Bible Believers v. Wayne County

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0258p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BIBLE BELIEVERS; RUBEN CHAVEZ, AKA RUBEN ┐
ISRAEL; ARTHUR FISHER; JOSHUA DELOSSANTOS, │
Plaintiffs-Appellants, │
│ No. 13-1635
│
v. >
│
│
WAYNE COUNTY, MICHIGAN; BENNY N. NAPOLEON, │
in his official capacity as Sheriff, Wayne County │
Sheriff’s Office; DENNIS RICHARDSON, individually │
and in his official capacity as Deputy Chief, Wayne │
County Sheriff’s Office; MIKE JAAFAR, individually │
and in his official capacity as Deputy Chief, Wayne │
County Sheriff’s Office, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit
No. 2:12-cv-14236—Patrick J. Duggan, District Judge.
Argued: March 4, 2015
Decided and Filed: October 28, 2015
Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,
STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor,
Michigan, for Appellants. Nabih H. Ayad, AYAD LAW, P.L.L.C., Canton, Michigan, for
Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann
Arbor, Michigan, David Yerushalmi, AMERICAN FREEDOM LAW CENTER, Washington,
D.C., for Appellants. Nabih H. Ayad, AYAD LAW, P.L.L.C., Canton, Michigan, for Appellees.
Nathan W. Kellum, CENTER FOR RELIGIOUS EXPRESSION, Memphis, Tennessee, David S.
Korobkin, AMERICAN CIVIL LIBERTIES UNION, Detroit, Michigan, Julie M. Carpenter,
JENNER & BLOCK LLP, Washington, D.C., for Amici Curiae.
1
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 2
CLAY, J., delivered the opinion of the court in which COLE, C.J., BOGGS,
BATCHELDER, MOORE, KETHLEDGE, WHITE, and STRANCH, JJ., joined, and SUTTON
and GRIFFIN, JJ., joined in part. BOGGS, J. (pp. 42–45), delivered a separate concurring
opinion in which BATCHELDER, CLAY, and WHITE, JJ., joined. GRIFFIN, J. (pp. 46–48),
delivered a separate opinion concurring in part, and dissenting from Part IV and the final two
paragraphs of Part I.C.4 of the majority opinion. SUTTON, J. (pg. 49), delivered a separate
opinion concurring in part in Part I of the majority opinion, and in Parts II and III of the dissent
of GIBBONS, J. GIBBONS, J. (pp. 50–59), delivered a separate dissent in which COOK and
McKEAGUE, JJ., joined, and SUTTON, J., joined in part. ROGERS, J. (pp. 60–65), delivered a
separate dissent in which GIBBONS, COOK, McKEAGUE, and DONALD, JJ., joined.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs Ruben Chavez (“Israel”), Arthur Fisher, Joshua
DeLosSantos, and the Bible Believers (collectively “the Bible Believers” or “Plaintiffs”) appeal
the district court order entering summary judgment in favor of Defendants Sheriff Benny N.
Napoleon, Deputy Chief Dennis Richardson, Deputy Chief Mike Jaafar, and Wayne County
(collectively “Wayne County” or “Defendants”). Plaintiffs initiated this constitutional tort action
pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their First Amendment rights to
freedom of speech and free exercise of religion, as well as their Fourteenth Amendment right to
equal protection of the laws. The district court held that Defendants’ actions in cutting off the
Bible Believers’ religious speech did not violate the Constitution. We REVERSE the judgment
of the district court in full and REMAND this case for entry of summary judgment in favor of
Plaintiffs, for the calculation of damages, and for the award of appropriate injunctive relief,
consistent with this opinion.
BACKGROUND
“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.” Snyder v. Phelps, 562 U.S. 443, 458 (2011) (citation and internal quotation
marks omitted). “Nowhere is this [First Amendment] shield more necessary than in our own
country for a people composed [from such diverse backgrounds].” Cantwell v. Connecticut,
310 U.S. 296, 310 (1940). Born from immigrants, our national identity is woven together from a
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 3
mix of cultures and shaped by countless permutations of geography, race, national origin,
religion, wealth, experience, and education. Rather than conform to a single notion of what it
means to be an American, we are fiercely individualistic as a people, despite the common threads
that bind us. This diversity contributes to our capacity to hold a broad array of opinions on an
incalculable number of topics. It is our freedom as Americans, particularly the freedom of
speech, which generally allows us to express our views without fear of government sanction.
Diversity, in viewpoints and among cultures, is not always easy. An inability or a general
unwillingness to understand new or differing points of view may breed fear, distrust, and even
loathing. But it “is the function of speech to free men from the bondage of irrational fears.”
Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring). Robust discourse,
including the exchanging of ideas, may lead to a better understanding (or even an appreciation)
of the people whose views we once feared simply because they appeared foreign to our own
exposure. But even when communication fails to bridge the gap in understanding, or when
understanding fails to heal the divide between us, the First Amendment demands that we tolerate
the viewpoints of others with whom we may disagree. If the Constitution were to allow for the
suppression of minority or disfavored views, the democratic process would become imperiled
through the corrosion of our individual freedom. Because “[t]he right to speak freely and to
promote diversity of ideas . . . is . . . one of the chief distinctions that sets us apart from
totalitarian regimes,” Terminiello v. City of Chi., 337 U.S. 1, 4 (1949), dissent is an essential
ingredient of our political process.
The First Amendment “may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger.” Id. If we are not persuaded by the contents of another’s speech, “the remedy to be
applied is more speech, not enforced silence.” Whitney, 274 U.S. at 377 (Brandeis, J.,
concurring). And although not all manner of speech is protected, generally, we interpret the First
Amendment broadly so as to favor allowing more speech. See Cox v. Louisiana, 379 U.S. 536,
578 (1965) (“[W]hen passing on the validity of a regulation of conduct, which may indirectly
infringe on free speech, this Court . . . weigh[s] the circumstances in order to protect, not to
destroy, freedom of speech.” (internal quotation marks omitted)) (Black, J., concurring).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 4
This case calls on us to confirm the boundaries of free speech protections in relation to
angry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees.
Set against the constitutional right to freedom of speech, we must balance the state’s interest in
insuring public safety and preventing breaches of the peace. The scenario presented by this case,
known as the “heckler’s veto,” occurs when police silence a speaker to appease the crowd and
stave off a potentially violent altercation.1 The particular facts of this case involve a group of
self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some
of whom responded with threats of violence. The police thereafter removed the evangelists to
restore the peace. Bearing in mind the interspersed surges of ethnic, racial, and religious conflict
that from time to time mar our national history, the constitutional lessons to be learned from the
circumstances of this case are both timeless and markedly seasonable.
In this opinion we reaffirm 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. We also delineate the obligations and duties of law enforcement personnel or public
officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the
peace that may arise when constitutionally protected speech has stirred people to anger, and even
to violence.
Facts
A. Dearborn and the Arab International Festival
Dearborn—home of the world headquarters of the Ford Motor Company—is a city
located in Wayne County, Michigan, that borders Detroit and has a stable population of
approximately 100,000 people.2 Dearborn is also home to one of the largest populations of Arab
1
The term “heckler’s veto” is ascribed to Harry Kalven, a constitutional scholar, who noted when writing
about free speech and angry crowds, “If the police can silence the speaker, the law in effect acknowledges a veto
power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not
approve.” Harry Kalven, Jr., The Negro and the First Amendment 140 (Ohio St. Univ. Press 1965).
2
State & County QuickFacts: Dearborn (city), Michigan, United States Census Bureau,
http://quickfacts.census.gov/qfd/states/26/2621000.html (last revised Oct. 14, 2015).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 5
Americans in the country—second only to New York City.3 Dearborn’s Arab American
population is comprised of both Christian and Muslim families whose national origins include
Lebanon, Armenia, Yemen, Iraq, and Palestine, among other nations.4
Beginning in 1996 and continuing for 17 years thereafter, each June, Dearborn celebrated
its Arab heritage and culture by hosting the Arab International Festival. The Festival, which was
free to the public, featured Middle Eastern food, music, artisan booths, cultural acts, and other
amusements, including carnival rides. A principal purpose of the Festival was to promote
cultural exchange. Each year, the Festival took place on a stretch of Warren Avenue, covering
several blocks temporarily closed to vehicular traffic. The street became a pedestrian
thoroughfare lined with vendors and information booths. The brick and mortar stores lining the
Warren sidewalks also remained open. The Festival attracted people from around the world, and
by 2012, it was the largest festival of its kind in the United States, annually drawing more than
300,000 people over the course of three days.
Given the size of attendance and the Festival’s focus on cultural exchange, a diverse
array of religious groups requested permission to set up information booths on the Festival
grounds.5 The Festival also had a history of attracting certain Christian evangelists who
preferred to roam free among the crowd and proselytize to the large number of Muslims who
were typically in attendance each year.6 These evangelists would come from across the country
to distribute leaflets up and down the sidewalks of Warren Avenue in the heart of the Festival.
This practice was disrupted in 2009 when the Dearborn police enforced an anti-leafletting policy
promoted by the American Arab Chamber of Commerce—the Festival’s primary sponsor—and
3
G. Patricia de la Cruz & Angela Brittingham, U.S. Census Bureau, C2KBR-23, The Arab Population:
2000, at 7 tbl.3 (Dec. 2003), available at https://www.census.gov/prod/2003pubs/c2kbr-23.pdf.
4
Who Are Arab Americans?, Arab American Institute, http://www.aaiusa.org/who-are-arab-americans (last
visited June 10, 2015); Pierre M. Atlas, Living Together Peacefully in Heart of Arab America, Common Ground
News Service (Sept. 13, 2005), http://www.commongroundnews.org/article.php?id=1044&lan=en&sid=1&sp=0.
5
In 2012, among these religious groups were an Islamic educational organization, a couple of Arab
churches, as well as a few non-Arab Christian ministries. These groups were stationed under one tent, along with
other non-religious organizations seeking to share information.
6
The Muslim population in Dearborn is notable, distinctly, for its relative size and longtime
presence; both the largest mosque and one of the oldest mosques in the United States are located in
Dearborn. Michele Norris, Largest U.S. Mosque Opens in Michigan, NPR (May 12, 2005),
http://www.npr.org/templates/story/story.php?storyId=4650047; AMS History, The American Moslem Society,
http://www.masjiddearborn.org/en/about-the-ams/history (last visited Oct. 20, 2015).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 6
ratified by the City. A panel of this Court subsequently held that Dearborn’s anti-leafletting
policy unconstitutionally encroached on the free speech rights protected by the First Amendment
because it failed to serve a substantial government interest and it was not narrowly tailored, as is
required with respect to any time, place, or manner restriction on protected speech. See Saieg v.
City of Dearborn, 641 F.3d 727 (6th Cir. 2011). The City of Dearborn thereafter ceded to the
Wayne County Sheriff’s Office (“WCSO”) primary responsibility over Festival security in future
years.
B. The Bible Believers
The Bible Believers were among the self-described evangelical groups that attended the
Festival for the purpose of spreading their Christian beliefs. The founder and leader of the Bible
Believers, known as “Israel,” testified that due to his sincerely held religious beliefs he was
required “to try and convert non-believers, and call sinners to repent.” Therefore, Israel and his
Bible Believers regularly engaged in street preaching, which consisted of advocating for their
Christian beliefs and parading around with banners, signs, and tee-shirts that displayed messages
associated with those beliefs. Many of the signs and messages displayed by the Bible Believers
communicated overtly anti-Muslim sentiments.
In 2011, Israel attended the Festival with a number of Bible Believers to preach to the
crowd of Festival-goers. Upon their arrival at the Festival on Friday, June 17, 2011, the Bible
Believers were directed to a protected area on the Festival grounds referred to as a “free speech
zone.” When they returned to the Festival on Sunday, June 19, the Bible Believers were
informed that the free speech zone had been removed and would not be made available again.
The Bible Believers therefore opted to walk the public streets and sidewalks, spreading their
message to those who passed by. The quintessential attribute of the Bible Believers’ message
was intolerance, principally proclaiming that Mohammed was a false prophet who lied to them
and that Muslims would be damned to hell if they failed to repent by rejecting Islam.7 This
message was not well received by certain elements of the crowd. The Bible Believers allege that
they were assaulted by various members of the crowd and that the WCSO initially watched and
7
We presume that the character of the Bible Believers’ activities in 2011 was similar if not essentially the
same as their activities in 2012, although the record is devoid of a specific factual account of the 2011 Festival.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 7
did nothing, then eventually silenced the Bible Believers by kicking them out and requiring them
to leave the Festival grounds. They also alleged that Deputy Chief Jaafar personally arrested one
of the Bible Believers to the delight of the “violent Muslims.” No formal action was taken by
either party as a result of this alleged incident.
C. May 2012 Pre-Festival Letters and Preparation
Israel and his Bible Believers determined to return to Dearborn the following year for the
2012 Arab International Festival. Prior to the Festival, the Bible Believers, through their
counsel, sent a letter to Defendants Wayne County and Sheriff Napoleon recounting the Bible
Believers’ experience at the 2011 Festival. The letter also apprised Defendants of the Bible
Believers’ expectations for the group’s return visit:
In light of the past actions by the officers, I write to remind the Wayne County
Sheriff’s Department [sic] of two points. First, the officers have a duty to protect
speakers like Israel from the reactions of hostile audiences. See Glasson v. City of
Louisville, 518 F.2d 899, 906 (6th Cir. 1975) (“A police officer has the duty not to
ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on
suppressing ideas. Instead, he must take reasonable action to protect from
violence persons exercising their constitutional rights.”). If the officers allow a
hostile audience to silence a speaker, the officers themselves effectively silence
the speaker and effectuate a “heckler’s veto.” The First Amendment simply does
not countenance this scenario. See, e.g., Forsyth County, 505 U.S. at 134; Boos v.
Barry, 485 U.S. 312, 320-21 (1998). See also Smith v. Ross, 482 F.2d 33, 37
(6th Cir. 1973) (“[S]tate officials are not entitled to rely on community hostility as
an excuse not to protect, by inaction or affirmative conduct, the exercise of
fundamental rights.”). Second, Israel has the First Amendment right to engage in
peaceful expression on streets and sidewalks during the Arab International
Festival. See, e.g., Saieg v. City of Dearborn, 641 F.3d 727, 737-41 (6th Cir.
2011) (invaliding [sic] ban on literature distribution on public sidewalks open to
public during the Arab International Festival).
(R. 13-7, May 9, 2012 Ctr. for Relig. Expression Ltr., PGID 110).
Wayne County, through its Corporation Counsel, responded by letter on June 14, 2012.
The letter indicated Wayne County’s disagreement with respect to both the characterization of
events at the 2011 Festival and with the Bible Believers’ interpretation of the law regarding the
WCSO’s duties to the public and to the Bible Believers. Corporation Counsel noted the
WCSO’s intent to “maintain public order consistent with its legal obligations,” but specifically
disclaimed any “‘special relationship’ between the WCSO and Mr. Israel” to avoid the
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 8
possibility that Israel would assert in subsequent litigation that the WCSO owed Bible Believers
a heightened measure of protection. (R. 13-8, Corp. Counsel Reply, PGID 112).
The letter went on to “remind [the Bible Believers] that, under state law and local
ordinances, individuals can be held criminally accountable for conduct which has the tendency to
incite riotous behavior or otherwise disturb the peace.” (Id. at 113). In conclusion, Corporation
Counsel likewise cited to Sixth Circuit precedent to support the County’s view that its
obligations to protect the Bible Believers’ speechmaking had limitations:
[L]aw enforcement personnel are not required “to defend the right of a speaker to
address a hostile audience, however large and intemperate, when to do so would
unreasonably subject them to violent retaliation and physical injury.” Glasson v.
City of Louisville, 518 F.2d 899 at 909 (6th Cir. 1975). Rather, “[i]n such
circumstances, they may discharge their duty of preserving the peace by
intercepting his message or by removing the speaker for his own protection
. . . [.]”
(Id. at 113).
