The Heckler’s Veto

October 28, 2015

When someone exercises their First Amendment right to free speech, the government is not allowed to shut down the speech just because other people don’t like the message that is being conveyed.  This is known as the rule against a “heckler’s veto.” 

At the 2012 Arab International Festival in Dearborn, a group of Christian evangelists marched down a public street expressing their beliefs with offensive words and disturbing images that they knew would be upsetting to many members of the local community. 

Although most people turned away or told the evangelists that they were unwelcome, a small group of onlookers became violent, throwing objects at the evangelists and threatening them with physical harm.  The police then told the evangelists that because their presence was causing a violent reaction, they would have to leave or face arrest. 

The evangelists sued the police for violating their rights under the First Amendment, but their lawsuit was dismissed by the trial court and the dismissal was affirmed by a 2-1 vote on appeal, with the majority ruling that the evangelists “incited” the crowd to violence.  After the full U.S. Court of Appeals for the Sixth Circuit voted to rehear the appeal “en banc,” the ACLU of Michigan filed a friend-of-the-court brief in December 2014.  We argued that in order to protect freedom of speech for all, the First Amendment does not allow the police to shut down a lawful demonstration just because a small crowd reacts violently to an extremely offensive message. 

In October 2015 the full Sixth Circuit reversed, agreeing with the ACLU’s position that the police violated the First Amendment by ejecting the evangelists based on others’ violent reactions to their highly offensive speech.  As a concurring judge wrote: “The beauty of our First Amendment is that it affords the same protections to all speakers, regardless of the content of their message.  If we encroach on the free-speech rights of groups that we dislike today, those same doctrines can be used in the future to suppress freedom of speech for groups that we like.” 

(Bible Believers v. Wayne County; ACLU Attorneys Dan Korobkin and Michael J. Steinberg; Julie Carpenter of Jenner & Block.)

To view the full 2014-2015 Legal Docket, click here.

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