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.
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.
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