Via Eugene Volokh comes some welcome news for watchers of First Amendment jurisprudence, as the Sixth Circuit has decided to rehear a “heckler’s veto” case concerning an incident that happened a couple years ago in Michigan. Briefly summarized, the city of Dearborn, MI, which has a large Arab American population, annually holds an Arab International Festival that is free and open to the public. As such, in First Amendment terms, it is a “traditional public forum” and thus speakers there are entitled to the highest levels of First Amendment protections.

Into this forum one year came a group called the Bible Believers who were wearing T-shirts with Christian slogans and holding banners with Bible verses. Some of these, by all accounts, were offensive to the religious sensibilities of Muslims (although not, by any objective definition, obscene). They then began preaching loudly in the forum, including doctrine that was offensive to Muslims and undisputed historical facts that are offensive to Muslims (such as the fact that Mohammed had a predilection towards brides who would by modern standards be considered shockingly underage).

The reaction of the crowd was probably somewhat predictable, given the above-stated facts:

As the Bible Believers moved deeper into the Festival, the crowd — a good portion of which appeared to be minors — continued to gather and yell. Some people started throwing debris — including rocks, plastic bottles, garbage, and a milk crate — at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.

After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their safety was in jeopardy because not enough officers were available to control the crowd.

The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd. Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavez’s conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival …

Now, keep in mind that this did not occur in Iran or backwoods Afghanistan. This occurred here in America, with Muslims who are allegedly acculturated to Western pluralism. And their response to someone challenging their faith verbally was, en masse, to respond with intimidation, assault and battery.

The response of the police here is exceedingly troubling to me. Throwing something at someone is either assault or battery, depending on the particulars of Michigan law. The proper thing for police to have done immediately was to arrest everyone who was witnessed touching or throwing anything at the Bible Believers. I am at a loss as to why the instinct instead was to physically remove them from the ceremony.

As the dissent noted in the original decision:

[When faced with a crowd that is hostile to a speaker, police] officers must make an effort to place themselves between the crowd and the speaker, and that this duty only falls away once the officers themselves face serious threats of injury. If officers never place themselves in harm’s way — never make any attempt to protect the speaker — it would be difficult to say that they exercised their duties in good faith…. I would leave to the jury the matter of whether Defendants acted reasonably and in good faith, although the evidence in the record compellingly suggests that they did not.

More to the point, the reaction of the crowd is troubling for a legion of reasons. While granting that the Bible Believers’ words and actions were religiously offensive to the assembled crowd, and while saying that I myself would not have engaged in behavior that they would have perceived as deliberately insulting, part of being a citizen of a pluralistic Western society is acknowledging that you cannot respond to being insulted with physical force and intimidation, at least not without facing consequences. Christians for centuries have had to face much worse denigration, including the United States government funding the Piss Christ as “art,” without resorting to summary violence. The fact that an allegedly Americanized Muslim community responded in this fashion, with the full acquiescence and support of local law enforcement, doesn’t bode well for the success of the experiment as a whole.

As Professor Volokh noted:

2. I also sympathize with the police officers, who understandably want to prevent injuries. But I think the dissent is exactly right in noting that allowing a “heckler’s veto” — speech suppression justified by the violence or threatened violence of the audience — simply provides (a) an incentive for more such violence, and (b) an incentive for government officials to suppress speech they dislike.

Behavior that gets rewarded gets repeated. People who are willing to use violence to suppress speech will learn that such behavior is effective, at least when the police don’t come down particularly hard on the thuggery. Indeed, they may find at times that even merely threatening violence might suffice to suppress speech they dislike. And of course this message will be easily learned by the potentially violent of all religious and political stripes (again, so long as they suspect that the police won’t make the thuggery too costly).

This is exactly right. And if the proper message isn’t sent by our legal system, we could be headed down a dark road indeed.