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Bible Believers v. Wayne County

United States Court of Appeals for the Sixth Circuit · 2015 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of SpeechFree ExerciseEqual ProtectionQualified ImmunityMunicipal LiabilityHeckler's Veto

Facts

The Bible Believers attended Dearborn's 2012 Arab International Festival to preach an anti-Islam Christian message on public streets and sidewalks, carrying provocative signs and a severed pig's head. A crowd, composed largely of adolescents, responded by jeering and throwing bottles, eggs, and other debris, while officers made only minimal efforts to control the crowd and at one point focused on stopping plaintiffs' use of a megaphone. When the disorder continued, Deputy Chiefs Richardson and Jaafar told plaintiffs their speech was causing the disturbance, said public safety was threatened, and ordered them to leave under threat of citation for disorderly conduct. After consulting Wayne County Corporation Counsel, officers escorted plaintiffs out of the festival.

Issue

Whether Wayne County and its officers violated the First and Fourteenth Amendments by removing peaceful religious speakers from a traditional public forum because a hostile crowd reacted violently to their message. Also at issue was whether the individual officers were entitled to qualified immunity and whether the county was liable under Monell.

Rule

Protected speech in a traditional public forum does not lose First Amendment protection because listeners react with hostility or violence. When police confront a hostile crowd responding to a peaceful speaker, they may not silence or remove the speaker as an expedient alternative to controlling the crowd unless their action satisfies strict scrutiny; instead, they must first take reasonable, bona fide steps to protect the speaker and maintain order by less speech-restrictive means. Speech is unprotected as incitement only if it explicitly or implicitly encourages violence or lawless action, the speaker intends that result, and imminent violence or lawless action is likely; offensive statements to a crowd are not fighting words unless directed as a personal insult to an individual and likely to provoke the average person to immediate retaliation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a street arts fair in Columbus, Ohio, Naomi Velez stands on a public sidewalk holding signs condemning a popular local religion and speaking calmly to passersby. A crowd forms, several teenagers begin throwing drink cups, and officers tell Naomi she must leave because her message is provoking the crowd, even though nearby officers have not tried to disperse the throwers or add a police presence around her.

If Naomi sues under § 1983 for violation of her First Amendment speech rights, which is the strongest analysis?

Explanation. The majority held that protected speech in a traditional public forum does not lose protection because listeners react violently. Action taken because of the crowd's reaction to the message is content- and often viewpoint-based, triggering strict scrutiny. Police must first make reasonable, bona fide efforts to protect the speaker and control the crowd by less restrictive means before silencing the speaker. Here, officers removed a peaceful speaker without trying such measures, so this is an unconstitutional heckler's veto. (Derived from Bible Believers v. Wayne County (n.d.).)