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Sep 06 2013

Dearborn Loses Another Free Speech Suit

You’d think the city of Dearborn would have learned by now that the First Amendment actually does apply to their city. They’ve now lost another lawsuit over their attempts to restrict the free speech rights of anti-Islam activists, this one over a demand that those holding a legal rally in their city be required to indemnify the city against anything that happens.

This is another case involving Terry Jones, a vile bigot who burns Qurans and generally tries to get attention (and money, I’m sure). But the fact that he’s a loathsome character doesn’t mean his speech isn’t protected. In this case, the city of Dearborn refused to issue him a permit for an event on public property across from a mosque if he didn’t sign an agreement agreeing to indemnify and hold the city harmless for absolutely anything remotely related to the event. He filed suit, with the help of the Thomas More Law Center, and federal Judge Denise Page Hood has now granted summary judgment against the city.

As this Court ruled in its order granting a temporary restraining order, the clause in the agreement itself requiring Plaintiffs to “RELEASE AND FOREVER DISCHARGE the City of Dearborn … from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property” is an unconstitutional clause which impedes Plaintiffs’ First Amendment rights to free speech and assembly. The Court held that the clause encompasses not only liability for physical harm to the Plaintiffs, but also for deprivation of Plaintiffs’ constitutional rights. “We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.” The clause also requires permittees to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City. The ordinance requiring the indemnity agreement and the “Hold Harmless” agreement presented to
Plaintiffs are unconditional and violate the First Amendment to the United States Constitution as to Plaintiffs and others who wish to exercise their rights to speak and assemble in the public fora.

This is a tactic that was used in the 60s against civil rights protests. Particularly in the south, cities would require civil rights groups to indemnify them, charge them for police protection and require them to purchase very expensive insurance policies. They effectively priced them out of being able to exercise their free speech rights. The same thing is happening here. And as Judge Hood notes, the indemnification agreement requires the group asking for the permit to pay the legal fees of the city if they are sued for conduct that the permittee has no control over, like police brutality.

What really baffles me is that even after the court granted a preliminary injunction in the case and said that the ordinance is unconstitutional, the city still made a motion for summary judgment in their favor. Did they really think they were going to win on that? Dearborn has a terrible track record on this, violating the rights of protesters multiple times over the last few years and losing in court every time. Maybe they should read the Bill of Rights and start following it. You can read the full ruling here.

19 comments

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  1. 1
    Raging Bee

    Why can’t the city simply refuse to grant the permit for that particular location, while letting the vile little shit do his thang somewhere else? I mean, it’s the city’s responsibility to keep order, keep the public streets and walkways clear for lawful business, and minimize the possibility of disturbance; and that’s why cities require permits for public events in the first place.

  2. 2
    DrVanNostrand

    As long as the refusal is content neutral, it may be allowable. However, if refusing the permit is because the group is controversial and might rile people up, you’re getting into “heckler’s veto” territory.

  3. 3
    D. C. Sessions

    Dearborn has a terrible track record on this, violating the rights of protesters multiple times over the last few years and losing in court every time.

    And I salute the for it. Without dingbats willing to make complete fools of themselves in court, we don’t get case law and headlines affirming those very rights that they have tried to violate.

  4. 4
    John Pieret

    Raging Bee @ 1:

    Why can’t the city simply refuse to grant the permit for that particular location, while letting the vile little shit do his thang somewhere else?

    I don’t want to get into another knock-down-drag-out about the First Amendment but, assuming you accept the premise that the “costs” arguments are bogus, what exact right does the city government have to choose just where people in a (supposedly) free society have the right to exercise their right of free speech? Sure, there can be reasonable restrictions on time and place (you may not be able to demonstrate with bullhorns outside my private house at 2:00 am) but what rational basis is there for not allowing one group of people exercising their free speech rights from being in the vicinity of another group that they disagree with? More importantly, why would you give the government the right to choose?

    Imagine where the March on Washington would have been held if the government had the right to choose.

  5. 5
    democommie

    @1&2:

    The “gotz to haz your nasty, upsetting free speech in a ‘special zone’” rule only applies to democratic activists during GOP conventions or GOP pretendsidential appearances or at G8 meetings and the like.

    @3:

    I’m POSITIVE that the KKKristianist assholes behind this will welcome the satanislamists who show up at their next event.

  6. 6
    eric

    I’m surprised the judge didn’t also knock it down as a form of prior restraint. “You can speak…if you first agree to pay this insurance company $lots” seems to me to fit the bill.

    Why can’t the city simply refuse to grant the permit for that particular location

    Because they granted a huge permit for essentially the same location; the Arabic festival. Yes, they could probably deny both, but what they can’t do is say “permit for giant pro-arab gathering accepted; permit for tiny anti-arab gathering rejected.”

  7. 7
    grumpyoldfart

    Dearborn has a terrible track record on this, violating the rights of protesters multiple times over the last few years and losing in court every time.

    Sometimes being a brave little soldier in the face of overwhelming odds is just as much fun as winning.

  8. 8
    Alverant

    I’m not so sure. Jones wants to stir up trouble and metaphorically wants to poke people with a stick until they react so he can say “Lookit how those a-rabs act!” Even in a free society, freedom comes with responsibilities. I got the feeling that if someone protested outside a church by carrying a sign showing Jesus as a Nazi that the police would put a stop to it really quick. I think Jones was trying to incite a riot and that’s not covered under freedom of speech.

  9. 9
    DrVanNostrand

    @8
    The Brandenburg standard defines incitement extremely narrowly. Your example is almost certainly constitutional. The courts have held that Nazis were allowed to march in a town full of Jews and that the WBC is allowed to protest at soldiers’ funerals with signs saying “God Hates Fags”.

