Bible Believers v. Wayne County

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0258p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

BIBLE BELIEVERS; RUBEN CHAVEZ, AKA RUBEN ┐

ISRAEL; ARTHUR FISHER; JOSHUA DELOSSANTOS, │

Plaintiffs-Appellants, │

│ No. 13-1635

│

v. >

│

│

WAYNE COUNTY, MICHIGAN; BENNY N. NAPOLEON, │

in his official capacity as Sheriff, Wayne County │

Sheriff’s Office; DENNIS RICHARDSON, individually │

and in his official capacity as Deputy Chief, Wayne │

County Sheriff’s Office; MIKE JAAFAR, individually │

and in his official capacity as Deputy Chief, Wayne │

County Sheriff’s Office, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit

No. 2:12-cv-14236—Patrick J. Duggan, District Judge.

Argued: March 4, 2015

Decided and Filed: October 28, 2015

Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS,

ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,

STRANCH, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor,

Michigan, for Appellants. Nabih H. Ayad, AYAD LAW, P.L.L.C., Canton, Michigan, for

Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann

Arbor, Michigan, David Yerushalmi, AMERICAN FREEDOM LAW CENTER, Washington,

D.C., for Appellants. Nabih H. Ayad, AYAD LAW, P.L.L.C., Canton, Michigan, for Appellees.

Nathan W. Kellum, CENTER FOR RELIGIOUS EXPRESSION, Memphis, Tennessee, David S.

Korobkin, AMERICAN CIVIL LIBERTIES UNION, Detroit, Michigan, Julie M. Carpenter,

JENNER & BLOCK LLP, Washington, D.C., for Amici Curiae.

1

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 2

CLAY, J., delivered the opinion of the court in which COLE, C.J., BOGGS,

BATCHELDER, MOORE, KETHLEDGE, WHITE, and STRANCH, JJ., joined, and SUTTON

and GRIFFIN, JJ., joined in part. BOGGS, J. (pp. 42–45), delivered a separate concurring

opinion in which BATCHELDER, CLAY, and WHITE, JJ., joined. GRIFFIN, J. (pp. 46–48),

delivered a separate opinion concurring in part, and dissenting from Part IV and the final two

paragraphs of Part I.C.4 of the majority opinion. SUTTON, J. (pg. 49), delivered a separate

opinion concurring in part in Part I of the majority opinion, and in Parts II and III of the dissent

of GIBBONS, J. GIBBONS, J. (pp. 50–59), delivered a separate dissent in which COOK and

McKEAGUE, JJ., joined, and SUTTON, J., joined in part. ROGERS, J. (pp. 60–65), delivered a

separate dissent in which GIBBONS, COOK, McKEAGUE, and DONALD, JJ., joined.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiffs Ruben Chavez (“Israel”), Arthur Fisher, Joshua

DeLosSantos, and the Bible Believers (collectively “the Bible Believers” or “Plaintiffs”) appeal

the district court order entering summary judgment in favor of Defendants Sheriff Benny N.

Napoleon, Deputy Chief Dennis Richardson, Deputy Chief Mike Jaafar, and Wayne County

(collectively “Wayne County” or “Defendants”). Plaintiffs initiated this constitutional tort action

pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their First Amendment rights to

freedom of speech and free exercise of religion, as well as their Fourteenth Amendment right to

equal protection of the laws. The district court held that Defendants’ actions in cutting off the

Bible Believers’ religious speech did not violate the Constitution. We REVERSE the judgment

of the district court in full and REMAND this case for entry of summary judgment in favor of

Plaintiffs, for the calculation of damages, and for the award of appropriate injunctive relief,

consistent with this opinion.

BACKGROUND

“If there is a bedrock principle underlying the First Amendment, it is that the government

may not prohibit the expression of an idea simply because society finds the idea itself offensive

or disagreeable.” Snyder v. Phelps, 562 U.S. 443, 458 (2011) (citation and internal quotation

marks omitted). “Nowhere is this [First Amendment] shield more necessary than in our own

country for a people composed [from such diverse backgrounds].” Cantwell v. Connecticut,

310 U.S. 296, 310 (1940). Born from immigrants, our national identity is woven together from a

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 3

mix of cultures and shaped by countless permutations of geography, race, national origin,

religion, wealth, experience, and education. Rather than conform to a single notion of what it

means to be an American, we are fiercely individualistic as a people, despite the common threads

that bind us. This diversity contributes to our capacity to hold a broad array of opinions on an

incalculable number of topics. It is our freedom as Americans, particularly the freedom of

speech, which generally allows us to express our views without fear of government sanction.

Diversity, in viewpoints and among cultures, is not always easy. An inability or a general

unwillingness to understand new or differing points of view may breed fear, distrust, and even

loathing. But it “is the function of speech to free men from the bondage of irrational fears.”

Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring). Robust discourse,

including the exchanging of ideas, may lead to a better understanding (or even an appreciation)

of the people whose views we once feared simply because they appeared foreign to our own

exposure. But even when communication fails to bridge the gap in understanding, or when

understanding fails to heal the divide between us, the First Amendment demands that we tolerate

the viewpoints of others with whom we may disagree. If the Constitution were to allow for the

suppression of minority or disfavored views, the democratic process would become imperiled

through the corrosion of our individual freedom. Because “[t]he right to speak freely and to

promote diversity of ideas . . . is . . . one of the chief distinctions that sets us apart from

totalitarian regimes,” Terminiello v. City of Chi., 337 U.S. 1, 4 (1949), dissent is an essential

ingredient of our political process.

The First Amendment “may indeed best serve its high purpose when it induces a

condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to

anger.” Id. If we are not persuaded by the contents of another’s speech, “the remedy to be

applied is more speech, not enforced silence.” Whitney, 274 U.S. at 377 (Brandeis, J.,

concurring). And although not all manner of speech is protected, generally, we interpret the First

Amendment broadly so as to favor allowing more speech. See Cox v. Louisiana, 379 U.S. 536,

578 (1965) (“[W]hen passing on the validity of a regulation of conduct, which may indirectly

infringe on free speech, this Court . . . weigh[s] the circumstances in order to protect, not to

destroy, freedom of speech.” (internal quotation marks omitted)) (Black, J., concurring).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 4

This case calls on us to confirm the boundaries of free speech protections in relation to

angry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees.

Set against the constitutional right to freedom of speech, we must balance the state’s interest in

insuring public safety and preventing breaches of the peace. The scenario presented by this case,

known as the “heckler’s veto,” occurs when police silence a speaker to appease the crowd and

stave off a potentially violent altercation.1 The particular facts of this case involve a group of

self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some

of whom responded with threats of violence. The police thereafter removed the evangelists to

restore the peace. Bearing in mind the interspersed surges of ethnic, racial, and religious conflict

that from time to time mar our national history, the constitutional lessons to be learned from the

circumstances of this case are both timeless and markedly seasonable.

In this opinion we reaffirm the comprehensive boundaries of the First Amendment’s free

speech protection, which envelopes all manner of speech, even when that speech is loathsome in

its intolerance, designed to cause offense, and, as a result of such offense, arouses violent

retaliation. We also delineate the obligations and duties of law enforcement personnel or public

officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the

peace that may arise when constitutionally protected speech has stirred people to anger, and even

to violence.