Earlier that month, Deputy Chief Jaafar circulated an Operations Plan memorandum,
addressed to Sheriff Napoleon, which outlined the policies and procedures to be followed by the
WCSO throughout the course of the 2012 Arab International Festival. The second item in the
memorandum addressed potential “situation[s]” that could lead to trouble at the Festival. Among
the purported situations was “a radical group calling themselves ‘The Bible Believers’” that had
been attracted to the Festival in recent years, and that would “possibly show up at the festival
trying to provoke [the WCSO] in a negative manner and attempt to capture the negativity on
video camera.” (13-5, Ops. Plan, PGID 100). Deputy Chief Jaafar instructed his officers “to be
alert and professional at all times . . . [and to] [r]epeat as many times as necessary” the
appropriate orders to any group causing trouble. (Id.) As an example, he suggested repeating
the following command: “Sir, you are causing a disturbance, please keep moving.” (Id.) He
also noted that the WCSO would “not abridge or deny anyone’s Freedom of Speech, unless
public safety becomes [a] paramount concern.” (Id.)
The WCSO decided to employ both regular and reserve officers “to ensure public safety,
keep the peace, and maintain order in the event there is a disturbance.” (Id. at 101). According
to Deputy Chief Richardson, a greater number of WCSO personnel were “allocated to the
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Festival . . . than . . . to the World Series or to the President of the United States when he visits
Michigan.” (R. 13-6, Richardson Aff., PGID 107). The number of personnel also exceeded the
number “allocated to other large festivals in Michigan.” (Id.) The Operations Plan listed
51 officers (excluding those in command), most of whom were assigned to one of six zones.
Among this group, there were also 19 officers (including 6 mounted units) who were not
assigned to any one specific zone, allowing them to respond to changing needs and
circumstances.
D. The 2012 Arab International Festival8
The Bible Believers returned to Dearborn in 2012, at approximately 5:00 p.m. on Friday,
June 15, for the 17th Annual Arab International Festival. As they had done the previous year,
the Bible Believers traveled to the Festival so that they could exercise their sincerely held
religious beliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his
followers to hurl words and display messages offensive to a predominantly Muslim crowd, many
of whom were adolescents. These messages were written on their tee-shirts and on the banners
and signs that they carried. The following is a sampling of the Bible Believers’ messages:
“Islam Is A Religion of Blood and Murder”
“Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers”
“Prepare to Meet Thy God – Amos 4:12”
“Jesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be Blotted Out”
“Trust Jesus, Repent and Believe in Jesus”
“Only Jesus Christ Can Save You From Sin and Hell”
“Turn or Burn”
“Fear God”
(R. 20-2, Israel Decl., PGID 176–77). In addition to the signs, one of the Bible Believers carried
a severed pig’s head on a spike, because, in Israel’s own words, it would “ke[ep] [the Muslims]
at bay” since “unfortunately, they are kind of petrified of that animal.” (R. 28-A, Raw Festival
Footage, Time: 00:49:45).
8
Most of the facts regarding the 2012 Arab International Festival are derived from a video recording that
the Bible Believers made during the Festival in order to contemporaneously memorialize their free speech activities.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 10
Laden with this imagery, the Bible Believers entered the Festival and began their
preaching. At first, few people paid attention other than to glance at what appeared to be an odd
assembly. The first speaker told the crowd that they should not follow “a false prophet,” who
was nothing but an “unclean drawing” and “a pedophile.” (Id. at 00:01:40). He continued by
telling what was by then a group made up of approximately thirty teenagers that “[y]our religion
will send you to hell.” (Id. at 00:03:30). Tensions started to rise as a few youths became
incensed after the speaker taunted, “You believe in a prophet who is a pervert. Your prophet who
wants to molest a child,” and “God will reject you. God will put your religion into hellfire when
you die.” (Id. at 00:03:56, 00:04:38). This continued as a few of the teens became agitated, until
one youth simply told his friends to “quit giving them attention,” convincing some members of
the crowd to disperse. (Id. at 00:06:07).
After approximately seven minutes of proselytizing, some elements of the crowd began
to express their anger by throwing plastic bottles and other debris at the Bible Believers. An
officer was captured on video observing the scene without intervening or reprimanding the
juvenile offenders. The size of the crowd ebbed and flowed. At one point an officer approached
the Bible Believers and commanded that the speakers stop using a megaphone or be cited for
violating city ordinances. The Bible Believers relented, but also responded by noting that “these
angry kids are a little bit more vicious than the megaphone.” (Id. at 00:16:16). A few minutes
later, an officer did ask the kids to back up and subsequently removed one of the teenagers who
he saw throwing a bottle. However, all police presence and intervention dissipated after this
minimal and isolated intervention.
The Bible Believers continued preaching for another ten minutes without the megaphone,
all while a growing group of teenagers jeered and heckled, some throwing bottles and others
shouting profanities. At one point, a parent stepped in to reprimand his child for participating in
the assault. The onslaught reached its climax when a few kids began throwing larger items such
as milk crates. By that time, the Bible Believers had stopped all speechmaking whatsoever.
A number of debates spawned between members of the crowd (which had continued to
swell) and individual Bible Believers. A particularly emotional youth debated with a Bible
Believer the merits of his group’s bigoted views, noting that he had studied both the Quran and
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 11
the Bible, and that Muslims believe in the same First Testament as the followers of Christianity.
This brief moment of reasoned debated devolved into a shouting match, and ended when the
youth was pulled away by an unidentified individual.
A few minutes later, the crowd of youths became quiet after four mounted officers simply
rode by, without making commands or pausing—even for a moment. The calm persisted while
Israel gave an interview to a local news crew. But once this interview ended, and the police and
camera crews left the scene, the Bible Believers again were assaulted with flying debris. The
Bible Believers turned away from the crowd and started moving through the Festival for a
second time. 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. When the Bible Believers again resettled at a new location, and with their backs no
longer facing the crowd, the torrent died down. At some point during the deluge, Israel was
struck in the face, which resulted in him suffering a small laceration.
When an officer arrived on the scene a few minutes later, the children’s belligerence and
the assaultive behavior again ceased. The officer bellowed at a few youths to move out of the
way; they complied immediately. He then told Israel, “you are a danger to public safety right
now,” and stated that the WCSO did not have the manpower to keep the Bible Believers safe.
(Id. at 00:43:12). The officer then suggested that the Bible Believers always “have the option to
leave,” while he simultaneously ignored Israel’s plea that some sort of police presence just
remain in the general vicinity. The officer departed, and the bottle throwing resumed.
A few minutes later, a group of officers returned to the area and cut a path through the
crowd in order to approach Israel and his followers. Deputy Chiefs Richardson and Jaafar pulled
Israel aside for the purpose of telling him that the Bible Believers would be escorted out of the
Festival. But Israel responded that he was unprepared to leave without having the opportunity to
finish walking his parade route while exercising his First Amendment rights.
Richardson explained to Israel, “We have the responsibility of policing the entire festival,
and obviously your conduct especially is causing this disturbance and it is a direct threat to the
safety of everyone here.” (Id. at 00:48:30). He also noted that “part of the reason they throw this
stuff . . . is that you tell them stuff that enrages them.” (Id. at 00:49:03). Israel protested, first by
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 12
noting that the disturbances only occurred in the absence of any police presence, and second, by
commenting that the Bible Believers had stopped preaching altogether during the previous
twenty minutes and were only carrying signs. Israel suggested that if the WCSO just assigned
two officers to insure that the crowd of adolescents surrounding the Bible Believers’
demonstration remained nonviolent, all concerns about public safety would be resolved. Deputy
Chief Jaafar chimed in at this point by telling Israel that the WCSO could not provide individual
officers for every group that wanted to protest at the Festival, and that Israel’s group needed to
leave because his group’s conduct was “attracting a crowd and . . . affecting public safety.” (Id.
at 00:50:40). When Israel continued to protest that he was not speaking and his signs were
permissible, Richardson, again, pointed to the Bible Believers’ speech as the cause for the unrest.
He stated, “ya know, apparently what you are saying to them and what they are saying back to
you is creating danger.” (Id. at 00:50:48). Richardson continued suggesting that Israel leave, but
Israel refused to do so unless the WCSO was prepared to threaten Israel with the prospect of
being arrested. Richardson expressed fear that the situation was escalating and stated, “the
problem is that one of your people’s gonna get hurt, or one of the crowd is gonna get hurt, or one
of my officers is gonna get hurt.” (Id. at 00:52:41). When Israel again inquired whether the
Bible Believers would be arrested if they did not leave the Festival, Richardson only committed
to saying that they would “probably” be cited if they did not allow themselves to be escorted out.
He thereafter told Israel that the Bible Believers were being “disorderly,” to which Israel replied,
incredulously, “I would assume 200 angry Muslim children throwing bottles is more of a threat
than a few guys with signs.” (Id. at 00:53:48).
Following this exchange, Deputy Chiefs Richardson and Jaafar conferred with
Corporation Counsel. Another half dozen officers stood along the edge of the barricaded area to
which the Bible Believers had been secluded. On the other side of the barricade, the Festival
continued. Richardson returned to speak with Israel and confirmed that Israel and his Bible
Believers would be cited for disorderly conduct if they did not immediately leave the Festival.
(Id. at 00:55:03) (“If you don’t leave we’re gonna cite you for disorderly.”). Israel complied, and
the Bible Believers were escorted out of the Festival by more than a dozen officers. Four
mounted officers also surveyed the scene on the edge of the Festival where the Bible Believers
were being directed to exit.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 13
The Bible Believers loaded into a van and departed. However, two WCSO cruisers
immediately began following the van and pulled the Bible Believers over within only a few
blocks of the Festival—a third cruiser pulled up shortly thereafter. Officers claimed that the
Bible Believers were stopped because they had removed the license plate from their vehicle prior
to their departure. After waiting for nearly thirty minutes, they were issued a citation. By that
time, two additional officers had arrived on bicycles, bringing the total number of law
enforcement personnel involved in this traffic stop to eight officers.
The WCSO made a post-operation report summarizing its version of the day’s events.
The report noted that the WCSO was “able to ke[ep] reasonable control of civil peace[, but] [a]s
the crowd progress[ed] around the protestors to an unsafe level, we suggested to the protestors to
leave the area immediately because public safety was being jeopardized.” (R. 13-9, Post-Op.
Rpt., PGID 114). The report further noted that “[a]ny subjects that were seen throwing objects
[were] immediately taken into custody.” (Id.). They apparently did not see very much. Only
one citation was issued to a 21-year old man who was caught throwing a bottle. The WCSO
officers also issued three verbal warnings and briefly detained three juveniles, ranging in age
from twelve to seventeen, before ultimately releasing them to the custody of their respective
parents.
In summary, the Bible Believers attended the 2012 Festival for the purpose of exercising
their First Amendment rights by spreading their anti-Islam religious message. When a crowd of
youthful hecklers gathered around the Bible Believers, the police did nothing. When the
hecklers began throwing bottles and other garbage at the Bible Believers, a WCSO officer
intervened only to demand that the Bible Believers stop utilizing their 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. Despite this apparent lack of effort to maintain any semblance of order at the
Festival, each time the police appeared on the video—to reprimand the use of the Bible
Believers’ megaphone, to suggest that the Bible Believers had the “option to leave” the Festival,
to trot by on horseback while doing next to nothing, and to expel the Bible Believers from the
Festival under threat of arrest—the agitated crowd became subdued and orderly simply due the
authoritative presence cast by the police officers who were then in close proximity. Only once is
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 14
an officer seen removing one of the bottle-throwing teens. Israel, when faced with the prospect
of being arrested for disorderly conduct, observed, “and you would think we would be
complaining, but we’re not.” (R. 28-A, Raw Festival Footage, Time: 00:55:16). The Bible
Believers were thereafter escorted from the Festival and ticketed by a large group of WCSO
officers for removing the license plate from their van.
Procedural History
On September 25, 2012, the Bible Believers initiated this suit, pursuant to 42 U.S.C.
§ 1983, in the United States District Court for the Eastern District of Michigan. The complaint
alleged that Defendants violated the Bible Believers’ rights of free speech and free exercise,
protected by the First Amendment, as well as their right to equal protection of the laws,
guaranteed by the Fourteenth Amendment. Defendants answered, and then subsequently moved,
simultaneously, for summary judgment and dismissal of all of the Bible Believers’ claims. The
Bible Believers filed a response to Defendants’ motion, which included a cross-motion for
summary judgment, and Defendants filed a reply. The district court issued an opinion granting
Defendants’ motion for summary judgment, denying the Bible Believers’ cross-motion for
summary judgment, and dismissing the Bible Believers’ claims.
The Bible Believers thereafter filed a timely notice of appeal. The issues were briefed
and the case was argued before a three-judge panel of this Court the following year. The panel,
in a split decision, affirmed the judgment of the district court granting summary judgment to
Wayne County and the individual Defendants. Bible Believers v. Wayne Cty., 765 F.3d 578
(6th Cir. 2014). The Bible Believers petitioned for en banc rehearing. We granted that petition,
thereby vacating the panel opinion, id. (opinion vacated, reh’g en banc granted Oct. 23, 2014),
and heard oral argument for a second time on March 4, 2015.
DISCUSSION
Standard of Review
We review de novo an appeal from a grant of summary judgment. Gillie v. Law Office of
Eric A. Jones, LLC, 785 F.3d 1091, 1097 (6th Cir. 2015). Summary judgment is appropriate
when there exists no genuine dispute with respect to the material facts and, in light of the facts
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 15
presented, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. “The
court may look to the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits when ruling on the motion.” Gillie, 785 F.3d at 1097 (citation and
internal quotation marks omitted). The facts must be viewed in the light most favorable to the
non-moving party and the benefit of all reasonable inferences in favor of the non-movant must
be afforded to those facts. Id. The mere “scintilla of evidence” within the record that militates
against the overwhelming weight of contradictory corroboration does not create a genuine issue
of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Analysis
I. The First Amendment and the “Heckler’s Veto”
Free-speech claims require a three-step inquiry: first, we determine whether the speech at
issue is afforded constitutional protection; second, we examine the nature of the forum where the
speech was made; and third, we assess whether the government’s action in shutting off the
speech was legitimate, in light of the applicable standard of review. Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); Saieg, 641 F.3d at 734–35.
We need only to address steps one and three because the parties agree that the Festival
constituted a traditional public forum available to all forms of protected expression.9 The parties
strenuously dispute whether the Bible Believers’ conduct constituted incitement to riot, and they
also dispute the level of scrutiny that should be applied to this case. Ultimately, we find that
Defendants violated the Bible Believers’ First Amendment rights because there can be no
legitimate dispute based on this record that the WCSO effectuated a heckler’s veto by cutting off
the Bible Believers’ protected speech in response to a hostile crowd’s reaction.
We address the following items in turn: protected versus unprotected speech; the
appropriate level of scrutiny to be applied in a public forum given the facts of this case; the
precedents upon which the heckler’s veto doctrine is built; the rule derived from those
precedents; and the rule’s application to this case. We then address whether the individual
9
Defendants ostensibly concede that the Bible Believers’ speech and expression were protected, but the
thrust of their arguments belies their purported concession. Therefore, a discussion of protected versus unprotected
speech is merited.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 16
Defendants are liable or, instead, can seek refuge in the affirmative defense of qualified
immunity. Finally, we consider whether Wayne County can be held liable for the actions of its
law enforcement personnel.
A. Protected Speech
The First Amendment offers sweeping protection that allows all manner of speech to
enter the marketplace of ideas. This 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. 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. See, e.g., Nat’l Socialist
Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977) (recognizing First Amendment rights
of Neo Nazis seeking to march with swastikas and to distribute racist and anti-Semitic
propaganda in a predominantly Jewish community); Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (recognizing the First Amendment rights of Ku Klux Klan members to advocate for white
supremacy-based political reform achieved through violent means); Texas v. Johnson, 491 U.S.
397, 405–06 (1989) (recognizing flag burning as a form of political expression protected by the
First Amendment); Snyder, 562 U.S. 443, 454–56 (2011) (recognizing a religious sect’s right to
picket military funerals). “[I]f it is the speaker’s opinion that gives offense, that consequence is a
reason for according it constitutional protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S.
