CINCINNATI—On Oct. 28, the U.S. Court of Appeals for the Sixth Circuit decided the case of what the court called “self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some of whom responded with threats of violence.” The court held that police officers in Dearborn, Michigan violated the evangelists’ free-speech rights when the officers ordered them to disperse and threatened to arrest them for staying.
Aside from New York City, Dearborn has the largest Muslim population in the United States and hosts an annual festival. Attendance at the festival has grown steadily, now exceeding 300,000 attendees over three days. Various groups offer non-Islamic messages in response during the festival, including some Christian groups which seek to evangelize Muslims and call on them to come to faith in Jesus Christ.
A three-judge panel of the Sixth Circuit—which has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee—originally sided with the police. The court then took the rare action of rehearing the case “en banc,” meaning all 15 judges on the court heard the case together. In an opinion authored by Judge Eric Clay, by a 10-5 vote the court held that the officers had violated the First Amendment. The court also held 8-7 that the unconstitutional conduct was so inexcusable that the officers are not immune from personal financial liability for their actions. The case is Bible Believers v. Wayne County.
The court explained that in response to the Bible Believers’ anti-Islamic rhetoric, “A large contingent of children ran after them, and the relatively light cascade of debris intensified into a barrage of bottles, eggs, and other debris being hurled upon the Bible Believers.”
County police argued that they responded to every instance of dangerous or illegal activity. “They apparently did not see very much,” the court noted sarcastically.
The stridently liberal Clay, appointed by Bill Clinton, wrote for an odd coalition of conservative and liberal judges that:
… the Bible Believers attended the 212 Festival for the purpose of exercising their First Amendment rights by spreading their anti-Islam religious message. When a crowd of youthful hecklers began gathering around the Bible Believers, the police did nothing. When the hecklers began throwing bottles and other garbage at the Bible believers, a [sheriff’s deputy] intervened only to demand that the Bible Believers stop using a megaphone to amplify their speech. Virtually absent from the video in the record is any indication that the police attempted to quell the violence being directed toward the Bible Believers by the lawless crowd of adolescents.
The Constitution does not permit this, the court explained, because First Amendment “protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted. The protection would be unnecessary if it only served to safeguard the majority views.” The appeals court added, “In fact, it is the minority view, including expressive behavior that is deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment.”
The court described some of the speakers’ messages that were deliberately provocative and insulting messages. “Regardless of the wisdom or efficacy of this strategy, or of the gross intolerance the speakers’ conduct epitomized, disparaging the views of another to support one’s own cause is protected by the First Amendment.”
Clay is clearly not a fan of the Bible Believers, as his opinion includes language that is sharply critical of the protesters’ views, using words such as “bigoted” to describe some of their views. Judge Clay’s opinion also included factual errors, such as when listing the nations that Dearborn’s Muslims come from, referencing “Palestine” as a nation. Many of Israel’s most ardent foes speak of a nation called Palestine as part of the propaganda campaign that there was never a kingdom of Israel in the ancient Middle East, and instead that Israel is a modern invention, whereby Jews displaced a preexisting nation. To the contrary, while the land in that area has been controlled over the centuries by the Romans, the Ottoman Empire, and others, there has never been an independent nation-state called Palestine.
All that notwithstanding, the court of appeals declared, “The hostile reaction of the crowd does not transform protected speech into incitement.” To the contrary, the majority reasoned, “the espousal of views that are disagreeable to the majority may at times necessitate police protection.” As the Supreme Court wrote in a previous case involving free speech, “Liberty can only be exercised in a system of law which safeguards order.”
In the end, the Sixth Circuit held, “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.” As a consequence here, “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.”
Judge Clay wrote that the court needed to balance free-speech rights against the police’s interest in preventing violence when a speaker directs his words to “angry, hostile, or violent crowds that seek to silence the speaker with whom the crowd disagrees.” Applying that principle here, the court concluded, “Thus, the Constitution does not permit the police officers to do what they did here, choosing to allow the violent Muslims perpetrating illegal violence here to go unpunished, while taking the easier route of ordering the unpopular speakers to leave.” As the Supreme Court held four years ago in the infamous Westboro Baptist case, Phelps v. Snyder, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The court explained, “We affirm 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.” The court also held that the police violated the Bible Believers’ right to freely exercise their religion by sharing the gospel, as well as the Constitution’s Equal Protection Clause by treating the Bible Believers differently than other speakers.
Ken Klukowski is legal editor for Breitbart News, and a former law clerk to a judge on the U.S. Court of Appeals for the Sixth Circuit. Follow him on Twitter @kenklukowski.
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