Facts

A. Dearborn and the Arab International Festival

Dearborn—home of the world headquarters of the Ford Motor Company—is a city

located in Wayne County, Michigan, that borders Detroit and has a stable population of

approximately 100,000 people.2 Dearborn is also home to one of the largest populations of Arab

1

The term “heckler’s veto” is ascribed to Harry Kalven, a constitutional scholar, who noted when writing

about free speech and angry crowds, “If the police can silence the speaker, the law in effect acknowledges a veto

power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not

approve.” Harry Kalven, Jr., The Negro and the First Amendment 140 (Ohio St. Univ. Press 1965).

2

State & County QuickFacts: Dearborn (city), Michigan, United States Census Bureau,

http://quickfacts.census.gov/qfd/states/26/2621000.html (last revised Oct. 14, 2015).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 5

Americans in the country—second only to New York City.3 Dearborn’s Arab American

population is comprised of both Christian and Muslim families whose national origins include

Lebanon, Armenia, Yemen, Iraq, and Palestine, among other nations.4

Beginning in 1996 and continuing for 17 years thereafter, each June, Dearborn celebrated

its Arab heritage and culture by hosting the Arab International Festival. The Festival, which was

free to the public, featured Middle Eastern food, music, artisan booths, cultural acts, and other

amusements, including carnival rides. A principal purpose of the Festival was to promote

cultural exchange. Each year, the Festival took place on a stretch of Warren Avenue, covering

several blocks temporarily closed to vehicular traffic. The street became a pedestrian

thoroughfare lined with vendors and information booths. The brick and mortar stores lining the

Warren sidewalks also remained open. The Festival attracted people from around the world, and

by 2012, it was the largest festival of its kind in the United States, annually drawing more than

300,000 people over the course of three days.

Given the size of attendance and the Festival’s focus on cultural exchange, a diverse

array of religious groups requested permission to set up information booths on the Festival

grounds.5 The Festival also had a history of attracting certain Christian evangelists who

preferred to roam free among the crowd and proselytize to the large number of Muslims who

were typically in attendance each year.6 These evangelists would come from across the country

to distribute leaflets up and down the sidewalks of Warren Avenue in the heart of the Festival.

This practice was disrupted in 2009 when the Dearborn police enforced an anti-leafletting policy

promoted by the American Arab Chamber of Commerce—the Festival’s primary sponsor—and

3

G. Patricia de la Cruz & Angela Brittingham, U.S. Census Bureau, C2KBR-23, The Arab Population:

2000, at 7 tbl.3 (Dec. 2003), available at https://www.census.gov/prod/2003pubs/c2kbr-23.pdf.

4

Who Are Arab Americans?, Arab American Institute, http://www.aaiusa.org/who-are-arab-americans (last

visited June 10, 2015); Pierre M. Atlas, Living Together Peacefully in Heart of Arab America, Common Ground

News Service (Sept. 13, 2005), http://www.commongroundnews.org/article.php?id=1044&lan=en&sid=1&sp=0.

5

In 2012, among these religious groups were an Islamic educational organization, a couple of Arab

churches, as well as a few non-Arab Christian ministries. These groups were stationed under one tent, along with

other non-religious organizations seeking to share information.

6

The Muslim population in Dearborn is notable, distinctly, for its relative size and longtime

presence; both the largest mosque and one of the oldest mosques in the United States are located in

Dearborn. Michele Norris, Largest U.S. Mosque Opens in Michigan, NPR (May 12, 2005),

http://www.npr.org/templates/story/story.php?storyId=4650047; AMS History, The American Moslem Society,

http://www.masjiddearborn.org/en/about-the-ams/history (last visited Oct. 20, 2015).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 6

ratified by the City. A panel of this Court subsequently held that Dearborn’s anti-leafletting

policy unconstitutionally encroached on the free speech rights protected by the First Amendment

because it failed to serve a substantial government interest and it was not narrowly tailored, as is

required with respect to any time, place, or manner restriction on protected speech. See Saieg v.

City of Dearborn, 641 F.3d 727 (6th Cir. 2011). The City of Dearborn thereafter ceded to the

Wayne County Sheriff’s Office (“WCSO”) primary responsibility over Festival security in future

years.

B. The Bible Believers

The Bible Believers were among the self-described evangelical groups that attended the

Festival for the purpose of spreading their Christian beliefs. The founder and leader of the Bible

Believers, known as “Israel,” testified that due to his sincerely held religious beliefs he was

required “to try and convert non-believers, and call sinners to repent.” Therefore, Israel and his

Bible Believers regularly engaged in street preaching, which consisted of advocating for their

Christian beliefs and parading around with banners, signs, and tee-shirts that displayed messages

associated with those beliefs. Many of the signs and messages displayed by the Bible Believers

communicated overtly anti-Muslim sentiments.

In 2011, Israel attended the Festival with a number of Bible Believers to preach to the

crowd of Festival-goers. Upon their arrival at the Festival on Friday, June 17, 2011, the Bible

Believers were directed to a protected area on the Festival grounds referred to as a “free speech

zone.” When they returned to the Festival on Sunday, June 19, the Bible Believers were

informed that the free speech zone had been removed and would not be made available again.

The Bible Believers therefore opted to walk the public streets and sidewalks, spreading their

message to those who passed by. The quintessential attribute of the Bible Believers’ message

was intolerance, principally proclaiming that Mohammed was a false prophet who lied to them

and that Muslims would be damned to hell if they failed to repent by rejecting Islam.7 This

message was not well received by certain elements of the crowd. The Bible Believers allege that

they were assaulted by various members of the crowd and that the WCSO initially watched and

7

We presume that the character of the Bible Believers’ activities in 2011 was similar if not essentially the

same as their activities in 2012, although the record is devoid of a specific factual account of the 2011 Festival.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 7

did nothing, then eventually silenced the Bible Believers by kicking them out and requiring them

to leave the Festival grounds. They also alleged that Deputy Chief Jaafar personally arrested one

of the Bible Believers to the delight of the “violent Muslims.” No formal action was taken by

either party as a result of this alleged incident.

C. May 2012 Pre-Festival Letters and Preparation

Israel and his Bible Believers determined to return to Dearborn the following year for the

2012 Arab International Festival. Prior to the Festival, the Bible Believers, through their

counsel, sent a letter to Defendants Wayne County and Sheriff Napoleon recounting the Bible

Believers’ experience at the 2011 Festival. The letter also apprised Defendants of the Bible

Believers’ expectations for the group’s return visit:

In light of the past actions by the officers, I write to remind the Wayne County

Sheriff’s Department [sic] of two points. First, the officers have a duty to protect

speakers like Israel from the reactions of hostile audiences. See Glasson v. City of

Louisville, 518 F.2d 899, 906 (6th Cir. 1975) (“A police officer has the duty not to

ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on

suppressing ideas. Instead, he must take reasonable action to protect from

violence persons exercising their constitutional rights.”). If the officers allow a

hostile audience to silence a speaker, the officers themselves effectively silence

the speaker and effectuate a “heckler’s veto.” The First Amendment simply does

not countenance this scenario. See, e.g., Forsyth County, 505 U.S. at 134; Boos v.

Barry, 485 U.S. 312, 320-21 (1998). See also Smith v. Ross, 482 F.2d 33, 37

(6th Cir. 1973) (“[S]tate officials are not entitled to rely on community hostility as

an excuse not to protect, by inaction or affirmative conduct, the exercise of

fundamental rights.”). Second, Israel has the First Amendment right to engage in

peaceful expression on streets and sidewalks during the Arab International

Festival. See, e.g., Saieg v. City of Dearborn, 641 F.3d 727, 737-41 (6th Cir.

