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Bad precedents make bad law--especially in Dearborn

This is a very, very disturbing precedent. Terry Jones wants to protest--without burning a Koran--in Dearborn, Michigan, on a median strip that happens to be near a mosque. He and his fellow protesters plan to hold signs and give speeches. Dearborn officials denied them a permit to do so and are demanding that they pay a bond (originally a large one, later downgraded to a symbolic one) or face a trial for refusal to do so, because they think the protest might "breach the peace." By this, however, they mean that they are afraid of a riot against the protest. Dearborn officials are telling Jones that he must demonstrate only within "free speech zones" in the city that are not near a mosque.

This is hugely problematic. Though I don't have time to research it right now, I have a strong impression that there is already a Supreme Court precedent on the books to the effect that local official may not demand that people marching or otherwise engaging in normally First Amendment-protected speech pay for extra police protection, because this in effect chills their exercise of their First Amendment rights. (If some reader wants to find that precedent and link it, I'll appreciate it.)

And the attempt to establish "free speech zones" in an American city and to forbid Muslim-offending speech outside of those zones more or less defines "chutzpah."

Jones was arrested late this afternoon for refusing to post a symbolic "peace bond" in anticipation of his protest while continuing to intend to hold the protest. They let him back out again fairly rapidly, which is more than they did for the Dearborn Four. Whether he was able to carry out his anti-Muslim protest I don't yet know. Is this still America?

Comments (11)

Lydia,

Here is a good article about this subject:

http://www.prop1.org/legal/prisons/1amend.htm

The key passages:

"In Forsyth County, Georgia v. The Nationalist Movement, 17 the Supreme Court ruled unconstitutional a parade ordinance that permitted a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. The Court said that a $1,000 cap on the parade permit fee did not render the otherwise invalid ordinance constitutional. Specifically, the Court noted that there were no articulated standards, either in the ordinance or in the county's established practice, to guide the decision of how much to charge for police protection or administrative time--or even whether to charge at all. 18 Not only was there a possibility of censorship through such uncontrolled discretion, but the county's fee also often depended "...on the administrator's measure of the amount of hostility likely to be created by the speech based on its content."19

While those wishing to express views unpopular with bottle-throwers might have to pay more for their permit, the Court noted the county did not even charge for police protection for 4th of July parades, which drew large crowds that required the closing of streets.20 The Court concluded the county imposed a fee only when it became necessary to provide security for parade participants from angry crowds opposing their message and that listener's reaction to speech is not a content-neutral basis for assessing a permit fee.21

Permissible Fees and Costs

The Supreme Court in Forsyth County did not decide whether only nominal charges are constitutionally permissible, but four Justices agreed in a dissenting opinion that the Constitution does not limit a parade permit fee to a nominal amount and permits a sliding fee to account for administrative and security costs.22 In that regard, lower courts have upheld the practice of assessing permit fees in accordance with projected police expenses if certain conditions are met. For example, a Federal district court upheld the Kansas City Police Department's policy of requiring parade sponsors to pay for the cost of traffic control.23 The court concluded the department's extensive list of factors used to project associated police costs were content-neutral, with the exception of a "crowd control" factor, which the court said was unconstitutional and needed to be severed from the otherwise constitutional policy.24 Similarly, the U.S. Court of Appeals for the Sixth Circuit upheld a Columbus, Ohio, ordinance that required prepayment of an $85 fee for the cost of processing a parade permit application and prepayment of the cost for traffic control. The court ruled that the ordinance 1) did not permit speculation about the degree of violence a parade may provoke; 2) provided protection for the marchers without consideration of its cost; and 3) contained objective standards related to traffic control and not related to speculation about the potential for disturbances based on the parade's content.25 Presidential support for the assessment of costs also can be found in a California appellate court decision upholding portions of an ordinance that requires a parade permittee to reimburse the city for, and pay in advance, an estimate of "all city departmental service charges incurred in connection with or due to the permittee's activities under the permit. " The ordinance also requires that "if city property is destroyed or damaged by reason of permittee's use, event or activity, the permittee shall reimburse the city for the actual replacement or repair cost of the destroyed or damaged property. "26 The court said the fees correspond to the size of the parade and its impact on normal traffic and not the size of the crowd in attendance. Also, the departmental service charge and cleanup reimbursement requirements are textually tied to the activities of the permittee itself and does not purport to impose responsibility for the acts of others.27 It is constitutionally significant that in all the above cases upholding permit fees and costs, indigent groups unable to pay the fees were not precluded from engaging in expressive activity, because an alternative forum was available. For example, sidewalks were free for conducting a parade because traffic control was not affected and parks were available without cost for related speech activities.


Thank you both for your links. I'm glad to see that Volokh agrees that this is a blatant violation of the 1st Amendment as interpreted in prior precedents. If the ACLU does represent Jones in the review, that's one good thing for the ACLU.

I had read previously that the restraining order only told Jones that he could not _enter_ the Islamic Center for three years. Volokh says that it told him he couldn't go _near_ it--in other words, that it's a direct order against the demonstration.

Dearborn has gotten it into its head that that particular city can do anything it wants in these area. It needs to be slapped down good and hard. The worst about this was that the prosecutors argued that Jones's previous actions led them to believe that _he_ would "breach the peace" if he held the demonstration, when in fact what they meant was that his previous actions led them to believe that the _Muslims_ would breach the peace if he held the demonstration. That is a terrifying precedent which must be overturned. I can see it now: "No, Robert Spencer cannot come to speak in our city, because his previous actions lead us to believe that he will breach the peace [aka that Muslims will riot against him] if he speaks."

