Remember The First Amendment?
It's been thrown out in Michigan, where Florida pastor Terry Jones (of Quran-burning reknown) and a colleague were thrown in jail and barred from exercising their free speech rights with potential violence being the excuse, writes Niraj Warikoo for the Freep:
A judge late Friday sent two Florida pastors to jail for refusing to post a $1 bond and barred them from visiting a Dearborn mosque or its adjacent property for three years unless the mosque's leadership says otherwise. After a short time in jail they left on $1 bond each.The stunning developments came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn. Critics slammed the decision to jail them, the court proceedings, and Wayne County prosecutors, saying they violated the men's Constitutional rights.
Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set bond at $1 each for the two pastors. They refused to pay. And Somers ordered them remanded to jail.
"Breach of the peace," huh? So, those are the magic words we will now us to make the First Amendment go away? Let's be clear: Jones and Sapp didn't threaten violence. Because others may act violently when Americans exercise their right to free speech, the onus should not be on those speaking, but on any who get violent.
Oh, in case you were wondering, I was for the Nazis marching in Skokie and I'm for anyone exercising their right to free speech. We need the First Amendment to protect the assholes of the world, swastikas and all.
Do the fools that perpetrated this travesty of justice (prosecutors and judge) realize that they have just set the penalty for burning a Koran higher than that of burning an American flag as a method of protest?
More to your point Amy, I think we'll begin to see more "Breach of the Peace" charges for what free Americans once took for granted as their right to protest.
Anti-Union rally? BREACH OF PEACE
Protest against raise in taxes? BREACH OF PEACE
Anti-war protest? BREACH OF PEACE
Tea Party rally? BREACH OF PEACE
Anti-illegal immigration rally? BREACH OF PEACE
But Obama and Holder will defend The Black Panthers right to stand in front of voting booths with clubs...
Savant-Idiot at April 23, 2011 12:03 AM
I'm with you on this one Amy. I find it really weird that the bond would be set at $1. It's as though the judge didn't really think there was a crime afoot, but wanted to get the precedent in the books. It really is a weak-dick ruling.
Hopefully, someone will elevate it so that it is struck down and that horrible precedent gets off those books.
By the way, your preview feature is having some problems.
whistleDick at April 23, 2011 12:56 AM
It's as though the judge didn't really think there was a crime afoot, but wanted to get the precedent in the books.
No, he was implementing a jury decision, and obviously signalling that he didn't agree with it. Depends on the court and specific laws, but the judge doesn't get to overrule the jury. He can be lenient in sentencing though.
Ltw at April 23, 2011 3:22 AM
Anyway, they wanted publicity, they got it - at the cost of withholding $1 for a few hours, they got pictures of being hustled off to jail, knowing they could get out anytime they liked. That sort of showboating annoys me a bit. Even the court ordered ban is pretty meaningless. If they breach it, they lose their bond and that's it, yes? Correct me if I'm wrong.
I think he should be allowed to say whatever he wants. I'm not so sure that he should be allowed to collect supporters and hang around a mosque harassing people. Hold a march through the town centre, fine. Hold a protest outside the mosque, fine. But it's possible this included threatening and harassing people, which would qualify as "fighting words". The decision might be right or wrong, but I'm sure these issues were considered by the jury. Perhaps it's unfair - without access to the evidence we can't tell.
Ltw at April 23, 2011 3:36 AM
So they pre-emptively tried him for an event that never occurred? What was the charge?
This trial strikes me as being politically motivated in its own right. Municipalities typically have ways to prevent public assemblies, if they want to be a PITA about it. But it doesn't appear that there was any prior action. Their first response was these charges.
The judge's $1 bond probably reflects their opinion on the outcome.
It'll be funny when Dearborn starts getting sued for not prohibiting public assemblies. They're not going to be able to differentially prohibit them, based on whom they might offend. Any group will be able to claim offense and rattle their sabers to shut down their opponents. It provides a huge incentive for violence.
john at April 23, 2011 4:35 AM
Savant-Idiot:
They "set" nothing. Agree with it or not, but the "clear and present danger test," established by SCOTUS with the Schenck v. United States case, was established in 1919, upholding the Espionage Act of 1917. It's been diminished on at least two occasions since the ruling, but not eliminated.