2011) (invaliding [sic] ban on literature distribution on public sidewalks open to

public during the Arab International Festival).

(R. 13-7, May 9, 2012 Ctr. for Relig. Expression Ltr., PGID 110).

Wayne County, through its Corporation Counsel, responded by letter on June 14, 2012.

The letter indicated Wayne County’s disagreement with respect to both the characterization of

events at the 2011 Festival and with the Bible Believers’ interpretation of the law regarding the

WCSO’s duties to the public and to the Bible Believers. Corporation Counsel noted the

WCSO’s intent to “maintain public order consistent with its legal obligations,” but specifically

disclaimed any “‘special relationship’ between the WCSO and Mr. Israel” to avoid the

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 8

possibility that Israel would assert in subsequent litigation that the WCSO owed Bible Believers

a heightened measure of protection. (R. 13-8, Corp. Counsel Reply, PGID 112).

The letter went on to “remind [the Bible Believers] that, under state law and local

ordinances, individuals can be held criminally accountable for conduct which has the tendency to

incite riotous behavior or otherwise disturb the peace.” (Id. at 113). In conclusion, Corporation

Counsel likewise cited to Sixth Circuit precedent to support the County’s view that its

obligations to protect the Bible Believers’ speechmaking had limitations:

[L]aw enforcement personnel are not required “to defend the right of a speaker to

address a hostile audience, however large and intemperate, when to do so would

unreasonably subject them to violent retaliation and physical injury.” Glasson v.

City of Louisville, 518 F.2d 899 at 909 (6th Cir. 1975). Rather, “[i]n such

circumstances, they may discharge their duty of preserving the peace by

intercepting his message or by removing the speaker for his own protection

. . . [.]”

(Id. at 113).

Earlier that month, Deputy Chief Jaafar circulated an Operations Plan memorandum,

addressed to Sheriff Napoleon, which outlined the policies and procedures to be followed by the

WCSO throughout the course of the 2012 Arab International Festival. The second item in the

memorandum addressed potential “situation[s]” that could lead to trouble at the Festival. Among

the purported situations was “a radical group calling themselves ‘The Bible Believers’” that had

been attracted to the Festival in recent years, and that would “possibly show up at the festival

trying to provoke [the WCSO] in a negative manner and attempt to capture the negativity on

video camera.” (13-5, Ops. Plan, PGID 100). Deputy Chief Jaafar instructed his officers “to be

alert and professional at all times . . . [and to] [r]epeat as many times as necessary” the

appropriate orders to any group causing trouble. (Id.) As an example, he suggested repeating

the following command: “Sir, you are causing a disturbance, please keep moving.” (Id.) He

also noted that the WCSO would “not abridge or deny anyone’s Freedom of Speech, unless

public safety becomes [a] paramount concern.” (Id.)

The WCSO decided to employ both regular and reserve officers “to ensure public safety,

keep the peace, and maintain order in the event there is a disturbance.” (Id. at 101). According

to Deputy Chief Richardson, a greater number of WCSO personnel were “allocated to the

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Festival . . . than . . . to the World Series or to the President of the United States when he visits

Michigan.” (R. 13-6, Richardson Aff., PGID 107). The number of personnel also exceeded the

number “allocated to other large festivals in Michigan.” (Id.) The Operations Plan listed

51 officers (excluding those in command), most of whom were assigned to one of six zones.

Among this group, there were also 19 officers (including 6 mounted units) who were not

assigned to any one specific zone, allowing them to respond to changing needs and

circumstances.

D. The 2012 Arab International Festival8

The Bible Believers returned to Dearborn in 2012, at approximately 5:00 p.m. on Friday,

June 15, for the 17th Annual Arab International Festival. As they had done the previous year,

the Bible Believers traveled to the Festival so that they could exercise their sincerely held

religious beliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his

followers to hurl words and display messages offensive to a predominantly Muslim crowd, many

of whom were adolescents. These messages were written on their tee-shirts and on the banners

and signs that they carried. The following is a sampling of the Bible Believers’ messages:

“Islam Is A Religion of Blood and Murder”

“Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers”

“Prepare to Meet Thy God – Amos 4:12”

“Jesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be Blotted Out”

“Trust Jesus, Repent and Believe in Jesus”

“Only Jesus Christ Can Save You From Sin and Hell”

“Turn or Burn”

“Fear God”

(R. 20-2, Israel Decl., PGID 176–77). In addition to the signs, one of the Bible Believers carried

a severed pig’s head on a spike, because, in Israel’s own words, it would “ke[ep] [the Muslims]

at bay” since “unfortunately, they are kind of petrified of that animal.” (R. 28-A, Raw Festival

Footage, Time: 00:49:45).

8

Most of the facts regarding the 2012 Arab International Festival are derived from a video recording that

the Bible Believers made during the Festival in order to contemporaneously memorialize their free speech activities.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 10

Laden with this imagery, the Bible Believers entered the Festival and began their

preaching. At first, few people paid attention other than to glance at what appeared to be an odd

assembly. The first speaker told the crowd that they should not follow “a false prophet,” who

was nothing but an “unclean drawing” and “a pedophile.” (Id. at 00:01:40). He continued by

telling what was by then a group made up of approximately thirty teenagers that “[y]our religion

will send you to hell.” (Id. at 00:03:30). Tensions started to rise as a few youths became

incensed after the speaker taunted, “You believe in a prophet who is a pervert. Your prophet who

wants to molest a child,” and “God will reject you. God will put your religion into hellfire when

you die.” (Id. at 00:03:56, 00:04:38). This continued as a few of the teens became agitated, until

one youth simply told his friends to “quit giving them attention,” convincing some members of

the crowd to disperse. (Id. at 00:06:07).

After approximately seven minutes of proselytizing, some elements of the crowd began

to express their anger by throwing plastic bottles and other debris at the Bible Believers. An

officer was captured on video observing the scene without intervening or reprimanding the

juvenile offenders. The size of the crowd ebbed and flowed. At one point an officer approached

the Bible Believers and commanded that the speakers stop using a megaphone or be cited for

violating city ordinances. The Bible Believers relented, but also responded by noting that “these

angry kids are a little bit more vicious than the megaphone.” (Id. at 00:16:16). A few minutes

later, an officer did ask the kids to back up and subsequently removed one of the teenagers who

he saw throwing a bottle. However, all police presence and intervention dissipated after this

minimal and isolated intervention.

The Bible Believers continued preaching for another ten minutes without the megaphone,

all while a growing group of teenagers jeered and heckled, some throwing bottles and others

shouting profanities. At one point, a parent stepped in to reprimand his child for participating in

the assault. The onslaught reached its climax when a few kids began throwing larger items such

as milk crates. By that time, the Bible Believers had stopped all speechmaking whatsoever.

A number of debates spawned between members of the crowd (which had continued to

swell) and individual Bible Believers. A particularly emotional youth debated with a Bible

Believer the merits of his group’s bigoted views, noting that he had studied both the Quran and

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 11

the Bible, and that Muslims believe in the same First Testament as the followers of Christianity.

This brief moment of reasoned debated devolved into a shouting match, and ended when the

youth was pulled away by an unidentified individual.

