Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights?

I have a question.

Of course you do.

You know that dude James Tracy?

The Florida Atlantic University professor who's a crazy conspiracy theorist? The dude who thinks that mass shootings like Sandy Hook were faked by the government? The dude who sent a certified letter to the parents of a murdered child demanding proof that the child had ever existed? Yeah. I know of him.

So I see that FAU fired him.

Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.

Can they do that?

Can who do what?

Stop being so obtuse. Can FAU fire James Tracy?

The question's way too vague. Can they fire him for what, under what?

Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?

Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.

Oh! Good point. Did it? Can you read the CBA and tell me?

I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.

Ok. But what about the First Amendment? Um . . . I have an embarrassing question.

Imagine my shock. What?

This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.

Yes, that's the "let's pretend the last 100 years don't exist" argument. He's wrong.

The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.

So, Twitter dude's argument lost 90 years ago.

So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?

Sort of.

That's not helpful.

It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.

I discussed the issue at length in 2013, if you want cites and quotes.

In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.

Wow. How can a government employee tell how that balancing act is going to come out?

Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)

And that ain't all. It gets more complicated.


Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.

Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?

Sounds like it, doesn't it? Fortunately, the Garcetti court didn't resolve whether the doctrine applies to universities, and one federal appeals court has already held that it doesn't.

But if James Tracy makes a First Amendment claim against FAU, the court may not reach any of these questions.


Well, FAU claims they didn't fire Tracy for being one of America's most prominent public lunatics. They say they fired him because he refused to turn in conflict-of-interest forms listing his outside activities (like blogging and speaking), gave inconsistent statements about whether he used FAU resources for those activities, and didn't respond to requests to remedy the problem.

So is Tracy out of luck?

No, but it makes his case harder.

First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.

(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)

Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.

Don't you think it's good that they fired him?

My heart says yes, but my head says no.

He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.

But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.

Ohio Judge Tim Grendell Is Popehat's Censorious Asshat of 2015

The votes are in. With a commanding lead of 10.2% over the nearest challenger, Ohio Judge Tim Grendell is Popehat's Censorious Asshat of 2015.


Congrats, Judge Grendell.

Honestly Grendell wasn't my choice. But I can see how he won: he's emblematic of the vapid pettiness of power. Grendell abused his contempt power in a fit of pique at insignificant criticism and offered smug Youtube-commenter-level justifications when challenged. Like many censors, he wraps himself in the First Amendment when it suits him. Electing Tim Grendell isn't about just Tim Grendell; it's about how many censorship stories are the result of authority conferred upon mediocre minds and small spirits. Never stop fighting them.

2015: Another Bad Year for Blasphemers

Popehat is pleased to offer a second guest post by Sarah McLaughlin. Sarah works for the Foundation for Individual Rights in Education (though the opinions expressed here are her own) and is interested in free speech and civil liberties. You can follow her on Twitter at @sarahemclaugh.

At the conclusion of 2012 and 2013, Ken undertook annual surveys of the state of blasphemy laws, and their enforcement, around the world. I did the same for this year, while paying close attention to the way that individuals have also played a significant role in punishing people accused of blasphemy. From the horrific January 7 Charlie Hebdo attack and Saudi Arabia’s first flogging on January 9 of blogger Raif Badawi (who was found guilty of insulting Islam in 2014 and sentenced to 1,000 lashes and 10 years in prison), there were early signs that 2015 would be another year where blasphemy would be punished harshly by governments and vigilantes alike[1].

How Blasphemy Was Punished This Year

Of the many dark entries in this year’s review, at the forefront stands ISIS. It is perhaps unsurprising that ISIS’ penal code, published in late December of last year, promises a death sentence to anyone found guilty of blaspheming Islam, Allah, or Muhammad. Who knows how many people have been executed under it this year[2]?

Saudi Arabia—which threatened to sue Twitter users who compared its justice system to ISIS'[3]—dispenses harsh punishments to those accused of blaspheming Islam in a manner fairly similar to that of a certain militant jihadist group that shall remain nameless, demonstrating the conduct that can apparently be expected from countries on the UN Human Rights Council. While Raif Badawi’s flogging punishments were halted over the course of the year, his wife claims they will soon resume and he remains imprisoned. In February, a man was sentenced to death (likely beheading, as is the Saudi Arabian way) for cursing God and Muhammad and hitting a Koran with a shoe. A month later, an Indian man was arrested (in Saudi Arabia) for liking a post with “blasphemous content,” causing it to appear on his page. That he did not intend for it to do so is apparently irrelevant. Last month, artist and poet Ashraf Fayadh was sentenced to death for apostasy, a charge apparently supported by the content of years-old poems and “the testimony of a few witnesses.” By the time Fayadh was sentenced, Saudi Arabia had already beheaded at least one hundred and fifty one people, many of whom been found guilty of nonviolent crimes including blasphemy, apostasy and, most often, drug offenses.

Like Saudi Arabia, Iran, on track to execute one thousand people this year, treats blasphemy as a serious crime—violators are usually charged with “spreading corruption on earth.” This fall, Iranian courts decided that activist Soheil Arabi will spend 7 years in prison as punishment for “insulting the Prophet” on Facebook, and must prove his faith and knowledge of Islam in monthly meetings. This is actually an improvement over his earlier sentence: death.

