Aren't you going to blog about that Sixth Circuit case?
You mean Merrick v. Diageo Americas Supply, Inc., clarifying whether the Federal Clean Air Act preempts common law claims against an emitter, and whether that question is susceptible to interlocutory review?
You know that's not what I mean.
It's a fascinating case. It uses the term "whiskey fungus." If you could grow whiskey like a fungus that would be awesome. I could go for some whiskey fungus right now.
Stop it. You know I'm talking about the big free speech case.
The case about the heckler's veto? Why should I write about it? Eugene Volokh already 'splained it. He's occupied the field. Don't you understand preemption?
You know you want to write about it anyway.
You're not the boss of me.
I'll just wait.
Goddammit.
There. Doesn't it feel better when you surrender? Anyway, what's the case and what's it about?
The case is Bible Believers v. Wayne County. It's about a 2012 incident in which a group called the Bible Believers showed up at the Arab International Festival in Dearborn, Michigan, preached against Islam, and left when they were threatened with arrest for "disorderly conduct" in the face of an angry crowd.
What does that have to do with veto power? What is a heckler's veto, anyway?
"Heckler's veto" is a term used to describe situations where authorities limit or punish speech because of angry, threatening, or violent responses to the speech. For instance, it's been used to describe a school banning students from wearing the American flag on Cinco de Mayo because other students were reacting violently, or removing public transit advertisements when they generate threats. The concept is this: if you allow a "heckler's veto," that means people who don't like speech can suppress it by reacting to it violently or aggressively.
So why was this heckler's veto in court?
The Bible Believers and some members sued the county, the sheriff, and several officers for violations of constitutional rights. They argued that when the cops reacted to an angry crowd by telling the Bible Believers to leave, they violated their rights.
Why was the crowd angry?
The Bible Believers are assholes. They were carrying a severed pigs head "to keep Muslims at bay" and carrying signs that say "Islam Is A Religion of Blood And Murder" and yelling about Mohammed being a pedophile and telling the Muslims at the festival that they were going to hell and so forth.
So basically Breitbart.com: The Live Show.
I don't think they were Trump-fluffing. But otherwise yes.
Did the crowd get violent?
Sort of. Some people threw plastic bottles and debris. The crowd size ebbed and flowed. One guy got hit in the face. At one point the crowd chased them around and threw bottles and garbage. It wasn't a gang brawl, but it was a bad scene.
So what did the cops do?
They told the kids throwing things to cut it out a few times. They rode through on horses and quieted the crowd once. But eventually they pushed through the crowd and told the Bible Believers that they had to leave or be cited for disorderly conduct because they were "creating danger" and impacting public safety by riling up the crowd. So the Bible Believers left.
So what did the Bible Believers do?
This is America! So they sued. But the federal trial court decided that the cops acted permissibly in the face of danger, and that they were protected by qualified immunity anyway. A three-judge panel of the Sixth Circuit agreed. But then the Sixth Circuit agreed to rehear the case "en banc," meaning "with all or at least a whole bunch of the judges on the circuit participating and deciding."
Is it a good decision or a bad decision?
It's a very good decision for free speech advocates. The majority went out of its way to lay out the relevant First Amendment issues in a clear manner and address them, and wound up vigorously supporting the right to say things that crowds hate, and the obligation of police to protect unpopular speech rather than yield to a heckler's veto.
Here's how the majority described what it set out to do:
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.
In other words, this isn't a "let's rule as narrowly as possible to resolve this case" decision. It's a "let's try to clarify this entire area of law" decision.
So what's the legal issue? Is a heckler's veto unconstitutional?
Not exactly. Courts have referred to the heckler's veto in various different contexts, but it's hard to draw from those diverse situations a clear methodology. Here's what this court said to start it off:
Free-speech claims require a three-step inquiry: first, we determine whether the speech at issue is afforded constitutional protection; second, we examine the nature of the forum where the
speech was made; and third, we assess whether the government’s action in shutting off the speech was legitimate, in light of the applicable standard of review.
That's nicely organized. Free speech cases aren't always clear on the order of analysis.
So the first question is whether the heckled speech is protected in the first place?
Exactly. Here the Sixth Circuit said it was, and that's one of the most important parts of the decision. The cops argued that the Bible Believers were inciting a riot because they were saying incendiary things likely to cause violent reaction. Not so fast, says the Sixth Circuit. It's only unprotected incitement if you try to, and intend to, cause violence:
The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech. 395 U.S. at 477. The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile reaction of a crowd does not transform protected speech into incitement.
So: that's a no on the "saying things that make people really mad is incitement" theory. That's huge. It's rarely been articulated so clearly.
What about fighting words? I hear about fighting words a lot. Isn't it fighting words?
OK. I'm not saying that it's never fighting words. But it's never fighting words.
Yeah, the cops argued the fighting words doctrine. But the Sixth Circuit noted how narrow that doctrine is.
A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997). We rely on an objective standard to draw the boundaries of this category—no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Street v. New York, 394 U.S. 576, 592 (1969) (citation and internal quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens, J., concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a “direct personal insult”). The Bible Believers’ speech cannot be construed as fighting words because it was not directed at any individual. Furthermore, the average individual attending the Festival did not react with violence, and of the group made up of mostly adolescents, only a certain percentage engaged in
bottle throwing when they heard the proselytizing.
As I have mentioned before, just about every court decision in the last half-century has rejected using the fighting words doctrine to justify censorship. The Sixth Circuit could have pointed that out, but didn't — it just pointed out that the doctrine, if it survives, is limited to face to face, direct to one individual words that would provoke an average person to immediate violence. That's narrow.