A few minutes later, the crowd of youths became quiet after four mounted officers simply

rode by, without making commands or pausing—even for a moment. The calm persisted while

Israel gave an interview to a local news crew. But once this interview ended, and the police and

camera crews left the scene, the Bible Believers again were assaulted with flying debris. The

Bible Believers turned away from the crowd and started moving through the Festival for a

second time. A large contingent of children ran after them, and the relatively light cascade of

debris intensified into a barrage of bottles, eggs, and other debris being hurled upon the Bible

Believers. When the Bible Believers again resettled at a new location, and with their backs no

longer facing the crowd, the torrent died down. At some point during the deluge, Israel was

struck in the face, which resulted in him suffering a small laceration.

When an officer arrived on the scene a few minutes later, the children’s belligerence and

the assaultive behavior again ceased. The officer bellowed at a few youths to move out of the

way; they complied immediately. He then told Israel, “you are a danger to public safety right

now,” and stated that the WCSO did not have the manpower to keep the Bible Believers safe.

(Id. at 00:43:12). The officer then suggested that the Bible Believers always “have the option to

leave,” while he simultaneously ignored Israel’s plea that some sort of police presence just

remain in the general vicinity. The officer departed, and the bottle throwing resumed.

A few minutes later, a group of officers returned to the area and cut a path through the

crowd in order to approach Israel and his followers. Deputy Chiefs Richardson and Jaafar pulled

Israel aside for the purpose of telling him that the Bible Believers would be escorted out of the

Festival. But Israel responded that he was unprepared to leave without having the opportunity to

finish walking his parade route while exercising his First Amendment rights.

Richardson explained to Israel, “We have the responsibility of policing the entire festival,

and obviously your conduct especially is causing this disturbance and it is a direct threat to the

safety of everyone here.” (Id. at 00:48:30). He also noted that “part of the reason they throw this

stuff . . . is that you tell them stuff that enrages them.” (Id. at 00:49:03). Israel protested, first by

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 12

noting that the disturbances only occurred in the absence of any police presence, and second, by

commenting that the Bible Believers had stopped preaching altogether during the previous

twenty minutes and were only carrying signs. Israel suggested that if the WCSO just assigned

two officers to insure that the crowd of adolescents surrounding the Bible Believers’

demonstration remained nonviolent, all concerns about public safety would be resolved. Deputy

Chief Jaafar chimed in at this point by telling Israel that the WCSO could not provide individual

officers for every group that wanted to protest at the Festival, and that Israel’s group needed to

leave because his group’s conduct was “attracting a crowd and . . . affecting public safety.” (Id.

at 00:50:40). When Israel continued to protest that he was not speaking and his signs were

permissible, Richardson, again, pointed to the Bible Believers’ speech as the cause for the unrest.

He stated, “ya know, apparently what you are saying to them and what they are saying back to

you is creating danger.” (Id. at 00:50:48). Richardson continued suggesting that Israel leave, but

Israel refused to do so unless the WCSO was prepared to threaten Israel with the prospect of

being arrested. Richardson expressed fear that the situation was escalating and stated, “the

problem is that one of your people’s gonna get hurt, or one of the crowd is gonna get hurt, or one

of my officers is gonna get hurt.” (Id. at 00:52:41). When Israel again inquired whether the

Bible Believers would be arrested if they did not leave the Festival, Richardson only committed

to saying that they would “probably” be cited if they did not allow themselves to be escorted out.

He thereafter told Israel that the Bible Believers were being “disorderly,” to which Israel replied,

incredulously, “I would assume 200 angry Muslim children throwing bottles is more of a threat

than a few guys with signs.” (Id. at 00:53:48).

Following this exchange, Deputy Chiefs Richardson and Jaafar conferred with

Corporation Counsel. Another half dozen officers stood along the edge of the barricaded area to

which the Bible Believers had been secluded. On the other side of the barricade, the Festival

continued. Richardson returned to speak with Israel and confirmed that Israel and his Bible

Believers would be cited for disorderly conduct if they did not immediately leave the Festival.

(Id. at 00:55:03) (“If you don’t leave we’re gonna cite you for disorderly.”). Israel complied, and

the Bible Believers were escorted out of the Festival by more than a dozen officers. Four

mounted officers also surveyed the scene on the edge of the Festival where the Bible Believers

were being directed to exit.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 13

The Bible Believers loaded into a van and departed. However, two WCSO cruisers

immediately began following the van and pulled the Bible Believers over within only a few

blocks of the Festival—a third cruiser pulled up shortly thereafter. Officers claimed that the

Bible Believers were stopped because they had removed the license plate from their vehicle prior

to their departure. After waiting for nearly thirty minutes, they were issued a citation. By that

time, two additional officers had arrived on bicycles, bringing the total number of law

enforcement personnel involved in this traffic stop to eight officers.

The WCSO made a post-operation report summarizing its version of the day’s events.

The report noted that the WCSO was “able to ke[ep] reasonable control of civil peace[, but] [a]s

the crowd progress[ed] around the protestors to an unsafe level, we suggested to the protestors to

leave the area immediately because public safety was being jeopardized.” (R. 13-9, Post-Op.

Rpt., PGID 114). The report further noted that “[a]ny subjects that were seen throwing objects

[were] immediately taken into custody.” (Id.). They apparently did not see very much. Only

one citation was issued to a 21-year old man who was caught throwing a bottle. The WCSO

officers also issued three verbal warnings and briefly detained three juveniles, ranging in age

from twelve to seventeen, before ultimately releasing them to the custody of their respective

parents.

In summary, the Bible Believers attended the 2012 Festival for the purpose of exercising

their First Amendment rights by spreading their anti-Islam religious message. When a crowd of

youthful hecklers gathered around the Bible Believers, the police did nothing. When the

hecklers began throwing bottles and other garbage at the Bible Believers, a WCSO officer

intervened only to demand that the Bible Believers stop utilizing their megaphone to amplify

their speech. Virtually absent from the video in the record is any indication that the police

attempted to quell the violence being directed toward the Bible Believers by the lawless crowd of

adolescents. Despite this apparent lack of effort to maintain any semblance of order at the

Festival, each time the police appeared on the video—to reprimand the use of the Bible

Believers’ megaphone, to suggest that the Bible Believers had the “option to leave” the Festival,

to trot by on horseback while doing next to nothing, and to expel the Bible Believers from the

Festival under threat of arrest—the agitated crowd became subdued and orderly simply due the

authoritative presence cast by the police officers who were then in close proximity. Only once is

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 14

an officer seen removing one of the bottle-throwing teens. Israel, when faced with the prospect

of being arrested for disorderly conduct, observed, “and you would think we would be

complaining, but we’re not.” (R. 28-A, Raw Festival Footage, Time: 00:55:16). The Bible

Believers were thereafter escorted from the Festival and ticketed by a large group of WCSO

officers for removing the license plate from their van.

Procedural History

On September 25, 2012, the Bible Believers initiated this suit, pursuant to 42 U.S.C.

§ 1983, in the United States District Court for the Eastern District of Michigan. The complaint

alleged that Defendants violated the Bible Believers’ rights of free speech and free exercise,

protected by the First Amendment, as well as their right to equal protection of the laws,

guaranteed by the Fourteenth Amendment. Defendants answered, and then subsequently moved,

simultaneously, for summary judgment and dismissal of all of the Bible Believers’ claims. The

Bible Believers filed a response to Defendants’ motion, which included a cross-motion for

summary judgment, and Defendants filed a reply. The district court issued an opinion granting

Defendants’ motion for summary judgment, denying the Bible Believers’ cross-motion for

summary judgment, and dismissing the Bible Believers’ claims.