Saman Naseem, a 17-year-old man scheduled to be executed in February after being tortured until he admitted to being guilty of “enmity against God” and “corruption on Earth,” was missing for months in early 2015, leading his family to believe Iran had gone through with a secret execution. In July, Amnesty International learned that Naseem had been granted a retrial, so there is hope that Naseem will be found innocent, or at least given a lighter sentence. However, given that it took over two years for Iran to reach that conclusion, there’s little reason to believe that Naseem will receive fairer treatment this time from a fundamentally unfair system.

Pakistan has seen a number of convictions and killings this year as well. In March, Liaquat Ali was sentenced to death by a Pakistani court for blasphemy and a month later an assistant professor who earned his doctorate under a scholar, Muhammad Shakil Auj, who was accused of—and assassinated for—blasphemy, was shot to death in what was likely an attack inspired by his connection to Auj. In August, three men were arrested for referring to a Christian pastor as “prophet” on a poster. Then in October, Bilal Husain, a man whose father reported him to police was given the death penalty for blasphemy too. Also in October, Asia Bibi, a Christian woman[4] on death row for supposedly insulting Muhammad was moved to solitary confinement over fears that she would be killed by guards, vigilantes, or other inmates. That same month, Christian faith healer Naveed John was arrested for the apparently blasphemous act of “having Islamic script on a sword he used to treat his clients.” Pakistan has received well-earned criticism over the past few months because of the ease with which its blasphemy laws can be used as a weapon “to settle petty disputes against Christians.”

Like Saudi Arabia, Nigeria is all too willing to execute supposed blasphemers. In June, a Nigerian court sentenced Muslim cleric Aminu Abdul Nyass and eight of his followers to death for statements about Muhammad. The sentencing was held in secret because crowds at the previous trial attempted to burn down the court—their second target after burning down Nyass’ home. A Nigerian governor seemingly attempted to justify the death sentence, saying: "The concern is mobs would take extrajudicial action if these convicts are for whatever reason released because they would certainly kill them when they see them on the streets."

Though he’s wrong that the government should give out the punishments the mob wants, but in a more orderly fashion, he’s right that mobs will often act against people who they believe have insulted their gods. In a particularly horrifying example from March, a crowd in Afghanistan attacked Farkhunda Malikzada, a 27-year-old woman they believed had burned the Koran. Specifically, they beat her, ran over her body with a car and dragged her down the street, stoned her, and then lit her on fire. She received essentially no help from the police during the attack. Only days after her death was it discovered that Malikzada had never even burned the Koran in the first place—she had insulted men selling amulets by calling them un-Islamic, and they retaliated by yelling to the crowd that she had burned the Koran.

Bangladesh, meanwhile, shows how common murders like Malikzada’s were this year. In February, Al Qaeda members “taught a lesson to blasphemers” by hacking atheist Bangladeshi blogger Avijit Roy to death with machetes. A little over a month later, Oyasiqur Rhaman, a satirical blogger who mocked fundamental Islam and had mourned Roy’s death by changing his Facebook picture to an image reading “I am Avijit,” met the same fate. He was hacked to death by three men who heard that Rhaman had “made some comments against Islam,” which they had never actually even seen. Then in May, a third atheist blogger, Ananta Bijoy Das, was also murdered by men with machetes. Al Qaeda claimed responsibility for Das’ death as well. He had advocated for secularism on a blog called Free Mind, which had been moderated by Avijit Roy before his death. In August, Niloy Neel was the fourth Bangladeshi man to be hacked to death for his role as a secular blogger.

Roy, Rhaman, Das, and Neel were all on a widely-known list of secular bloggers created by groups pressuring Bangladesh to prosecute blasphemers more harshly. Bangladesh’s government was not content to let the machete-wielding murderers be the only villains in this story—after Neel’s murder the Inspector General of Police, while admitting that murder is wrong, actually asked that people report to the police secular blogs, whose contributors could face up to 14 years in prison, for “hurting religious sentiments.” What Bangladesh should do is eradicate its blasphemy laws and acknowledge that its treatment of blasphemy as a crime worthy of imprisonment encourages murderers targeting those who offend them. Instead, the Bangladeshi police have reaffirmed the notion that authority figures should violently censor speech that insults their constituents’ gods. I can hardly think of anything less safe for Bangladeshi bloggers than a public record of police investigations into their criticism of religion.

Threats and violence against blasphemers were not contained to the countries listed above. Three men were convicted under Myanmar’s blasphemy law and sentenced to 2 and a half years in prison in March for insulting Buddhism by publishing a flyer showing Buddha wearing headphones to promote their bar. Amos Yee Pang Sang, a 16-year-old blogger in Singapore was sentenced to a 4 week prison term in July for insulting Christianity, and he “admitted to his guilt and promised not to reoffend, as he realised his actions were against the law and could disrupt social harmony” after he was required to go to counseling. An executive at a Four Seasons hotel in Indonesia is facing blasphemy charges and up to five years in prison because she allowed a gay couple to hold a Hindu ceremony at her hotel. And an Indonesian footwear company is being sued solely because the word “Allah” is printed on sandals they produced, which they’ve promised to destroy. In October, a five year prison sentence against TV personality Islam El-Behery for “contempt of religion” was upheld by Egypt. In August, two men in India murdered professor M.M. Kalburgi, who was likely targeted for his criticism of idol worship. A few weeks ago, Indian director Pan Nalin received death threats because of the blasphemous content in his newest film, and took calls warning him: “We will make sure you go Charlie Hebdo way.” Last month Kuwaiti blogger and teacher Sara Al-Drees was arrested for “Insulting the Prophet” on Twitter, and could face up to ten years in prison doing hard labor. Events of a blasphemous nature faced threats and violence as well—in February three people were wounded and one man was killed when a gunman[5] targeted Lars Vilks’ event in Denmark and a Muhammad cartoon contest with keynote speaker Geert Wilders in Texas was unsuccessfully attacked in May by two gunmen (one of the gunmen had claimed allegiance to ISIS.)