46, 55 (1988) (citation omitted). Religious views are no different. “After all, much political and
religious speech might be perceived as offensive to some.” Morse v. Frederick, 551 U.S. 393,
409 (2007). Accordingly, “[t]he right to free speech . . . includes the right to attempt to persuade
others to change their views, and may not be curtailed simply because the speaker’s message
may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716 (2000). Any other rule
“would effectively empower a majority to silence dissidents simply as a matter of personal
predilections,” Cohen v. California, 403 U.S. 15, 21 (1971), and the government might be
inclined to “regulate” offensive speech as “a convenient guise for banning the expression of
unpopular views.” Id. at 26. We tolerate the speech with which we disagree. When confronted
by offensive, thoughtless, or baseless speech that we believe to be untrue, the “answer is
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 17
[always] more speech.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1684 (2015) (Kennedy, J.,
dissenting).
Despite the First Amendment’s broad sweep, not all speech is entitled to its sanctuary.
There are a limited number of categorical exclusions from the comprehensive protection offered
by the Free Speech Clause.10 These exclusions are rooted in history and tradition, and include
only those forms of expression that are “long familiar to the bar” as falling outside the confines
of First Amendment protection. United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality
opinion) (citation and internal quotation marks omitted). Two areas of unprotected speech that
have particular relevance to the interaction between offensive speakers and hostile crowds are
“incitement to violence” (also known as “incitement to riot”) and “fighting words.” Both classes
of speech are discussed below.
1. Incitement
The right to freedom of speech provides that a state cannot “proscribe advocacy of the
use of force or of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S.
at 447 (footnote omitted). Advocacy for the use of force or lawless behavior, intent, and
imminence, are all absent from the record in this case. The doctrine of incitement has absolutely
no application to these facts.
The Bible Believers’ speech advocated for their Christian beliefs and for harboring
contempt for Islam. This advocacy was purportedly intended to convince Muslims at the
Festival that they should convert to Christianity. 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. See, e.g., Snyder,
562 U.S. at 454 (placards reading “You’re Going to Hell,” “Priests Rape Boys,” and “God Hates
Fags,” “certainly convey[ed] . . . [a] position on those issues” and constituted protected speech).
10
Obscenity, Miller v. California, 413 U.S. 15 (1973), defamation, N.Y. Times Co. v. Sullivan, 376 U.S.
254 (1964), fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), incitement, Brandenburg v. Ohio,
395 U.S. 444 (1969), and information deleterious to national security, N.Y. Times Co. v. United States, 403 U.S. 713
(1971).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 18
The only references to violence or lawlessness on the part of the Bible Believers were
messages such as, “Islam is a Religion of Blood and Murder,” “Turn or Burn,” and “Your
prophet is a pedophile.” These messages, however offensive, do not advocate for, encourage,
condone, or even embrace imminent violence or lawlessness. Although it might be inferred that
the Bible Believers’ speech was intended to anger their target audience, the record is devoid of
any indication that they intended imminent lawlessness to ensue. Quite to the contrary, the Bible
Believers contacted Wayne County prior to their visit, requesting that the WCSO keep the public
at bay so that the Bible Believers could “engage in their peaceful expression.”
It is not an easy task to find that speech rises to such a dangerous level that it can be
deemed incitement to riot. And unsurprisingly, “[t]here will rarely be enough evidence to create
a jury question on whether a speaker was intending to incite imminent crime.” Eugene Volokh,
Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1190 (2005).
In Hess v. Indiana, the Supreme Court held that a protestor who yelled, “We’ll take the
fucking street again,” amidst an agitated crowd that was already resisting police authority could
not be punished for his speech. 414 U.S. 105, 107 (1973). Because “[t]he mere tendency of
speech to encourage unlawful acts is not a sufficient reason for banning it,” Ashcroft v. Free
Speech Coal., 535 U.S. 234, 253 (2002), speech that fails to specifically advocate for listeners to
take “any action” cannot constitute incitement. Hess, 414 U.S. at 109.
Wayne County relies on Feiner v. New York, 340 U.S. 315 (1951), to support the
proposition that the Bible Believers’ speech was subject to sanction, and that such sanction does
not offend the Constitution. In Feiner, the Supreme Court upheld a conviction for breach of the
peace where, in the context of a civil rights rally, a speaker “gave the impression that he was
endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and
fight for equal rights.” Id. at 317. The majority, over a vigorous dissent, supported its holding
by relying on police testimony that the crowd had become restless, “and there was some pushing,
shoving and milling around.” Id. The majority described the scenario as a “crisis.” Id. at 321.
Thus, it has been said that Feiner “endorses a Heckler’s Veto.” Harry Kalven, Jr., A Worthy
Tradition: Freedom of Speech in America 89 (Jamie Kalven ed. 1988).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 19
The better view of Feiner is summed up, simply, by the following truism: when a speaker
incites a crowd to violence, his incitement does not receive constitutional protection.
See Glasson v. City of Louisville, 518 F.2d 899, 905 n.3 (6th Cir. 1975) (“For over twenty years
the Supreme Court has confined the rule in Feiner to a situation where the speaker in urging his
opinion upon an audience intends to incite it to take action that the state has a right to prevent.”).
Feiner lends little support for the notion that the Bible Believers’ speech amounted to incitement.
The Bible Believers did not ask their audience to rise up in arms and fight for their beliefs, let
alone request that they hurl bottles and other garbage upon the Bible Believers’ heads.
Subsequent Supreme Court precedent illustrates that the speaker’s advocacy in Feiner
itself could no longer be sanctioned as incitement. See, e.g., United States v. Williams, 553 U.S.
285, 298–99 (2008) (“To be sure, there remains an important distinction between a proposal to
engage in illegal activity and the abstract advocacy of illegality.”); NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 928 (1982) (“[T]he mere abstract teaching . . . of the moral
propriety or even moral necessity for a resort to force and violence, is not the same as preparing
a group for violent action and steeling it to such action.” (citation omitted)); Communist Party of
Ind. v. Whitcomb, 414 U.S. 441, 450 (1974) (rejecting the notion that “any group that advocates
violen[ce] . . . as an abstract doctrine must be regarded as necessarily advocating unlawful
action”); see also 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law:
Substance and Procedure § 20.39(a) (5th ed. 2013) (noting that “[t]he authority of Feiner has
been undercut significantly in subsequent [Supreme Court] cases”). In Claiborne Hardware Co.,
a speaker explicitly proposed to a large crowd that anyone who failed to abide by the terms of an
agreed upon boycott would have to be “disciplined.” 458 U.S. at 902. The speaker also stated,
“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”
Id. Nonetheless, this speech was not deemed by the Court to be incitement. Id. at 928–29.
The Supreme Court has repeatedly referred to Brandenburg—not Feiner—as establishing
the test for incitement. See, e.g., Whitcomb, 414 U.S. at 447–48 (“We most recently summarized
the constitutional principles that have evolved in this area[—incitement—]in Brandenburg.”);
Claiborne Hardware Co., 458 U.S. at 928 (“The emotionally charged rhetoric of [the plaintiff’s]
speeches did not transcend the bounds of protected speech set forth in Brandenburg.”); see also
James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002) (“The Court firmly set out the test
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 20
for whether speech constitutes unprotected incitement to violence in Brandenburg.”). The
Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the
speech explicitly or implicitly encouraged the use of violence or lawless action,11 (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. 395 U.S. at 477. The Bible
Believers’ speech was not incitement to riot simply because they did not utter a single word that
can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no
indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile
reaction of a crowd does not transform protected speech into incitement.
2. Fighting Words
A second type of speech that is categorically excluded from First Amendment protection
is known as “fighting words.” This category of unprotected speech encompasses words that
when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.”
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Sandul v. Larion, 119 F.3d
1250, 1255 (6th Cir. 1997). We rely on an objective standard to draw the boundaries of this
category—no advocacy can constitute fighting words unless it is “likely to provoke the average
person to retaliation.” Street v. New York, 394 U.S. 576, 592 (1969) (citation and internal
quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are
not excluded from First Amendment protection; the insult or offense must be directed
specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens, J.,
concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a “direct personal insult”).
The Bible Believers’ speech cannot be construed as fighting words because it was not directed at
any individual. Furthermore, the average individual attending the Festival did not react with
violence, and of the group made up of mostly adolescents, only a certain percentage engaged in
bottle throwing when they heard the proselytizing.
11
Incitement requires, in the view of some constitutional scholars, that “the words used by the speaker
objectively encouraged and urged and provoked imminent action.” 5 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law: Substance and Procedure § 20.15(d) (Online ed. May 2015) (Westlaw subscription)
(citing Hess, 414 U.S. 105; Volokh, supra, Crime-Facilitating Speech). Brandenburg’s plain language (reinforced
by Hess) requires that the words must, at minimum, implicitly encourage the use of force or lawlessness, or the
undertaking of some violent “act”; therefore, we say so explicitly today with little fanfare.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 21
B. Free Speech in Public Fora
Next, we must determine the character of Defendants’ actions. In public fora, the
government’s rights to “limit expressive activity are sharply circumscribed.” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also Frisby v. Schultz, 487 U.S.
474, 480 (1988) (public streets are the “archetype of a traditional public forum”). Speech
restrictions in these fora fall into two categories: content-based restrictions or time, place, and
manner restrictions that are content-neutral. United States v. Grace, 461 U.S. 171, 177 (1983);
Saieg, 641 F.3d at 734. The parties’ dispute is centered on whether Wayne County’s actions
were content neutral—a distinction that determines the applicable level of constitutional scrutiny.
Connection Distrib. Co. v. Reno, 154 F.3d 281, 290 (6th Cir. 1998).
“Listeners’ reaction to speech is not a content-neutral basis for regulation,” Forsyth Cty.
v. Nationalist Movement, 505 U.S. 123, 134 (1992), or for taking an enforcement action against a
peaceful speaker. See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966) (“Participants in an
orderly demonstration in a public place are not chargeable with the danger . . . that their critics
might react with disorder or violence.”); Glasson, 518 F.2d at 905. Therefore, we find that
Wayne County’s actions were decidedly content-based. It is indisputable that the WCSO acted
against the Bible Believers in response to the crowd’s negative reaction. Deputy Chief
Richardson told Israel, “your conduct especially is causing this disturbance;” “part of the reason
they throw this stuff . . . is that you tell them stuff that enrages them;” “apparently what you are
saying to them and what they are saying back to you is creating danger;” and therefore, “[i]f you
don’t leave we’re gonna cite you for disorderly.”
The sum of Wayne County’s counter-argument to the charge that the Bible Believers’
expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan
was content-neutral, and that the WCSO’s only consideration was maintaining the public safety.
This contention fails in the face of abundant evidence that the police have effectuated a heckler’s
veto. It is irrelevant whether the Operations Plan is content-neutral because the officers
enforcing it are ordained with broad discretion to determine, based on listener reaction, that a
particular expressive activity is creating a public danger. Cf. Police Dep’t of Chi. v. Mosley,
408 U.S. 92, 97 (1972) (“[B]ecause of their potential use as instruments for selectively
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 22
suppressing some points of view, this Court has condemned licensing schemes that lodge broad
discretion in a public official to permit speech-related activity.”); see also Ctr. for Bio-Ethical
Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008) (“If the statute, as read
by the police officers on the scene, would allow or disallow speech depending on the reaction of
the audience, then the ordinance would run afoul of an independent species of prohibitions on
content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s
veto.’” (citing Bachellar v. Maryland, 397 U.S. 564, 567 (1970))).
C. The Heckler’s Veto and Police Obligations
It is a fundamental precept of the First Amendment that the government cannot favor the
rights of one private speaker over those of another. Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 828 (1995). Accordingly, content-based restrictions on constitutionally
protected speech are anathema to the First Amendment and are deemed “presumptively invalid.”
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009). An especially “egregious” form of
content-based discrimination is that which is designed to exclude a particular point of view from
the marketplace of ideas. Rosenberger, 515 U.S. at 829; Perry Educ. Ass’n, 460 U.S. at 62
(Brennan, J., dissenting) (“Viewpoint discrimination is censorship in its purest form and
government regulation that discriminates among viewpoints threatens the continued vitality of
‘free speech.’”). The heckler’s veto is precisely that type of odious viewpoint discrimination.
Cf. Police Dep’t of Chi., 408 U.S. at 98 (“‘[T]o deny this . . . group use of the streets because of
their views . . . amounts . . . to an invidious discrimination.’” (quoting Cox, 379 U.S. at 581
(Black, J., concurring))).
Both content- and viewpoint-based discrimination are subject to strict scrutiny. McCullen
v. Coakley, 134 S. Ct. 2518, 2530, 2534 (2014). No state action that limits protected speech will
survive strict scrutiny unless the restriction is narrowly tailored to be the least-restrictive means
available to serve a compelling government interest. United States v. Playboy Entm’t Grp.,
529 U.S. 803, 813 (2000). Punishing, 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. Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v.
City of Chi., 337 U.S. 1 (1949); Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 23
Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chi., 394 U.S. 125 (1969). A review of
Supreme Court precedent firmly establishes that the First Amendment does not countenance a
heckler’s veto.
1. Early Cases: Clear and Present Danger
The “clear and present danger” test, first articulated by Justice Holmes in Schenck v.
United States, 249 U.S. 47 (1919), is a flexible means to protect speech while recognizing that
the government might have legitimate reasons for imposing speech-restrictions due to exigent
circumstances:
The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree.
249 U.S. at 52.12 The Supreme Court in Cantwell v. Connecticut and in Terminiello v. City of
Chicago utilized the clear and present danger test to establish the rights of speakers not to be
silenced on account of listeners’ hostility toward their message.
In Cantwell, a Jehovah’s Witness was convicted for inciting a breach of the peace after
going into a predominantly Catholic neighborhood and playing (to bypassers who were willing
to listen) a phonograph recording that demonized Catholicism. 310 U.S. at 302–03, 309. Two
listeners of the recording were so offended that they threatened the Witness that he better leave
or face violent retaliation. Id. at 309. The Court recognized that with religion and politics in
particular, “[t]o persuade others to his own point of view, the pleader, as we know, at times,
resorts to exaggeration, to vilification of men who have been, or are, prominent in church or
state, and even to false statement.” Id. at 310. Invoking the now-familiar clear and present
danger test, the Court found that the expressive activity did not fall outside of the confines of free
speech protection and therefore it could not lawfully be penalized by the state. Id. at 310–11.
12
Although this test was first introduced by Justice Holmes to uphold convictions of wartime dissenters
under the speech-repressive Espionage and Sedition Acts, Holmes continued to invoke this language in dissent
throughout the 1920s as a means to protect political speech, until it became firmly established as the governing rule
following its use in Justice Brandeis’ famous concurrence in Whitney v. California, 274 U.S. 357 (1927)—the
foundation of all modern First Amendment jurisprudence. David L. Hudson, Jr., Legal Almanac: The First
Amendment: Freedom of Speech § 1:4 (Oct. 2012).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 24
In Terminiello, the Supreme Court again applied the clear and present danger test to
overturn a conviction based on a statute that allowed the state to punish speech based on crowd
hostility—i.e. a heckler’s veto. 337 U.S. at 4–5. The hostility was quite real in that instance, as
the crowd had gathered outside the auditorium and begun throwing icepicks, bottles, and rocks,
in response to the speaker’s remarks. Id. at 15 (Jackson, J., dissenting). Justice Douglas wrote
for the Court that “freedom of speech, though not absolute, is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance, or unrest.” 337 U.S. at 4
(citations omitted). He noted that constitutionally protected speech “may strike at prejudices and
preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Id.
Therefore, the state cannot sanction speech, consistent with the Constitution, solely on the basis
that it “stirred people to anger, invited public dispute, or brought about a condition of unrest.”
Id. at 5.
Cantwell and Terminiello instruct that offensive religious proselytizing, as well as speech
that drives a crowd to extreme agitation, is not subject to sanction simply because of the violent
reaction of offended listeners. Feiner came shortly after these cases, and it highlighted a
significant flaw with the clear and present danger test in this context; chiefly, “it allows an
audience reaction, if hostile enough, to be a basis for suppressing a speaker.” Erwin
Chemerinsky, Constitutional Law: Principles and Policies 1041 (4th ed. 2011). The Supreme
Court recognized this flaw and eschewed any reliance on the clear and present danger test in the
civil-rights era cases involving hostile crowds. See, e.g., Gregory, 394 U.S. at 112–13. Those
cases reasserted, as paramount, the right of the speaker to not be silenced.