The Bible Believers thereafter filed a timely notice of appeal. The issues were briefed

and the case was argued before a three-judge panel of this Court the following year. The panel,

in a split decision, affirmed the judgment of the district court granting summary judgment to

Wayne County and the individual Defendants. Bible Believers v. Wayne Cty., 765 F.3d 578

(6th Cir. 2014). The Bible Believers petitioned for en banc rehearing. We granted that petition,

thereby vacating the panel opinion, id. (opinion vacated, reh’g en banc granted Oct. 23, 2014),

and heard oral argument for a second time on March 4, 2015.

DISCUSSION

Standard of Review

We review de novo an appeal from a grant of summary judgment. Gillie v. Law Office of

Eric A. Jones, LLC, 785 F.3d 1091, 1097 (6th Cir. 2015). Summary judgment is appropriate

when there exists no genuine dispute with respect to the material facts and, in light of the facts

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 15

presented, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. “The

court may look to the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits when ruling on the motion.” Gillie, 785 F.3d at 1097 (citation and

internal quotation marks omitted). The facts must be viewed in the light most favorable to the

non-moving party and the benefit of all reasonable inferences in favor of the non-movant must

be afforded to those facts. Id. The mere “scintilla of evidence” within the record that militates

against the overwhelming weight of contradictory corroboration does not create a genuine issue

of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Analysis

I. The First Amendment and the “Heckler’s Veto”

Free-speech claims require a three-step inquiry: first, we determine whether the speech at

issue is afforded constitutional protection; second, we examine the nature of the forum where the

speech was made; and third, we assess whether the government’s action in shutting off the

speech was legitimate, in light of the applicable standard of review. Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); Saieg, 641 F.3d at 734–35.

We need only to address steps one and three because the parties agree that the Festival

constituted a traditional public forum available to all forms of protected expression.9 The parties

strenuously dispute whether the Bible Believers’ conduct constituted incitement to riot, and they

also dispute the level of scrutiny that should be applied to this case. Ultimately, we find that

Defendants violated the Bible Believers’ First Amendment rights because there can be no

legitimate dispute based on this record that the WCSO effectuated a heckler’s veto by cutting off

the Bible Believers’ protected speech in response to a hostile crowd’s reaction.

We address the following items in turn: protected versus unprotected speech; the

appropriate level of scrutiny to be applied in a public forum given the facts of this case; the

precedents upon which the heckler’s veto doctrine is built; the rule derived from those

precedents; and the rule’s application to this case. We then address whether the individual

9

Defendants ostensibly concede that the Bible Believers’ speech and expression were protected, but the

thrust of their arguments belies their purported concession. Therefore, a discussion of protected versus unprotected

speech is merited.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 16

Defendants are liable or, instead, can seek refuge in the affirmative defense of qualified

immunity. Finally, we consider whether Wayne County can be held liable for the actions of its

law enforcement personnel.

A. Protected Speech

The First Amendment offers sweeping protection that allows all manner of speech to

enter the marketplace of ideas. This protection applies to loathsome and unpopular speech with

the same force as it does to speech that is celebrated and widely accepted. The protection would

be unnecessary if it only served to safeguard the majority views. In fact, it is the minority view,

including expressive behavior that is deemed distasteful and highly offensive to the vast majority

of people, that most often needs protection under the First Amendment. See, e.g., Nat’l Socialist

Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977) (recognizing First Amendment rights

of Neo Nazis seeking to march with swastikas and to distribute racist and anti-Semitic

propaganda in a predominantly Jewish community); Brandenburg v. Ohio, 395 U.S. 444, 447

(1969) (recognizing the First Amendment rights of Ku Klux Klan members to advocate for white

supremacy-based political reform achieved through violent means); Texas v. Johnson, 491 U.S.

397, 405–06 (1989) (recognizing flag burning as a form of political expression protected by the

First Amendment); Snyder, 562 U.S. 443, 454–56 (2011) (recognizing a religious sect’s right to

picket military funerals). “[I]f it is the speaker’s opinion that gives offense, that consequence is a

reason for according it constitutional protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 55 (1988) (citation omitted). Religious views are no different. “After all, much political and

religious speech might be perceived as offensive to some.” Morse v. Frederick, 551 U.S. 393,

409 (2007). Accordingly, “[t]he right to free speech . . . includes the right to attempt to persuade

others to change their views, and may not be curtailed simply because the speaker’s message

may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716 (2000). Any other rule

“would effectively empower a majority to silence dissidents simply as a matter of personal

predilections,” Cohen v. California, 403 U.S. 15, 21 (1971), and the government might be

inclined to “regulate” offensive speech as “a convenient guise for banning the expression of

unpopular views.” Id. at 26. We tolerate the speech with which we disagree. When confronted

by offensive, thoughtless, or baseless speech that we believe to be untrue, the “answer is

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 17

[always] more speech.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1684 (2015) (Kennedy, J.,

dissenting).

Despite the First Amendment’s broad sweep, not all speech is entitled to its sanctuary.

There are a limited number of categorical exclusions from the comprehensive protection offered

by the Free Speech Clause.10 These exclusions are rooted in history and tradition, and include

only those forms of expression that are “long familiar to the bar” as falling outside the confines

of First Amendment protection. United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality

opinion) (citation and internal quotation marks omitted). Two areas of unprotected speech that

have particular relevance to the interaction between offensive speakers and hostile crowds are

“incitement to violence” (also known as “incitement to riot”) and “fighting words.” Both classes

of speech are discussed below.

1. Incitement

The right to freedom of speech provides that a state cannot “proscribe advocacy of the

use of force or of law violation except where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S.

at 447 (footnote omitted). Advocacy for the use of force or lawless behavior, intent, and

imminence, are all absent from the record in this case. The doctrine of incitement has absolutely

no application to these facts.

The Bible Believers’ speech advocated for their Christian beliefs and for harboring

contempt for Islam. This advocacy was purportedly intended to convince Muslims at the

Festival that they should convert to Christianity. Regardless of the wisdom or efficacy of this

strategy, or of the gross intolerance the speakers’ conduct epitomized, disparaging the views of

another to support one’s own cause is protected by the First Amendment. See, e.g., Snyder,

562 U.S. at 454 (placards reading “You’re Going to Hell,” “Priests Rape Boys,” and “God Hates

Fags,” “certainly convey[ed] . . . [a] position on those issues” and constituted protected speech).

10

Obscenity, Miller v. California, 413 U.S. 15 (1973), defamation, N.Y. Times Co. v. Sullivan, 376 U.S.

254 (1964), fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), incitement, Brandenburg v. Ohio,

395 U.S. 444 (1969), and information deleterious to national security, N.Y. Times Co. v. United States, 403 U.S. 713

(1971).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 18

The only references to violence or lawlessness on the part of the Bible Believers were

messages such as, “Islam is a Religion of Blood and Murder,” “Turn or Burn,” and “Your

prophet is a pedophile.” These messages, however offensive, do not advocate for, encourage,

condone, or even embrace imminent violence or lawlessness. Although it might be inferred that

the Bible Believers’ speech was intended to anger their target audience, the record is devoid of

any indication that they intended imminent lawlessness to ensue. Quite to the contrary, the Bible

Believers contacted Wayne County prior to their visit, requesting that the WCSO keep the public

at bay so that the Bible Believers could “engage in their peaceful expression.”

It is not an easy task to find that speech rises to such a dangerous level that it can be

deemed incitement to riot. And unsurprisingly, “[t]here will rarely be enough evidence to create

a jury question on whether a speaker was intending to incite imminent crime.” Eugene Volokh,

Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1190 (2005).