More Blasphemy Laws, More Problems

In addition to the many acts of violence committed against blasphemers this year, a few countries introduced or passed bills that will likely perpetuate that violence, or at least frighten dissidents into silence. Kuwait is considering an amendment to its 1959 Alien Residence Law, which would ban “any person convicted of contempt of religions or penalised for derision of Islam, Islamic beliefs or the Prophet’s (PBUH) companions or family members” in another country from entering Kuwait. In July, the United Arab Emirates President His Highness Shaikh Khalifa Bin Zayed Al Nahyan[6] decreed a law that could easily be used to target blasphemous speech. Some of the “anti-hate” law’s provisions:

  1. Criminalises any acts that stoke religious hatred
  2. Criminalises any act that insults religion through any form of expression, be it speech or the written word, books, pamphlets or online
  3. Punishes anyone for terming other religious groups or individuals as infidels, or unbelievers
  4. Provides a sound foundation for the environment of tolerance, broad-mindedness and acceptance in the UAE
  5. Aims to safeguard people regardless of their origin, beliefs or race, against acts that promote religious hate and intolerance
  6. Includes jail terms of six months to more than 10 years for those who break the law

Not to be outdone, Bahrain began drafting a bill in August that would ban “any hate or sectarian discourse that undermines national unity, differentiates between individuals or groups on the bases of religion, creed or sect and triggers conflict between individuals or groups.” New Zealand’s new Harmful Digital Communications Act says digital communications "should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.” Humanist groups have raised concerns about the law’s ability to target blasphemous speech, but New Zealand’s Justice Minister Amy Adams claimed "a person would have to do much more than simply post blasphemy to fall foul of the criminal offence in the Harmful Digital Communications Act." There’s plenty of evidence from this year alone that many people consider blasphemous statements to be “denigrations” of their religion, so Adams’ comments are poorly thought out at best[7].

Poland and Denmark both took incredibly disappointing stances this year by reaffirming the legality of their blasphemy laws. The International Humanist and Ethical Union reports that Denmark’s Ministry of Foreign Affairs Vanessa Vega Saenz spoke at a UN Human Rights Council meeting in March and acknowledged that Denmark’s blasphemy law is rarely used but claimed it’s “‘legally important’ in that it gives the state the possibility to stop people burning bibles and Korans, and to punish those who do[8].” In October, a Constitutional Tribunal upheld Poland's blasphemy law that states “whoever offends religious feelings of other people by publicly insulting an object of religious cult or a place for public holding of religious ceremonies, is subject to a fine, restriction of liberty or loss of liberty for up to 2 years.” In the ruling, one of the justices said “religious criticism is acceptable, only if it’s devoid of abusive, insulting or degrading opinions” and the tribunal asserted the importance of “punish[ing] such offenses, because the public debate about religion must be conducted in a cultured and civilized manner.”

Some Rare Good News

There were a few brights spots this year, though. In March, Jordan withdrew its proposed Inter-Parliamentary Union resolution that sought to restrict speech that failed to show “respect for religions and religious symbols.” In response to the Charlie Hebdo attacks, two Norway politicians pushed through a proposal in May that finally achieved the long-planned end of the country’s blasphemy law, arguing that its existence “underpins a perception that religious expressions and symbols are entitled to a special protection.” Two months later, Malta announced that it was in the process of weakening its blasphemy laws[9]. Iceland’s parliament, also motivated by Charlie Hebdo, repealed its 75 year old provision against blasphemy in July. And in October, Pakistan’s Supreme Court decided that suggesting revisions to Pakistan’s blasphemy law is not, in fact, a violation of the blasphemy law. Alarming as it is that this needed to be said, it’s still progress worth noting. It’s a minor, but important, step forward for free speech advocates demanding reform.

That Norway’s and Iceland’s blasphemy laws (like Denmark’s) were rarely, if ever, used is irrelevant—laws that could be used to punish expression often do a very good job of chilling the speech they’re intended to suppress even if they’re never exercised. And sometimes, as evidenced by the tragedies in Bangladesh and Afghanistan, blasphemy laws do worse than chill speech—their existence reinforces the idea that blasphemous speech is something that should be physically punished. It shouldn’t be, and we should be genuinely concerned about the prevalence of the desire, from governments and mobs, to inflict pain on people whose beliefs deviate from what their neighbors or leaders deem acceptable.

[1] This list probably does not contain every newsmaking blasphemy incident of 2015, but it illustrates the hostility with which religious dissent was met in the past year. I used essentially the same methodology as Ken did when he blogged about blasphemy in 2012, but I grouped the incidents differently (as you can see).

[2] These are just a few examples of ISIS’ brutality. You can easily find many more if you’re so inclined.

[3] But who among us wouldn’t threaten to sue someone willing to criticize us for doing very rational things like beheading people for not imaginary crimes like sorcery? Who are we to judge?

[4] And the only woman.

[5] His motives were not known but Vilks is a well known target for his cartoon depictions of Muhammad.

[6] A rule to live by: anyone that demands to be called “his highness” can probably be expected to “decree” terrible laws.