So the speech was protected. But the crowd was getting violent, right? Can't the police take steps to de-escalate a violent situation?
Absolutely. But what the court said here is that the evidence showed that the police didn't even try methods other than shutting the Bible Believers down. First, the Sixth Circuit articulated the core idea behind a prohibition on hecker's vetoes:
In a balance between two important interests—free speech on one hand, and the state’s power to maintain the peace on the other—the scale is heavily weighted in favor of the First Amendment. See, e.g., Terminiello, 337 U.S. at 4. Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas . . . by . . . [the] dominant political or community groups.” Id. at 4–5. Democracy cannot survive such a deplorable result.
Next, the court seemed to articulate a law enforcement duty not merely to refrain from silencing the controversial speaker, but an affirmative duty to protect them:
Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of th[at] right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939).
That's very unusual, because the courts generally don't impose affirmative duties on cops to protect people, only duties to refrain from doing things.
Ultimately the court didn't say that cops can never silence a speaker in order to keep the peace. Rather, they said that such a decision is going to get the most exacting type of scrutiny — second-guessing — that the court can offer:
The rule to be followed is that when the police seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. See Gregory, 394 U.S. at 120 (“[A] police officer[’s] . . . duty is to enforce laws already enacted and to make arrests . . . for conduct already made criminal.”) (Black, J., concurring). The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights.
That's huge because of the lack of typical credulous deference to law enforcement decision-making. The normal stance of courts is "cops have to do what they think is right for law and order and we're not going to second-guess their call in the heat of the moment." The Sixth Circuit is saying "no, if a cop shuts someone up to keep the peace, we're going to look very carefully to see if there is anything else the cop could have done instead."
The Sixth Circuit found that the evidence showed that the cops here made no serious effort to control the crowd, and instead went straight for the shut-up-the-speaker remedy.
So the court found that threatening the Bible Believers with citation was a free speech violation?
Yes. And based on the same analysis the court said it was also a violation of their right to free exercise of religion, and a violation of their equal protection rights, because the cops preferred the mob over the speaker.
But wait. When cops violate people's rights, don't they usually get off because they have immunity?
Yes. Cops have qualified immunity, meaning that their actions are protected unless their behavior violates "clearly established constitutional or statutory rights" that "a reasonable person would have known."
When there's a contentious argument about whether a cop's action was a violation of rights in the first place, courts usually say that the right in question wasn't clear enough to remove the cop's immunity. Not here. The court said the right in question was clear:
The Deputy Chiefs’ position is untenable and unsupported by the record. As is evident from the Supreme Court opinions detailed above, and as explicitly stated in Glasson, “[a] police officer has the duty not to ratify and effectuate a heckler’s veto . . . . Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.” 518 F.2d at 906.
The court ended with a flourish:
But the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow.
So, this is just a circuit case, not a Supreme Court case. How important is it?
Very important. Across the country, people in heckler's veto situations will be citing this, and it will draw other courts to agree or disagree. It may even reach the Supreme Court.
Thanks. There. Was that so hard?
I will destroy everything you love.
Last 5 posts by Ken White
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So, two questions: (1) if you are a Muslim, why isn't this speech, directed as it was toward your prophet, "directed specifically at an individual"? (is it because the Court determined, contrary to Muslim theology, that Mohammed was dead?); and (2) does "likely to provoke the average person to retaliation" take into account the beliefs of the person hearing the words? In other words, is it the "average Muslim" in this case?
Ken, we always like when you talk to yourself. But be nice to yourself, no need to destroy what you love.
It's hard for me to understand how the speech didn't satisfy this rule: "(3) the imminent use of violence or lawless action is the likely result of his speech." The Bible Believers were pretty clearly attempting to bait the people there into doing exactly what they did, were they not?
So, in your early summary of the incident, it seemed (on the surface) that the cops had tried to make an effort to control the crowd. Which made it sound (to me) like it was a reasonable effort. I guess the reality is they didn't try very hard or very much, thus this decision. Which became clearer as you went through the decision bit by bit.
@DP With "Fighting Words", the individual that the speech is directed at is the one who (possibly) has a right to react.
if something nasty is said to the person next to you, you can't attack the person saying it and claim "fighting words"
"fighting words" is to cover the case that you personally are verbally attacked and your emotions run away with you. But you are also supposed to be reasonable about your reaction, so it can't just be that they said something you don't like, it needs to be something directly provoking violence.
The court's ruling on qualified immunity is terrible. Qualified immunity is supposed to protect public employees from personal liability unless it is clearly established that their actions violate a constitutional right – that every reasonable public employee would have understood that the actions were unconstitutional. Public employees shouldn't have to be legal scholars to do their jobs.
Here you have two separate courts, the trial court and the three-judge appellate panel, holding that the officers' conduct was constitutional. I don't know how you can possibly say the law is clearly established when the law is ambiguous enough for two courts to find in the employees' favor.
I'm also not certain this is a great victory for free speech advocates – Justice Rogers's dissent makes a good point that the decision is a roadmap for hecklers to shut down minority speech they disagree with. Show up at an event you don't like, be as offensive and disruptive as possible in hopes of provoking a confrontation, then make the police shut the event down rather than remove the hecklers. I'm not sure the Sixth Circuit is wrong in its First Amendment analysis, but insofar as it's right, it seems a bug rather than a feature of our First Amendment protections.
Jeff:
I understand your reservations, but consider their logical implications. By that token, whether or not rule (3) kicks in would be directly tied to how easy to bait the "offended" party is (or behaves).