You seem to think that Michigan created this ruling ex nihilo. Hardly. It's been in effect for nearly a century.
Patrick at April 23, 2011 4:56 AM
Funny thing is, the founding fathers didn't put that little old 1st amendment in because they wanted to protect speech about kittens and puppies and butterflies. They put it in there specifically to give the governed the right and capability to implement the following: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government" ... in other words, the 1st amendment is there specifically so that you can incite revolution against a bad government if you want to, and that may necessarily include violence "if need be". That's what the government is REALLY afraid of, and why they desperately need to maintain precedent that claims to establish that mere presence of a vague threat of violence constitutes valid reason to violate 1st amendment rights ... so that when you say 'we need to force these corrupt politicians out of power', they can arrest you.
Lobster at April 23, 2011 6:20 AM
"They "set" nothing. Agree with it or not, but the "clear and present danger test," established by SCOTUS with the Schenck v. United States case, was established in 1919"
Regardless of any SCOTUS precedent, the Supreme Court is supposed to be there to UPHOLD the Constitution, not to establish that it's somehow OK to violate it. If 9 individuals have the capability to render the Constitution null and void, then the system is broken.
Lobster at April 23, 2011 6:22 AM
"If the 1st Amendment can protect a scumbag like me, it can protect all of you."
- Woodie Herralson, The People vs Larry Flynt
Richard Nikoley at April 23, 2011 6:23 AM
Ltw,
"he was implementing a jury decision, and obviously signalling that he didn't agree with it."
That makes a lot more sense. Thanks.
whistleDick at April 23, 2011 6:56 AM
Lobster: Regardless of any SCOTUS precedent, the Supreme Court is supposed to be there to UPHOLD the Constitution, not to establish that it's somehow OK to violate it. If 9 individuals have the capability to render the Constitution null and void, then the system is broken.
Nine individuals didn't. Try reading what I wrote again, The Schenck decision UPHELD an already existing law, specifically the Espionage Act of 1917.
It is true that SCOTUS could have exercised their power of judicial review and declared the Act unconstitutional, thereby striking it down. However, if you want to blame someone for what you view as an infringement on the First Amendment protection of free speech, then place the blame where it belongs. Congress created the law, not SCOTUS, which cannot write laws.
And they didn't render the Constitution "null and void." (Hyperbole is not aiding your cause.) They upheld a restriction that Congress and the President placed on freedom of speech...which has been done at least a dozen times in the past...such as yelling "Fire!" in a crowded theater, fighting words, sedition, etc.
Patrick at April 23, 2011 7:30 AM
But... but... how did this get in front of a jury (I presume a grand jury) in the first place? What were the charges? Did a grand jury seriously indict him on a presumption of a crime that he might commit in the future? This is a lot bigger than just a First Amendment case. The further this goes, the more Minority Report starts to look like a documentary.
Also: The state of Michigan has reacted to Jones' accusations by... proving those accusations true. Everything that Jones said has now been verified. And, as Reynolds points out, Jones now has his Birmingham Jail moment. Michigan has transformed a wacko fringe preacher into a legitimate civil rights crusader.
Cousin Dave at April 23, 2011 8:19 AM
Cousin Dave, I'm hoping there's more to this. While what you say sounds right, if this were actually the case, he should be getting contacted from lawyers all over Michigan.
Patrick at April 23, 2011 8:39 AM
This is ironic. The most non-violent and effective way to combat the encroach of Islam is to exercise our right to free speech. And this is being taken away, leaving violence as the only recourse. Our Government is already treating us all like terrorists, every time we get on a plane, and now they will force those who are no longer allowed free speech to act as terrorists, as their only remaining viable option.
matt at April 23, 2011 10:00 AM
Uh, no. This is not in any way like barring yelling "fire" in a theater.
The purpose of yelling "fire" in a theater is to cause a ruckus and make innocent third parties injure themselves in the process of escaping an invented danger.
The purpose of Jones' protest was to show exactly what it did: that muslims now enjoy the heckler's veto in American jurisprudence.
What the jury and judge here did was very simply say that one man's protected speech can be curtailed because of the way a third party might receive it.
In other words, there now exists a legal precedent to prevent a movie, novel, album, or video game from being published because someone might break the law after being exposed to it.
