Case Summary and Outcome

The U.S. Court of Appeals for the Sixth Circuit sitting en banc found that Wayne County had violated the right to freedom of expression of a Christian Group, the Bible Believers, and also determined that Wayne County officials could not claim qualified immunity in circumstances where the Bible Believers were proselytizing at a city festival celebrating Arab culture and were warned that they would receive disorderly conduct citations if they did not leave the festival. The Court reasoned that the Believers’ speech was protected under the First Amendment, did not in any way encourage violence as not a word uttered by them signified violence or lawlessness and that Wayne County violated the Bible Believers’ right to free exercise of religion.

Facts

The Plaintiff-Appellants, Bible Believers, are a Christian evangelical group who share and express their faith through street preaching. In June 2012, members of Bible Believers attended an Arab culture festival. Prior to attending the festival, the Plaintiff-Appellants wrote the Wayne County Sheriff’s Office (“WCSO”) to inform them of officers’ duty to protect those exercising their free speech from hostile bystanders. As a result, WCSO created an operational plan for the festival, which included a plan to ensure public safety and peace. While in attendance, the Plaintiff-Appellants had signs, banners, and t-shirts with Christian messages. When they arrived at the festival on the first day, the WCSO directed them to stand in the designated free speech zone. On the second day, because there was no designated free speech zone, the Bible Believers walked among the crowd proselytizing. This action instigated confrontations with other attendees, and one Bible Believer was arrested, but later released.

During the second day, the Plaintiff-Appellants used a megaphone to preach, and a small crowd gathered and confronted them. Soon thereafter, the WCSO approached the Bible Believers and informed them of an ordinance that prohibited the use of megaphones. As the crowd became more hostile, the WCSO informed the Plaintiff-Appellants that, because their conduct was inciting the crowd, they would be escorted out of the festival. The WCSO informed the Plaintiff-Appellants that if they refused to leave, they would likely be cited. None of the Bible Believers were cited or arrested, but after leaving the festival, their car was pulled over and they received a traffic citation.

The Plaintiff-Appellants filed a civil rights law suit in the U.S. District Court for the Eastern District of Michigan, under 42 U.S.C. Section 1983, alleging that their First Amendment right to free speech and free exercise of religion, and their right to equal protection of the laws had been violated. The District Court granted the WCSO’s summary judgment motion and dismissed the case.

The Bible Believers claimed that the WCSO suppressed their right to free speech by permitting the hostile mob to confront them and/or by threatening to cite the Bible Believers, and thereby creating a “heckler’s veto” to their First Amendment rights. In analyzing free-speech claims, a 3-part test is used: “The first step is to determine whether the plaintiff’s conduct is protected speech […] The second step is to identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” In the third step, we decide “whether the justifications for exclusion from the relevant forum satisfy the requisite standard.” When determining content neutrality, it must be determined “whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” The parties main dispute involved the third part of the test, and specifically whether the WCSO’s actions were content neutral.

The Sixth Circuit Court of Appeals affirmed the District Court’s decision. The Appeals Court found that the WCSO’s operation plan and conduct during the fair was content neutral because the purpose of the plan was to ensure public safety and peace during the public festival. Nothing in the plan or in the WCSO’s conduct regulated the Plaintiff-Appellant’s speech because of the content of their speech, or the ideas and beliefs they were expressing. As well, the Sixth Circuit rejected the Bible Believers’ heckler’s veto argument. They determined that the WCSO had a reasonable belief that the threat of violence was high.

The Sixth Circuit granted an en banc review of the judgment.

Decision Overview

Justice Eric L. Clay delivered the opinion of the Court of Appeals for the Sixth Circuit.

The main issue before the Court was whether Wayne County had violated the First Amendment rights of the Bible Believers organization during a city festival in 2012. The Court began by establishing its analysis concerning free-speech claims: if the speech at issue is constitutionally protected; the nature of the forum where the speech took place and if the government’s action of limiting the speech were legitimate.

The Court first determined that the Bible Believers’ speech was protected under the First Amendment. Justice Clay asserted that it is the minority view that in most cases needs protection under the First Amendment. That First Amendment protection indeed includes distasteful, loathsome and unpopular opinions. The Court expressed that in several occasions the Supreme Court has deemed that speech cannot be curtailed just because it can be offensive to some. Justice Clay also discussed two exclusions of the First Amendment: Incitement to Riot and Fighting Words. Justice Clay rejected both exclusions. In relation to the exclusion of ‘incitement to riot’, Justice Clay stated that there was no “[a]dvocacy for the use of force or lawless behavior, intent, and imminence.” (p. 17).

The Court also submitted that the appellants did not meet the Brandenburg v. Ohio, 395 U.S. 444 (1969) test which prevents speech being regarded 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.” (p. 19). Furthermore, the Court held that the appellants’ speech did not in any way encourage violence as not a word uttered by them signified violence or lawlessness. There was no intent of the Bible Believers, according to the Court, “to spur their audience to violence.” (p. 20). Finally, the court opined that the violent reaction of the crowd listening to the speech “does not transform protected speech into incitement.” (p. 20).

Regarding the Fighting Words doctrine, the Court briefly rejected it and stated that “the insult or offense must be directed specifically at an individual.” (p. 20). The Court also established that, when the Wayne County officials responded against the appellants’ speech because of the crowd’s violent reaction, they espoused a Heckler’s veto. The Court noted that excluding a particular speech from the marketplace of ideas is a form of content-based discrimination. A Heckler’s veto is considered a form of content-based discrimination and therefore subject to strict scrutiny. According to the Court: “[p]unishing, removing, or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose.” (p. 22). Justice Clay noted that the First Amendment does not allow a Heckler’s veto because the constitutional rights of someone cannot be denied due to certain hostile reactions. Justice Clay also stated that Wayne County did not even come close to meeting the burden of showing a legitimate interest in limiting appellants’ speech. The Court added that Wayne County officials had identifiable measures to protect the appellants’ exercise of freedom of expression. Even when the appellants’ speech was offensive and vile, they have a right to espouse those types of views, and at the same time Wayne County officials did not protect the Bible Believers, and did not contain the conduct of the hecklers. The Court rejected Wayne County’s argument that they limited the appellants’ speech to maintain public safety. However, the Court deemed that Wayne County had to “make bona fide efforts to protect the speaker from the crowd’s hostility by other, less restrictive means.” (p. 32). The removal of the speaker, according to the court, must be the last resort.

Moreover, the Court determined that Wayne County violated the Bible Believers’ right to free exercise of religion. The Court considered that free exercise claims are evaluated pursuant to the First Amendment. The Bible Believers also made a claim about equal protection under the Fourteenth Amendment. The Court determined that Wayne County violated their right to equal protection as they discriminated against them because the Bible Believers’ speech offended a number of people who were at the Festival.

For these reasons, the Court concluded that Wayne County had violated the right to freedom of expression of the Bible Believers and also determined that Wayne County officials could not claim qualified immunity. Wayne County, as a municipality, was liable for the damages caused.