Perhaps it could have satisfied that factor, but it would still have to satisfy the first two factors of the Brandenburg test. The court expressly found that they did not:
The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence.
I find it hard to imagine an argument to the contrary. Nothing in the opinion shows the group directly encouraging violence or lawlessness. Sure, they said mean things about Mohammed, but saying something mean is not equivalent to encouraging violence or lawlessness. The second factor is intent – they must have had the intent to encourage violence or lawlessness. It's the government's burden to show that intent (though it can be proven through implication) to demonstrate that the speech is not protected. Nothing in the record showed that intent. So whether or not the third factor was satisfied is irrelevant to the outcome of the case.
@DP
1) "Directed specifically at an individual" means a direct, personal insult. Criticizing, even in vulgar terms, a religious figure is social/political speech that maintains near-absolute First Amendment protection.
2) "Fighting words," in theory, is meant to allow sanctions for speech like direct, continuous insults to a particular person. In practice, it is an all-but defunct exception to the First Amendment that has little, if any, remaining practical effect. It is frequently cited as a justification by internet scholars, but it is virtually never used by the courts.
@Jeff Smith
The Brandenburg test is not in the disjunctive; all of the elements must apply.
You are reading the last element in isolation. Together, Brandenburg shows that the people have to actually be advocating the violence that is likely to result.
And I think you are only inferring the fulfillment of the third prong because you, justifiably, find their speech distasteful. But if you could infer malintent for every disgusting speech, then that would weaken First Amendment protections solely based on how widely offensive speech is considered. That is inconsistent with free speech principles.
@JTM
You see ambiguity; I see courts unjustifiably bending over backwards to support the police in the face of an unsympathetic plaintiff. It's hard to imagine the right to advocate a religious message, even a vulgar and distasteful one, to not be a clearly established right. The Westboro Baptist Church basically makes a career out of it.
No court ever wants to call something fighting words, but they also don't have the guts to explicitly overturn Chaplinsky. Let's look at what Caplinsky said. He told a cop who was arresting him "you're a damned fascist". Granted, it was 1943, so being called a fascist might be more of a slur than it is now, but saying that a public servant has a certain political ideology seems exactly what the first amendment was designed to protect. How can any court in good conscious say that calling a police officer a fascist is fighting words, but telling a muslim that he's going to hell and that his prophet is a pedophile while waving a pig's head around on a stick is not fighting words? They seem to make a big deal about the fact that there were multiple Muslims. If Chaplinsky had been arrested by two cops, and said "you guys are damned fascists", would he have been OK? I don't see why it matters how many people you direct your speech at, as long as it's still up close and personal (as it appeared to be in this case).
@Wesley
For the qualified immunity analysis, a "clearly established constitutional right" has to be considered "not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official.”
It's not enough to say that the First Amendment protects religious advocacy. You need to look at the particular circumstances here (police removing speakers from a violent situation for the speakers' own safety). In the Sixth Circuit at the time of the incident, it wasn't clear that removing the speakers under those circumstances was unconstitutional (both generally, and specifically in light of a 1975 case that said "'when police fear a violent crowd may inflict physical injury, 'they may discharge their duty of preserving the peace by intercepting his message or by removing the speaker for his own protection without having to respond in damages.").
I think the "removing the speaker for his own protection" argument might have been stronger if the police hadn't threatened to charge the Bible Believers with being disorderly.
God help us. Judge Rogers.
Well, depending on the event and what you mean by "disruptive," your conduct might not be protected speech, and you could be shut down.
But set that aside for a second, and assume it's a situation like this, where the event is public, and the protesters are offensive but not disruptive. How are you, according to this roadmap, going to force the group you don't like to respond violently to your provocations? And if some members of the group do respond violently, how are you going to force the police to shut down the event instead of simply arresting those who commit crimes? (Or, the police could just ignore the whole thing if they want.)
One minor quibble: the court's opinion makes it sound as if ALL First Amendment claims involved a forum analysis, rather than just those involving public property. In "pure speech" cases, such as Brown v. Entertainment Merchants Ass'n, 131 S.Ct. 2729 (to pick a relatively recent case), the question is simply 1) whether the speech is protected, 2) whether the restriction is content-based, and 3), based on 2), the appropriate level of scrutiny. And of course there's a separate test for symbolic speech…
Just thought it might be worth sticking that caveat in a piece highlighting an opinion as a clear restatement of First Amendment law.
This post makes me feel even worse about being professionally required to care deeply about the ruling in Merrick v. Diageo Americas Supply, Inc.
Also, on the statement from the decision that "Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence." Wouldn't the fact that the speakers felt the need to bring a severed pig head "to keep Muslims at bay" indicate they expected their speech to meet a violent response?
What if I love whiskey fungus?
Everyone talking about Fighting words is missing the key point. The speech in question has to provoke the average person to violence. How many things can you think of that if you walked out on the street and started saying them to random people they would cause the majority to attack you? Me, I can think of very few short of "I just raped/murdered your (family member)" and even then I think the vast majority would react with grief, not violence. I have a hard time believing anything could ever satisfy this burden of proof.
Secondly, if you read the whole ruling you will see the court went to effort to point out the cops did nothing to stop violence against the Bible Believers. If they had reacted to the violence by threatening arrest, and arresting those juveniles that resorted to violence there would have been nothing but a bunch of kooks standing around trying to get people's attention. In fact the few times the police actually came into the confrontation and did something minor the mob calmed down. The court pointed to this pretty heavily implying that simply a bit stronger punishment of acts of violence would have likely halted the mob. This wasn't a thousand people threatening them, it was a couple dozen adolescents and a few arrests of people committing violence would have took the wind out of the mob in a heartbeat.