Lesson: if you want your beliefs to be unchallenged, start killing people and rioting every time someone disagrees with you.
brian at April 23, 2011 10:05 AM
So, religious nut-jobs protesting a military funeral is OK, but religious nut-jobs protesting at a mosque is not OK? Equal protection under the law? I think not.
Al at April 23, 2011 10:10 AM
Al -
It all comes down to government by pussies.
Funeral-goers aren't going to start torching cars, cutting off heads, and blowing up buildings, IYKWIMAITYD.
brian at April 23, 2011 10:37 AM
The only reason that Pastor Jones is being silenced is that outraged Muslims might riot & murder otherwise. But outraged Muslims riot & murder over all sorts of things - cartoons, teddy bears, beauty pageants - if you scroll down a bit, you'll see that Amy has a post about Muslims threatening mass murder over plans to outlaw the marriage of prepubescent girls to old men. So where will future judges draw the line, if they follow the precedent set here? I can guess: if it might offend or upset Muslims, it must be banned.
Schenck vs United States, my ass. The judges in that case did not base their decision on whether or not members of some minority group might act like rabid baboons. This is a murderers veto, plain & simple.
Martin at April 23, 2011 10:49 AM
But... but... how did this get in front of a jury (I presume a grand jury) in the first place? What were the charges? Did a grand jury seriously indict him on a presumption of a crime that he might commit in the future?
Cousin Dave, it sounds like he was being prosecuted for previous behaviour. There isn't enough detail to be sure. Was he posting bond preparatory to trial or being sentenced? Is this a "make sure you appear" bond for being indicted or a good behaviour bond for being sentenced aimed against future offenses? Who knows from the article? Was it a grand jury or a jury trial?
Look, he can still say anything he wants - it's basically a restraining order, not a gag. I can stand under my ex-girlfriend's window and scream "I love you!" (or possibly "Stelllllaaaa!") all night but that's not right either.
That makes a lot more sense. Thanks.
No worries whistleDick - as always, the devil is in the details. He can always appeal the jury verdict. They might be right or wrong, depending on the behaviour of his supporters. The judge at least is obviously sympathetic. Their "being hauled off to jail" still pisses me off though. Did they not have a buck each on them? (Rhetorical question, don't bother).
Ltw at April 23, 2011 10:51 AM
In other words, there now exists a legal precedent to prevent a movie, novel, album, or video game from being published because someone might break the law after being exposed to it.
Bullshit brian. He's not being told not to express his beliefs - as has happened in hate crimes or religious vilification trials in Canada, Europe, and other places recently, by people who really are standing up to physical violence and restriction from publishing their views. He's been told to stay away from a certain location. He can still say anything he wants, and publish it anywhere. If he wants to hold a march through the town square, he can still do that. His tactics are as those of anti-abortion protesters, and he's been treated as such.
Ltw at April 23, 2011 11:03 AM
Ltw -
Combine this decision with the way Commerce Clause decisions have gone lately.
And he's basically been told (this is implied) "Don't stage any more public demonstrations that might cause muslims to riot."
And the "cone of silence" around abortion clinics is also illegal prior restraint - but being based upon prior bad acts of the protestors themselves it got a pass. Not because the people in the abortion clinic threatened to riot, which is what happened here.
Actually, it wasn't even a threat of a riot, it was the implied expectation of a riot. There wasn't even a threat! They have pre-emptively silenced a man because they were afraid that the muslims in Dearborn can't act responsibly.
Can you imagine the outrage if such a decision was made based upon assumptions of the incompetence of blacks?
brian at April 23, 2011 11:19 AM
Very poor results in Michigan.
Let's see: I say something that offends Jews. So Jews say they will burn down the town. Ergo, I have no right to say anything that offends Jews. But another group that acts peacefully--I can offend them.
I can't burn the American flag. I can't draw cartoons that lampoon Islam. I can't wear certain clothes etc...the icy slope is right there in front of us.
I suggest large bonfires on Korans, while we dance around naked with our big black dogs.