[7] For more poorly thought out comments, check out Keith Vaz’s “lol idk maybe” ideas on blasphemy laws in the UK.

[8] This is a fairly blunt way of saying that they like being able to chill speech.

[9] But the Justice and Culture Minister said that “the new amendments will also aim to safeguard social and racial minorities, since the law will not allow for the vilification of any minority work,” so this is still worth watching.




Who Will Be Popehat's Censorious Asshat of 2015?

It's time for Popehat's annual-when-I-get-around-to-it Censorious Asshat of the Year contest!

As always, only asshats we have written about are eligible. Candidates have been narrowed down through a process involving caprice, short attention spans, and alcohol.

It's a strong field this year, ladies and gentlemen. Here are the candidates:

The New York Times: An institution that won't print satirical cartoons at the heart of worldwide murders and death threats because they might hurt feelings. In aggravation: A complete abdication of support for free speech, badly supported by a appeal to feels that is not consistently applied across potentially offended groups. In mitigation: This is only self-censorship, which isn't really censorship at all, properly. The Times has a right to be craven and unserious if it wants.

Ohio Judge Tim Grendell: An overpromoted, thin-skinned thug who abuses the contempt power to harass critics and offers bad excuses for it. In aggravation: Proudly and wantonly abusing judicial office out of personal spite. In mitigation: Deserves the obscurity that his mediocrity had previously earned him.

Dr. Mario J. Saad: Saad was sad about the part of peer review where someone questions his work, and unsuccessfully sued to suppress scientific dialogue on breathtakingly frivolous grounds. In aggravation: Actually interfered with the peer review process that helps promote human scientific knowledge. In mitigation: As a doctor, probably completely unfamiliar with anyone telling him no.

Michigan Judge Lisa Gorcyca: This evil, vicious brute reviled and threatened children who didn't want to meet with their estranged father. In aggravation: “You want to have your birthdays in Children’s Village? Do you like going to the bathroom in front of people?" In mitigation: Really more of a regulation of conduct than speech.

The U.S. Attorney's Office for the Southern District of New York, U.S. Attorney Preet Bharara, Assistant U.S. Attorney Niketh Velamoor: Issued a grand jury subpoena to Reason Magazine to determine the identity of commenters making patently hyperbolic political comments on the pretext that they were threats, and sought and obtained a gag order preventing Reason Magazine from reporting on the fact that it was being subpoenaed and gagged on no rational grounds whatsoever. In aggravation: The part where they silenced a magazine that writes about government abuse of power from talking about their government abuse of power. Seriously. In mitigation: Total failure of substantive judicial oversight was akin to bad parenting. It's sort of like affluenza, except with unchecked prosecutorial power instead of weath and shrugging judges instead of awful parents.

Donald Trump: Prone to issuing frivolous defamation threats and filing bogus defamation suits to soothe his chafe over being criticized. In aggravation: Career abuser of the judicial system. In mitigation: Surrounded by sycophants who encourage his misunderstanding of free speech.

City of Inglewood, California: Filed an abusive and unsuccessful copyright infringement suit to attack someone who put city council proceedings on YouTube. In aggravation: In addition to harassing a critic, wasted a vast amount of taxpayer dollars in a predominantly impoverished city. In mitigation: Low expectations of local government has cultivated lawless atmosphere.

Eric Posner: Long-time dedicated foe of the First Amendment continued his unprincipled assault on it. In aggravation: America's most prominent academic champion of censorship. In mitigation: Has never actually persuaded anyone to censor anything.

Turkish President Recep Tayyip Erdoğan: Tirelessly employs the mechanism of his brutal government to harass and oppress even the most mild and lighthearted of critics. In aggravation: Actual tyrant who actually has people imprisoned for speech. In mitigation: Check your Western privilege. He's not from a culture with a tradition of freedom of expression.

Mecosta County District Court Judge Peter Jaklevic: Ordered clearly unconstitutional arrest of jury nullification advocate in a fit of pique. In aggravation: Abuse of judicial office. In mitigation: As a recent former prosecutor, never taught to view rule of law as a set of mutually agreed-upon limitations on power, as opposed to an obstacle.

Goddamn college students on my lawn: Doing their best to push the idea that universities should punish and silence people who say things they don't like, think that hurty words are "silencing" but closing student newspapers or forcing students into reeducation classes isn't. In aggravation: Insufferably fanatical; fanatically insufferable. In mitigation: Never taught any better.

Chuck C. Johnson: Bumbling his way through a frivolous lawsuit against Gawker, and others, for making fun of him. In aggravation: Incessantly wraps himself in the First Amendment while simultaneously making frivolous defamation threats. In mitigation: Gawker is awful. Also, he's pretty good comic relief.

Who is Popehat's Censorious Asshat of 2015?

Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.

Eric Posner: The First Amendment's Nemesis

Every hero needs a villain.

Not only that, ever hero needs a suitable villain, a villain that somehow complements the hero's attributes. If your hero is a very large collection of Dalmatians, you need a villain who craves a Dalmatian-skin suit. If your hero is Aquaman, you need either a seafood-themed villain or perhaps a desert-themed villain, depending on your mood. If your hero is The Flash, you need a gigantic gorilla, because — well, okay. There are exceptions.

The First Amendment is not an exception. The First Amendment is a hero, of a sort: a tireless defender of expression from angry mobs and fickle tastes, a sentinel against the sort of annoy-me-and-I-kill-you rule that has prevailed for most of humanity's history. So of course it has a villain, a foe, cackling and scheming and plotting to tie it up and lower it into a bubbling vat of stinking, unprincipled lit-crit twaddle.