The solution to these nutjobs is to simply ignore them. They WANT attention and reacting to them only encourages them. I'm happy about this ruling.
@David:
They may have expected to be met by loving Muslim hugs or by hungry Muslim beggars seeking alms. Ick.
I think it's pretty clear that they intended to be assholes (mission accomplished) and I presume they were thrilled by a response that helped them reinforce their preexisting stereotype. But nothing in "I'm holding this gross thing because I want distance between you and me" necessarily implies an expectation of violence.
Question: does the Brandenburg test need to confirm all three points for speech to not qualify or does the speech only need to fail one part? Asking because the third point about "likely result of the speech" seems like it could be applicable.
Yeah yeah, free speech, qualified immunity, blah blah blah. I want to hear about the whiskey fungus case.
It's funny that everybody else in the world is expected to be a legal scholar in order to do their job; y'know, ignorance of the law is no excuse and all that?
I work with a half-dozen different industries, including healthcare. Have you ever tried to read the HIPAA laws? Multiply healthcare regulations by six. (Okay, maybe three or four. Healthcare is particularly complicated, especially since I work across all fifty states, and there isn't a state in the union that doesn't add to the complexity.)
Qualified Immunity is government acknowledging that the laws are too complicated and ambiguous for its own people to follow, and in order to get its own people to do anything, grants them personal immunity if the situation is sufficiently ambiguous; everybody else finds out in court whether they're going to be held personally responsible for the situation. So a government employee who violates a private citizen's HIPAA privacy rights in a legally ambiguous way is held to a wildly different standard than I would be.
You are so going to hell for that.
I nearly hurt myself laughing.
"Islam Is A Religion of Blood And Murder" and yelling about Mohammed being a pedophile…
And your issue with the veracity of that is what again?
It may be within your 1st amendment rights, but that wont do you a whole lot of good if the hecklers turn violent, especially if they are Muslim, and beat you to death.
My reaction to it doesn't have anything to do with the veracity or non-veracity of it. But it's always amusing that I can write a piece that's about free speech, but if I am even a little critical of a conservative speaker, somebody's gonna be all U WOT M8
It's not whether the speech can be expected to meet a violent response, but whether the speaker had the subjective intent to incite violence or lawlessness. Expectations don't enter into it.
I do not interpret this as imposing an 'affirmative duty' on the police to protect individuals.
Instead, it appears to be an instruction that the police cannot skip from crowd-control step A (being there) or B (command to "knock it off") to crowd control step Z (remove the speaker) by deciding to do nothing else until step Z is justified.
The police could innocently show up when step Z was justified or, technically, could decline to do anything even when step Z was justified. It's the selective use of remedial measures, to the detriment of the speaker, that is forbidden.
The 'fighting words' exclusion to free speech troubles me. It seems to me those who are quickest to fight get to enjoy the privilege of excluding the most speech.
Which group of people is quickest to fight is left as an exercise for the reader.
The 'fighting words' exclusion needs to be dropped completely, or else people will eventually drive a truck through it and restrict a lot of speech, and those restrictions will be one-sided, naturally.
There is no reason to have a 'fighting words' exclusion. If I insult your wife, and you break your hand on my face, I have my punishment already, a damaged face.
There is no need for a fighting words exclusion because a punishment (i.e. the speaker being physically attacked) is essentially already present.
The biggest deterrent to burning Korans or flapping slices of bacon in the faces of Muslims is not that you'll be found guilty of incitement: It is that you might literally be hurt by a Muslim.
The fighting words exclusion seems totally redundant:
If your words were truly fighting words, you already have your punishment (pow!). If your words did not provoke an attack then they must not have been fighting words after all and to punish them seems improper.
The 'fighting words' exclusion would seem to pile on the side of the party that resorts to violence.
That is definitely the best summary I've yet seen.
I just want to preface this by saying this is not intended as a loaded or gotcha type question.
Is it a heckler's veto in this case? Basically, is it only a heckler's veto if the reactionary group act like assholes? Is it still a heckler's veto if both groups are acting like assholes?
A prediction of one's metaphysical destiny is a far different than a direct indictment of one's character. The latter is objectively, or at least as objective as possibly, ascertainable, the former is, in both meanings of the term, a matter of faith. The accusation of immoral/criminal conduct against an ancient religious figure while "waving a pig's head around", i.e. deploying a spiritual talisman. is a very different form of verbal offense than accusing the SPECIFIC individual to whom you are speaking of being the same type of person as the leaders of the nations against which one's country is currently embroiled in an existential and total war. That there is difficulty in discerning the distinctions between the two situations demonstrates how far the weaponization of offense has become.
A cogent and useful analysis marred by a stupid swipe at Breitbart.
Welcome to Popehat.
Speak for yourself. The biggest deterrent for me to burning Korans or flapping bacon in people's faces (assuming in a bizarre counterfactual that I even wanted to) is that I have some manners. Do manners not count for anything?
@Dan
I agree that the fighting words exclusion ought to be dropped (and as Ken implies, it de facto probably has been…), but for different reasons. It is so narrow, and causes such confusion amongst people that have not studied it, that its continued existence creates many problems. Additionally, I do not like the fact that it bans speech, however heinous, that is not actually calling for or advocating violence.
