What’s Wrong with the World

Legal eagles, have you ever heard of anything like this before? "We'll technically allow you to speak, but you can't sue us for anything whatsoever that happens in connection with your speaking."

Yeah, I see hold-harmless clauses constantly. What I've never seen is one dressed up as a time-place-and-manner restriction on public speech. I haven't looked, but I've never come across one on my own.

Well, yes, I know there are many situations in which hold-harmless agreements are signed. I had to sign one in order for an adoption agency to put me in contact with my biological mother. All kinds of situations. But I meant what I think you mean by one "dressed up as a time-place-and-manner restriction on public speech." A city asking for a hold harmless agreement as a condition of issuing a permit for a speaking event.

Lydia, my sense it pretty much that this is breaking new ground and probably would not hold up in court of law, at least with respect to certain kinds of outcomes. For example, if Jones is attacked and calls 911, and the city says "sorry, we ain't sending any police because you signed an agreement", I think that Jones could still sue for unequal treatment before the law, but maybe not for injury and damages that he suffers by their not sending anyone. I don't think a hold-harmless agreement can be cited by a government as a basis for not acting like a government, for not granting equal protection under the law.

but maybe not for injury and damages that he suffers by their not sending anyone

Hmmm. My guess is it either is enforceable in court or it isn't, with no in-betweens. So, if he would _normally_ be able to sue a city for refusing to help him when attacked, and if their refusal is litigable as unequal treatment before the law, then I'm going to guess under those circs. the entire thing would be unenforceable and he could also sue for injury and damages. In other words, if they can't really get out of coming because of the hold-harmless agreement, then they can be sued in any way they usually could be sued for not protecting him.

I speak, however, as a layman.

I had several teachers growing up who insisted that Islamic tolerance was the greatest form of religious freedom ever known. I support Dearborn's experiment and hope my former teachers' kith and kin leave for Dearborn ASAP. We can't blame cops and muslims for acting like cops and muslims, though I could wish there were a lot fewer of either in America.

Lydia and Tony,

The two of you are ignoring something more fundamental here. The SCOUTS has already ruled that no individual citizen--ever--has a legal, individual right to police protection. The police literally exist to provide a service to the public generally, but have no legal obligation to respond to any individual. This happened in a far less theoretical case. It involved a few women who were raped (and murdered?) in DC while awaiting police protection. The cops were called, but took 6 hours to respond to a reported breaking and entering that had the potential (a few women home alone, multiple male intruders) to become a rape and possible a rape/murder case. The families sued and got their butts handed to them in the federal courts.

So anyway, given that the SCOTUS has already ruled that you have no individual right to police protection, it wouldn't be hard to see how they'd come down in favor of the local government if you signed a waiver for police protection during something the local government could say was "known to be dangerous." For example, the local government could compare it to doing missionary work in a bad part of a major city (LA, Philly, Camden, DC, etc. where very violent crime is common). They could say it is unreasonable to expect any sort of police protection as a given if you are doing something that is likely to involve a police officer being put in harm's way to protect you from exposing yourself "needlessly" to the risk of severe harm.

That it is legal speech is beside the point from that perspective. Refusing to protect you is not the same thing as prior restraint anymore than it is child abuse or participating in bullying for a parent to say to their child that if they start a fight and get their butt kicked, the parent won't take their side. I think your arguments about equal treatment before the law would have little merit before the court because you'd have to actually prove that the government either explicitly discriminates against Christians or that the Muslims have widely received a pattern of special treatment. I'm not sure Dearborn has provided enough examples to give the SCOTUS a basis to make that determination.

As far as legal strategies go, I think the best approach to this would be to force a side confrontation that expands on other liberties. For example, finding Christians who are also members of smaller gun rights organizations who are able to turn this into a self-defense case if need be. That isn't saying that it should be turned into a shoot out, but having others show up who are "concerned citizens" and who happen to be able to vigorously defend themselves would help expand the scope of opportunity to force Dearborn to show its hand. If they go ahead with the speech, are attacked, defend themselves and then are arrested for self-defense I would imagine that a section 1983 lawsuit would be easier to mount since the arrest could be seen as unlawful retaliation and punishment for engaging in state-disapproved speech.