That villain is Eric Posner, professor at the University of Chicago. I would not go as far as to call him super-, but he is certainly the First Amendment's archvillain.

Professor Posner is in the news again with his latest call to restrict free speech. But you can't just leap in and read that cold. No! That would be like jumping into late-season Daredevil and not understanding why that nice gentleman from Law & Order seems so morose. You have to know the backstory: before you watch this week's battle, you have to see at least some of the battles that have gone before.

In that spirit, I offer you a sort of episode guide. Careful — there are spoilers!

Episode One: Wrath of the Blasphemed. In this episode, Posner plots to overturn the First Amendment in favor of international anti-blasphemy norms, and allow government punishment of speech he believes has "no value whatsoever." Little do his victims know the real nature of the international anti-blasphemy norms he touts: they are tools for religious majorities to oppress minorities, cruel whips that the powerful use to lash the powerless. Is that end this fiend's aim, or is he merely indifferent to it in his quest for the power to control speech? Tune in to find out.

Episode Two: Eric's Army of Darkness. In this episode, temporarily thwarted in America by the First Amendment, Posner seeks to overthrow free speech in Europe through clever reliance on violent terrorists. Faced with the Charlie Hebdo massacre, Posner sees fear and violence as the path to power over what people can say: he proposes that speech should be limited based upon what his motley league terms "low value," and based on the threat that if he is not given free reign to censor, fanatics will shed blood:

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

Will the Europeans realize that this theory cedes control over speech to the subjective reactions of (1) foes of speech like Posner, and (2) the sort of fanatics who kill over cartoons? Find out next week! (Spoiler: no.)

Episode Three: Attack of the Zombie Children.> In this episode, Posner realizes that college students have underdeveloped brains ripe for control, control that can be exercised through more muscular speech codes and expression limitations. In what will become an ongoing theme this season, Posner harkens wistfully harkens back to an era will less freedom:

Yet college students have not always enjoyed so much autonomy. The modern freedoms of college students date back only to the 1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights movement, swept away strict campus codes in an era of single-sex dorms.

Episode Four: The Listener. The First Amendment is on vacation so a disconsolate Eric Posner skulks around throwing rocks at the Fourth Amendment's windows.

Episode Five: In Which Posner Seeks To Sell Our Birthright Of Liberty for a mess of pottage that is security theater. You're caught up to the current episode! This time, Eric Posner proposes a law that "makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions." This will help prevent ISIS from recruiting American teenagers, just as laws against copyright infringement have effectively held them back from music and video piracy. Posner wants to invent a sinister time machine to take us back to the early 20th century, before modern speech protections:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

In other words, Posner is enthusiastically encouraging a return to the time when you could be jailed for questioning whether a war was just or expressing opposition to the draft.

Eric Posner is well-cast as the First Amendment's nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.

A villain has to be a little scary — there has to be at least some possibility that he'll prevail and overthrow the hero.

But the First Amendment has a lot of friends. I like its chances in this fight.

Lawsplainer: How the Eleventh Circuit Let Florida Shut Up Doctors About Guns

Do you have time for a question?


It's just that I heard that the Eleventh Circuit held that it's unconstitutional for doctors to mention guns.

I know what you're doing.


You're trying to bait me into doing a lawsplainer by mangling the holding of a case so I can't resist correcting you. I'm onto you. I'm not that easily manipulated.

You're not? Really?


Set me straight. What did the Eleventh Circuit do?

Okay. Fine.

On Monday, in a case called Wollschlaeger v. Florida, the United States Court of Appeals for the Eleventh Circuit issued its most recent change of mind about whether Florida could prohibit doctors from pestering their patients about guns.

Why are you throwing shade at the Eleventh Circuit?

Because this opinion is the Eleventh Circuit sua sponte — that means of its own accord, not based on anyone's motion — vacated its earlier opinion, which it had issued after granting rehearing on its original opinion.

Sounds a little waffly. So what's at issue in the lawsuit?

Florida legislators got wind that some doctors like to ask patients if they own guns and whether they are securely stored and so on. The legislators thought that was part of a law on guns, so they passed a law prohibiting doctors from certain types of questions. I wrote about it back when the trial court struck the law down.

But it's usually conservatives who are very pro-gun-rights. Isn't it kind of un-conservative to increase regulation of the doctor-patient relationship?

Yes. Yes it is. But for some conservatives guns are the big asterisk next to conservative principles.

So how did this law limit doctors?

In four key ways. Here is how the Eleventh Circuit summarized it:

The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(1); (2) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(2); (3) “may not discriminate” against a patient on the basis of firearm ownership, id. § 790.338(5); and (4) “should refrain from unnecessarily harassing a patient about firearm ownership,” id. § 790.338(6).3

So how did the Eleventh Circuit handle the conflict between doctors' right to speak and the patient rights created by this statute?

In two key ways. First, the court rejected the doctors' argument that the statute is too vague.

Under the "void for vagueness" doctrine, statutes must be sufficiently clear that an ordinary person can tell what conduct is prohibited, especially in the context of laws limiting free expression. This statute has a lot of potentially fuzzy terms like "good faith" and "harassing."