In Hess v. Indiana, the Supreme Court held that a protestor who yelled, “We’ll take the

fucking street again,” amidst an agitated crowd that was already resisting police authority could

not be punished for his speech. 414 U.S. 105, 107 (1973). Because “[t]he mere tendency of

speech to encourage unlawful acts is not a sufficient reason for banning it,” Ashcroft v. Free

Speech Coal., 535 U.S. 234, 253 (2002), speech that fails to specifically advocate for listeners to

take “any action” cannot constitute incitement. Hess, 414 U.S. at 109.

Wayne County relies on Feiner v. New York, 340 U.S. 315 (1951), to support the

proposition that the Bible Believers’ speech was subject to sanction, and that such sanction does

not offend the Constitution. In Feiner, the Supreme Court upheld a conviction for breach of the

peace where, in the context of a civil rights rally, a speaker “gave the impression that he was

endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and

fight for equal rights.” Id. at 317. The majority, over a vigorous dissent, supported its holding

by relying on police testimony that the crowd had become restless, “and there was some pushing,

shoving and milling around.” Id. The majority described the scenario as a “crisis.” Id. at 321.

Thus, it has been said that Feiner “endorses a Heckler’s Veto.” Harry Kalven, Jr., A Worthy

Tradition: Freedom of Speech in America 89 (Jamie Kalven ed. 1988).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 19

The better view of Feiner is summed up, simply, by the following truism: when a speaker

incites a crowd to violence, his incitement does not receive constitutional protection.

See Glasson v. City of Louisville, 518 F.2d 899, 905 n.3 (6th Cir. 1975) (“For over twenty years

the Supreme Court has confined the rule in Feiner to a situation where the speaker in urging his

opinion upon an audience intends to incite it to take action that the state has a right to prevent.”).

Feiner lends little support for the notion that the Bible Believers’ speech amounted to incitement.

The Bible Believers did not ask their audience to rise up in arms and fight for their beliefs, let

alone request that they hurl bottles and other garbage upon the Bible Believers’ heads.

Subsequent Supreme Court precedent illustrates that the speaker’s advocacy in Feiner

itself could no longer be sanctioned as incitement. See, e.g., United States v. Williams, 553 U.S.

285, 298–99 (2008) (“To be sure, there remains an important distinction between a proposal to

engage in illegal activity and the abstract advocacy of illegality.”); NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 928 (1982) (“[T]he mere abstract teaching . . . of the moral

propriety or even moral necessity for a resort to force and violence, is not the same as preparing

a group for violent action and steeling it to such action.” (citation omitted)); Communist Party of

Ind. v. Whitcomb, 414 U.S. 441, 450 (1974) (rejecting the notion that “any group that advocates

violen[ce] . . . as an abstract doctrine must be regarded as necessarily advocating unlawful

action”); see also 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law:

Substance and Procedure § 20.39(a) (5th ed. 2013) (noting that “[t]he authority of Feiner has

been undercut significantly in subsequent [Supreme Court] cases”). In Claiborne Hardware Co.,

a speaker explicitly proposed to a large crowd that anyone who failed to abide by the terms of an

agreed upon boycott would have to be “disciplined.” 458 U.S. at 902. The speaker also stated,

“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

Id. Nonetheless, this speech was not deemed by the Court to be incitement. Id. at 928–29.

The Supreme Court has repeatedly referred to Brandenburg—not Feiner—as establishing

the test for incitement. See, e.g., Whitcomb, 414 U.S. at 447–48 (“We most recently summarized

the constitutional principles that have evolved in this area[—incitement—]in Brandenburg.”);

Claiborne Hardware Co., 458 U.S. at 928 (“The emotionally charged rhetoric of [the plaintiff’s]

speeches did not transcend the bounds of protected speech set forth in Brandenburg.”); see also

James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002) (“The Court firmly set out the test

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 20

for whether speech constitutes unprotected incitement to violence in Brandenburg.”). The

Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the

speech explicitly or implicitly encouraged the use of violence or lawless action,11 (2) the speaker

intends that his speech will result in the use of violence or lawless action, and (3) the imminent

use of violence or lawless action is the likely result of his speech. 395 U.S. at 477. The Bible

Believers’ speech was not incitement to riot simply because they did not utter a single word that

can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no

indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile

reaction of a crowd does not transform protected speech into incitement.

2. Fighting Words

A second type of speech that is categorically excluded from First Amendment protection

is known as “fighting words.” This category of unprotected speech encompasses words that

when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.”

Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Sandul v. Larion, 119 F.3d

1250, 1255 (6th Cir. 1997). We rely on an objective standard to draw the boundaries of this

category—no advocacy can constitute fighting words unless it is “likely to provoke the average

person to retaliation.” Street v. New York, 394 U.S. 576, 592 (1969) (citation and internal

quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are

not excluded from First Amendment protection; the insult or offense must be directed

specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens, J.,

concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a “direct personal insult”).

The Bible Believers’ speech cannot be construed as fighting words because it was not directed at

any individual. Furthermore, the average individual attending the Festival did not react with

violence, and of the group made up of mostly adolescents, only a certain percentage engaged in

bottle throwing when they heard the proselytizing.

11

Incitement requires, in the view of some constitutional scholars, that “the words used by the speaker

objectively encouraged and urged and provoked imminent action.” 5 Ronald D. Rotunda & John E. Nowak,

Treatise on Constitutional Law: Substance and Procedure § 20.15(d) (Online ed. May 2015) (Westlaw subscription)

(citing Hess, 414 U.S. 105; Volokh, supra, Crime-Facilitating Speech). Brandenburg’s plain language (reinforced

by Hess) requires that the words must, at minimum, implicitly encourage the use of force or lawlessness, or the

undertaking of some violent “act”; therefore, we say so explicitly today with little fanfare.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 21

B. Free Speech in Public Fora

Next, we must determine the character of Defendants’ actions. In public fora, the

government’s rights to “limit expressive activity are sharply circumscribed.” Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also Frisby v. Schultz, 487 U.S.

474, 480 (1988) (public streets are the “archetype of a traditional public forum”). Speech

restrictions in these fora fall into two categories: content-based restrictions or time, place, and

manner restrictions that are content-neutral. United States v. Grace, 461 U.S. 171, 177 (1983);

Saieg, 641 F.3d at 734. The parties’ dispute is centered on whether Wayne County’s actions

were content neutral—a distinction that determines the applicable level of constitutional scrutiny.

Connection Distrib. Co. v. Reno, 154 F.3d 281, 290 (6th Cir. 1998).

“Listeners’ reaction to speech is not a content-neutral basis for regulation,” Forsyth Cty.

v. Nationalist Movement, 505 U.S. 123, 134 (1992), or for taking an enforcement action against a

peaceful speaker. See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966) (“Participants in an

orderly demonstration in a public place are not chargeable with the danger . . . that their critics

might react with disorder or violence.”); Glasson, 518 F.2d at 905. Therefore, we find that

Wayne County’s actions were decidedly content-based. It is indisputable that the WCSO acted

against the Bible Believers in response to the crowd’s negative reaction. Deputy Chief

Richardson told Israel, “your conduct especially is causing this disturbance;” “part of the reason

they throw this stuff . . . is that you tell them stuff that enrages them;” “apparently what you are

saying to them and what they are saying back to you is creating danger;” and therefore, “[i]f you

don’t leave we’re gonna cite you for disorderly.”

The sum of Wayne County’s counter-argument to the charge that the Bible Believers’

expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan

was content-neutral, and that the WCSO’s only consideration was maintaining the public safety.

