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Michigan Muslim Exception to the First Amendment

Nina Shea

Pastor Terry Jones and Assistant Pastor Wayne Sapp may be leaders of an obscure and failing micro-church, the Dove World Outreach Center, in Gainesville, Florida, but they are world class blasphemers against Islam. Earlier this month they applied for a permit to continue their public and provocative criticism of Islam — which this time was not to burn a Koran but to “peacefully … protest sharia and jihad” in front of the largest mosque in the United States, in the most Muslim area of the country. Not only was their protest, planned for last Friday, blocked by court order, but they were convicted by Michigan’s 19th District Court of being likely to breach the peace.

In March, the two pastors stirred international controversy and, in Afghanistan, lethal violence, by staging a Koran burning. On Friday, April 22, they had planned a two-man demonstration to protest “sharia and jihad” during the weekly prayer service outside the the Shiite Islamic Center of America, in Dearborn, Michigan. News of their application for a protest permit prompted at least four serious death threats against them from “metro Detroiters,” according to the police chief. They were told by authorities they would have to cover the costs of a massive security effort for their protest, amounting to $46,000. They refused and were promptly prosecuted on the afternoon of the 22nd. They were found guilty of intending to disturb the peace, ordered by the court to stay away from the Dearborn mosque for the next three years, and briefly jailed for refusing to pay the “peace bond,” to ensure there would be no public disturbance — a bond that the prosecutor had requested to be set at $46,000 but which the court had reduced to $1. It appears that the jury, judge, prosecutor and police chief, all feared that the planned protest would set off local Muslim riots or other violent actions.

Pastor Jones and Sapp are unsympathetic figures. Their anti-Muslim antics over the past seven months, when they first threatened to burn the Islamic holy book, have seemed designed as much to grab media attention for themselves as to deliberately insult Muslims. But the First Amendment’s broad protections for free speech have been defined by court cases revolving around all manner of unpopular speech and bigotry— from Ku Klux Klan leaders, Nazis, other racists and, most recently, anti-gay activists in a case involving protests at the funerals of fallen American soldiers. Islam would be given deferential treatment if this decision is allowed to stand.

At the trial, the defendants represented themselves and no doubt could have benefited from legal counsel. Because the court decision results in “prior restraint,” which is an unconstitutional restriction of speech, UCLA law professor Eugene Volokh predicts that the case will be overturned upon further review. In its amicus brief on behalf of the pastors, the Michigan branch of the ACLU provided the strongest legal argument for the defense. It is essential reading.

Here is the basic outline of the ACLU brief:

I. THE GOVERNMENT CANNOT SUPPRESS SPEECH BY MAKING A PERSON PAY A BOND BASED ON THE COST OF POLICE SERVICES NECESSARY TO ADDRESS THE ANTICIPATED ACTIONS OF OTHERS.

It is a basic principle of First Amendment jurisprudence that one may not be charged a price to engage in expressive activity because others may react negatively to that expressive activity.

In Forsyth County v Nationalist Party, the Supreme Court held that “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” 505 US 123, 34-135 (1992). …

A. Charging a Demonstration Fee Based on the Anticipated Negative Reaction to the Message Conveyed in the Demonstration Constitutes an Unconstitutional Prior Restraint of Free Speech….

B. Requiring Pastor Jones to Pay a Peace Bond for Estimated Police Costs Based on the Anticipated Reaction to His Unpopular Message is an Unconstitutional Prior Restraint of his Free Speech….

II. A PEACE BOND MAY NOT BE USED TO PREVENT THE PEACEFUL EXPRESSION OF ONE’S POLITICAL OR RELIGIOUS VIEWS, EVEN IF THE VIEWS ARE CONTROVERSIAL AND UNPOPULAR…

A. The Peace Bond Statute Cannot Be Used to Suppress Speech in this Case Because Mr. Jones and Mr. Sapp Have Not “Threatened To Commit an Offense Against the Person or Property of Another.”…

B. Even If the Peace Bond Statute Was Intended To Be Used To Restrain Political Speech, Application of the Statute To the Facts of this Case Would Be Unconstitutional….

First, under Forsyth, supra, the government cannot set a fee as a condition of speaking based on the reaction of others; such action would constitute a content-based prior restraint on speech. Second, the speech at issue in this case is protected by the First Amendment and therefore cannot be punished in any way under state law as “an offense against person or property” or a “breach of the peace.” Brandenburg, 395 US at 449. Finally, the state cannot impose a “heckler’s veto” on the speech based on the speculation on how others might react to the message. Brown, 131 US at 133 n1 …

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