In Bible Believers v. Wayne County, 805 F.3d 228, (6th Cir. 2015), a divided en banc (full panel) 6th U.S. Circuit Court of Appeals ruled that Wayne County, Michigan, officials violated the First Amendment rights of a self-described Christian evangelical group when they removed them from the Arab International Festival in Dearborn, to protect them from a hostile audience. The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
Bible Believers kicked out of festival after being allegedly assaulted
The Bible Believers attended the 2011 festival, wearing messages that were overtly anti-Islam and preaching conversion to Christianity. This upset many people at the festival, who were of the Muslim faith. On the first day of the festival, the Believers were sent to a free-speech zone. On the second day, they were told there was no more free-speech zone. They then began walking through the festival, spreading their message. They allege they were assaulted by several members of the crowd and then festival organizers kicked them out of the festival, instead of the people who perpetrated the violence.
The Believers returned to the 2012 festival but demanded better police protection. They again wore very provocative shirts with messages such as “Islam Is a Religion of Blood and Murder” and “Only Jesus Christ Can Turn You From Sin and Hell.” Many members of the festival reacted by throwing bottles at the Believers. Another person punched the leader of the Believers in the face. The police escorted the Believers out of the festival.
Bible Believers sued for violation of First Amendment rights
In September 2012, the Bible Believers sued in federal court, alleging a violation of their First Amendment free-speech and free-exercise rights and the right to equal protection. A federal district court granted summary judgment to the government officials. The Bible Believers appealed to the 6th Circuit.
Circuit court said Bible Believers’ speech was protected
The 6th Circuit reversed and ruled in favor of the Bible Believers. Writing for the majority, Judge Eric Clay reasoned that the Wayne County Sheriff’s Office “effectuated a heckler’s veto by cutting off the Bible Believer’s protected speech in response to a hostile crowd’s reaction.” Clay explained that the First Amendment often protects offensive and unpopular speech, referencing the Nazis’ speech in Nationalist Socialist Party of America v. Village of Skokie (1977) and the KKK’s in Brandenburg v. Ohio (1969).
Judge Clay then reasoned that the Bible Believers’ speech did not cross the line into unprotected incitement to imminent lawless action or fighting words. “The hostile reaction of a crowd does not transform protected speech into incitement,” he wrote. Regarding fighting words, he noted that the vast majority of individuals attending the Festival did not react with violence toward the Believers.
Judge said police enabled a ‘heckler’s veto’
Clay then explained that the Wayne County Sheriff’s Office allowed a heckler’s veto, which is inconsistent with the First Amendment. “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,” he wrote.
Clay reasoned that Wayne County officials also violated the Bible Believers’ free exercise rights for the same reasons as they violated their free speech rights. He also found that the defendants were not entitled to qualified immunity because they violated the Bible Believers’ clearly established constitutional rights.
Judge Richard Griffin and Judge Jeffrey Sutton wrote opinions concurring in part and dissenting in part. They agreed with much of Clay’s First Amendment analysis but would have granted the defendants qualified immunity.
Judge Julia Gibbons and Judge John M. Rogers wrote dissenting opinions. Judge Gibbons disagreed that the Supreme Court’s First Amendment case law established a clearly established right to be free from the heckler’s veto. Judge Rogers contended that the majority opinion provided relief to “disruptive hecklers” and wrongly struck the balance between a speaker’s First Amendment free-speech rights and the community’s need for safety and order.
The county filed a petition for writ of certiorari to the U.S. Supreme Court, but the Court denied review in May 2016.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2018.