BOTU at April 23, 2011 11:24 AM
Amy Alkon
http://www.advicegoddess.com/archives/2011/04/23/remember_the_fi.html#comment-2068903">comment from BOTUI'll bring my tiny terrier, dressed for the event, of course.
http://www.advicegoddess.com/archives/2010/05/20/draw_mohammed_d.html
Amy Alkon at April 23, 2011 11:38 AM
No, he was implementing a jury decision
Ah, they should put a sign up at the city limits Welcome to Dearbornistan.
I R A Darth Aggie at April 23, 2011 1:46 PM
Ahh, yes - the Advice Doggess!
Radwaste at April 23, 2011 2:02 PM
I can't burn the American flag.
As far as I recall, the SCOTUS said you can BOTU quite a few years ago. Wasn't it ruled protected speech?
I can't draw cartoons that lampoon Islam.
Nothing says you can't do that either. Lots of newspapers chose not to publish them (and *that* was a weak, limp-dick decision) but this decision doesn't say anything about that.
Ltw at April 23, 2011 3:17 PM
"Look, he can still say anything he wants - it's basically a restraining order, not a gag. I can stand under my ex-girlfriend's window and scream "I love you!" (or possibly "Stelllllaaaa!") all night but that's not right either."
LTW, what you describe is commonly called a "time, place or manner" restriction. In regard to public spaces, U.S. courts have consistently ruled that time/place/manner restrictions are constitutional only if (1) there is an overriding public-order interest in restricting protests at that location at that time, and (2) the restriction is content neutral. The Dearborn order fails on both of those tests: the city has shown no overriding reason why it needs to restrict Jones' group to a small "free speech zone" several miles away, and (2) the order applies only to Jones' group, not the people who attend the mosque.
The possibility that some of the people who hear Jones' speech might react badly to it is by legal precedent not a valid reason to restrict Jones' speech. If this cases reaches the SCOTUS, it should be a slam dunk.
(And an aside: I'm encouraged to see the ACLU jumping in here to defend Jones. For far too long they've been content to be a tool of leftism. Maybe this is a sign that they're getting back to their first principles.)
Cousin Dave at April 23, 2011 5:34 PM
the city has shown no overriding reason why it needs to restrict Jones' group to a small "free speech zone" several miles away
Where does it say that? He and one other guy are restricted from the mosque and an adjacent property. He can stand half a block away and protest all he wants. It's a very limited order. I won't even go into how wrong you are on the "time, place, or manner" issue either. That's got nothing to do with this.
The possibility that some of the people who hear Jones' speech might react badly to it is by legal precedent not a valid reason to restrict Jones' speech.
Correct and I agree, but a jury thought otherwise for some reason. Maybe some of his supporters have been making threats or harassing people. There's nothing in the article to indicate that it's fear of violence by those being protested against that brought them to that conclusion. If you have better information I'd like to see it, and I'll rethink. I suspect you're assuming too much.
All I'm saying is - not enough information to conclude that it's a restriction of free speech. Maybe, maybe not.
Ltw at April 23, 2011 6:26 PM
(And an aside: I'm encouraged to see the ACLU jumping in here to defend Jones.
That is interesting.
At the public library here, the library board and city council deemed it necessary to restrict groups to a designated area outside the library and to require advance notice of when they would set-up. They felt that unscheduled signature gathering was a form of harassment.
Both the ACLU and a Tea Party group are protesting the decision together, which is encouraging.
Jason S. at April 23, 2011 8:43 PM
The Phelps clan protested outside the Islamic Center of America in Dearborn just this past November. As you can see it was strictly a local news story:
http://www.pressandguide.com/articles/2010/11/19/news/doc4ce568682c870375149094.txt
If Jones had been allowed to say what he wanted to say where he wanted to say it, and some Muslims had shouted at him, that would also have been just a local news story. Instead he's been handed a treasure trove of new publicity for just $1.
Martin at April 23, 2011 10:02 PM
I'm interested in this quote from your link Martin.
Their anti-gay stance has led them to condemn virtually every major world religion for espousing what Westboro members believe are pro-gay viewpoints.
The Phelps believe Islam has a pro-gay viewpoint? Someone fetch the (metaphorical, non-violent) cluebat please, regularly prescribed beatings are required. I'm happy for them to say it, I'm also happy to say I think they're idiots.
