On October 28, 2015, the Sixth Circuit reversed a trial court's dismissal of a lawsuit by Bible Believers over the group's ejection from the 2012 Arab International Festival by police in Dearborn, MI.
In Dearborn, Michigan, for example.
Dearborn used to host an annual Arab International Festival. In 2010 and 2012, Christian missionaries were, respectively, arrested and threatened with sanctions while proselytizing festival attendees.
The June 18, 2010, arrests occurred while the defendants were peacefully preaching. David Wood, Nabeel Qureshi, Paul Rezkalla, and Negeen Mayel were charged with breach of peace, a misdemeanor. The city posted a letter from the mayor on its website, condemning the arrestees for "their attack on the City of Dearborn for having tolerance for all religions including believers in the Koran."
Unfortunately for Dearborn, there was videotape substantiating the defendants' version of events. The missionaries were acquitted of breaching the peace (although Mayel was found guilty of failing to obey a police order). Wood, Qureshi, and Rezkalla then sued Dearborn for violating their civil rights. In 2013, the city settled the case, removing the mayor's letter from its website, posting an apology in its stead, and paying the evangelists $300,000.
The 2012 incident involved evangelists from a different group, Bible Believers. They also recorded the event on a video camera. One evangelist carried a severed pig's head on a stick. Others displayed signs with text including "Islam Is A Religion of Blood and Murder," "Jesus is the Way, the Truth and the Life. All Others Are Thieves and Robbers," and "Muhammad is a... liar, false prophet, murderer, child molesting pervert." An evangelist began preaching using a megaphone, but stopped after police warned him not to. A missionary named Ruben Chavez castigated a crowd that had formed for following a "pedophile" prophet and warned of God's impending judgment.
As the evangelizing continued, the crowd – which appeared to include many minors – responded by yelling back and hurling water bottles, milk crates, eggs, rocks, garbage, and other objects at the evangelists. Chavez was struck in the face. Police intervened once to ask the crowd to back up and removed one teenager who threw a bottle; the record does not indicate whether he was arrested or cited. The "police presence and intervention dissipated after this minimal and isolated intervention." The missionaries asked to be moved to a protected area, but police refused because the chamber of commerce had chosen not to have a "free speech zone" at the festival that year as they had (for part of the festival) the previous year.
Instead, police asked the Bible Believers to leave to prevent injury, threatening to cite them if they refused. Chavez responded, "I would assume a few hundred angry Muslim children throwing bottles would be more of a threat than a few guys with signs." After checking with their lawyer, police reiterated their ultimatum to Chavez and the others. The Bible Believers left. They were cited for driving without license plates; they said that they had removed the plates because they feared they would be followed.
The Bible Believers sued Wayne County and its sheriff's department in federal court, claiming denial of their rights to free speech, equal protection, and free exercise of religion. The court granted summary judgment to the county and dismissed the case. The Bible Believers appealed to the federal Sixth Circuit Court of Appeals.
On August 27, 2014, the appeals court upheld the lower court's decision, then later decided to rehear the case. It was reargued in March before the full complement of Sixth Circuit judges (rather than the normal three-judge panel, like the one that decided the case originally). On October 28, 2015, the Sixth Circuit issued a decision reversing the trial court's dismissal and sending the case back down to the lower court.
The majority opinion was authored by Judge Clay, who had dissented from the earlier decision. He prefaced his opinion with what is in essence an ode to the free speech principles enshrined in the First Amendment. Government, he wrote, may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable, nor may police impose a "heckler's veto" by silencing a speaker to appease the crowd and stave off a potentially violent altercation. "Diversity, in viewpoints and among cultures, is not always easy," he said, and "inability or a general unwillingness to understand new or differing points of view may breed fear, distrust, and even loathing," but that is why we need free speech.
Clay analyzed the law regarding free speech under the First Amendment.
[Prior cases of] Cantwell and Terminiello instruct that offensive religious proselytizing, as well as speech that drives a crowd to extreme agitation, is not subject to sanction simply because of the violent reaction of offended listeners... The civil-rights era cases tell us that police cannot punish a peaceful speaker as an easy alternative to dealing with a lawless crowd that is offended by what the speaker has to say... The Supreme Court... has repeatedly affirmed the principle that "constitutional rights may not be denied simply because of hostility to their assertion or exercise."