2. Civil-Rights Era: Protect the Speaker
In Edwards v. South Carolina, 187 black college and high school students were convicted
for breach of the peace following a peaceful protest, where, in small groups, the students
marched to the Columbia, South Carolina state house carrying placards bearing messages in
support of equality and civil rights. 372 U.S. at 229–30. During the demonstration, between
200 and 300 white observers gathered in a horseshoe around the students. Id. at 231. The police
threatened the students with arrest after “apprehend[ing] immin[ent] violence” by a number of
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 25
troublemakers in the crowd of onlookers. Id. at 245 (Clark, J., dissenting); id. at 231 & n.4
(majority opinion). The Supreme Court reversed the convictions, distinguished Feiner as being a
case involving incitement, and reaffirmed Terminiello by recognizing that expressive activity
cannot be proscribed merely because it “‘stirred people to anger, invited public dispute, or
brought about a condition of unrest.’” Id. at 238 (quoting Terminiello, 337 U.S. at 5).
Similarly, in Cox v. Louisiana, a student civil rights organizer led 2,000 fellow students
in a peaceful protest outside of a courthouse in downtown Baton Rouge. 379 U.S. at 538–40.
Approximately 100 to 300 white onlookers gathered to watch the protest. Id. at 541. When the
student leader suggested to the protestors that they stage a sit-in at the segregated lunch counters
in town, the crowd of onlookers reacted with jeers and became agitated. Id. at 550. Police
feared that “violence was about to erupt” from the crowd of onlookers and dispersed the student
protestors with a canister of tear gas, arresting the student leader the following day for breach of
the peace. Id. at 548, 550 n.12. The Supreme Court invoked Edwards, noting that the “evidence
showed no more than that the opinions which the students were peaceably expressing were
sufficiently opposed to the views of the majority of the community to attract a crowd and
necessitate police protection,” and overturned the conviction because “constitutional rights may
not be denied simply because of hostility to their assertion or exercise.” Id. at 551 (citation,
brackets, and internal quotation marks omitted).
Finally, in Gregory v. City of Chicago, a group of civil rights protestors peacefully
marched around the Mayor of Chicago’s home to draw attention to and air their frustration with
the slow pace of integration in Chicago’s public schools. 394 U.S. at 111. The protestors were
assaulted by onlookers with rocks and eggs, despite “a determined effort by the police to allow
the marchers to peacefully demonstrate.” Id. at 117 (Black, J., concurring). The protestors
hurled invective back at their hecklers, but otherwise “maintained a decorum that sp[oke] well
for their determination simply to” exercise their constitutional rights. Id. The police determined
that the hecklers “were dangerously close to rioting,” and therefore ordered the protestors to
leave. Id. at 120. They were charged with and convicted of breach of the peace for refusing to
vacate. Id. The Court, in a plurality opinion, called it a “simple case” because due process does
not allow for a conviction for breach of the peace where there is no evidence that the protestors
were themselves disorderly. Id. at 112. Justice Black, joined by Justice Douglas in his
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 26
concurrence, reaffirmed Edwards and Cox as controlling, inasmuch as the state cannot punish a
speaker simply because his lawful speech has attracted an angry mob of hecklers. Id. at 123–24,
124 n.8.
The civil-rights era cases tell us that police cannot punish a peaceful speaker as an easy
alternative to dealing with a lawless crowd that is offended by what the speaker has to say.
Because the “right ‘peaceably to assemble, and to petition the Government for a redress of
grievances’ is specifically protected by the First Amendment,” Gregory, 394 U.S. at 119
(Black, J., concurring), the espousal of views that are disagreeable to the majority of listeners
may at times “necessitate police protection,” Edwards, 372 U.S. at 237. “Liberty can only be
exercised in a system of law which safeguards order.” Cox, 379 U.S. at 574. It is “a police
officer’s . . . duty . . . to enforce laws already enacted and to make arrests . . . for conduct already
made criminal.” Gregory, 394 U.S. at 120 (Black, J., concurring). Therefore, the natural order of
law enforcement and crime mitigation are not upended simply because community hostility
makes it easier to act against the speaker rather than the individuals actually breaking the law;
this is true when it appears that a crowd may turn to rioting, Cox, 379 U.S. at 588, or even in the
face of actual violence that was indiscriminately directed, Gregory, 394 U.S. at 129 (“The police
were dodging the rocks and eggs” along with the protestors) (Appendix to Opinion of Black, J.,
concurring).
3. Sixth Circuit Precedent: Glasson and Damages Liability
In the decade following this string of Supreme Court precedents, a heckler’s veto case
came before the Sixth Circuit. See Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975).
Glasson recognized, consistent with the aforementioned precedents, that “[a] police officer has
the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on
suppressing ideas.” Id. at 906.
The dispute in Glasson originated when a speaker intent on voicing her displeasure with
the Vietnam War, as well as the issues of racism and poverty in America, displayed a placard
reflecting her grievances while waiting on a motorcade route for then-President Richard M.
Nixon. Id. at 901. One of the police officers responsible for crowd control noticed that a group
of Nixon supporters on the opposite side of the street became agitated, started hollering, and
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 27
were likely to riot, after perceiving the poster. Id. at 902. Instead of reprimanding the
rabble-rousing crowd, the officer destroyed the speaker’s poster after she refused to hide it from
view. Id.
The police officer’s actions in Glasson were a patent violation of the speaker’s First
Amendment rights, because the speaker did not “somehow forfeit[] the protection afforded her
message by the Constitution because it unintentionally evoked a hostile reaction from others.”
Id. at 905. However, this Court’s inquiry in Glasson did not end there; the officers were entitled
to seek shelter from damages by way of qualified immunity—then framed as a good faith
defense. Id. at 907. This defense was applicable if the officer acted reasonably under the
circumstances and in good faith. Id. With respect to reasonableness in the context of free speech
and unruly hecklers, Glasson states:
Ideally, police officers will always protect to the extent of their ability the rights
of persons to engage in First Amendment activity. Yet, the law does not expect or
require them to defend the right of a speaker to address a hostile audience,
however large and intemperate, when to do so would unreasonably subject them
to violent retaliation and physical injury. In such circumstances, they may
discharge their duty of preserving the peace by intercepting his message or by
removing the speaker for his own protection without having to respond in
damages.
Id. at 909.13 Ultimately, the Glasson Court held that the officers could not claim the shelter of
the good-faith defense because (1) it was the hecklers who posed the threat, and not the speaker
(if any threat existed at all); (2) a favorable number of other officers (relative to the size of the
crowd) were nearby and available to assist if called upon; and (3) had that number of officers
been insufficient to accomplish the task, reinforcements should have been called before they
chose to take action against the speaker. Id. at 910–11.
4. Constitutional Rule: No Heckler’s Veto
The Supreme Court, in Cantwell, Terminiello, Edwards, Cox, and Gregory, has
repeatedly affirmed the principle that “constitutional rights may not be denied simply because of
13
This rule allowing for police to be free from damages even when they silence the speaker so long as they
acted reasonably is derived from Justice Frankfurter’s concurring opinion in Feiner. See Niemotko v. Maryland,
340 U.S. 268, 289 (1951) (Frankfurter, J., concurring and concurring in Feiner v. New York, 340 U.S. 315).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 28
hostility to their assertion or exercise.” Watson v. City of Memphis, 373 U.S. 526, 535 (1963)
(citations omitted). If the speaker’s message does not fall into one of the recognized categories
of unprotected speech,14 the message does not lose its protection under the First Amendment due
to the lawless reaction of those who hear it. Simply stated, the First Amendment does not permit
a heckler’s veto.
In this Circuit, a modicum of confusion is understandable with respect to the prohibition
against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.
However, this defense is inconsistent with subsequent Supreme Court precedent, with the strict
scrutiny that must be applied to content-based discrimination, and with the superseding
affirmative defense to a § 1983 suit—qualified immunity.15 Therefore, to the extent that
Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police
officer not to effectuate a heckler’s veto, it is overruled. See Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982) (“By defining the limits of qualified immunity essentially in objective terms, we
provide no license to lawless conduct.”).
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. See, e.g., Terminiello, 337 U.S. at 4. Maintenance of the peace should not be
achieved at the expense of the free speech. 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. If the mere possibility of violence were allowed
to dictate whether our views, when spoken aloud, are safeguarded by the Constitution,
surely the myriad views that animate our discourse would be reduced to the “standardization of
ideas . . . by . . . [the] dominant political or community groups.” Id. at 4–5. Democracy cannot
survive such a deplorable result.
When a peaceful speaker, whose message is constitutionally protected, is confronted by a
hostile crowd, the state may not silence the speaker as an expedient alternative to containing or
14
See footnote 10.
15
Qualified immunity and the good-faith defense are discussed in greater detail in Part IV of this opinion.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 29
snuffing out the lawless behavior of the rioting individuals. See Watson, 373 U.S. at 535–36.
Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a
tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his
or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech]
cannot be made a substitute for the duty to maintain order in connection with the exercise of
th[at] right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939). If the speaker, at his
or her own risk, chooses to continue exercising the constitutional right to freedom of speech, he
or she may do so without fear of retribution from the state, for the speaker is not the one
threatening to breach the peace or break the law. However, the Constitution does not require that
the officer “go down with the speaker.”16 If, in protecting the speaker or attempting to quash the
lawless behavior, the officer must retreat due to risk of injury, then retreat would be warranted.
The rule to be followed is that when the police seek to enforce law and order, they must do so in
a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens.
See Gregory, 394 U.S. at 120 (“[A] police officer[’s] . . . duty is to enforce laws already enacted
and to make arrests . . . for conduct already made criminal.”) (Black, J., concurring). The police
may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if
that becomes necessary. Moreover, they may take any appropriate action to maintain law and
order that does not destroy the right to free speech by indefinitely silencing the speaker.
Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed
legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the
police to achieve their ends by using only those means that are the least restrictive with respect to
the speaker’s First Amendment rights.
“[T]he Constitution demands that content-based restrictions on speech be presumed
invalid and that the [g]overnment bear the burden of showing their constitutionality.” Alvarez,
132 S. Ct. at 2544 (citation, internal quotation marks, and ellipses omitted). Wayne County has
not come close to meeting that burden in this case. There was a force of approximately fifty
officers at the Festival—nineteen of whom were purposely unassigned so that they could respond
to changing circumstances. A crowd made up predominantly of adolescents began hurling
plastic bottles and other trash at the Bible Believers. Law enforcement officers, despite their
16
Kalven, supra, The Negro and the First Amendment, at 140.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 30
numbers, were virtually nowhere to be found, save for a few brief appearances. One of these
appearances was solely for the purpose of telling the Bible Believers that they could no longer
use their megaphone. At a later encounter, an officer came over not to reprimand the
troublemakers, but to inform the Bible Believers that they were free to leave the Festival. Each
time that an officer appeared, the adolescents’ lawless behavior relented, despite the lack of
official reprimand. Throughout the harassment and violence directed at them, the Bible
Believers remained calm and peaceful. While the Deputy Chiefs conferred with Corporation
Counsel, and prior to the Bible Believers being forced to leave the Festival, there were
approximately a dozen officers milling about in the background. Many of those officers were
sufficiently unoccupied to follow the Bible Believers and observe their fellow officer ticket them
for driving a vehicle without a license plate. By the WCSO’s own admission in its post-
operation report, the totality of the officers’ attempt to enforce the law constituted only a few
verbal warnings being directed at the lawless adolescents and one individual being cited.
Wayne County disputes the sufficiency of their manpower to quell the crowd, but this
contention is specious. The video record evinces next to no attempt made by the officers to
protect the Bible Believers or prevent the lawless actions of the audience. The record also
indicates a substantial police presence that went virtually unused. Wayne County claimed to
have assigned more law enforcement personnel to the Festival than had previously been assigned
to crowd control when the President of the United States visited the area. We cannot justifiably
set the bar so low for the police officers sworn to protect our communities (and occasionally the
President) that there is any debate as to whether it is reasonable that the result of a purportedly
sincere effort to maintain peace among a group of rowdy youths is few verbal warnings and a
single arrest.17
17
Judge Gibbons’ dissent makes much of the presence of actual—as opposed to potential—violence
directed at the Bible Believers by the adolescent audience. Gibbons Dis. 53–54. However, the dissent’s
unsupported, hyperbolic account of the Bible Believers as “bruised and bloodied,” Gibbons Dis. 54, ignores any
responsibility on the part of the WCSO to use some small part of its police force, and the aura of authority with
which a sheriff’s office is imbued, to attempt to protect the Bible Believers from the lawless behavior of the crowd.
Similarly, because the WSCO made no genuine efforts to utilize its officers to prevent or punish the unlawful
behavior of the adolescents, it is unfair, on this record, to characterize the crowd’s conduct as “undeterred by police
presence.” Gibbons Dis. 54.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 31
We do not presume to dictate to law enforcement precisely how it should maintain the
public order. But in this case, there were a number of easily identifiable measures that could
have been taken short of removing the speaker: e.g., increasing police presence in the immediate
vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or
threatening to arrest more of the law breakers, as was also requested; or allowing the Bible
Believers to speak from the already constructed barricade to which they were eventually
secluded prior to being ejected from the Festival. If none of these measures were feasible or had
been deemed unlikely to prevail, the WCSO officers could have called for backup—as they
appear to have done when they decided to eject the Bible Believers from the Festival—prior to
finding that it was necessary to infringe on the group’s First Amendment rights. We simply
cannot accept Defendants’ position that they were compelled to abridge constitutional rights for
the sake of public safety, when at the same time the lawless adolescents who caused the risk with
their assaultive behavior were left unmolested.18
The Bible Believers attended the Festival to exercise their First Amendment rights and
spread their religious message. The way they conveyed their message may have been vile and
offensive to most every person who believes in the right of their fellow citizens to practice the
faith of his or her choosing; nonetheless, they had every right to espouse their views. See
Cantwell, 310 U.S. at 309 (“The record played . . . would offend not only persons of [the
Catholic] persuasion, but all others who respect the honestly held religious faith of their
fellows.”). When the message was ill-received, the police did next to nothing to protect the
Bible Believers or to contain the lawlessness of the hecklers in the crowd. Instead, the WCSO
accused the Bible Believers of being disorderly and removed them from the Festival.19 On this
18
In his dissent, Judge Rogers maintains that when assessing whether to cut off speech being made to a
hostile crowd, law enforcement should be permitted to “tak[e] into account all of the factors” they routinely consider
in keeping the peace, including “the nature of the crowd, the resources available to police at the time, and other
factors bearing on law enforcement’s ability to control the scene around a speaker.” Rogers Dis. 64. We hold the
same. On this point, the difference between our view and that of Judge Rogers is that Judge Rogers believes that the
WCSO chose a constitutional course of conduct after considering these factors, and we find that they did not.
19
Contrary to Judge Rogers’ assertion, Rogers Dis. 62–63, the video record indicates that the WCSO
threatened to cite the Bible Believers for disorderly conduct not due to any purported failure to obey a police order,
but based on the unrest created by their speech. (R. 28-A, Raw Festival Footage, Time: 00:53:41 (Officer
Richardson: “I’m not telling you that you’re going to be arrested, but, you know, you are a danger to the public
safety. You’re disorderly.”); id. at 00:54:58 (“Alright, you need to leave . . . . If you don’t leave we’re going to cite
you for disorderly. You are creating a disturbance . . . I mean look at your people here . . . This is crazy.”).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 32
record, there can be no reasonable dispute that the WCSO effectuated a heckler’s veto, thereby
violating the Bible Believers’ First Amendment rights.
