Volokh Conspiracy: Thuggery wins, free speech rights lose

The free speech rights here were as in many free speech cases the rights of pretty rude speakers, certainly ones whose message and manners I do not endorse. But the First Amendment protects the rude as well as the polite, especially given how subjective government judgments of rudeness usually end up being.

Here are the facts, from the majority opinion in Bible Believers v. Wayne County (6th Cir. Aug. 27, 2014) (some paragraph breaks added throughout the block quotes below):

The City of Dearborn in Wayne County, Michigan, has hosted the Arab International Festival every summer from 1995 until 2012. A three-day event that was free and open to the public, the Festival welcomed roughly 250,000 attendees and featured carnival attractions, live entertainment, international food, and merchandise sales. [The panel later agreed that the festival was a "traditional public forum" at which public speech is fully constitutionally protected, rather than private property or even public property that was temporarily exclusively leased by a public organization. -EV]

[T]he Bible Believers came bearing strongly worded t-shirts and banners:

[Chavez] wore a t-shirt with the message, Fear God on the front and Trust Jesus, Repent and Believe in Jesus on the back. Fisher wore a t-shirt with the message, Trust Jesus on the front and Fear God and Give Him Glory on the back, and he carried a banner that said on one side, Only Jesus Christ Can Save You From Sin and Hell, and on the other side it said, Jesus Is the Judge, Therefore, Repent, Be Converted That Your Sins May Be Blotted Out. Other messages conveyed on t-shirts, signs, or banners displayed by the [other Bible Believers] included, among others, Fear God, Trust Jesus, Repent and Believe in Jesus, Prepare to Meet Thy God Amos 4:12, Obey God, Repent, Turn or Burn, Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers, and Islam Is A Religion of Blood and Murder.

One Bible Believer carried a severed pigs head on a stick, which Chavez explained protected the Bible Believers by repelling observers who feared it. Appellants soon began preaching using a megaphone, and a small crowd formed around them almost immediately. [The police eventually told the speakers that megaphone use was forbidden by ordinance, and the speakers stopped; that restriction is not challenged here. -EV] Chavez castigated the crowd for following a pedophile prophet and warned of Gods impending judgment. As this evangelizing continued, the crowd yelled back. At this point, a ribbon-cutting at the opposite end of the Festival occupied a majority of the [Wayne County Sheriff's Office] officers, but one officer watched from the outskirts of the crowd.

As the Bible Believers moved deeper into the Festival, the crowd a good portion of which appeared to be minors continued to gather and yell. Some people started throwing debris including rocks, plastic bottles, garbage, and a milk crate at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.

After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their safety was in jeopardy because not enough officers were available to control the crowd.

The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd. Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavezs conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival

As Richardson insisted that the Bible Believers leave lest someone a Bible Believer, a Festival goer, or an officer be injured, Chavez asked if they would be arrested if they refused; Richardson replied, Probably we will cite you. This conversation replayed several times, with Chavez pressing for an answer and Richardson replying that the Bible Believers were a danger to public safety. Chavez eventually snapped, I would assume a few hundred angry Muslim children throwing bottles would be more of a threat than a few guys with signs.

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Volokh Conspiracy: Thuggery wins, free speech rights lose