Ltw at April 24, 2011 1:07 AM
LTW, I found this report on the proceedings from the Detroit Free Press. Here is the key graf:
"The stunning developments came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn. Critics slammed the decision to jail them, the court proceedings, and Wayne County prosecutors, saying they violated the men’s Constitutional rights." (emphasis mine)
Thus, it is very clear that the jury's verdict was based on a presumption of future behavior, not on anything that Jones has actually done. I think American standards on freedom of speech are different from Australia's in this regard. In the USA, restrictions on speech are presumed to be unconstitutional, and it is up to the government to prove that a speech restriction is necessary and proper. Outside the Beltway has the cite; it's Brandenburg v. Ohio from 1969. OTB sums up that decision thus: "Brandenburg allows for prohibition or punishment of incitement to lawlessness where one advocates imminent unlawful action that is likely to produce it. But here it was the prospect that his protest might cause a violent reaction by the targets of his protest, not his supporters, that the state used to justify their prior restraint of Jones’ First Amendment rights. "
Cousin Dave at April 24, 2011 8:50 AM
This nonsense reminds me of why some guy said there are still no new towers at the WTC site: "Because muslims will riot and burn and kill if we desecrate their monument with buildings."
Firehand at April 24, 2011 3:08 PM
"Nine individuals didn't. Try reading what I wrote again, The Schenck decision UPHELD an already existing law"
Uh - when the Supreme Court officially uphold a law - it's the same thing. Duh.
Lobster at April 24, 2011 5:23 PM
"And they didn't render the Constitution "null and void." (Hyperbole is not aiding your cause.) They upheld a restriction that Congress and the President placed on freedom of speech...which has been done at least a dozen times in the past...such as yelling "Fire!" in a crowded theater, fighting words, sedition, etc."
So the SC 'upheld' a restriction against the 1st amendment of the constitution - you know, the one that says "Congress shall make no law" - and that doesn't sound to you like 9 individuals overturning the Constitution? Really? Really? Did you even read your own sentence? That is EXACTLY what it is. By definition. You don't seem to understand the basics of what the Constitution is for, or you have an agenda and are deliberately ignoring it. Again, if 9 individuals have the power to "uphold" legal restrictions that go DIRECTLY against the most explicit clear wording in the very 1st words of the 1st amendment of the US Constitution - then the system is broken. It's difficult to make it more obvious.
Lobster at April 24, 2011 5:29 PM
Patrick, I just remind you of the tiny fact that the Constitution is intended to be the highest law of the land. A law that violates the Constitution is called "unconstitutional" and is not valid, no matter how many times 9 random individuals claim it is. If 9 individuals have the power to override the Constitution, then the Constitution might as well not exist, and that isn't hyperbole.
Lobster at April 24, 2011 5:31 PM
Patrick, actually, don't take my word for it, rather argue with those, you know, founding fathers, since you are disagreeing with them:
http://www.myloc.gov/Exhibitions/creatingtheus/Constitution/ConstitutionLegacy/ExhibitObjects/JeffersonThinksSupremeCourtsControlMustBeLimited.aspx
Lobster at April 24, 2011 5:33 PM
"No, he was implementing a jury decision, and obviously signalling that he didn't agree with it. Depends on the court and specific laws, but the judge doesn't get to overrule the jury. He can be lenient in sentencing though."
Actually, that is not true. A judge with some backbone can set aside a jury verdict. It is called a JNOV "judgment notwithstanding verdict" but it usually takes a judge that does not retain his seat as a result of a popular election.
Isabel1130 at April 24, 2011 5:49 PM
I think American standards on freedom of speech are different from Australia's in this regard.
I am aware of that. If it was fear of retaliation by the mosque congregation that was the reason, then you're probably right. Given that that would be unconstitutional, and the judge was obviously sympathetic and presumably explained that, I wonder what it was that convinced the jury then? Or did they just get the pants scared off them by the prosecutors?
A judge with some backbone can set aside a jury verdict. It is called a JNOV "judgment notwithstanding verdict"
Thanks Isabel, I wasn't sure about that. It's one of those things that varies a lot from place to place. British law used to allow for a judge to direct the jury to return a particular verdict in his summing up for instance. That's no longer allowed, no matter how obvious he thinks it is (since about the 1970s from memory).
Ltw at April 24, 2011 9:42 PM
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