In his dissent from this part of our holding, Judge Griffin opines that although Cantwell
and Terminiello clearly established that police officers may not effectuate a heckler’s veto on
behalf of an irate mob, “those precedents left unanswered whether the police effectuate a
heckler’s veto when they remove a speaker for his own safety rather than because of the content
of the speech or its supposed effect on the crowd.” Griffin Dis. at 46–47. Fortunately, Cantwell
and Terminiello were not the last cases to speak on the issue of a heckler’s veto, and later cases
have made clear that excluding a speaker from a public forum, under most circumstances, will
not constitute the least restrictive means for coping with a crowd’s hostile reaction to her
constitutionally protected speech. See supra Part I.C. Such a result comports with the high
premium this nation places on speech safeguarded by the First Amendment.
Notably, a heckler’s veto effectuated by the police will nearly always be susceptible to
being reimagined and repackaged as a means for protecting the public, or the speaker himself,
from actual or impending harm. After all, if the audience is sufficiently incensed by the
speaker’s message and responds aggressively or even violently thereto, one method of quelling
that response would be to cut off the speech and eject the speaker whose words provoked the
crowd’s ire. Our point here is that before removing the speaker due to safety concerns, and
thereby permanently cutting off his speech, the police must first make bona fide efforts to protect
the speaker from the crowd’s hostility by other, less restrictive means. Although Glasson made
that requirement clear, and framed the removal of the speaker for his own protection as a last
resort to be used only when defending the speaker “would unreasonably subject [officers] to
violent retaliation and physical injury,” 518 F.2d at 909, the WCSO made no discernible efforts
to fulfill this obligation.
II. The First Amendment and Free Exercise
We next consider the Bible Believers’ claim that Wayne County violated their right to the
free exercise of religion. The right to free exercise of religion includes the right to engage in
conduct that is motivated by the religious beliefs held by the individual asserting the claim.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 33
Prater v. City of Burnside, 289 F.3d 417, 427 (6th Cir. 2002). The government cannot prohibit
an individual from engaging in religious conduct that is protected by the First Amendment. Id.
The Bible Believers’ proselytizing at the 2012 Arab International Festival constituted
religious conduct, as well as expressive speech-related activity, that was likewise protected
by the Free Exercise Clause of the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105,
108–10 (1943). Plaintiff Israel testified that he was required “to try and convert non-believers,
and call sinners to repent” due to his sincerely held religious beliefs. We do not question the
sincerity of that claim. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“[I]t is no business of
courts to say that what is a religious practice or activity for one group is not religion under the
protection of the First Amendment.”); cf. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2778 (2014) (“[T]he federal courts have no business addressing whether the religious belief
asserted in a RFRA case is reasonable.” (internal parentheses omitted)).
Free exercise claims are often considered in tandem with free speech claims and may rely
entirely on the same set of facts. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill.
of Stratton, 536 U.S. 150 (2002); Rosenberger, 515 U.S. at 841. Defendants prevented the Bible
Believers from proselytizing based exclusively on the crowd’s hostile reaction to the religious
views that the Bible Believers were espousing. Therefore, the free exercise claim succeeds on
the same basis as the free speech claim. See Watchtower Bible, 536 U.S. at 150, 159 n.8.
III. The Fourteenth Amendment and Equal Protection
The next inquiry is with respect to the Bible Believers’ equal protection claim. We have
held that:
The Equal Protection Clause of the Fourteenth Amendment commands that no
state shall . . . deny to any person within its jurisdiction the equal protection of the
laws. To state an equal protection claim, a plaintiff must adequately plead that the
government treated the plaintiff disparately as compared to similarly situated
persons and that such disparate treatment . . . burdens a fundamental right, targets
a suspect class, or has no rational basis.
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (citations and
internal quotation marks omitted). Freedom of speech is a fundamental right. Lac Vieux Desert
Band of Lake Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 410 (6th Cir.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 34
1999). Therefore, Wayne County’s actions are subject to strict scrutiny. San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973). “In determining whether individuals are
‘similarly situated,’ a court should not demand exact correlation, but should instead seek relevant
similarity.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012)
(internal quotation marks omitted).
The Festival included a number of other religious organizations that came to share their
faith by spreading a particular message. There are several distinctions between the Bible
Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to
register for an assigned table under the information tent. Instead, they paraded through the
Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head.
Although these actions set them apart from the other speakers and religious organizations at the
Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival
grounds with or without signs if they chose to do so. The Bible Believers, like the other religious
organizations at the Festival, sought to spread their faith and religious message. Although they
declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful
while they passionately advocated for their cause, much like any other religious group. Wayne
County did not threaten the Bible Believers based on their decision to march with signs and
banners, but based on the content of the messages displayed on the signs and banners. The
county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible
Believers’ speech was found to be objectionable by a number of people attending the Festival.
Wayne County therefore violated the Bible Believers’ right to equal protection by treating them
in a manner different from other speakers, whose messages were not objectionable to
Festival-goers, by burdening their First Amendment rights. See Napolitano, 648 F.3d at 379.
IV. Qualified Immunity
Whether Deputy Chiefs Richardson and Jaafar can be held liable for civil damages is a
separate question from whether their actions violated the Constitution.20 Although Glasson
20
The Bible Believers are entitled to injunctive relief irrespective of the damages inquiry. See Harlow,
457 U.S. at 818 (“[G]overnment officials performing discretionary functions generally are shielded from liability for
civil damages”); Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (noting that qualified immunity is not
available in “a suit to enjoin future conduct”); see also Cannon v. City & Cty. of Denver, 998 F.2d 867, 876 (10th
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 35
spoke about a good-faith defense, qualified immunity—announced seven years after Glasson in
Harlow v. Fitzgerald—is the presently available affirmative defense for government officials
subject to liability under § 1983. In Harlow, the Supreme Court removed the subjective element
from the then-existing affirmative defense for government actors—the good faith inquiry.
Harlow, 457 U.S. at 819 (“By defining the limits of qualified immunity essentially in objective
terms, we provide no license to lawless conduct.”); see also Ohio Civil Serv. Emps. Assoc. v.
Seiter, 858 F.2d 1171, 1173 (6th Cir. 1988) (“The law of qualified immunity was dramatically
changed by the Court in Harlow v. Fitzgerald.”).
Pursuant to Harlow, “government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
457 U.S. at 818. This standard presupposes two things: first, that the facts alleged by the
plaintiff are sufficient to state a constitutional claim; and second, that the constitutional right
which the officer has purportedly violated was clearly established at the time of the harm giving
rise to the action. Saucier v. Katz, 533 U.S. 194, 201–02 (2001), abrogated by Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that although the two-step inquiry set out in
Saucier “is often beneficial,” courts may “exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first”). Having already
found that the Deputy Chiefs effectuated an unconstitutional heckler’s veto, we need only decide
whether their actions violated law that was clearly established at the time of the 2012 Festival.
Whether a point of law is clearly established necessarily turns on its breadth—i.e., the level of
specificity at which it is defined. See Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012) (“[T]he
right allegedly violated must be established not as a broad general proposition, but in a
particularized sense so that the contours of the right are clear to a reasonable official.” (citations
and internal quotation marks omitted)). Although “existing precedent must have placed the . . .
constitutional question beyond debate,” “[a] case directly on point,” is not a prerequisite to
finding that a law is clearly established. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).
Cir. 1993) (“The protestors also seek declaratory and injunctive relief against the officers. Unlike the claim for
money damages, there is no qualified immunity to shield the defendants from claims for these types of relief.”);
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (“Qualified immunity . . . does not
bar actions for declaratory or injunctive relief.”).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 36
Deputy Chief Defendants Richardson and Jaafar contend that, “no ‘clearly established’
law existed on the subject of correct law enforcement response to a situation where speakers may
or may not be engaged in protected speech, the audience in proximity to the speech reacts
violently, and the deputies do not have sufficient manpower to restrain the audience, to protect
the speakers, and to ensure their own safety.” See Appellee Supp. Br. at 21–23. The Deputy
Chiefs’ position is untenable and unsupported by the record. As is evident from the Supreme
Court opinions detailed above, and as explicitly stated in Glasson, “[a] police officer has the duty
not to ratify and effectuate a heckler’s veto . . . . Instead, he must take reasonable action to
protect from violence persons exercising their constitutional rights.” 518 F.2d at 906.
Defendants were specifically put on notice of this requirement, insofar as the Bible Believers
quoted this precise language in a letter that was sent to Wayne County.
To the extent that Glasson’s discussion of a good-faith defense confused the issue of
whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson
nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no
serious attempt to quell the lawless agitators, could subject them to liability. In Glasson, the
Court rejected the officers’ claims that the size of their force was insufficient to quell the
hecklers that were purportedly “near to riot.” Id. at 910. The Court explicitly stated the
requirement that the police “take reasonable action to protect from violence persons exercising
their constitutional rights,” id. at 906 (emphasis added), and found the officers’ actions
unreasonable because they failed to call for reinforcements and failed to recognize the speaker’s
right to be protected from violence. Id. at 910. These facts are substantially the same as those
before us today.
Defendants emphasize the fact that Glasson involved an officer tearing up a sign in
response to agitated hecklers, as opposed to officers removing a speaker in an attempt to quell an
angry crowd that was actually engaged in violent retaliation. These distinctions are immaterial.
The violence here was not substantial, much less overwhelming, and speech, whether it be
oration or words written on a poster, is speech nonetheless. Moreover, this case was also about
removing from view signs that were considered offensive by a group of hecklers—as Israel
informed the Deputy Chiefs, his group was no longer preaching during the latter portion of the
onslaught against them. Finally, it should be noted that Glasson involved a more compelling
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 37
state interest—protection of the President—yet the officers’ actions were still deemed to be
unreasonable. See Wood v. Moss, 134 S. Ct. 2056, 2061 (2014) (citing Watts v. United States,
394 U.S. 705, 707 (1969)) (“[S]afeguarding the President is . . . of overwhelming importance in
our constitutional system.”).
Had the Bible Believers refused to leave, and consequently been arrested, charged, and
convicted of disorderly conduct, the convictions could certainly be held invalid pursuant to
Gregory.21 The Bible Believers’ decision to comply with the police officers’ demands, under
threat of arrest for disorderly conduct—as opposed to the speaker’s decision in Gregory to
disregard the officer’s command—cannot stand for the proposition that there was no clearly
established law as to whether the police may threaten to arrest a peaceful speaker in order to
calm a hostile crowd of hecklers.22 Gregory, like this case, involved protestors who used
offensive language and, in response, were assaulted with debris by a violent crowd of hecklers.
21
Disorderly conduct is governed by Mich. Comp. Laws § 750.167. The only provision of this statute that
is at all remotely relevant to the Bible Believers’ conduct is subsection (l), which reads: “A person who is found
jostling or roughly crowding people unnecessarily in a public place.” As in Gregory:
The so-called ‘diversion tending to a breach of the peace’ . . . was limited entirely and exclusively
to the fact that when the policeman in charge of the special police detail concluded that the
hecklers observing the march were dangerously close to rioting and that the demonstrators and
others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave,
and Gregory—standing on what he deemed to be his constitutional rights—refused to do so. . . .
[T]he conduct involved here could become ‘disorderly’ only if the policeman’s command was a
law which the petitioners were bound to obey at their peril. But under our democratic system of
government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on
his beat. . . . To let a policeman’s command become equivalent to a criminal statute comes
dangerously near making our government one of men rather than of laws. There are ample ways
to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy
and unwieldy weapon.
Gregory, 394 U.S. at 120–21 (Black, J., concurring) (citations omitted).
22
Judge Gibbons’ dissent maintains that the clearly established right on which we base our holding is a
speaker’s “specific right . . . to be free from an effective removal when his safety and the safety of others have been
compromised by an unforeseen violent mob occasioning physical injury on both the speaker and innocent
bystanders.” Gibbons Dis. 52. This statement both misapprehends our holding and mischaracterizes the record.
With regard to the factual inaccuracies, there is no indication that anyone other than the Bible Believers themselves,
including any so-called “innocent bystanders,” suffered physical injury as a result of the audience’s hostile reaction
to the group’s proselytizing. Further, after the first bottle was thrown, and the Bible Believers informed the officer
objecting to their use of the megaphone that they were being pelted with garbage by the adolescent crowd, there was
nothing “unforesee[able]” about the risk of further aggression from this particular audience. In terms of legal
misconceptions, contorting our opinion to hold that a constitutional violation inevitably occurs when a speaker is
removed after his safety has been compromised by a lawless mob ignores our emphasis on law enforcement’s
obligation to attempt to prevent violence occasioned by unruly crowds—as the law enforcement agency’s resources
permit—before resorting to cutting off constitutionally protected speech. This order of operations, which first
requires officers to make sincere efforts to maintain order and protect the speaker, assures that law enforcement’s
conduct is narrowly tailored to serve the compelling government purpose of assuring public safety.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 38
On facts such as these, state-sanctioned penalties for alleged breaches of the peace cannot
withstand constitutional scrutiny.
V. Monell: Municipal Liability
Finally, we address municipal liability. Municipalities are not vicariously liable for the
actions of their employees. However, a municipality may be found responsible for § 1983
violations, and held liable for damages pursuant to Monell v. New York City Department of
Social Services, if the plaintiff demonstrates that the constitutional harm suffered was a result of
the municipality’s policy or custom. 436 U.S. 658, 694 (1978); see also Bd. of Cty. Comm’rs of
Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997).
A plaintiff may demonstrate the existence of a policy, custom, or usage in a variety of
ways, two of which are relevant to this appeal. First, she may provide evidence of a formal
policy officially adopted by the county. Monell, 436 U.S. at 690. Second, a single
unconstitutional act or decision, when taken by an authorized decisionmaker, may be considered
a policy and thus subject a county to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986).
We conclude that Wayne County Corporation Counsel’s involvement in drafting a letter
to the Bible Believers, and in sanctioning the Deputy Chiefs’ decision to remove the Bible
Believers from the Festival, easily resolves the matter of municipal liability. “Monell is a case
about responsibility.” Id. at 478. Therefore, with respect to a single decision, municipal liability
is appropriate “where the decisionmaker possesses final authority to establish policy with respect
to the action ordered.” Id. at 481 (footnote omitted). Corporation Counsel informed the Bible
Believers by way of letter that “under state law and local ordinances, individuals can be held
criminally accountable for conduct which has the tendency to incite riotous behavior or
otherwise disturb the peace.” Then the Deputy Chiefs consulted Corporation Counsel at the
Festival to confirm that they could threaten the Bible Believers with arrest for disorderly conduct
because the Bible Believers speech had attracted an unruly crowd of teenagers. As discussed at
length, speech cannot be proscribed simply because it has a “tendency” to cause unrest or
because people reacted violently in response to the speech. Ashcroft, 535 U.S. at 253 (“[T]he
mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 39
Corporation Counsel’s misstatement of the law in a letter may not constitute an official policy,
but her direction and authorization for the Deputy Chiefs to threaten the Bible Believers with
arrest based on the prevailing circumstances is certainly an action for which she “possesse[d]
final authority to establish municipal policy.” See Wayne Cty. Muni. Code § 4.312 (Corporation
counsel is the chief legal advisor to the County CEO and “all County agencies,” including the
Sheriff’s Office). The relevant facts in this case bearing on municipal liability are substantially
similar to the facts of Pembaur. See 475 U.S. at 484 (“The Deputy Sheriffs who attempted to
serve the capiases at petitioner’s clinic found themselves in a difficult situation. Unsure of the
proper course of action to follow, they sought instructions from their supervisors. The
instructions they received were to follow the orders of the County Prosecutor. The Prosecutor
made a considered decision based on his understanding of the law and commanded the officers
forcibly to enter petitioner’s clinic. That decision directly caused the violation of Petitioner’s
Fourth Amendment rights.”). Therefore, Wayne County is liable.
Summary
From a constitutional standpoint, this should be an easy case to resolve. However, it is
also easy to understand Dearborn’s desire to host a joyous Festival celebrating the city’s Arab
heritage in an atmosphere that is free of hate and negative influences. But the answer to
disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s
veto through threat of arrest by the police. The adults who did not join in the assault on the Bible
Believers knew that violence was not the answer; the parents who pulled their children away
likewise recognized that the Bible Believers could simply be ignored; and a few adolescents,
instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’
message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel,
effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous
adolescents to dictate what religious beliefs and opinions could and could not be expressed.