However, I do not think that your justifications really fit. First, "the punishment" may not come. The doctrine requires that it be such that it would provoke the average person. If the person in question has above average self control, there is no punishment. Second, if we actually took the doctrine to its limits, we would be justified in having the police arrest or cite people for delivering such insults preemptively. This could potentially prevent that violence by having a state sanctioned punishment handed out instead of your ready punishment.
In short, I agree that the fighting words doctrine needs to be overturned, but not because we do or should expect the offended person to deliver immediate punishment for the offensive speech.
Amazing. This opinion could have been written when courts took the Constitution seriously.
I would have been even happier with the ruling if the court had mentioned something about the people's own responsibility to refrain from violent reactions to speech it finds offensive.
The QI standard here is bizarre.
If I am standing on my front porch and take photos of the cops, and they beat and arrest me, there is QI because "no clearly established constitutional or statutory rights" that "a reasonable person would have known"
But if a Christian group goes to an Arab festival with pig head and tells people they are going to hell, and a riot starts, police have no QI when they force the protesters to leave.
Do the judges even live in the same country as we do?
@TimWiseman, indeed as a member of extreme left fringe of American politics it makes sense that you dislike the fighting words exclusion because it is "too narrow"!!! The mask is off now — you would prefer much broader speech restrictions and you don't even hide it.
The left's interest in liberty was nice while it lasted, but it turns out that this was just a means to an end.
The powerful, downward-punching left including folks like you faces an interesting conundrum that was faced by the Party in the old USSR as it got old. On the one hand, they were tremendously powerful. On the other hand, everyone assumed (mostly correctly) that they were lying almost all of the time, and the Party became something of a joke.
How frustrating this must be, arriving at the promised land and the promised land consisting of you being the butt of jokes, with cynicism approaching 100%.
I someone tells me that they raped/murdered my (family member), can I effect an immediate citizens arrest on them? (Semi) Serious question for lawfolk.
In my State such use of an animal carcass for religious offense would be illegal. The rest of their buffoonery is clearly protected, though.
If it was a pony, maybe nobody would care. But a pig head?! Come on. Pigs are a household pet these days. They're smarter than dogs, and that makes them smarter than a significant percentage of the humans.
The police really should have confiscated the pig head simply because it was an offense, and yet the whole point of bringing it wasn't that the jerks who had it valued it; they were not claiming the pig head to be part of their beliefs. They were purely including the pig head for offense. So even without a specific law that covers the abuse of an animal corpse I think they could at least confiscate or require the removal of that prop. Especially if they were also citing the bottle throwers, for littering if nothing else.
If you're willing to consult the food storage guidelines, I think any sort of pork product that is part of a public display is going to have a bunch of restrictions. If it is raw, are they monitoring the temperature? All of this comes into play if they somehow succeed at proving the basic legality of animal carcasses as a tool of public offense. Unfortunately in this case, the police stifled all their obvious rights of legitimate offense, so the pig head didn't get isolated analysis.
Of course, if the jerks were willing to lie about the importance of the pig head, you'd have to let them keep it. Just like hikers in the national forest who refuse to pay the hiking fee because they're there to worship Mother Earth. The argument works if it is true, but if it isn't and you're not a good enough method actor then you're still paying the fine. Are they really willing to go to the mat and blame the pig head on Jesus? Probably not. And a pony head wouldn't even offend the heathens.
@Cromwell: A statute that prohibited you from carrying a pig's head based on whether it was "offensive" would be plainly unconstitutional.
JonasB, it has to be all three. If the speech only meets one or two of the three criteria, it's still protected. So in this case, it doesn't matter if the Bible Belieber's speech did or didn't meet the third criterion because it definitely didn't meet the first one: they weren't telling the crowd "Hey, you should hold a riot and attack people!". Basically, Brandenburg says to be unprotected your speech must propose or urge violence AND be serious instead of joking or sarcastic or some-other-reason-you-don't-really-mean-it AND be producing or about to produce results.
Personally, I think the most satisfying thing about this case's outcome is Judge Boggs's concurrence.
@Ken: Right. Of course, carrying a pig's head should be prohibited simply based on the spread of salmonella and the waste of perfectly good jowl meat that could have been used for guanciale. That I'm pretty sure is permitted by the 1st Amendment.
When WBC picketed my son's high school in Spokane, the city let them picket. And then the whole town came out for a 1960s style love-in. There was no violence or people throwing things (which is what WBC wanted.) Nothing but love, which drowned out their hate. They probably got a split second on TV as the cameras panned right by them. The real news was the peace rally, because Spokane is a conservative enclave in a blue state.
Those God-hates-fags assholes didn't get anything they were looking for when they visited us, and they were allowed to spend the whole day there and say their peace. It's just that their asshole-ish speech was drowned out by a gigantic peace rally. The kids just saw it as a day off school, though many joined the peace rally.
So, I think Spokane handled it correctly, and I was proud of my community.
@Ken
Indeed it would. Luckily, a statute that banned the use of an animal corpse in public in various ways might be legal. And as I attempted to explain, there would be various nuances and ways around it.
Horse Woman's photography was clearly protected speech, because the intent was art, which is entirely subjective and has an easy time being pure speech, and avoiding nuance. No matter how weird Star Wars fans can seem to outsiders.