Clay's recap of the facts concluded, "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." Basically, he found nothing to support Wayne County's claim that evicting the plaintiffs was the only way it had to prevent violence against them; he thought they hadn't really tried. Under the majority decision, the case will be returned to the trial court and the plaintiffs will have the opportunity to prove their claim.
The dissent adopted Garry Trudeau's argument that free speech shouldn't be used to "punch down" at the less privileged.
The decision was not unanimous. Seven judges joined Clay's opinion entirely, and two others did in part. Besides the majority opinion, there was one concurrence, two opinions that concurred in part and dissented in part, and two dissents. The most popular dissent, signed by five judges in all, was that of Judge Rogers.
Rogers decried the majority opinion as enabling obnoxious members of a majority culture to disrupt a minority group exercising its rights of free speech and assembly. He argued that First Amendment law did not bar police from keeping order by forcing offensive demonstrators – whom he labeled "hecklers" – to leave the scene of violence. "In the greater Detroit community, it is the minority's cultural expression that loses from today's decision. The disrupters here came from a different part of a larger community to disrupt the First Amendment activity of Arab-Americans..."
In his concurrence, Judge Boggs correctly characterized Judge Rogers' dissent as having "the disturbing implication that courts should decide who is a majority and who is a minority, and accord lesser rights to those whom judges deem a majority and greater rights to those whom they deem a minority." In effect, Boggs all but said that Rogers' dissent adopted the argument of Garry Trudeau and other PEN members who boycotted the group's 2015 gala honoring Charlie Hebdo. Trudeau distinguished between ridiculing the privileged and ridiculing the non-privileged – "punching downward," as he put it. Similarly, Boggs wrote, "[N]o Supreme Court case indicates that your rights depend on whether you are 'punching up' or 'punching down,' and indeed virtually all of them hold to the contrary."
Furthermore, Boggs wrote, as a practical matter, it is untrue that the evangelists represented the powerful majority culture and that the protestors pelting them with bottles, rocks, etc., represented a weak minority culture. He noted that Arabs are preponderant in Dearborn and that the actions of police in evicting the Bible Believers in 2012 and arresting preachers in 2010 indicate they are, in fact, the dominant culture there.
Clay's and Boggs' analyses are correct. In protecting both offensive and inoffensive speakers, the First Amendment does not discriminate between "majority" and "minority" speakers, "punching up" or "punching down." It does distinguish between people advocating imminent violence, and everyone else.
"Everyone else" includes speakers with unpopular views saying deeply offensive things. Picketing a soldier's funeral for the dead son of a gay man with signs reading, "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell"? Protected. Going door to door in a Catholic neighborhood playing a phonograph record demonizing Catholics? Protected. Marching through a neighborhood of Holocaust survivors displaying the Nazi insignia? Protected. The Bible Believers may be a "thoroughly disreputable plaintiff," but their speech, too, is protected, and those members of the American Muslim community who reacted with violence need to learn to suck it up, just as gays, Catholics, and Jews have done.
American Muslims must accept that even obnoxious people have free speech rights.
Dearborn may not trump the plaintiffs' First Amendment rights by a manufactured "public safety" claim. Allowing it to do so would simply encourage others to shut down unpopular speech with mob violence, and encourage police to rely on the threat of mob violence to squelch unpopular speech. American history might have been quite different if federal courts had simply allowed Southern sheriffs to break up civil rights demonstrations with impunity – to protect the demonstrators from violent white Southerners, of course.
In evaluating whether the government followed the least restrictive means in promoting public safety, the trial court will likely review what actions the government took in planning the event as well as during the festival. For example, despite previous incidents of missionaries being present and being assaulted, no protected speech area (like one abortively provided the year before) was available to the plaintiffs at the time of their eviction. Why was the festival not required to have one? And why did police not arrest the rock-throwers?
As Judge Boggs suggested in his concurrence, Dearborn's population and the history of incidents at the festival suggest that the region's Arab community is, functionally, the "majority" community, and it seems intolerant of "minority" views. Hopefully, the Sixth Circuit's opinion will remind it that the First Amendment protects the majority and the minority, Christians, Muslims, Jews, and others, in Dearborn and throughout the country.
Johanna Markind is associate counselor at the Middle East Forum