This, the Constitution simply does not allow.
The chief flaw affecting the dissents of Judges Rogers and Gibbons is that they
acknowledge law enforcement’s obligation to protect the public in general, and speakers
exercising their First Amendment rights in particular, Rogers Dis. 64; Gibbons Dis. 53–55, but
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 40
seek to avoid holding the WCSO accountable to this standard by distorting the factual record to
reflect an out-of-control situation in which the officers were powerless to quell the violence or
reign in the mob. The “mob” in this case was comprised mostly of children and teenagers. The
“violence,” though not imaginary, involved little more than plastic bottle and garbage throwing.
As evidenced in the video record, the WCSO’s efforts to prevent this behavior were virtually
non-existent. Instead, the officers largely ignored the lawless conduct of the crowd and directed
what little attention they paid to the Bible Believers’ situation—prior to ejecting the group—to
quieting and then silencing their speech.
“Speech is often provocative and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
Terminiello, 337 U.S. at 4. Excluding viewpoints and ideas from the marketplace damages us by
occasioning the risk that we might subject ourselves to “tyrannies of governing majorities,”
Whitney, 274 U.S. at 376 (Brandeis, J., concurring), and thereby forestall “the advancement of
truth, science, morality, and [the] arts,” 1 Journals of the Continental Congress, 1774–1789,
Letter to the Inhabitants of Quebec, 108 (Aug. 26, 1774). These are but a few of the reasons that
the First Amendment is integral to the vitality and longevity of a free society. These are the
reasons why we must accept our differences and allow our fellow citizens to express their views
regardless of our distaste for what they have to say.
CONCLUSION
Because the Wayne County Defendants impermissibly cut off the Bible Believers’
protected speech, placed an undue burden on their exercise of religion, and treated them
disparately from other speakers at the 2012 Arab International Festival, solely on the basis of the
views that they espoused, Wayne County Defendants violated the Bible Believers’ constitutional
rights under the First and Fourteenth Amendments. Deputy Chief Defendants are civilly liable to
the Bible Believers for having violated law that is clearly established by the Supreme Court
precedent set forth in Gregory v. City of Chicago, 394 U.S. 111 (1969). Wayne County is civilly
liable because one of its chief legal policymakers counseled and authorized the Deputy Chiefs’
actions. Therefore, we REVERSE the grant of summary judgment by the district court in favor
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 41
of Defendants, and REMAND this case for entry of summary judgment in favor of Plaintiffs, for
the calculation of damages, and any other appropriate relief, consistent with this opinion.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 42
_________________
CONCURRENCE
_________________
BOGGS, Circuit Judge, concurring. I concur in Judge Clay’s thorough analysis of the
facts and law in this case. I write separately only to clarify a few important issues involved in
this case and to respond to some of the misconceptions in other opinions.
I would have thought that a simple examination of pre-existing First Amendment law
would make the following points quite clear. Brandenburg v. Ohio held that obnoxious speech
cannot be suppressed, even if the speaker is inciting listeners in favor of such speech, unless the
speech is likely to incite those listeners to imminent lawless action directed at others. 395 U.S.
444, 447 (1969) (per curiam). Gregory v. City of Chicago made clear that the government
cannot suppress speech (in that case, allegedly provocative demonstrations by civil-rights
protestors in Chicago) simply because opponents are threatening to become unruly. 394 U.S.
111, 111–13 (1969). As Judge Clay amply demonstrates, everything that happened in this case
falls exactly within the above-mentioned cases. The Bible Believers were in a place they had a
right to be—a public area—doing what they had a right to do—speaking about their religious
beliefs—when they were set upon and put in some degree of physical danger by those who
disagreed with their message.
Despite the colorful language in Judge Rogers’s dissent, the motivations of the Bible
Believers, and their status as a “majority” or “minority,” are of absolutely no importance as to
their legal rights or the legality of the government’s actions. “[A] function of free speech under
our system of government is to invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (emphases added). “In the realm
of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets
of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have
been, or are, prominent in church or state, and even to false statement. But the people of this
nation have ordained in the light of history, that, in spite of the probability of excesses and
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 43
abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on
the part of the citizens of a democracy.” Cantwell v. Connecticut, 310 U.S. 296, 310 (1940)
(emphasis added). “[I]f there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought—not free thought for those who
agree with us but freedom for the thought that we hate.” United States v. Schwimmer, 279 U.S.
644, 654–55 (1929) (Holmes, J., dissenting) (emphasis added).
Contrary to these precedents, Judge Rogers characterizes the speakers as the disruptors,
imposing themselves upon and unsettling unsuspecting passersby. That may or may not be a fair
characterization, but it is in no way different from most free-speech cases that arise in public.
All of the quotations above are from cases where the speakers upset other people. The Jehovah’s
Witnesses in Cantwell, for example, played phonographs criticizing the Roman Catholic Church
in a largely Catholic neighborhood, much like the Bible Believers criticized Islam at the Arab
International Festival. They may do it out of love or out of hate, but it makes no difference to the
First Amendment.
Judge Rogers appears to present a new theory of unprotected speech: speakers are not
protected from arrest if they have some subjective intent that violence should be visited upon
themselves. No hint of this appears in any previous cases, and Gregory certainly implicitly
rejects it. Judge Rogers’s arguments are reminiscent of those in his earlier opinion in Defoe,
which established as the doctrine in our circuit alone that public-school officials have broad
discretion to restrict student speech depending on the nature, not the effect, of the speech. Defoe
ex rel. Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010) (Rogers, J., concurring) (controlling
opinion). In this dissent, that erroneous doctrine is extended beyond the school setting and
expanded to deny the applicability of past free-speech doctrine when a speaker is maliciously
seeking publicity for certain religious views.
The fact that someone can come up with a novel method of attacking a clearly established
doctrine, which novel attack has not previously been specifically rejected, does not detract from
the doctrine’s being “clearly established.” Otherwise, no doctrine could ever be clearly
established, as our law schools exist in large part precisely to teach how to come up with new
theories. The one situation in which I might think that an issue of material fact remained would
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 44
be if the disorder created by the attackers threatened to spill out to the general public, or to create
a threat to general public safety. But the defendants here do not even make an effort to raise that
as a factual argument, and an examination of the extensive video of the incident does not show a
likelihood of violence to anyone other than the plaintiffs in this case.
Judge Rogers defends the police actions as mere “direction[s] to a citizen.” Rogers
Dissent, at 63. Yet the police clearly infringed the liberty interests of the Bible Believers. The
standard definition of an arrest is when a person “is not free to go.” If an officer gives a
command “stay or we will arrest you,” that person is not free to go and is surely arrested.
Similarly, here the police order was “leave, or we will arrest you.” The plaintiffs were not free
to stay any more than you would be if the police came to your house and said, “come with us to
our police car or we will arrest you”; you are not free to stay and are surely under arrest.
See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force
. . . or, where that is absent, submission to the assertion of authority.”).
But, Judge Rogers argues, if the police cannot force speakers to leave, those speakers will
be able to “get the police to help [them] attack and disrupt something like a minority cultural
identity fair, even if the police are not inclined to do so.” Rogers Dissent, at 60. The pellucid
flaw in Judge Rogers’s dystopian scenario is that there is no police obligation to assist speakers
in communicating their message. The law simply requires the government to refrain from
silencing speakers. Requiring officers to refrain from interfering with speech can hardly be
equated with affirmatively enlisting unwilling officers to “help” speakers.
Judge Rogers’s opinion also has the disturbing implication that courts should decide who
is a majority and who is a minority, and accord lesser rights to those whom judges deem a
majority and greater rights to those whom they deem a minority. Rogers Dissent, at 60, 65. The
dissent makes explicit what may be implicit in the views of some: that First Amendment rights
only belong to those who “speak truth to power” and not those who “speak power to truth”; to
those who “question authority” and not those who would “question those who question
authority.” This is wrong both as a matter of doctrine and of practice. Again, no Supreme Court
case indicates that your rights depend on whether you are “punching up” or “punching down,”
and indeed virtually all of them hold to the contrary.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 45
Further, in this specific circumstance it is highly dubious that the plaintiffs here,
representatives of what most would consider an extreme and ill-mannered evangelical group, are
imposing themselves on a minority. They were outnumbered in the immediate area, in a political
jurisdiction (Dearborn) in which the “minority” is in a clear preponderance, and in a wider area
(Wayne County) whose political leanings are clearly shown by the actions of the police both in
this circumstance and in the previous correspondence in the record. It is both dangerous as a
matter of doctrine and misleading on the facts to make anything at all in this case rest on the
concepts of “majority” and “minority.”
Judge Rogers concludes his dissent by observing that it is “unfortunately ironic” that the
Bible Believers could invoke “cases involving minority civil rights protests.” Rogers Dissent, at
65. But the real irony is that the very principle he articulates to allow the suppression of speech
could just as easily be used against civil-rights protesters challenging racism or religious
intolerance. The beauty of our First Amendment is that it affords the same protections to all
speakers, regardless of the content of their message. If we encroach on the free-speech rights of
groups that we dislike today, those same doctrines can be used in the future to suppress freedom
of speech for groups that we like. I would have thought that if anything was “clearly
established” in First Amendment law, it is that our view of “irony” does not trump the
Constitution.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 46
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
GRIFFIN, Circuit Judge, concurring in part and dissenting in part. I agree with the
majority opinion that both the officers and Wayne County violated the Bible Believers’ First
Amendment rights. However, I would hold that Deputy Chiefs Richardson and Jaafar are
entitled to qualified immunity because the right at issue was not clearly established at the time of
the 2012 Arab International Festival. For this reason, I join the majority opinion except for Part
IV and the final two paragraphs of Part I.C.4, from which I respectfully dissent.
The doctrine of qualified immunity “shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was clearly established
at the time of the challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(citation omitted). A right is clearly established when, “at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011) (emphasis added) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Put
another way, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Id.
As Judge Clay correctly notes, when defining the scope of the right at issue, courts must
be cautious to define the right neither too narrowly nor too broadly. To that end, we must define
the right at issue “not as a broad general proposition, but in a particularized sense so that the
contours of the right are clear to a reasonable official.” Reichle, 132 S. Ct. at 2094 (internal
citation and quotation marks omitted). Here, the right at issue is properly defined as the right to
exercise one’s free speech rights in the face of a hostile crowd without the government
effectuating a heckler’s veto by removing the speaker for his own safety.
At the time of the 2012 Arab International Festival, “existing precedent” had not placed
this constitutional question “beyond debate.” Ashcroft, 131 S. Ct. at 2083. Although the
Supreme Court’s decisions in Cantwell v. Connecticut, 310 U.S. 296 (1940), and Terminiello v.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 47
City of Chicago, 337 U.S. 1 (1949), had established the general proposition that police officers
may not effectuate a heckler’s veto, those precedents left unanswered whether the police
effectuate a heckler’s veto when they remove a speaker for his own safety rather than because of
the content of the speech or its supposed effect on the crowd. Indeed, whether removing a
speaker for his own safety amounts to a heckler’s veto is the very question we resolve in this
case. And, though we answer that question in the affirmative, we had not done so at the time of
the 2012 Arab International Festival.
Contrary to the position of the majority opinion, precedent in fact confirms that at the
time of the 2012 Arab International Festival, the right at issue was debatable. In Glasson v. City
of Louisville, 518 F.2d 899 (6th Cir. 1975)—decided well after Cantwell and Terminiello—this
court opined that when police fear a violent crowd may inflict physical injury, “they may
discharge their duty of preserving the peace by intercepting his message or by removing the
speaker for his own protection without having to respond in damages.” Id. at 909. Though we
now correctly reject this part of Glasson as dicta and overrule this principle of law, we do so for
the first time. Indeed, Wayne County’s pre-festival letter to the Bible Believers—which forms a
basis for my conclusion that Wayne County is liable—explicitly relies on this passage from
Glasson. The letter itself is evidence that the law in this area was not as clear as the majority
opinion suggests as it relies on Glasson for the proposition that officers may constitutionally
remove speakers for their own protection, and states that “[t]he law as announced in Glasson is
among the laws [that Wayne County] is duty-bound to uphold.”
Nor does Glasson otherwise clearly establish the right at issue in this case. There, this
court held that the police violated the plaintiff’s First Amendment rights when they destroyed the
plaintiff’s anti-Nixon poster that had agitated a crowd of Nixon supporters. Glasson, 518 F.2d at
902, 906. But, unlike this case, the crowd in Glasson was not actually violent towards the
speaker; they were merely “hollering” and “cheered” when the officers destroyed the poster. Id.
at 902. Thus, Glasson did little more than reinforce the basic principle that the police may not
effectuate a heckler’s veto. Glasson’s holding alone does not answer the question presented by
this case: whether the police effectuate a heckler’s veto by removing a speaker for his own
safety. In fact, Glasson suggests that they do not.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 48
Moreover, although numerous Supreme Court decisions opine generally regarding the
constitutional infirmity of a heckler’s veto, none answer the specific question posed by this case.
See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 880 (1997) (opining about the
heckler’s veto in the context of online fora); Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 468 (2009) (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J.,
dissenting)) (restrictions on government speech amount to a heckler’s veto).
In sum, § 1983 does not require that defendant officers anticipate what we decide in this
case: that police effectuate a heckler’s veto when they remove a speaker from a hostile crowd
for the speaker’s own safety. At the time of the 2012 Arab International Festival, reasonable
minds could have differed whether the officers’ treatment of the Bible Believers violated clearly
established federal law. For these reasons, I respectfully dissent from Part IV and the final two
paragraphs of Part I.C.4 of the majority opinion.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 49
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
SUTTON, Circuit Judge, concurring in part and dissenting in part. I agree with the
majority that the Bible Believers engaged in protected speech in a traditional public forum. I
agree with the majority that the defendants curtailed the Bible Believers’ speech on the basis of
its content. And I agree with the majority that the defendants had other options short of
removing the Bible Believers from the festival to deal with the public-safety problems generated
by their speech. For these reasons, I must conclude that strict scrutiny governs the defendants’
actions and that they have not satisfied it. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231
(2015). In each of these respects, I therefore join Part I of the analysis in Judge Clay’s opinion.
I part ways with this component of the majority opinion to the extent it draws the conclusion that
a “heckler’s veto” supplies a freestanding doctrinal basis for concluding that the defendants
violated the Bible Believers’ First Amendment rights.
That leaves (mainly) the question of qualified immunity. I agree with Judge Gibbons that
the obligations of the defendants in this unusual setting were not clearly established at the time of
the festival and accordingly join Parts II and III of her dissenting opinion. As Judge Gibbons’s
opinion shows—and as the stark differences among the many opinions in this case confirm—the
First Amendment requirements in this area did not provide the kind of clarity we normally
demand before imposing after-the-fact, money-damages liability on individual officers. Pity the
police officer then—and perhaps even now—tasked with identifying the lines of permissible and
impermissible peace-officer conduct in this non-peaceful area.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 50
_________________
DISSENT
_________________
GIBBONS, Circuit Judge, dissenting.
I.
Although I have concurred in Judge Rogers’s opinion, it is useful here, where there is
strong disagreement among members of the court, to provide another alternative path to the same
result.
II.
On account of the alleged constitutional violations, the Bible Believers seek declaratory
relief, injunctive relief, nominal damages, and attorneys’ fees. As discussed below, however,
Bible Believers are not entitled to any of these remedies. Even assuming, arguendo, the
majority’s position that a violation of the Bible Believers’ constitutional rights exists, qualified
immunity bars the suit against Officers Jaafar and Richardson in their individual capacities. The
municipality is also not liable on the remaining damages claims because Bible Believers cannot
establish that the allegedly unconstitutional action was the result of a municipal policy. Lastly,
dispensing with the remaining claims, the plaintiffs’ prayers for declaratory and injunctive relief
are precluded by the absence of a credible threat or imminent injury.
A. Qualified Immunity
Bible Believers’ damages claim against the officers in their individual capacities should
fail under qualified immunity because there was, and still remains, no clearly established law
pertaining to this specific right.