Here the court found that the intent requirements of the statute make it sufficiently clear. In other words, the statute doesn't just prohibit recording irrelevant information about patient gun ownership; it only prohibits it when the doctor knows the information is irrelevant. Even if the scope of relevance of gun ownership is unclear and arguable, the statute permits a defense when a doctor is inquiring about guns in good faith. Finally, the court found that the term "unnecessary harassing" is clear from the context of the entire statute, which prohibits irrelevant and bad-faith inquiries. "When read in the context of the Act as a whole, the harassment provision communicates that physicians should not disparage firearm-owning patients, and should not persist in attempting to speak to patients about firearm ownership when the subject is not relevant to medical care or safety."

Okay. So the court says it's not vague. But what about doctors' right to free speech?

Well, first the court has to decide whether it regulates speech at all.

What do you mean? Of course it regulates speech. It's right there in the language.

Sure it is. But it's a doctor's speech to patients — it's professional speech. Courts treat laws regulating professional conduct differently than they treat the speech of a citizen standing on the street corner. That's why, for instance, states can require doctors to be licensed without violating their free speech rights. This distinction — speech as an individual vs. conduct as a regulated professional — is the one that made the difference in the challenges to the California law barring so-called "conversion therapy," as I wrote about. This was an issue in Casey v. Planned Parenthood, where the Supreme Court said that a state could make doctors provide specific information to women seeking abortions.

Restrictions on professional speech get analyzed on a sliding scale — the closer it is to core conduct regulation with only incidental impact on speech, the less scrutiny the law gets, and the closer it gets to the professional's personal expression, the more scrutiny it gets. As the court says here:

Our task, then, is to determine whether any provision of the Act crosses the boundary between a law regulating professional conduct with an incidental effect on speech and a law regulating protected speech, which “must survive the level of scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J., concurring).

Here, the court said that the prohibition on discriminating against gun-owners is a conduct regulation with only incidental impact on speech, so doesn't implicate the First Amendment. That anti-discrimination laws are about conduct and not speech is controversial to some people but not to most modern courts. The rest of the provisions implicate speech, the court said, and so are subject to First Amendment scrutiny.

What's scrutiny, anyway? Isn't that just looking?

It's a term of art in constitutional law. "Scrutiny" refers to the level of justification that the government must supply to support a law that implicates constitutional rights. It goes all the way from "rational basis" (meaning that the state just has to show that the law isn't completely irrational) to strict scrutiny (meaning the state has to show that the law is supported by a compelling interest, is narrowly tailored to achieve that interest, and is the least intrusive method of achieving that interest). Laws almost always pass rational basis scrutiny and almost always fail strict scrutiny.

What scrutiny did the court apply here? What level is supposed to apply to professional speech?

The court decided not to decide — it said that it didn't have to rule on what level of scrutiny applies because this law survives even a strict scrutiny analysis.

Wait a minute. I thought you said laws almost always fail strict scrutiny examinations.

I did.

The court accepted Florida's argument that it had a compelling interest in protecting the Second Amendment rights of its citizens. Relying on stories told to Florida legislators about intrusive doctors, the court found that Florida had a compelling interest in preventing citizens from being chilled and deterred from either maintaining their rights or seeking healthcare.

And how did the court find that the law is narrowly tailored to that end? They just did. This is the core paragraph:

The Plaintiffs first argue that the Act cannot be narrowly tailored to the protection of Second Amendment rights because the speech in question does not interfere with such rights. This argument could not be farther off base. It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.

This is begging the question, in my opinion. It treats advocacy against a right as interference with a right, a proposition that is far from self-evident.

The court also found that the law was narrowly tailored even though Florida has another law explicitly allowing patients to refuse to answer doctor questions about guns. "That argument is also unpersuasive because of the significant power imbalance between patient and doctor." The court also analogized the situation to the Supreme Court's captive-audience cases, where the subject's privacy is invaded by the speaker in a way the subject cannot avoid, and referenced cases allowing buffer zones around health clinics.

This is some of the most forgiving strict scrutiny I've ever seen.

Why would the Eleventh Circuit go easy on Florida?

Guns are a controversial issue. They often distort application of other rights.

Is the court's conclusion plausible, colorable? Sure. But it's noticeably forgiving to the state, and eagerly accepts some propositions that you wouldn't expect a usually conservative court to agree with: that the doctor-patient relationship is so power-unblanaced that it permits broad regulation, and that consumers are compelled to hear the speech of professionals they select. Similarly, the court's practical concerns are ones you'd expect to hear in a "liberal" decision, not a "conservative" one.

The case demonstrates how you can manipulate scrutiny by altering the level of focus. Is the question whether Florida has a compelling interest in protecting its citizens' Second Amendment rights? (It does.) Or is the question whether Florida has a compelling interest in protecting the Second Amendment rights of its citizens from the individual decisions of other citizens in voluntary relationships? (That's much more of a stretch.)

There's another controversial issue lurking about here: abortion. Many of the physician-compelled-speech cases arise in the context of doctors challenging state laws requiring them to, for instance, perform and narrate ultrasounds to their patients seeking abortions. A decision giving the state wide latitude to regulate doctor-patient speech is a precedent that will support laws restricting abortion. Yet, ironically, the decision employs some of the same arguments that pro-choice litigators tend to make: the argument "this is necessary because rural gun owners might have to travel a long way to find another doctor" is remarkably similar in tone and socioeconomic concern with "rural women may have to travel a long way to find a different abortion provider."

Do you agree with the case?