    In addition, what you actually describe is not incitement, but the heckler’s veto. According to Brandenburg, Jones is not allowed to form a lynch mob and go assault Muslims, but he is not responsible for the angry reactions of people who oppose his speech. The law is crystal clear on this.

  10. 10
    Raging Bee

    Sure, there can be reasonable restrictions on time and place…

    Yes, there can be; and if the city feel they have to require Jones and his little crew of haters sign a waiver of liability, that’s probably because the city thinks there’s a reasonable chance of some sort of trouble happening — which would be a good reason not to allow Jones’ event to happen at that particular location. The same would apply to, say, a KKK march through a predominantly black neighborhood, or a Nazi rally in a Jewish neighborhood.

    People have the right to speak freely and publicly, but we also have a right to assemble peacefully, move about, go to and from our homes, and conduct private gatherings and rituals without being harassed, hounded or insulted. It is the city’s duty to reconcile those rights when they come into conflict (not just to rigidly enforce one right above all else), and to take reasonable measures to prevent provocations and fights in public places.

  11. 11
    Raging Bee

    The courts have held that Nazis were allowed to march in a town full of Jews and that the WBC is allowed to protest at soldiers’ funerals with signs saying “God Hates Fags”.

    In the latter case, at least, there have been restrictions WRT distance, hearing-range, etc. So AFAIK the courts have not made blanket rulings against any such time-and-place restrictions.

    And the reason for this is simple and obvious: the obnoxious hecklers/protesters are not the only ones with First Amendment rights at stake. The right to free speech also means the right not to be shouted down or hounded by a bigoted hostile mob. Terry Jones has a right to protest Islam, but Muslims also have a right to gather and practice their religion (within the reasonable bounds of law, of course) without being made to feel threatened or less-than-equal when they use public avenues to go to their places of worship.

  12. 12
    Alverant

    @9
    Technically my example wasn’t about Constitutionality, it was about if the police would try and stop me.

    It sounds like you’re saying the law allows for private citizens to be harassed under the disguise as protesting if they can get a permit. Imagine dozens of christians gathering outside the home of an Atheist to yell at him/her all day every day and well into the night. Would you support that?

  13. 13
    Raging Bee

    Because they granted a huge permit for essentially the same location; the Arabic festival.

    So what? The nature of a public event will have an effect on how provocative or burdensome it is to the neighbors, therefore reasonable restrictions can be imposed that account for same. A pro-Trayvon-Martin parade through a black neighborhood is okay, but a KKK parade through the same route is not, because only the latter is likely to provoke the locals to riot.

  14. 14
    Raging Bee

    Alverant @12: Yeah, that’s part of what the Founders were worried about when they put all sorts of restrictions in place to keep “democracy” from sliding into “mob rule.” They understood — as we should — that even the most sacred basic rights can be abused, at the expense of freedom.

  15. 15
    DrVanNostrand

    @11
    I agree that many of the restrictions you describe can be constitutional if the regulations are written and applied carefully (e.g. you couldn’t hold a protest right outside of a church/mosque/temple that harasses worshippers and/or is so loud that it interrupts the service). The case Ed wrote about here is a bit different. In a town with a lot of Muslims, a demonstration anywhere by Jones could provoke a violent response, but he can’t be prevented from speaking anywhere in the entire city, or be subjected to punitive fees because his speech is unpopular. The town has to adopt constitutional time/place/volume restrictions, apply them in a content neutral fashion, and protect all demonstrators regardless of whether people like them.

  16. 16
    DrVanNostrand

    @12
    Hopefully my response @15 answers that.

  17. 17
    D. C. Sessions

    Imagine dozens of christians gathering outside the home of an Atheist to yell at him/her all day every day and well into the night. Would you support that?

    Time, place, and manner — as long as it’s content-neutral.

    Noise regulations (manner) — no problem; doesn’t matter if it’s a motorcycle or a motormouth.
    Stricter noise limits when most people sleep — no problem (and very common)
    Stricter noise limits in residential areas — again, no problem (and also common)

  18. 18
    John Pieret

    Raging Bee @ 10:

    Yes, there can be; and if the city feel they have to require Jones and his little crew of haters sign a waiver of liability, that’s probably because the city thinks there’s a reasonable chance of some sort of trouble happening/

    If it was just a waiver of liabiity for any injury they received from third parties because of actions the police could not prevent, I might buy it. But the waiver apparently went further … waiving any right to sue for the actions of the police (required to reasonably protect even assholes like the the Jones’ group) or even the police’s active participation in such actions. In short, a waiver of this sort would have indemnified Bull Connor from any liability for loosing water cannons and dogs on the marchers in Birmingham.

    The same would apply to, say, a KKK march through a predominantly black neighborhood, or a Nazi rally in a Jewish neighborhood.

    Two words: Skokie, Illinois. But let’s turn it around. What if the government of Skokie made Jewish protestors of the Nazi march sign this type of waiver and make them assume legal and financial responsibility even for any actions at at the event? Would you be in favor of that?

    The point is, if the state can ban (or make impossibly difficult) any protest by any “unpopular” group, then it can do so for all “unpopular” groups … gays, blacks, atheists, etc., etc. Part of the job of government and its police is to deal with the friction between people who don’t like each other and this waiver abrogated that duty and made the free speech of Jones and everyone else a hostage to a lack of responsibility by the government.

  19. 19
    jameshanley

    Raging Bee’s approach asks for local governments to peer into the minds of protestors to perceive their “real intentions,” and unhinder or hinder their speech based on those assumptions. That might be delightful if your side holds the power, because then you can constrain the effectiveness of the minority’s protests. Not so ideal when the other side holds power, because then they can constrain your side’s speech and protests. As with most rules, it turns out that supporting ideological neutrality in application is the best way to protect our own interests.

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