This contention fails in the face of abundant evidence that the police have effectuated a heckler’s

veto. It is irrelevant whether the Operations Plan is content-neutral because the officers

enforcing it are ordained with broad discretion to determine, based on listener reaction, that a

particular expressive activity is creating a public danger. Cf. Police Dep’t of Chi. v. Mosley,

408 U.S. 92, 97 (1972) (“[B]ecause of their potential use as instruments for selectively

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 22

suppressing some points of view, this Court has condemned licensing schemes that lodge broad

discretion in a public official to permit speech-related activity.”); see also Ctr. for Bio-Ethical

Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008) (“If the statute, as read

by the police officers on the scene, would allow or disallow speech depending on the reaction of

the audience, then the ordinance would run afoul of an independent species of prohibitions on

content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s

veto.’” (citing Bachellar v. Maryland, 397 U.S. 564, 567 (1970))).

C. The Heckler’s Veto and Police Obligations

It is a fundamental precept of the First Amendment that the government cannot favor the

rights of one private speaker over those of another. Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 828 (1995). Accordingly, content-based restrictions on constitutionally

protected speech are anathema to the First Amendment and are deemed “presumptively invalid.”

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009). An especially “egregious” form of

content-based discrimination is that which is designed to exclude a particular point of view from

the marketplace of ideas. Rosenberger, 515 U.S. at 829; Perry Educ. Ass’n, 460 U.S. at 62

(Brennan, J., dissenting) (“Viewpoint discrimination is censorship in its purest form and

government regulation that discriminates among viewpoints threatens the continued vitality of

‘free speech.’”). The heckler’s veto is precisely that type of odious viewpoint discrimination.

Cf. Police Dep’t of Chi., 408 U.S. at 98 (“‘[T]o deny this . . . group use of the streets because of

their views . . . amounts . . . to an invidious discrimination.’” (quoting Cox, 379 U.S. at 581

(Black, J., concurring))).

Both content- and viewpoint-based discrimination are subject to strict scrutiny. McCullen

v. Coakley, 134 S. Ct. 2518, 2530, 2534 (2014). No state action that limits protected speech will

survive strict scrutiny unless the restriction is narrowly tailored to be the least-restrictive means

available to serve a compelling government interest. United States v. Playboy Entm’t Grp.,

529 U.S. 803, 813 (2000). Punishing, removing, or by other means silencing a speaker due to

crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a

legitimate government purpose. Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v.

City of Chi., 337 U.S. 1 (1949); Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 23

Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chi., 394 U.S. 125 (1969). A review of

Supreme Court precedent firmly establishes that the First Amendment does not countenance a

heckler’s veto.

1. Early Cases: Clear and Present Danger

The “clear and present danger” test, first articulated by Justice Holmes in Schenck v.

United States, 249 U.S. 47 (1919), is a flexible means to protect speech while recognizing that

the government might have legitimate reasons for imposing speech-restrictions due to exigent

circumstances:

The question in every case is whether the words used are used in such

circumstances and are of such a nature as to create a clear and present danger that

they will bring about the substantive evils that Congress has a right to prevent. It

is a question of proximity and degree.

249 U.S. at 52.12 The Supreme Court in Cantwell v. Connecticut and in Terminiello v. City of

Chicago utilized the clear and present danger test to establish the rights of speakers not to be

silenced on account of listeners’ hostility toward their message.

In Cantwell, a Jehovah’s Witness was convicted for inciting a breach of the peace after

going into a predominantly Catholic neighborhood and playing (to bypassers who were willing

to listen) a phonograph recording that demonized Catholicism. 310 U.S. at 302–03, 309. Two

listeners of the recording were so offended that they threatened the Witness that he better leave

or face violent retaliation. Id. at 309. The Court recognized that with religion and politics in

particular, “[t]o persuade others to his own point of view, the pleader, as we know, at times,

resorts to exaggeration, to vilification of men who have been, or are, prominent in church or

state, and even to false statement.” Id. at 310. Invoking the now-familiar clear and present

danger test, the Court found that the expressive activity did not fall outside of the confines of free

speech protection and therefore it could not lawfully be penalized by the state. Id. at 310–11.

12

Although this test was first introduced by Justice Holmes to uphold convictions of wartime dissenters

under the speech-repressive Espionage and Sedition Acts, Holmes continued to invoke this language in dissent

throughout the 1920s as a means to protect political speech, until it became firmly established as the governing rule

following its use in Justice Brandeis’ famous concurrence in Whitney v. California, 274 U.S. 357 (1927)—the

foundation of all modern First Amendment jurisprudence. David L. Hudson, Jr., Legal Almanac: The First

Amendment: Freedom of Speech § 1:4 (Oct. 2012).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 24

In Terminiello, the Supreme Court again applied the clear and present danger test to

overturn a conviction based on a statute that allowed the state to punish speech based on crowd

hostility—i.e. a heckler’s veto. 337 U.S. at 4–5. The hostility was quite real in that instance, as

the crowd had gathered outside the auditorium and begun throwing icepicks, bottles, and rocks,

in response to the speaker’s remarks. Id. at 15 (Jackson, J., dissenting). Justice Douglas wrote

for the Court that “freedom of speech, though not absolute, is nevertheless protected against

censorship or punishment, unless shown likely to produce a clear and present danger of a serious

substantive evil that rises far above public inconvenience, annoyance, or unrest.” 337 U.S. at 4

(citations omitted). He noted that constitutionally protected speech “may strike at prejudices and

preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Id.

Therefore, the state cannot sanction speech, consistent with the Constitution, solely on the basis

that it “stirred people to anger, invited public dispute, or brought about a condition of unrest.”

Id. at 5.

Cantwell and Terminiello instruct that offensive religious proselytizing, as well as speech

that drives a crowd to extreme agitation, is not subject to sanction simply because of the violent

reaction of offended listeners. Feiner came shortly after these cases, and it highlighted a

significant flaw with the clear and present danger test in this context; chiefly, “it allows an

audience reaction, if hostile enough, to be a basis for suppressing a speaker.” Erwin

Chemerinsky, Constitutional Law: Principles and Policies 1041 (4th ed. 2011). The Supreme

Court recognized this flaw and eschewed any reliance on the clear and present danger test in the

civil-rights era cases involving hostile crowds. See, e.g., Gregory, 394 U.S. at 112–13. Those

cases reasserted, as paramount, the right of the speaker to not be silenced.

2. Civil-Rights Era: Protect the Speaker

In Edwards v. South Carolina, 187 black college and high school students were convicted

for breach of the peace following a peaceful protest, where, in small groups, the students

marched to the Columbia, South Carolina state house carrying placards bearing messages in

support of equality and civil rights. 372 U.S. at 229–30. During the demonstration, between

200 and 300 white observers gathered in a horseshoe around the students. Id. at 231. The police

threatened the students with arrest after “apprehend[ing] immin[ent] violence” by a number of

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 25

troublemakers in the crowd of onlookers. Id. at 245 (Clark, J., dissenting); id. at 231 & n.4

(majority opinion). The Supreme Court reversed the convictions, distinguished Feiner as being a

case involving incitement, and reaffirmed Terminiello by recognizing that expressive activity

cannot be proscribed merely because it “‘stirred people to anger, invited public dispute, or

brought about a condition of unrest.’” Id. at 238 (quoting Terminiello, 337 U.S. at 5).