Qualified immunity affords a broad shield, ensuring “that those who serve the
government do so with the decisiveness and the judgment required by the public good.” Filarsky
v. Delia, ––– U.S. ––––, 132 S. Ct. 1657, 1665 (2012) (internal quotation marks omitted). In
doing so, it “gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 51
Stanton v. Sims, ––– U.S. ––––, 134 S. Ct. 3, 5 (2013) (per curiam) (emphasis added) (internal
citations and quotation marks omitted). The majority’s holding effectively strips the officers of
this broad protection, and instead of providing the officers with breathing room, all but
suffocates them.
To determine whether a government official is entitled to qualified immunity, we must
ask whether “a constitutional right would have been violated on the facts alleged” and, if so,
whether the right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 200–01 (2001).
The order of analysis is within the courts discretion. Pearson v. Callahan, 555 U.S. 223, 236
(2009). In this case, “it is plain that [the] constitutional right is not clearly established,” leaving
the constitutional question as an “essentially academic exercise.” See id. at 236–37 (permitting
courts to avoid potentially “difficult constitutional questions”). My analysis therefore centers on
whether the constitutional right that the defendants purportedly violated was clearly established.1
In determining whether a right is clearly established, it is imperative to articulate the right
at issue with the appropriate specificity. Saucier, 533 U.S. at 202 (“The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” (emphasis
added)). If the right is characterized at its most general level, the second prong in qualified
immunity analysis would serve no purpose. See Ashcroft v. al-Kidd, ––– U.S. –––, 131 S. Ct.
2074, 2084 (2011) (“We have repeatedly told courts . . . not to define clearly established law at a
high level of generality. The general proposition, for example, that an unreasonable search or
seizure violates the Fourth Amendment is of little help in determining whether the violative
nature of particular conduct is clearly established.” (internal citations omitted)).
The definition, therefore, must be “particularized” in such a way that “[t]he contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson, 483 U.S. at 640, 107 S. Ct. 3034 (internal citations
omitted). A case directly on point is unnecessary, but “existing precedent must have placed the
constitutional question beyond debate.” Sims, 134 S. Ct. at 5 (quoting Ashcroft v. al-Kidd,
1
My analysis would remain the same whether or not a genuine issue of material fact exists as to whether a
constitutional violation occurred.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 52
563 U.S. —–, —–, 131 S. Ct. 2074, 2083 (2011)). To assist in its determination, the court
should “look first to the decisions of the Supreme Court, and then to the case law of this circuit.”
Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002).
Here, contrary to the majority’s characterization, the right in question is not the general
right to free speech in spite of a crowd’s outrage, but the more specific right of a speaker to be
free from an effective removal when his safety and the safety of others have been compromised
by an unforeseen violent mob occasioning physical injury on both the speaker and innocent
bystanders. A court has yet to find that there is such a right. Thus the determinative question is
whether the officers could reasonably have believed—based on pre-existing precedent—that the
First Amendment did not preclude them from effectively removing the Bible Believers. See
Occupy Nashville v. Haslam, 769 F.3d 434, 445 (6th Cir. 2014) (“What matters is that reasonable
government officials could, like the State Officials here, understand the law very differently.”) If
pre-existing precedent would lead “officers of reasonable competence [to] disagree on [the]
issue, immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). There is
not one single case predating the conduct at issue that prohibits effectively removing a speaker in
a materially similar context. This alone weighs against a finding that the law was clearly
established because the officers would not have had “‘fair notice that [their] conduct was
unlawful.’” Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (quoting Brosseau v.
Haugen, 543 U.S. 194, 200 (2004)).
The majority says that the “heckler’s veto” doctrine—“firmly establish[ed]” by the
Supreme Court as well as this court in Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975)
(Op. at 22, 36)—clearly established the Bible Believers’ rights. But the Supreme Court’s
decisions in this department offer little guidance about today’s case. None of the cases cited by
the majority to derive the “heckler’s veto” rule involved government officials acting against a
speaker because of actually occurring violence, as opposed to signs of trouble that had not
spilled over into violence. See Gregory v. City of Chicago, 394 U.S. 111, 111–12 (1969); Cox v.
Louisiana, 379 U.S. 536, 550 (1965); Edwards v. South Carolina, 372 U.S. 229, 231 (1963);
Terminiello v. City of Chicago, 337 U.S. 1, 6 (1949); Cantwell v. Connecticut, 310 U.S. 296, 309
(1940). The majority sums up these decisions as “affirm[ing] the principle that ‘constitutional
rights may not be denied simply because of hostility to their assertion or exercise.’” (Op. at 25
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 53
(quoting Cox, 379 U.S. at 551).) The principle of course is right, see Snyder v. Phelps, 562 U.S.
443, 458 (2011), but it does not tell us what police should do when verbal “hostility,” such as
mere “muttering” and “grumbling,” see Cox, 379 U.S. at 543, descends into violence. Later
cases say that the government may in some circumstances combat “actual” problems related to
speech, especially when public safety is on the line. See, e.g., McCullen v. Coakley, 134 S. Ct.
2518, 2535 (2014); Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011); Schenck v.
Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997).
The Supreme Court’s infrequent invocation of a “heckler’s veto” rationale confirms the
lack of guidance that the concept provides. The closest the Court has come to the facts of this
case when using the term is in a footnote to a 1966 plurality opinion. See Brown v. Louisiana,
383 U.S. 131, 133 n.1 (1966) (plurality opinion). Even then, that use of “heckler’s veto” does
not help us because the Court invoked the term in the context of potential as opposed to actual
violence, reasoning that it would be unfair to suppress peaceful protestors due to the danger that
critics “might” react with disorder or violence. Id. On a few other occasions, the Court has used
“heckler’s veto” as shorthand for the undesirability of opponents being able to cut off some
disfavored speech, idea, or policy, but none of those cases has any bearing here. See, e.g.,
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2115 (2015) (Roberts, C.J., dissenting);
Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009). In the last analysis, the Supreme
Court had not clearly established that the officers acted unconstitutionally in asking the Bible
Believers to leave in the face of ongoing violence, and the “heckler’s veto” does nothing to fill
that gap in authority.
Nor did Glasson—the only case that remotely mirrors the circumstances at issue—clearly
establish the law that controls this case. There, a police officer tore up the plaintiff’s sign
because a group across the street, apparently angered by the sign’s message, began screaming at
the plaintiff and, as a result, the officer feared for the plaintiff’s safety. Glasson, 518 F.2d at
902–03. The Sixth Circuit held that the police officers were liable for a First Amendment
violation. Id. at 912. The court found that “[t]he state may not rely on community hostility and
threats of violence to justify censorship.” Id. at 906. For “[t]o permit police officers . . . to
punish for incitement or breach of the peace the peaceful communication of . . . messages
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 54
because other persons are provoked and seek to take violent action against the speaker would
subvert the First Amendment.” Id. at 905.
According to the majority, Glasson put the officers on notice that removing the Bible
Believers in this circumstance could subject them to liability. (Op. at 36.) In so holding, the
majority again ignores the same factual difference—Glasson involved no violence and the case
before us involved a violent mob inflicting physical harm on the speakers. In Glasson, the
unruliness of the crowd was limited to muttered threats unaccompanied by action; it did not
involve actual, physical violence. Id. Here, Bible Believers (and potentially other bystanders)
were showered with rocks, plastic bottles, garbage, and milk crates. (DE 1, Complaint, ¶ 46.)
The Bible Believers were bruised and bloodied, with one Bible Believer bleeding from his
forehead. (Id. at 57). The majority attempts to mitigate the pointed difference between the two
scenarios by proclaiming that the violence here was “much less overwhelming.” (Op. at 36.)
While the majority’s tolerance for pain is certainly admirable, hundreds of teenaged children
throwing a deluge of objects—ranging from bottles to rocks to milk crates—can fairly be
characterized as an overwhelming display of aggression and violence.
Glasson can be further distinguished from this case by the officers’ respective responses
to the crowds. The officers in Glasson made absolutely no attempt to calm the crowd. Id. at
905. In this case, although the majority faults the officers for not doing enough, neither party
disputes that the officers warned, detained, and cited several debris-throwers in an attempt to rein
in the chaos.
While the holding in Glasson may clearly establish that an officer must refrain from
infringing on the right of a speaker when a crowd becomes angry and threatens violence, it does
not clearly establish an officer’s appropriate response to a physically violent and unruly mob of
mostly children who are undeterred by police presence.
Moreover, despite Glasson’s ultimate conclusion, the court in Glasson made clear that
police officers “may discharge their duty of preserving the peace by . . . removing the speaker for
his own protection” when a hostile audience would unreasonably subject law enforcement to
physical injury. 518 F.2d at 909. Such a pronouncement echoes a recurrent principle: the First
Amendment does not afford one an unfettered right to exercise free speech in the face of
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 55
jeopardizing the safety of members of the public. Police officers are charged with protecting the
“‘lives, limbs, health, comfort, and quiet of all persons.’” Grider v. Abramson, 180 F.3d 739,
752 (6th Cir. 1999) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). And the
Supreme Court has made plain that when a “clear and present danger” of disorder or other
“immediate threat to public safety” appears, “the power of the state to prevent or punish is
obvious.” Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940). No court has ever
recognized a First Amendment right that is so absolute that it can stymie police efforts to cope
with highly volatile situations. Markedly, this court has emphasized that police officers must
take the actions necessary to protect the physical safety of citizens and the overall public order.
See Grider, 180 F.3d at 752.
The majority, seemingly disapproving the ramifications of Glasson, overrules it “to the
extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a
police officer not to effectuate a heckler’s veto.” (Op. at 26.) The majority’s decision to
overrule Glasson ought to tell us all we need to know about the clearly established inquiry. At
the time of the incident, it was not sufficiently clear to a reasonable officer that removing the
Bible Believers for their own protection violated the First Amendment. Otherwise, there would
be no need to overrule this part of Glasson. Implicit—in truth explicit—in the majority’s
decision is the recognition that officials could understand the law differently at the time of this
incident.2
Even after today’s decision, officials could understand the law differently. “Heckler’s
veto,” as the many separate writings in this case suggest and as the Supreme Court’s own cases
confirm, is more often used as a debater’s point rather than as a doctrinal tool. Even on its own
terms, the “rule” does not mean that the government must invariably ignore an opponent’s
reaction in deciding how to treat speech. The doctrines of “incitement to imminent lawless
action,” Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (per curiam), and “fighting words,”
2
Indeed, the tenets of Glasson and Cantwell, when viewed in tandem, could lead a reasonable officer to
conclude that he may not punish a speaker for peaceful expression merely because the listeners seek to take violent
action against the speaker; but, the officer may remove a speaker for his own protection if the audience becomes so
violent as to potentially harm—or, as was the case here, actually harm—the speaker, an officer, or a bystander.
When viewed through this lens, a reasonable officer, aware of the material distinctions between this case and
Glasson, could believe that the escalating violence at the Arab Festival presented an example of when police may
remove the speaker for his own protection.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 56
Cohen v. California, 403 U.S. 15, 20 (1971), allow censorship based on listener reactions, indeed
even potential reactions. The majority seems to suggest that the “heckler’s veto” cases mean
that, once a speaker is outside these categories of “unprotected speech” and enters the field of
“protected speech,” the listeners’ reactions to speech may never be the basis for government
regulation. Surely that is not the law—and at least the Supreme Court has never said it is. “Such
a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with
common sense and with our jurisprudence as well.” R.A.V. v. City of St. Paul, 505 U.S. 377, 384
(1992).
Apparently recognizing as much, the majority suggests at one point that the police may
limit speech in order to protect the speaker from a violent reaction, but only as a last resort. (Op.
at 22 (“Punishing, 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.”).) But at other points, the majority implies this is not the rule at all and that the police
may never limit speech in order to protect the speaker, even if doing so is the only way to protect
the speaker from serious injury or even death at the hands of an angry mob. (Op. at 28 (“Simply
stated, the First Amendment does not permit a heckler’s veto.”); see also Op. at 44 (“The law
simply requires the government to refrain from silencing speakers.”) (Boggs, J., concurring).)
Given these mixed signals, it is not even obvious what has been clearly established by today’s
opinion, much less clearly established what the law was when these officers were forced into
action.
A situation where officers could understand the law in different ways, both at the time
they acted and after this court acts, is precisely the type of occasion in which police officers
should be shielded from personal damages liability. See Malley, 475 U.S. at 341 (finding that
immunity should be recognized in those instances where officers of reasonable competence
could disagree on the issue). The fact that reasonable officials can differ in their responses
confirms that it was not “plainly incompetent” for the police to believe they had a right to
effectively remove the Bible Believers. Stanton, 134 S. Ct. at 5.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 57
B. Municipal Liability
As Monell has informed us, a municipality is only liable for constitutional violations
resulting from official policies or customs. The “official policy” requirement “distinguish[es]
the acts of the municipality from the acts of employees of the municipality. Pembaur, 475 U.S.
479. An official policy commonly refers to “formal rules or understandings . . . that establish
fixed plans of action to be followed under similar circumstances.” Id. at 480. In this regard, the
majority admits that Corporations Counsel misstatement of the law in the letter responding to
Bible Believers does not amount to an official policy. (Op. 38–39.) Nevertheless, because a
single decision by “government authorized decisionmakers” can also denote official policy,
Pembaur, 475 U.S. at 481, the majority finds that liability attaches to the municipality through
the Corporation Counsel’s instruction advising the Deputy Chiefs to threaten to issue the Bible
Believers a citation. (Id.) I must respectfully disagree.
The Bible Believers have presented no evidence from which a reasonable jury could find
that Corporations Counsel, or the Deputy Chiefs for that matter, possessed final decision making
authority. Unlike in Pembaur, where the Deputy Sheriffs were instructed by their supervisors to
follow the orders of the County Prosecutor, 475 U.S. 469, thus imbuing the Prosecutor with final
decisionmaking authority, here the evidence is devoid of any such instruction. Instead, the
Deputy Chiefs merely conferred with Corporation Counsel because, after all, its duty is to
“provide legal services” such as “advis[ing], consult[ing] or represent[ing]” Wayne County
officers. Wayne Cnty. Muni. Code § 4.312. Some advice to an officer, though perhaps ill-
conceived, does not metamorphose Corporation Counsel into a decisionmaker with final
authority. Indeed, nothing in the municipal code vests Corporation Counsel with “final authority
to establish policy.” Pembaur, 475 U.S. 478; see also id. at 483 (“Authority to make municipal
policy may be granted directly by a legislative enactment or may be delegated by an official who
possess such authority[.]”). Nor does the evidence show that Corporation Counsel was bestowed
with such authority by a final decisionmaker. Advice amounts to nothing more than a
recommendation, not a decision. Therefore, no genuine issues of material fact exist as to
whether the violation of the Bible Believers constitutional rights stemmed from Wayne County’s
policies or customs.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 58
C. Declaratory and Injunctive Relief
Because qualified immunity only protects officials from damages liability in their
individual capacities, Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001), and finding no
Monell liability only protects the county and officers from damages in their official capacity, the
next step is to address whether the Bible Believers are entitled to declaratory and injunctive
relief. They are not; the plaintiffs failed to sufficiently allege standing to claim injunctive and
declaratory relief. See Kusens v. Pascal Co., Inc., 448 F.3d 349
That the plaintiffs have standing to pursue their damages claims has no bearing on
whether they have standing to request injunctive and declaratory relief. They “must demonstrate
standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 528 U.S. 167, 185 (2000). A prayer for both declaratory and injunctive relief requires an
assessment of whether the plaintiff has demonstrated a legitimate likelihood of future harm.
See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (“[T]he question in each case
is whether the facts alleged, under all the circumstances, show that there is a substantial
controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.” (emphasis added)); City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). For the
allegation of future harm to be sufficient, there must be a “substantial risk that the harm will
occur,” or the threatened injury must be “certainly impending.” Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal quotation marks omitted); see Grendell v. Ohio
Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (“‘[W]hen seeking declaratory and injunctive
relief, a plaintiff must show actual present harm or a significant possibility of future harm in
order to demonstrate the need for pre-enforcement review.’” (quoting Nat’l Rifle Assoc. of Am. v.
