Two years ago, Ruben Chavez, Arthur
Fisher, and Joshua DeLosSantos, members of a Christian evangelical
group known as Bible Believers, attracted a hostile crowd while
preaching hellfire and damnation at the Arab International Festival
in Dearborn, Michigan. The crowd, which consisted mostly of
children, pelted the three evangelists with water bottles and other
trash. Police responded by threatening to arrest Chavez and his
friends for disorderly conduct unless they left the festival.
According to the U.S. Court of Appeals for the 6th Circuit,
banishing the provocative preachers from the public festival was
perfectly appropriate and did not violate their First Amendment
rights.
In a ruling
issued yesterday, the appeals court says video of the incident
“demonstrates that [the Bible Believers’] speech and
conduct intended to incite the crowd to turn
violent.” How so? “Within minutes after their
arrival,” Judge Bernice Donald writes in an opinion joined by
Judge Samuel Mays, Chavez and his associates
“began espousing extremely aggressive and
offensive messages—e.g., that the bystanders would ‘burn in hell’
or ‘in a lake of fire’ because they were ‘wicked, filthy, and
sick’—and accused the crowd of fixating on ‘murder, violence, and
hate’ because that was ‘all [they] ha[d] in [their] hearts.’ These
words induced a violent reaction in short order; the crowd soon
began to throw bottles, garbage, and eventually rocks and chunks of
concrete. Moreover, members of the crowd can be heard to shout ‘get
them’ and ‘beat the s*** out of them’; one Bible Believer was
pushed to the ground. Chavez’s face was cut open and bleeding from
where he had been struck by debris.”
Because bystanders reacted violently, in other words, that must
have been the reaction Chavez and his friends aimed to elicit. The
implication is that they were deliberately inciting a riot, meaning
their speech was not protected by the First Amendment. But the
majority opinion is ambiguous on this point. It also suggests that
the the Bible Believers’ preaching was constitutionally
protected but that making them do it elsewhere amounted to a
reasonable “time, place, and manner” restriction in light of the
crowd’s hostility. “The threat of violence had grown too great to
permit them to continue proselytizing,” Donald writes. She explains
that Dennis Richardson, deputy chief of the Wayne County Sheriff’s
Office, “had a reasonable good faith belief that the threat of
violence was too high because the Bible Believers had already been
subjected to actual violence.”
In a powerful dissent, Judge Eric Clay rebukes his colleagues
for endorsing a “heckler’s veto,” as reflected in Richardson’s
words to Chavez: “What you are saying to them and they are saying
back to you is creating danger.” Richardson and the other
defendants conceded that the Bible Believers’ speech was
constitutionally protected, Clay notes, and for good reason: It did
not qualify as incitement, which requires an intent to provoke
“imminent lawless action,” or as “fighting words,” i.e., “those
personally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction.” Clay observes that “fighting words are
defined solely by their impact on the ‘average person,'” not the
“average Muslim child.” The fact that the vast majority of people
at the festival did not respond violently to the
evangelists shows that their preaching, however obnoxious, did not
qualify for this (dubious) exception to the First Amendment.
Confronted by citizens lawfully exercising their First Amendment
rights and bystanders lawlessly punishing them for it, the police
sided with the violent hecklers. Clay argues that they should
instead have tried a little harder to calm the crowd (which, again,
consisted mostly of rowdy children), because their first duty in
this situation was to protect the peaceful party:
In my view, the video tape shows that Defendants did just about
nothing to control the crowd as it grew and became agitated.
Defendants only stepped in to inform Plaintiffs that the police
were powerless and that Plaintiffs needed to leave under threat of
arrest. This is not good faith—it is manufacturing a crisis as an
excuse to crack down on those exercising their First Amendment
rights.
By validating such police work, Clay warns, the court is
inviting more violence and more censorship:
Law enforcement is principally required to protect lawful
speakers over and above law-breakers. If a different rule
prevailed, this would simply allow for a heckler’s veto under more
extreme conditions. Indeed, hecklers would be incentivized to get
really rowdy, because at that point the target of their ire could
be silenced. More perniciously, a contrary rule would allow police
to manufacture a situation to chill speech. Police officers could
simply sit by as a crowd formed and became agitated. Once the
crowd’s agitation became extreme, the police could swoop in and
silence the speaker. The First Amendment does not contain this
large a loophole.
Cathy Young discussed an earlier case involving evangelists at
the Arab International Festival in her 2011 essay “Fear
of a Muslim America.”
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