages offensive to a predominantly Muslim crowd, many of whom were adolescents. These messages were written on their tee-shirts and on the banners and signs that they carried. The following is a sampling of the Bible Believers' messages:

"Islam Is A Religion of Blood and Murder"
"Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers"
"Prepare to Meet Thy God – Amos 4:12"
"Jesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be Blotted Out"
"Trust Jesus, Repent and Believe in Jesus"
"Only Jesus Christ Can Save You From Sin and Hell"
"Turn or Burn"
"Fear God"

In addition to the signs, one of the Bible Believers carried a severed pig's head on a spike, because, in Israel's own words, it would "ke[ep] [the Muslims] at bay" since "unfortunately, they are kind of petrified of that animal." ...

[Details omitted.-EV] In summary, the Bible Believers attended the 2012 Festival for the purpose of exercising their First Amendment rights by spreading their anti-Islam religious message. When a crowd of youthful hecklers gathered around the Bible Believers, the police did nothing. When the hecklers began throwing bottles and other garbage at the Bible Believers, a WCSO officer intervened only to demand that the Bible Believers stop utilizing their megaphone to amplify their speech. Virtually absent from the video in the record is any indication that the police attempted to quell the violence being directed toward the Bible Believers by the lawless crowd of adolescents.

Despite this apparent lack of effort to maintain any semblance of order at the Festival, each time the police appeared on the video — to reprimand the use of the Bible Believers' megaphone, to suggest that the Bible Believers had the "option to leave" the Festival, to trot by on horseback while doing next to nothing, and to expel the Bible Believers from the Festival under threat of arrest — the agitated crowd became subdued and orderly simply due the authoritative presence cast by the police officers who were then in close proximity. Only once is an officer seen removing one of the bottle-throwing teens. Israel, when faced with the prospect of being arrested for disorderly conduct, observed, "and you would think we would be complaining, but we're not." The Bible Believers were thereafter escorted from the Festival and ticketed by a large group of WCSO officers for removing the license plate from their van....

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