Mike, I think they can argue that it is prior restraint because they won't give them the events permit unless they sign it.

But I also want to push on the extremely sweeping nature of the agreement. I don't think we have to read it as *solely* applying to failure to provide protection. Let's remember that Dearborn has already (I covered it extensively) simply sent its cops to walk up and arrest on "disorderly conduct" charges two missionaries who were literally just standing there having a peaceful conversation with Muslims at the Arab Festival. It was a _blatant_ violation of their constitutional rights if one holds that said rights can be pressed against municipalities at all. A federal suit against Dearborn is currently pending for their doing that. If Jones signed this agreement, why wouldn't they simply do the same thing, despite his having an events permit, and then try to block the obvious lawsuit on the grounds of his having signed the agreement? His arrest would be a risk that "resulted from" his having come to speak, and we already know that they are not above utterly lying, in the face of video footage to the contrary, and saying that the Christians were causing a near-riot.

Mike, I think they can argue that it is prior restraint because they won't give them the events permit unless they sign it.

I think you greatly underestimate the likelihood that the federal courts would rule that it is "entirely reasonable" to force such a deal if the speech is "likely" to cause a confrontation that could result in mob violence against the speaker. The courts would be saying that the local authorities estimate that the populace won't respond well to your words and that they estimate they cannot allow you to exercise your rights while being liable for a level of security they might not be able to provide. Given the courts' pattern of deference to local authorities on such issues (free speech zones?! The case I mentioned!) I can easily see how they'd respond in favor of the city.

Let's remember that Dearborn has already (I covered it extensively) simply sent its cops to walk up and arrest on "disorderly conduct" charges two missionaries who were literally just standing there having a peaceful conversation with Muslims at the Arab Festival.

I believe the SCOTUS has ruled that the state may arrest you and detain you without charges for up to 48 hours irrespective of statutory authority specifically delegated by law without violating your due process rights. They did this when a mother was arrested for a seat belt violation that didn't involve explicit statutory authority to arrest a violator. The threshold for arresting people is very, very low in modern America. Far lower than most "law and order conservatives" believe.

If Jones signed this agreement, why wouldn't they simply do the same thing, despite his having an events permit, and then try to block the obvious lawsuit on the grounds of his having signed the agreement?

They very well could arrest him anyway. Given SCOTUS precedents and the treacherous nature of the local authorities, that is a likely outcome which. This is why I favor a fully restored right to use force against the police when they are breaking the law (such as arresting you for a lawful exercise of your rights). The SCOTUS has never, that I am aware of, backed down from its stance that an unconstitutional law or policy confers neither authority on the legal system nor obligations on the citizenry to obedience.

In another generation, Dearborn will be a full member of Dar Al-Islam given the demographics shift. At that point, it'll just be another part of the Umma under infidel occupation. When that happens, your rights and a $1.5 won't buy you a turkish coffee at the local all halal Starbucks.

Well, if missionaries can plausibly argue that the arrest was an attempt to squelch First Amendment-protected speech, they do have a prima facie case for a color-of-law suit. Dearborn doesn't want to have to defend itself against even the attempt at such a suit if they arrest Jones for showing up, and that may well be why they are seeking the hold-harmless agreement. I think there's at least a good facial case here that trying to make him sign such an agreement in advance of an events license is unconstitutional restraint on his public speech.

Dearborn doesn't want to have to defend itself against even the attempt at such a suit if they arrest Jones for showing up, and that may well be why they are seeking the hold-harmless agreement.

A section 1983 lawsuit would likely be doable irrespective of this agreement if the police show up and arrest him for engaging in speech that is legal. It's one thing to say they won't protect him from the angry mob. It's quite another to later claim that retaliation by the police for lawful speech would be reasonably considered a harm under this contract, let alone relevant to 42 USC 1983.

I think there's at least a good facial case here that trying to make him sign such an agreement in advance of an events license is unconstitutional restraint on his public speech.