Magaw, 132 F.3d 272, 279 (6th Cir. 1997)).3
The Bible Believers’ plans to continue to take an active role in advocating their religious
beliefs at a future Arab Festival is insufficient to demonstrate that future harm is likely. Bible
Believers fear that “they will again be attacked by Muslims and given the option by [the officers]
3
The inquiry focuses exclusively on prospective conduct. Lyons, 461 U.S. at 103 (“[P]ast exposure to
illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by
any continuing, present adverse effects.” (internal quotation marks and alterations omitted)). Thus, the fact that
Bible Believers were threatened with disorderly conduct at the 2012 Arab Festival is irrelevant to the determination
of whether injunctive relief is apposite.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 59
to either cease their free speech activity or face arrest for disorderly conduct.” (DE 1,
Complaint, ¶ 70.) The facts in record belie any contention that they will be exposed to the same
or similar circumstances as present here. For the past seventeen years the Arab Festival has gone
on virtually without incident—let alone any event remotely similar to the one at issue. This is so
despite the annual presence of a multitude of Christian missionaries and evangelists from across
the country. (DE 1, Compliant, ¶ 17). Even the Bible Believers concede that during this time
“there was little to no conflict between the Christians and the Muslims who attended the Arab
Festival.” (Id. ¶ 24.) In fact, Bible Believers’ attendance at the festival—including the day
before the incident in question—was largely uneventful.
Given that the Arab-American Festival is no longer an annual event in Dearborn,4 there
are serious doubts surrounding the very existence of the Festival in the future. Thus, the prospect
of a recurring problem is not only “highly conjectural” and indefinite, but also “rest[s] on a string
of actions the occurrence of which is merely speculative.” Grendell, 252 F.3d at 833. This
speculative injury is not sufficient to bestow the Bible Believers with standing to pursue
declaratory and injunctive relief. Thomas v. Campbell, 12 F. App'x 295, 297 (6th Cir. 2001)
(citing Lewis v. Casey, 518 U.S. 343, 351–52 (1996)).
III. Conclusion
In conclusion, I must respectfully disagree with my colleagues who believe that we
should reverse. Even assuming a violation of the Bible Believers constitutional rights, they are
not entitled to any relief: qualified immunity defeats plaintiffs’ individual damages claims
against the officers; the absence of a municipal policy responsible for the alleged constitutional
violations prevents the plaintiffs from holding Wayne County liable; and finally, the lack of an
imminent and credible injury precludes standing for the plaintiffs’ prayers for injunctive and
declaratory relief.
4
Cancelling the Arab International Festival Was an Admission of Defeat, ARAB AMERICAN
NEWS (Apr. 2, 2015, 9:51 AM), http://www.arabamericannews.com/news/news/id_10291/Canceling-the-Arab-
International-Festival-was-an-admission-of-defeat.html; Niraj Warikoo, ACLU Supports Free-Speech Rights of anti-
Islam Group,DETRIOT FREE PRESS (Dec. 26, 2014, 9:37 AM), http://www.freep.com/story/news/local/michigan/way
ne/2014/12/26/aclu-supports-free-speech-rights-christian-group-hates-islam/20899957/. See Logan v. Denny’s Inc.,
259 F.3d 558, 578 n.9 (6th Cir. 2001) (citing Ieradi v. Mylan Labs, Inc., 230 F.3d 594, 598 n.2 (3d Cir. 2000)
(noting that it was proper for an appellate court to take judicial notice of newspaper articles even when the articles
were not before the district court)).
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 60
_________________
DISSENT
_________________
ROGERS, Circuit Judge, dissenting. Today’s holding provides a roadmap that
effectively advises how to force the police to help disrupt a minority’s speech and assembly
rights. It is as if we are advising as follows:
Yes, you can get the police to help you attack and disrupt something like a
minority cultural identity fair, even if the police are not inclined to do so. Tell the
police your plans ahead of time, and bring photographers. Get a determined
group of disrupters and go in with the most offensive and incendiary chants,
slogans, insults, and symbols—the more offensive the better. The object is to stir
up some physical response. Then, when things get rough (your goal), insist that
the police protect you, and (ironically) your First Amendment rights, by serving
as a protective guard. The peace officers cannot at that point tell you to leave,
even to avoid injury to you, because if the peace officers do that, they will have to
pay you damages. Faced with the choice of allowing you to be an injured martyr
(keep your cameras ready) or serving as a protective guard as the disruption
escalates, the peace officers will doubtless choose the latter and become your
phalanx. It’s a win-win situation for you, and a lose-lose situation for the
minority group putting on the fair.
***
Only a formalistic application of First Amendment doctrines, from substantially different
cases, could lead to a result so inconsistent with the core of the First Amendment. This is not a
case where the Bible Believers faced punishment or liability for their speech. The only
punishment threatened was a citation for refusing to move away from a physical altercation.
That fact distinguishes this case from most of the cases that the Bible Believers rely upon.
To disruptive hecklers, the irony of using a “heckler’s veto” doctrine to empower them in
their heckling must be sweet. As demonstrated below, the great cases that admirably condemn a
“heckler’s veto” are profoundly different from this case. They involve criminal prosecution of
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 61
speakers on the basis that the speech, itself, constituted a breach of the peace. In Edwards v.
South Carolina, 372 U.S. 229 (1963), for example, African-Americans gathered on the state-
house grounds and some 200 to 300 curious onlookers gathered. There was no traffic
obstruction and nothing in the way of “threatening remarks, hostile gestures, or threatening
language.” Id. at 231. Police ordered the protestors to disperse, and when they did not, the
police arrested them and charged them with breaching the peace. Id. at 233. The Supreme Court
overturned the protestors’ criminal convictions on the ground that the common-law crime of
which the protestors had been convicted permitted punishment “upon evidence which showed no
more than that the opinions which [the protesters] were peaceably expressing were sufficiently
opposed to the views of the majority of the community to attract a crowd and necessitate police
protection.” Id. at 237. In overturning the protestors’ convictions, the Court noted (1) that
“nobody among the crowd actually caused or threatened any trouble,” id. at 231, (2) that
“[p]olice protection at the scene was at all times sufficient to meet any foreseeable possibility of
disorder,” id. at 232–33, (3) that “[t]here was no violence or threat of violence on [the
protesters’] part, or on the part of any member of the crowd watching them,” id. at 236, and (4)
that “[p]olice protection was ‘ample,’” id. These facts, the Court explained,
[were] a far cry from the situation in Feiner v. New York, where two policemen
were faced with a crowd which was “pushing, shoving and milling around,”
where at least one member of the crowd “threatened violence if the police did not
act,” where “the crowd was pressing closer around petitioner and the officer,” and
where “the speaker passes the bounds of argument or persuasion and undertakes
incitement to riot.”
Id. at 236 (quoting Feiner v. New York, 340 U.S 315, 317–18, 321 (1949)). Nothing in Edwards
is even close to the situation in this case. In Edwards there was no hint of an altercation or
disruption.
The same distinction applies to Cox v. Louisiana, 379 U.S. 536 (1965), a landmark of the
Civil Rights Movement of the 1960s. There, police arrested the speaker the day after a peaceful
student protest in which the speaker advocated that his fellow protesters conduct sit-ins at certain
local businesses. Id. at 542–44. The Supreme Court overturned the conviction for breaching the
peace because the speaker had been punished “merely for peacefully expressing unpopular
views.” Id. at 551. That, the Court once more clarified, was different from punishing a speaker
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 62
for deliberately thwarting law enforcement’s legitimate efforts to pacify an altercation. Id. at
550–51 (distinguishing Feiner). The evidence alleged to indicate potential violence was limited
to purported grumbling, muttering, and jeering from a group of 100 to 300 white people across
the street. Id. In short, the Court held that the speaker could not be convicted of using words
that disturbed the peace merely because his words might have led to an altercation. This is
categorically different from holding that the police may not separate people who are involved in
an altercation, and threaten a citation if one of the parties fails to separate.
Terminiello v. City of Chicago, 337 U.S. 1 (1949), also involved the Court’s overturning
the conviction of a speaker for breaching the peace, where the ordinance on which the conviction
rested “permitted conviction of [the speaker] if his speech stirred people to anger, invited public
dispute, or brought about a condition of unrest.” Id. at 5. The decision addressed only whether
the speaker could be convicted of a crime based on his speech’s tendency to cause unrest. The
decision said nothing about what steps police could take to quell an altercation already
underway—which is to say, it said nothing about the actions of the police in this case.
Cantwell v. Connecticut, 310 U.S. 296 (1940), involved a Jehovah’s Witness and his two
sons who had gone door-to-door in a Catholic neighborhood distributing literature and requesting
pedestrians’ permission to play a phonograph record critical of the Roman Catholic Church,
which offended the pedestrians. The Supreme Court overturned the convictions of the Jehovah’s
Witnesses for breach of the peace, reasoning that the laws at issue criminalized the family
members’ peaceful exercise of their First Amendment liberties. Id. at 310–11. The Court found
that there was “no assault or threatening of bodily harm, no truculent bearing, no intentional
discourtesy, no personal abuse.” Id. at 310. The case did not deal with incitement to violence or
breach of the peace, much less an actual altercation.
Finally, the difference between these cases and the instant case is clearest in Gregory v.
City of Chicago, 394 U.S. 111 (1969). There, police ordered a group of peaceful protestors to
disperse after onlookers became unruly. “When [the officers’] command was not obeyed, [the
protestors] were arrested for disorderly conduct.” Id. at 112. The Supreme Court overturned the
ensuing criminal convictions. Id. at 112–13. As the Court made explicit, however, its ruling in
that case was based on its understanding that “[the protestors] were charged and convicted for
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 63
holding a demonstration, not for a refusal to obey a police officer.” Id. In a footnote the Court
added that “[n]either the ordinance nor the charge defined disorderly conduct as the refusal to
obey a police order.” Id. at n.*. Gregory is thus inapposite, because the Bible Believers were
threatened with a citation, not because of anything they said, but because they asked what would
happen if they disobeyed a police officer. Indeed, the video evidence in this case—supplied only
by the Bible Believers—shows the reluctance of the police even to threaten citation. The police
chief confirmed that the Bible Believers would be cited only after the Bible Believers repeatedly
demanded to know “what he would do” if they declined to depart.1
In sum, the Supreme Court has consistently distinguished between prosecuting a person
for exercising his First Amendment rights—which is unconstitutional—and insisting that a
person comply with a police officer’s order to leave the scene of an ongoing physical altercation
so as to prevent further injury—which is constitutional. It cannot be that every police officer’s
direction to a citizen to do something requires strict scrutiny just because speech is also involved.
Strict scrutiny does not apply, for example, to pulling over a truck for a traffic violation just
because there was a message on the side of the truck. Nor could strict scrutiny reasonably be
applied to telling two brawling teenagers to separate before they get hurt, even if the brawl
started with a verbal argument about some issue. Police officers should not be made to pay
damages in such circumstances. This case is no different.
1
Here is an excerpt of the conversation between the police chief and one Bible Believer (“BB”):
BB: Let me ask you this: If we don’t leave, are we gonna get arrested?
CHIEF: Probably.
BB: I just need to know, yes or no.
CHIEF: Probably.
BB: That’s like me probably saying, “Yes, probably we’ll stay around.”
CHIEF: Probably we will cite you all, yes. I mean, if that’s what you want then, I mean, I don’t, I
don’t understand what good that does.
BB: I just need to know if I’m gonna be arrested or not or if you just thought it was a good idea
that we walk away. If you’re telling me that we’re gonna get arrested, that’s what I need to know.
Are you telling me that we’re gonna get arrested if we . . .
CHIEF: I’m not telling you that you’re going to get arrested, but, you know, you’re a danger to the
public safety. You’re disorderly.
BB: I would assume, you know, two hundred angry Muslim children throwing bottles would be
more of a threat than a few guys with signs.
[Brief interlude]
CHIEF: Alright, you need to leave.
BB: Again, I just want to make an ask, so, if we don’t leave, you’re saying . . .
CHIEF: If you don’t leave, we’re gonna cite you for disorderly.
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 64
Strict scrutiny applies to rules about speech that allegedly could cause a brawl, not to
efforts to control a brawl. The Bible Believers spoke loudly and freely throughout the festival
for over an hour. Indeed, for some of that time, the presence of police officers actually made it
possible for the Bible Believers to speak without being accosted by the crowd. The officers’
instruction to leave, moreover, only occurred once there was an altercation that left one of the
Bible Believers bleeding from his head. This is not a case about “the mere possibility of
violence.” Ante at 34. The video evidence shows plastic bottles, rocks, and other hard objects
such as a milk crate being thrown at the Bible Believers, and not just by children. Indeed, as the
majority describes the video, it shows that “a barrage of bottles, eggs, and other debris [was]
hurled upon the Bible Believers” and “[a]t some point during the deluge, Israel was struck in the
face.” Ante at 12–13. Violence had broken out when the police stepped in. The only question
confronting police at that time was how to handle it.
It cannot be that, in an altercation where one side is greatly outnumbered but wants to
risk injury by standing its ground, police officers are obligated to permit the risk—indeed, must
put themselves at risk—in the name of the First Amendment. The First Amendment does not
compel police to stand by and ignore their duty to protect the public.
Cases like the one before us properly call for a balancing of the speakers’ First
Amendment interests and the community’s need for safety and order. Of course, police should
not be allowed to treat every outbreak of violence as cover for suppressing speech, and where it
is reasonably possible to vindicate a speaker’s First Amendment rights, police should do so. But
it will not always be possible to do so, taking into account all of the factors peace officers must
consider, such as the nature of the crowd, the resources available to police at the time, and other
factors bearing on law enforcement’s ability to control the scene around a speaker. Drawing a
rigid line based on abstract doctrinal principles robs police officers of the discretion and
judgment that is essential to law enforcement. If the police may stop the altercation, they may do
it in a reasonable way, under the circumstances as actually presented. If bringing in a larger
police force is not a then-available option in the reasoned view of the peace officer on the scene,
separating the parties is reasonable. In the context of this case, separating the parties meant
escorting away the less numerous group. This was a practical and reasonable thing to do—not
prohibited by the First Amendment unless the First Amendment rigidly requires peace officers to
No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 65
determine which side threw the first stones or punches, and thereafter to protect the other side as
the brawl continues.
When festivalgoers began attacking the Bible Believers, law enforcement officers at the
Arab Festival had a choice: attempt to restrain the large and physically abusive crowd, or ask the
Bible Believers to leave. The record shows that the officers made efforts to restrain the
festivalgoers. Among other things, they ventured into the crowd to identify the individuals who
were throwing debris and rocks at the Bible Believers, and issued some warnings and citations.
This is not a situation, then, where law enforcement jumped at the first opportunity to evict an
obnoxious group. To the contrary, it appears the officers tried to avoid having to evict the Bible
Believers.
Despite their efforts, however, the officers ultimately determined that they could not
easily stop the altercation while the Bible Believers were present. The officers thus decided to
remove the Bible Believers from the festival grounds. The First Amendment does not prohibit
that reasonable exercise of judgment, and this conclusion is consistent with Glasson v. City of
Louisville, 518 F.2d 899 (6th Cir. 1975). In Glasson, police violated the First Amendment by
tearing up a protester’s sign after hecklers began grumbling and muttering threats about it from
across the street. Id. at 901–02. There was no actual violence in Glasson or even a move toward
actual violence. Glasson involved police conduct to preempt potential violence. In contrast,
there was nothing potential about the fracas at the Arab Festival.
***
It is unfortunately ironic for the Bible Believers to succeed in their tactics in this case
based on towering but distinguishable cases involving minority civil rights protests. In the
greater Detroit community, it is the minority’s cultural expression that loses from today’s
decision. The disrupters here came from a different part of a larger community to disrupt the
First Amendment activity of Arab-Americans—a sometimes feared, misunderstood, or despised
minority within that larger community. Realistically viewed, the Bible Believers were hecklers
seeking to disrupt the cultural fair. The police visibly attempted to reconcile the First
Amendment rights of festivalgoers and the Bible Believers. There may have been much better
ways for the police to handle this situation, but there was no First Amendment violation.