And certainly, if your religion or deeply held beliefs included the carrying of a pig's head, that would be protected. If there was a public debate about the carrying of animal carcasses and you showed your support by carrying a pig's head, or a pony's head in your case, it would clearly be protected. But if you came right out and said that your entire purpose to carrying a pig's head in general violation of the ordinances regarding the treatment of dead animals was to offend a particular religious group, then that would be a whole different matter. If they were offended by what you're claiming your message to be, that is their own damn problem and they just have to stick their fingers in their ears. But if you're abusing an animal carcass, and the purpose is not the most pure form of speech, where you're intending to communicate something you believe to be useful or important, then you're going to have some lesser amount of protection. There is a difference between speech you believed to be important that somebody else was offended by, and speech that you admitted was entirely for the purpose of giving offense. Commercial speech has protection, but not unlimited protection that prevents the application of animal cruelty statutes that include treatment after death. If you were abusing animal corpses for the purpose of selling videos, that may or may not be protected depending on the State. And in fact, a pig is a livestock animal and in many States abuse of livestock animal corpses in public is a serious offense to the dignity of the State. In Texas it might be a crime based on being offensive to the commercial image of pork. I'm not sure about that part.
Piss Christ is protected speech, because who knows what the artist was thinking, but presumably he found artistic value in it.
Those angry church guys that protest funerals are clearly protected when they declare that "God Hates [Humans]," and it is quite clearly a belief that they wish to communicate. A belief that abusing corpses is good would always be protected to declare. And a bona-fide religious or deeply held belief that carrying animal heads was important to you might exempt you from various laws regarding the treatment of animals. But carrying it while saying, "ha ha, my actions are offensive, ha ha" might not actually be strong enough to convert the action, the physical carrying of the dead animal flesh, into speech.
But it is absolutely a public health hazard. First Amendment arguments may or may not protect you from agricultural laws, but you can't just presume it the way you might with a blog or leaflet or spoken idiocy. But there is no way that a First Amendment complaint prevents the police from confiscating a public health hazard that is being stored in direct contradiction to the storage requirements for pork. If they're keeping their stinky pork at home that is their own business, but if they're putting on a public display including pork, you better believe that the County has some level of jurisdiction over the immediate custody of meat products capable of spreading disease. And if it is the Sheriff confiscating it, he has sovereign judgement over the physical scene and can take action to secure the physical safety of onlookers being exposed to a known health hazard.
It may sound extreme and draconian to some, but I really think it is practicable to limit them to using packaged meat products to make their point.
@Cromwell:
Depends on what you mean. If you mean protected by the First Amendment, then no, it wouldn't be. According to Employment Div. vs Smith, Government can't directly regulate your religious activities, but it can incidentally prohibit them with "neutral law[s] of general applicability". Banning unlicensed pig-head waving would certainly count.
The Religious Freedom Restoration Act generally carves out a religious exemption to other laws*, but only applies to Federal laws and regulations. Pig carcass handling laws would almost certainly be state provisions. So unless the state in question had its own RFRA, then a general ban on unsafe porkery would very much apply.
* Terms & Conditions apply
@Cromwell Descendant
This must be an episode of "Punked"……no one is that dense…..the mention of lunch meat gives it away as a joke….right?
@Cromwell-
You make a really impressive case here and cover all the points with remarkable thoroughness.
But I would respectifully suggest that you have slighted an important principle at one point.
"If they're keeping their stinky pork at home that is their own business, but…"
But, I would say, their right to keep stinky pork ends, like the swinging of a fist, at the tip of my nose. Provided, of course, that I keep my nose out of your own domain.
I'm not convinced that any swipe at Breitbart could be stupid. It would certainly be beyond my creative talents to come up with one that went too far.
As always, love the brilliant writing. Your planet has a surplus of psychopaths who are happy to destroy everything that we love, or at least arbitrage the opportunity by getting paid not to destroy it. Of course, they prefer to do both simultaneously, maximizing their overall profit.
I stumbled into a thicket of stories about the psychopaths, which could provide endless fodder for blogging. With judges like these, you don't really need criminals to have a diverse ecosystem:
https://www.prisonlegalnews.org/news/2015/aug/28/former-illinois-drug-court-judge-gets-prison-time-following-fellow-judges-fatal-overdose/
We may note that Illinois does not bring out the best in people, nor does it bring out the best people. I am not singling out Illinois as being different, because you could find the same alignment of government and crime cartels in other corrupt cities like Boston, Providence, New York Philadelphia and Baltimore, just to pick some random examples.
It's all a giant scam and every opportunity will be arbitraged. Note the links to other stories at the bottom of the overdose article, e.g.,
https://www.prisonlegalnews.org/news/2015/oct/19/former-montana-jail-guard-exposes-culture-prisoner-abuse/
That was my reaction as well. He sure is striving mightily to justify responding to speech with violence. European, I'm guessing.
@Cromwell
None of this is remotely true under the First Amendment. Determining what legal protection to give based on how "pure" the speech is (with "purity" defined by an arbitrary distinction between true advocates and meany jerk poopy-heads) is wildly inconsistent with any free speech principles. See Snyder v. Phelps, Hustler v. Falwell. The mere fact that you don't like the speech or don't consider it sincere or to have much value does not magically transform it into unprotected speech (or, even more bizarrely, to non-speech entirely).
Also, the First Amendment (both the free speech clause and the free exercise clause) do not necessarily give exceptions to violate laws of general applicability, regardless of how sincere the beliefs. See DHR of Oregon v. Smith, though this was partly overruled by statutes in Congress and many states, it is not a constitutional issue. Unless an animal-carcass law was designed or targeted at prohibiting certain speakers, or only enforced against certain speakers, it could be constitutional. But if it's constitutional, it can (and must be) constitutionally be applied to everyone — not just against disfavored speakers.