No. I think the anti-discrimination provision is legal under modern law, though it's legitimate to ask why the legislature wants to protect some rights from physician judgment but not others. But I think the court has misapplied strict scrutiny, has accepted the state's claim of compelling interest too lightly (and in a nanny-state way), and has not taken narrow tailoring seriously.

What happens now?

This case might or might not go further. But there are a number of compelled-physician-speech cases out there in the abortion context that may eventually find their way to the Supreme Court and clarify this area.

Trumpeting The Right Not To Be Called A Bigot

Sometimes someone says something about free speech on the internet and I feel like I'm Sonny Corleone, intemperate and easily manipulated into racing off in a frothing rage to my eventual doom at an unpleasant New York toll plaza, which I suppose in this metaphor is Twitter.

I gotta be me.

I have many free speech pet peeves, but few make me twitchier than the argument that criticism is censorship. I frequently bash that argument — which sometimes goes by the name "speech is tyranny!" or "the right not to be criticized" — along with its idiot half-brother, right not to be offended

This week, Trump supporters are offering the argument.

The impetus is Trump's call to block Muslims from entering the country, and the widespread condemnation of it. Not surprisingly, many have called Trump's proposal racist. It's not my purpose today to explore that assertion, or to discuss my general contempt for Trump and his devotees. Rather, I want to highlight what some of Trump's defenders have said in reply. Consider this:


Mr. Riehl is apparently suggesting that Buzzfeed — a private entity — is undermining free speech by suggesting to its private-employee writers how partisan they may be while flying the Buzzfeed flag. Or maybe Mr. Riehl is suggesting that Buzzfeed is undermining speech by encouraging people to call Trump a racist if they want. Those propositions are both ridiculous, albeit in different ways.

Because I hate life and the sun and its warmth and all that is good, I jumped down this rabbit hole of links. The linked Breitbart post by Mr. Riehl, in classic form, suggested that Trump critics are weak and dangerous, and quoted National Review Online's Andrew McCarthy to suggest that calling Trump a racist is part of the "erosion of First Amendment rights in the United States." He further suggests that criticism of speech in America is somehow dangerous because Europeans restrict and punish a wide variety of speech. This makes little sense to me; if I can't criticize speech the Europeans have made illegal there's very little for me to criticize.

I don't think Mr. Riehl fairly portrays what Mr. McCarthy said in the interview; I heard Mr. McCarthy decry European censorship and question the validity and tone of American criticism of Trump but not suggest that it violated Trump's rights. That's because Mr. McCarthy usually isn't completely ridiculous. The Breitbart article, and Mr. Riehl's spin, are.

Let's leave aside the rather obvious question of whether a man easily cowed by being called a racist is suitable to be Commander-in-Chief. The entire concept of speech violating free speech rights is incoherent and unprincipled. Saying that I silence you by calling you a racist is indistinguishable, logically and stylistically, from saying that I've silenced you and breached your safe space by saying something you think is racist. If American Muslims have to put up with Trump saying they ought to be excluded from reentry if they go to Tijuana for the day (and they do), then Trump has to put up with being called a bigot in response. Anything else isn't American civics; it's transparent and moronic partisanship, worthy of nothing but ridicule.

Perhaps Mr. Riehl will demur that he wasn't saying that accusations of racism actually violate legal rights, but that they merely undermine the spirit of "free speech," or create a hostile atmosphere in which frank speech is discouraged. This, too, is indistinguishable from what I'd expect to hear from a sophomore Sustainable Trigger Warnings major at Brown: "your speech silences me and discourages me from speaking." Maybe Brown can offer Trump a safe space.

There are people that assert that Trump's speech should be punished by the government. They're wrong, and their suggestion stands in opposition to the most fundamental American values. If they try to inflict legal consequences on Trump for his bloviation, let's resist them firmly and without quarter.

But you don't fight the imagined right not to be offended by promoting the notion some speech is so hurty that it violates my rights. If we're going to tel other people they have to walk it off when they're targeted with ugly speech, we have to as well. For God's sake, summon a shred of self-respect.

Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)

Aren't you going to blog about that Sixth Circuit case?

You mean Merrick v. Diageo Americas Supply, Inc., clarifying whether the Federal Clean Air Act preempts common law claims against an emitter, and whether that question is susceptible to interlocutory review?

You know that's not what I mean.

It's a fascinating case. It uses the term "whiskey fungus." If you could grow whiskey like a fungus that would be awesome. I could go for some whiskey fungus right now.

Stop it. You know I'm talking about the big free speech case.

The case about the heckler's veto? Why should I write about it? Eugene Volokh already 'splained it. He's occupied the field. Don't you understand preemption?

You know you want to write about it anyway.

You're not the boss of me.

I'll just wait.


There. Doesn't it feel better when you surrender? Anyway, what's the case and what's it about?

The case is Bible Believers v. Wayne County. It's about a 2012 incident in which a group called the Bible Believers showed up at the Arab International Festival in Dearborn, Michigan, preached against Islam, and left when they were threatened with arrest for "disorderly conduct" in the face of an angry crowd.

What does that have to do with veto power? What is a heckler's veto, anyway?

"Heckler's veto" is a term used to describe situations where authorities limit or punish speech because of angry, threatening, or violent responses to the speech. For instance, it's been used to describe a school banning students from wearing the American flag on Cinco de Mayo because other students were reacting violently, or removing public transit advertisements when they generate threats. The concept is this: if you allow a "heckler's veto," that means people who don't like speech can suppress it by reacting to it violently or aggressively.

So why was this heckler's veto in court?