It's a restraint, but then restraints are now perfectly legal if some theoretical security need is present. For example, the infamous "free speech zones." It's perfectly legal to say you can protest all day long, so long as the only place you are allowed to protest is on the edge of town by a busy highway that drowns out your words.

Mike, I think what it comes to is this: Either the hold-harmless agreement is trying to get them to sign away rights that they shouldn't have to sign away, possibly even rights that they *can't* really sign away, or it's unnecessary. In the latter case, presumably a suit would be unsuccessful against the city given previous precedents. If the former, the hold-harmless agreement is an invidious attempt to prevent what should be, under present jurisprudence, First Amendment-protected speech. The city is asking Jones & co. to sign away their rights to sue and is hoping that no matter what happens, if they sign, they won't sue or some judge will throw out a suit on the basis of the hold-harmless agreement *rather than* on the basis of earlier precedents (i.e., "It doesn't matter if this is covered by earlier precedents, you signed a hold-harmless agreement so we don't have to try the case.") That's ridiculous and wrong. Saying that there are precedents that might protect the city in the case of suit anyway really doesn't address the point. If that's true, then they should give him the events license and let things be tried on the merits if something happens and Jones sues.

Jones definitely shouldn't sign any agreement of the kind. As Tony says, this is uncharted territory. He should be able to retain any options he would otherwise have, legally, if he speaks. I think Thomas More has a very interesting case going in and that none of the precedents you have mentioned would support the city's right to require such a sweeping hold-harmless agreement as a precondition for speech.

I have seen many hold-harmless agreements that ask to indemnify against one's own negligence (eg, even if I am negligent, you agree to indemnify me if I am). Some have included gross negligence as well. However, I have not seen one that would indemnify for intentional conduct, and iirc, many states would find that to be against public policy. It seems if Dearborn were using this agreement simply as a ruse to later arrest Jones, arrest being intentional conduct, I don't see why the indemnity provision should be enforced. Under the cases I am aware of, to cover intentional conduct the agreement would need to (1) specifically state it is covering intentional conduct, and (2) the state law would have to allow such indemnity as not against public policy.

Thanks, c matt, that's interesting.

he city is asking Jones & co. to sign away their rights to sue and is hoping that no matter what happens, if they sign, they won't sue or some judge will throw out a suit on the basis of the hold-harmless agreement *rather than* on the basis of earlier precedents (i.e., "It doesn't matter if this is covered by earlier precedents, you signed a hold-harmless agreement so we don't have to try the case.") That's ridiculous and wrong. Saying that there are precedents that might protect the city in the case of suit anyway really doesn't address the point. If that's true, then they should give him the events license and let things be tried on the merits if something happens and Jones sues.

The existence of the precedents would likely strengthen the case for the agreement being enforceable. If the SCOTUS has already said that it is unreasonable to mandate that the police have a duty to respond quickly to every individual who calls them due to the non-existent right to individual police protection, it's not a far jump from there to them saying it's reasonable for the police to make you waive any rights covering police protection for an official licensed act (such as this speech) where they can foresee an inability to protect you.

There's a ruling (Temporary Restraining Order preventing city from requiring Jones from signing before granting him the permit. It's accessible through the Thomas Moore site). It cites a case from Long Beach, California.

"The phrase “any liability caused by the conduct of the event” is susceptible to a broad reading, encompassing liability caused by the acts or omissions of any person or entity involved in the event, including acts and omissions not only of the permittees but also of the City and third parties.

"We conclude that the clauses are not narrowly tailored to serve a substantial governmental interest....

[Three points follow]

"First...It is well established that governments may not “recoup costs that are related to listeners' reaction” to speech (citation omitted). The Supreme Court explained in Forsyth County that recouping such costs is unconstitutional because “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”... The indemnification and hold-harmless clauses contain no exclusion for losses to the City occasioned by the reaction to the permittees' expressive activity.   The clauses thus allow the City impermissibly to shift some of the costs related to listeners' reactions to speech from the City to the permittees.

"Second...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.

"Third...The provision requires permittees to assume legal and financial responsibility even for those “activities at the event” that are outside the control of the permittee, indeed including activities of the City...."