I don’t get the comparison of the Bible Believers, who you call assholes, to Brietbart.com. This only works if you believe that reporting on government corruption or bad acts by quasi-government institutions like Planned Parenthood, is something only an asshole would do.
@Dan
Dude, chill, and read the guy's while post before you reply. Literally one sentence later, he said, "Additionally, I do not like the fact that it bans speech, however heinous, that is not actually calling for or advocating violence."
The point that I think that he was trying to make is: at the time the "fighting words" exception was passed, it was considered proper to respond to certain speech with violence, and, in fact, cowardly not to. Since then, we have grown (marginally) more civilized, and the list of things a person would say that would cause an "average" person to retaliate violently keeps getting shorter, as the average person becomes less violent.
At a certain point, the list becomes so short that it's not worth having an exception for "fighting words" in the first place. That's how I interpreted Tim's comment: not that the exception was too narrow and should be broadened, but that it had become so narrow that it wasn't even worth having the exception anymore.
@Jay if you think it doesn't make sense on account of not having understood the point, I'd say that you're not ready to make conclusions yet and should keep trying.
No, it isn't a joke. Most of what these morons did was speech. But actions taken in proximity to speech is not automatically speech. Speech is speech. Writing is speech. Art is speech, as is most communication. Use of a pig head in an art installation would be unassailable as speech.
But the physical carrying of dead animals is not automatically speech. It can be speech, indeed, but only if the people carrying on that charade are willing to say the correct things. If they're honest about their intent, then a very wide range of behaviors and actions involving that dead animal are not in fact speech at all, but merely actions taken in proximity to speech. Find a random libr'aaaaal and ask them if protesters who are engaged in protected speech ever have to pay fines, or serve jail time, over the actions that they took in proximity to their protected speech. I think if you actually consider it, it might not be that odd to find that violating health codes with animal parts to make a point might actually be physical civil disobedience, not speech, and subject to smackdown.
Even considering dead animals as speech though, it is in error to claim that it is entirely protected the way that their moronic words and heretical theology is. Because in this case, no they were not claiming the animal carcass to communicate something useful. Everything else, "you're going to hell" or whatever they said, it is on its face obvious that it is a protected communication. It is clearly an attempt at communication. Even things that are not provable sometimes require a willingness to actually claim that the loophole applies at the right time in order to pass through it. If somebody was trying to ban Piss Christ and the artist said, "this isn't art at all, it wasn't intended as art, it is just a commercial action, I'm just trying to sell prints. I am not an artist." They would still have the protection of commercial speech, but their protection is lower than if they're willing to claim it is personally important to them; it is no longer pure speech.
@Jordan
Ad hominem attacks do not prove you capable of contribution. I am not surprised that you don't understand, not only the substance but even at the meta-level of "is something valid being communicated?"
Also it is very, very odd to conflate fining somebody for health code violations with "violence." I'm assuming you were unable to process the whole thing, and didn't even discover that I agreed with the court's decision and quite obviously support the rights of the assholes to be assholes. There is nothing violent about protecting public health by limiting the spread of disease through regulation of the physical uses of animal carcasses.
Another thing is, I used points that already have precedent, without citing it. That is a bit of a trick on you, because in those cases it was hippies protesting. They don't get arrested for their speech, and yet they still get arrested for specific actions taken during that speech. And in the case of animal rights protesters, situations involving display of animal corpses have already come up. I'm not actually presenting a new theory here. If it is wrong, please email all your friends who do pro-bono work defending the free speech of lib'raaal political protesters. Oh, right, almost nobody does that. The ACLU won't defend free speech rights of protesters, only of non-political speakers, such as religious nuts. People in this thread who are describing it in such stark terms in this case, I'll bet if you did a test and presented them with an animal rights or environmental protest speech case they'd find ways to justify a wide range of steps to limit the physical impact of the "speech" and to punish any civil disobedience involved.
People are cited for violating laws during their speech every hour of every day. The vast majority of those citations are not for the content of their speech, and will stand up. It takes more than hand-waving to turn an animal corpse into speech.
Yawn. I understood that you agreed with the court's decision. I also understood that you found it regrettable that the police didn't find some other possibly legal pretense to shut these people up or at least extract some money from them. Carry on.
@Jordan
Seems you're having trouble distinguishing between exposition and advocacy.
Does " Unfortunately, the police stifled all of their obvious rights of legitimate offense" strike you as mere exposition?
@Richard: If you're trying to get through to Dan, please know that you're attempting to communicate with someone who has decided that anyone he deems to be liberals/lefties/SJWs is not entirely human, and therefore anything you say other than full agreement with him is not only false, but deliberately so. A bit like Editor Overbeek at the Bloom County Beacon, only substitute "SJWs" for "Reagan".
In other words, this isn't a "let's rule as narrowly as possible to resolve this case" decision. It's a "let's try to clarify this entire area of law" decision.
Please! That's "judicial activism", at least when the clarification leads to a result I don't agree with. (If I do agree with it, of course, it's a sound clarification by a wise court.)
I also want to hear about the whiskey fungus case.
@Jordan
Nice cherry pick.
On the one hand: I support free speech. On the other hand: I very much hate the idea of free speech ANYWHERE. I don't think anybody should be able to stop you from talking, but I disagree with the very concept that they can't stop you from talking RIGHT HERE.
Said another way: is there no legal way to get somebody off my lawn? I may not be muslim, but I wouldn't want somebody standing on the sidewalk outside my home, or on the road, or any other public place, holding severed pig's heads and threatening that folks would go to hell.