The Bible Believers and some members sued the county, the sheriff, and several officers for violations of constitutional rights. They argued that when the cops reacted to an angry crowd by telling the Bible Believers to leave, they violated their rights.

Why was the crowd angry?

The Bible Believers are assholes. They were carrying a severed pigs head "to keep Muslims at bay" and carrying signs that say "Islam Is A Religion of Blood And Murder" and yelling about Mohammed being a pedophile and telling the Muslims at the festival that they were going to hell and so forth.

So basically The Live Show.

I don't think they were Trump-fluffing. But otherwise yes.

Did the crowd get violent?

Sort of. Some people threw plastic bottles and debris. The crowd size ebbed and flowed. One guy got hit in the face. At one point the crowd chased them around and threw bottles and garbage. It wasn't a gang brawl, but it was a bad scene.

So what did the cops do?

They told the kids throwing things to cut it out a few times. They rode through on horses and quieted the crowd once. But eventually they pushed through the crowd and told the Bible Believers that they had to leave or be cited for disorderly conduct because they were "creating danger" and impacting public safety by riling up the crowd. So the Bible Believers left.

So what did the Bible Believers do?

This is America! So they sued. But the federal trial court decided that the cops acted permissibly in the face of danger, and that they were protected by qualified immunity anyway. A three-judge panel of the Sixth Circuit agreed. But then the Sixth Circuit agreed to rehear the case "en banc," meaning "with all or at least a whole bunch of the judges on the circuit participating and deciding."

Is it a good decision or a bad decision?

It's a very good decision for free speech advocates. The majority went out of its way to lay out the relevant First Amendment issues in a clear manner and address them, and wound up vigorously supporting the right to say things that crowds hate, and the obligation of police to protect unpopular speech rather than yield to a heckler's veto.

Here's how the majority described what it set out to do:

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.

In other words, this isn't a "let's rule as narrowly as possible to resolve this case" decision. It's a "let's try to clarify this entire area of law" decision.

So what's the legal issue? Is a heckler's veto unconstitutional?

Not exactly. Courts have referred to the heckler's veto in various different contexts, but it's hard to draw from those diverse situations a clear methodology. Here's what this court said to start it off:

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.

That's nicely organized. Free speech cases aren't always clear on the order of analysis.

So the first question is whether the heckled speech is protected in the first place?

Exactly. Here the Sixth Circuit said it was, and that's one of the most important parts of the decision. The cops argued that the Bible Believers were inciting a riot because they were saying incendiary things likely to cause violent reaction. Not so fast, says the Sixth Circuit. It's only unprotected incitement if you try to, and intend to, cause violence:

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, (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.

So: that's a no on the "saying things that make people really mad is incitement" theory. That's huge. It's rarely been articulated so clearly.

What about fighting words? I hear about fighting words a lot. Isn't it fighting words?

OK. I'm not saying that it's never fighting words. But it's never fighting words.

Yeah, the cops argued the fighting words doctrine. But the Sixth Circuit noted how narrow that doctrine is.

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.

As I have mentioned before, just about every court decision in the last half-century has rejected using the fighting words doctrine to justify censorship. The Sixth Circuit could have pointed that out, but didn't — it just pointed out that the doctrine, if it survives, is limited to face to face, direct to one individual words that would provoke an average person to immediate violence. That's narrow.

So the speech was protected. But the crowd was getting violent, right? Can't the police take steps to de-escalate a violent situation?

Absolutely. But what the court said here is that the evidence showed that the police didn't even try methods other than shutting the Bible Believers down. First, the Sixth Circuit articulated the core idea behind a prohibition on hecker's vetoes:

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.

Next, the court seemed to articulate a law enforcement duty not merely to refrain from silencing the controversial speaker, but an affirmative duty to protect them:

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).

That's very unusual, because the courts generally don't impose affirmative duties on cops to protect people, only duties to refrain from doing things.

Ultimately the court didn't say that cops can never silence a speaker in order to keep the peace. Rather, they said that such a decision is going to get the most exacting type of scrutiny — second-guessing — that the court can offer:

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.

That's huge because of the lack of typical credulous deference to law enforcement decision-making. The normal stance of courts is "cops have to do what they think is right for law and order and we're not going to second-guess their call in the heat of the moment." The Sixth Circuit is saying "no, if a cop shuts someone up to keep the peace, we're going to look very carefully to see if there is anything else the cop could have done instead."

The Sixth Circuit found that the evidence showed that the cops here made no serious effort to control the crowd, and instead went straight for the shut-up-the-speaker remedy.

So the court found that threatening the Bible Believers with citation was a free speech violation?

Yes. And based on the same analysis the court said it was also a violation of their right to free exercise of religion, and a violation of their equal protection rights, because the cops preferred the mob over the speaker.

But wait. When cops violate people's rights, don't they usually get off because they have immunity?

Yes. Cops have qualified immunity, meaning that their actions are protected unless their behavior violates "clearly established constitutional or statutory rights" that "a reasonable person would have known."

When there's a contentious argument about whether a cop's action was a violation of rights in the first place, courts usually say that the right in question wasn't clear enough to remove the cop's immunity. Not here. The court said the right in question was clear:

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.

The court ended with a flourish:

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.

So, this is just a circuit case, not a Supreme Court case. How important is it?

Very important. Across the country, people in heckler's veto situations will be citing this, and it will draw other courts to agree or disagree. It may even reach the Supreme Court.

Thanks. There. Was that so hard?

I will destroy everything you love.