I wonder why they posted the $1 bond. I thought they were going to press the matter.

Presumably it was to get out of prison. But I don't know if the bond meant the same thing to get them out of prison that it would have meant if they'd posted it in the courtroom. I'm assuming this means they didn't hold the demonstration. Someone needs to get right on this and have the restraining order against the demonstration lifted. It looks like about as blatant a case of prior restraint on protected speech as one can imagine.

Is this still America?

No.

Dearborn officials denied them a permit to do so and are demanding that they pay a bond (originally a large one, later downgraded to a symbolic one) or face a trial for refusal to do so, because they think the protest might "breach the peace."

Lydia, I am puzzled. Dearborn BOTH refused the permit AND required a bond? On what basis? If those are the actual facts, then Dearborn is an ass. You cannot require a bond of someone to ensure that they will abide by the same laws everyone is obliged to follow anyway. If Dearborn thinks that they are going to protest anyway, then Dearborn can arrest them for violating the law when they actually violate the law, not before. Thinking about violating the law is not illegal - as long as you do not conspire to do it.

The pair were tried under a rarely used law originally passed in 1846 that requires those who are likely to breach the peace to post "peace bonds."

http://tpmmuckraker.talkingpointsmemo.com/2011/04/terry_jones_threatens_to_sue_mi_officials_after_ar.php

Ah, now I see. Jones was "tried" under an 1846 law that makes it illegal to be "likely to breach the peace". Jones was damned right to protest such a bond, and is right to sue the police for violation of the Constitution. There is a reason such a law is "rarely used" - it is unconstitutional. It is molded to another time, and even then probably was "rarely used", mainly against the mayor's opposition, probably. Not only should the city lose, they should get themselves burned in publicity for such a stupid stunt. Will that happen? 5 years ago I thought the answer was a foregone conclusion. Now, I have doubts. And I still don't understand why: why is it that atheistic cynical reporters who hate the idea of absolutes in moral law, feel even the least inclination to cater to racist, religiously fanatic, theocratic, absolutist Islamicists? It makes no sense.

Why is it that atheistic cynical reporters who hate the idea of absolutes in moral law, feel even the least inclination to cater to racist, religiously fanatic, theocratic, absolutist Islamicists? It makes no sense.

Perhaps, Tony, because the Islamists are willing to kill them, while the rest of are not. Voluntary dhimmitude, in the vain hope they will be rewarded when sharia rules.

Lydia, I am puzzled. Dearborn BOTH refused the permit AND required a bond? On what basis? If those are the actual facts, then Dearborn is an ass. You cannot require a bond of someone to ensure that they will abide by the same laws everyone is obliged to follow anyway. If Dearborn thinks that they are going to protest anyway, then Dearborn can arrest them for violating the law when they actually violate the law, not before. Thinking about violating the law is not illegal - as long as you do not conspire to do it.

As you saw, Tony, the "peace bond" thing is evidently for situations where people make thinly veiled threats, for example. At the Volokh site they gave the example of a landlord who says to his tenant in a dispute, "The next time I come around here, you'd better have that rent, or I'm going to whip you!" It seems to be related to a restraining order. A judge issues a restraining order and then demands that the person against whom the order has been issued post a bond that he won't do the thing he's been ordered not to do. In this case, protesting in a location where they didn't have a permit, and had been denied a permit, was the thing that they were "threatening" to do.

The craziness here is that this is about as obvious a prior and content-based restraint on 1st amendment speech as possible. They denied him the permit because of the content of his speech and because of fear that the Muslims would riot. He said he would protest in that location anyway, and everything else cashed out from there using this obsolete "peace bond" law.

Why is it that atheistic cynical reporters who hate the idea of absolutes in moral law, feel even the least inclination to cater to racist, religiously fanatic, theocratic, absolutist Islamicists? It makes no sense.

It's the ABC phenomenon, Tony: Anything But Christianity. We see already in England what comes next--the Muslims turn on those who have coddled them. For a long time each group believes that it will be the last one left standing when the Christians have all been shut up and dhimmified.

Ah, now I see. Jones was "tried" under an 1846 law that makes it illegal to be "likely to breach the peace".

What is this, "peace," thing of which you speak, Kemosabe?

Peace is that tranquility which flows from the right order of God. Where there is no agreement on that order, there can be no peace. In 1846, there was a commonly held understanding of God's right order, so it made sense to say that someone could breach the peace. In 2011, in this community, there is no commonly held understanding of God's right order, so there is no peace which can, effectively, be breached. This is particularly true in a religious dispute. All religious disputes breach the peace, per se, so the law does not apply at this point in history. The law has been abrogated by circumstances. A community standards criteria is insufficient to define peace qua peace, only the inactivity that comes from silence, of not objecting to a wrong. Peace must be defined by reference to God, which, paradoxically, is something the judge refuses to do, but if the judge refuses to define what peace is, then the law cannot be apply and if it cannot be applied, it cannot admit of judgment. The court, therefore, has no has no jurisdiction to get involved, here.

Now, if they want to prevent a possible fracas, then they can appeal to the parties involved, but strictly speaking, they cannot arrest a man for "future crimes". Sheesh, didn't the judge watch Minority Report?

The Chicken

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