Speech should be protected, but I don't see why we have to allow it EVERYWHERE, as this basically removes the right of safe passage from others. Spoken torment is real. Emotional trauma is real. Speech of this sort can cause real harm. I don't see why the speaker should be allowed to literally force others to listen.
It starts:
https://youtu.be/r8AaTa-Zk7c?t=19m33s
(Apologies if anything to this effect has already been posted)
"Eugene Volokh already 'splained it. He's occupied the field. Don't you understand preemption?"
Hey Lucy, what do you mean, already 'splained it? He added 8 or 9 sentences, most of which were not substantive and served merely as place holders to note what comes next.
That ain't 'splainin' anything and it certainly isn't preemption.
The prohibition of residential picketing can pass constitutional muster, but only provided it is content neutral. See Frisby v. Schultz, 487 U.S. 474 (1988). In other words, you can have an ordinance that prohibits people from standing outside your home holding a severed pig's head and proselytizing, but only through a general prohibition of picketing in residential areas that would equally restrict any other group/cause that wanted to demonstrate. Applying any such prohibitions beyond residential areas becomes difficult, constitutionally. A prohibition on all public-forum picketing would essentially render the First Amendment a dead letter.
"Speech should be protected, but I don't see why we have to allow it EVERYWHERE, as this basically removes the right of safe passage from others. Spoken torment is real. Emotional trauma is real. Speech of this sort can cause real harm. I don't see why the speaker should be allowed to literally force others to listen."
There are a number of problems here. First, festival attendees are not a captive audience. Second, don't confuse "safe passage" with "passage with no risk of being offended/made uncomfortable." Third, it's not that emotional trauma isn't real; it's that the First Amendment is indifferent to it. See Snyder v. Phelps, 562 U.S. 443 (2011) (affirming the 4th Circuit's reversal of a trial court's finding in favor of an IIED plaintiff on First Amendment grounds). Essentially, it must be. Otherwise, anyone can claim emotional trauma, perhaps quite sincerely, over any content he finds offensive, thus, once again rendering the First Amendment a dead letter.
After reading the opinion I'm not sure that's true. The Court distinguishes public matters from private matters (much like in the Hustler case it made a point of noting that the fact that the target of parody was a public figure was a relevant factor in their decision.) That leaves a wide open–if nebulously defined–space where the First Amendment isn't a shield from tort liability if the elements of IIED are met.
Also, there was one part of the Court opinion I found noteworthy–they pointed out that some signs were directed at individuals, but that the overarching theme of the protest was directed at wider issues of public interest, and thus rendered the individually targeted messages part of the wider discussion. The opinion seems to leave room for lower courts to distinguish situations where the offending speech is directed at an individual who isn't a public figure, and isn't surrounded by accompanying speech that gives you cover to call it a public matter.
In other words, if someone had just picketed a military funeral to say hateful stuff about the deceased and their family, and failed to overtly connect it with some public controversy, a judgment of liability wouldn't be inconsistent with the ruling.
@Guest Poster
Property law gives you both criminal and tort remedies for trespass, even for arbitrary reasons, which means you can kick people off your lawn, and if you're on a private street, your HOA may have the power to kick them off of the street as well. If the street in front of you is public property, you can't simply remove people for saying what you don't right, but you do have limited remedies if they're interfering with your right of quiet enjoyment–if they're being noisy to the extent that the level of noise itself is unreasonably interfering with you and your neighbors' peace and quiet, the law may be able to step on. Contract law + property law gives you some possibilities for these sorts of public gatherings–if for example your festival is held on private property that has traditionally been rented out for events to people who can charge admission or otherwise restrict access, then you're probably allowed to say "tickets are free but as a condition of admitting you, we expect you to abide by these rules, i.e. don't promote NAMBLA at the children's festival."
On public or quasi-public property, the First Amendment is much more protective, but you can still have reasonable TPM restrictions–you can't kick out ONLY the guys saying anti-Muslim stuff, for example, but you can say that regardless of what they're saying, nobody is allowed to use a blow horn or speak above a certain noise level, or I suppose nobody is allowed to wave any sort of animal head at someone else. However, this presupposes that through some rental or licensing agreement, you have some legal right to be exercising ANY sort of control over the space at the time of your event. If you're renting out the mall for your event, that agreement might give you the power to exercise some control over who can be there and how they can act. If you're just holding it in a public park, you probably have no power to control who comes and goes or how they behave.
i love the decision, but i fear that a different result would have occurred, at the en banc 6th C, if the religions were reversed.
going to have to read the opinion.
Concerning the court's ruling on qualified immunity. Can the denial of qualified immunity be attributed to the fact that this is the 4th court case where the city and this particular police department has been found to have violated the 1st Amendment rights of Christians preaching at the Arab Festival? At some point government employees must be expected to have learned which specific past action are not legally allowed and not commit them in the future.
Chaplinsky said that the arresting fire marshall was "a damned fascist and the whole government of Rochester are fascists or agents of fascists.". Chaplinsky at 569. This, following the fire marshall warning him that people did not like his Jehova's Witness literature, so he was not to distribute it.
To me, this sounds more like Chaplinsky making an accurate observation about the officials who were supposed to be serving him. On its facts, the case was wrongly decided. Else we could never accurately describe, among others, our county govt or certain judges, in a public forum.
The real threat to free speech is importing Muslims who oppose free speech. This just proves that the left is aligned with Muslims to impose a totalitarian government.
I think that's right. Under that scenario, First Amendment protection would no longer apply. My point was that where First Amendment protection does apply, there is no carve-out for speech that might cause emotional trauma.