Similarly, in Cox v. Louisiana, a student civil rights organizer led 2,000 fellow students

in a peaceful protest outside of a courthouse in downtown Baton Rouge. 379 U.S. at 538–40.

Approximately 100 to 300 white onlookers gathered to watch the protest. Id. at 541. When the

student leader suggested to the protestors that they stage a sit-in at the segregated lunch counters

in town, the crowd of onlookers reacted with jeers and became agitated. Id. at 550. Police

feared that “violence was about to erupt” from the crowd of onlookers and dispersed the student

protestors with a canister of tear gas, arresting the student leader the following day for breach of

the peace. Id. at 548, 550 n.12. The Supreme Court invoked Edwards, noting that the “evidence

showed no more than that the opinions which the students were peaceably expressing were

sufficiently opposed to the views of the majority of the community to attract a crowd and

necessitate police protection,” and overturned the conviction because “constitutional rights may

not be denied simply because of hostility to their assertion or exercise.” Id. at 551 (citation,

brackets, and internal quotation marks omitted).

Finally, in Gregory v. City of Chicago, a group of civil rights protestors peacefully

marched around the Mayor of Chicago’s home to draw attention to and air their frustration with

the slow pace of integration in Chicago’s public schools. 394 U.S. at 111. The protestors were

assaulted by onlookers with rocks and eggs, despite “a determined effort by the police to allow

the marchers to peacefully demonstrate.” Id. at 117 (Black, J., concurring). The protestors

hurled invective back at their hecklers, but otherwise “maintained a decorum that sp[oke] well

for their determination simply to” exercise their constitutional rights. Id. The police determined

that the hecklers “were dangerously close to rioting,” and therefore ordered the protestors to

leave. Id. at 120. They were charged with and convicted of breach of the peace for refusing to

vacate. Id. The Court, in a plurality opinion, called it a “simple case” because due process does

not allow for a conviction for breach of the peace where there is no evidence that the protestors

were themselves disorderly. Id. at 112. Justice Black, joined by Justice Douglas in his

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 26

concurrence, reaffirmed Edwards and Cox as controlling, inasmuch as the state cannot punish a

speaker simply because his lawful speech has attracted an angry mob of hecklers. Id. at 123–24,

124 n.8.

The civil-rights era cases tell us that police cannot punish a peaceful speaker as an easy

alternative to dealing with a lawless crowd that is offended by what the speaker has to say.

Because the “right ‘peaceably to assemble, and to petition the Government for a redress of

grievances’ is specifically protected by the First Amendment,” Gregory, 394 U.S. at 119

(Black, J., concurring), the espousal of views that are disagreeable to the majority of listeners

may at times “necessitate police protection,” Edwards, 372 U.S. at 237. “Liberty can only be

exercised in a system of law which safeguards order.” Cox, 379 U.S. at 574. It is “a police

officer’s . . . duty . . . to enforce laws already enacted and to make arrests . . . for conduct already

made criminal.” Gregory, 394 U.S. at 120 (Black, J., concurring). Therefore, the natural order of

law enforcement and crime mitigation are not upended simply because community hostility

makes it easier to act against the speaker rather than the individuals actually breaking the law;

this is true when it appears that a crowd may turn to rioting, Cox, 379 U.S. at 588, or even in the

face of actual violence that was indiscriminately directed, Gregory, 394 U.S. at 129 (“The police

were dodging the rocks and eggs” along with the protestors) (Appendix to Opinion of Black, J.,

concurring).

3. Sixth Circuit Precedent: Glasson and Damages Liability

In the decade following this string of Supreme Court precedents, a heckler’s veto case

came before the Sixth Circuit. See Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975).

Glasson recognized, consistent with the aforementioned precedents, that “[a] police officer has

the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on

suppressing ideas.” Id. at 906.

The dispute in Glasson originated when a speaker intent on voicing her displeasure with

the Vietnam War, as well as the issues of racism and poverty in America, displayed a placard

reflecting her grievances while waiting on a motorcade route for then-President Richard M.

Nixon. Id. at 901. One of the police officers responsible for crowd control noticed that a group

of Nixon supporters on the opposite side of the street became agitated, started hollering, and

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 27

were likely to riot, after perceiving the poster. Id. at 902. Instead of reprimanding the

rabble-rousing crowd, the officer destroyed the speaker’s poster after she refused to hide it from

view. Id.

The police officer’s actions in Glasson were a patent violation of the speaker’s First

Amendment rights, because the speaker did not “somehow forfeit[] the protection afforded her

message by the Constitution because it unintentionally evoked a hostile reaction from others.”

Id. at 905. However, this Court’s inquiry in Glasson did not end there; the officers were entitled

to seek shelter from damages by way of qualified immunity—then framed as a good faith

defense. Id. at 907. This defense was applicable if the officer acted reasonably under the

circumstances and in good faith. Id. With respect to reasonableness in the context of free speech

and unruly hecklers, Glasson states:

Ideally, police officers will always protect to the extent of their ability the rights

of persons to engage in First Amendment activity. Yet, the law does not expect or

require them to defend the right of a speaker to address a hostile audience,

however large and intemperate, when to do so would unreasonably subject them

to violent retaliation and physical injury. In such circumstances, they may

discharge their duty of preserving the peace by intercepting his message or by

removing the speaker for his own protection without having to respond in

damages.

Id. at 909.13 Ultimately, the Glasson Court held that the officers could not claim the shelter of

the good-faith defense because (1) it was the hecklers who posed the threat, and not the speaker

(if any threat existed at all); (2) a favorable number of other officers (relative to the size of the

crowd) were nearby and available to assist if called upon; and (3) had that number of officers

been insufficient to accomplish the task, reinforcements should have been called before they

chose to take action against the speaker. Id. at 910–11.

4. Constitutional Rule: No Heckler’s Veto

The Supreme Court, in Cantwell, Terminiello, Edwards, Cox, and Gregory, has

repeatedly affirmed the principle that “constitutional rights may not be denied simply because of

13

This rule allowing for police to be free from damages even when they silence the speaker so long as they

acted reasonably is derived from Justice Frankfurter’s concurring opinion in Feiner. See Niemotko v. Maryland,

340 U.S. 268, 289 (1951) (Frankfurter, J., concurring and concurring in Feiner v. New York, 340 U.S. 315).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 28

hostility to their assertion or exercise.” Watson v. City of Memphis, 373 U.S. 526, 535 (1963)

(citations omitted). If the speaker’s message does not fall into one of the recognized categories

of unprotected speech,14 the message does not lose its protection under the First Amendment due

to the lawless reaction of those who hear it. Simply stated, the First Amendment does not permit

a heckler’s veto.

In this Circuit, a modicum of confusion is understandable with respect to the prohibition

against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.

However, this defense is inconsistent with subsequent Supreme Court precedent, with the strict

scrutiny that must be applied to content-based discrimination, and with the superseding

affirmative defense to a § 1983 suit—qualified immunity.15 Therefore, to the extent that

Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police

officer not to effectuate a heckler’s veto, it is overruled. See Harlow v. Fitzgerald, 457 U.S. 800,

819 (1982) (“By defining the limits of qualified immunity essentially in objective terms, we

provide no license to lawless conduct.”).

In a balance between two important interests—free speech on one hand, and the state’s

power to maintain the peace on the other—the scale is heavily weighted in favor of the First

Amendment. See, e.g., Terminiello, 337 U.S. at 4. Maintenance of the peace should not be

achieved at the expense of the free speech. The freedom to espouse sincerely held religious,

political, or philosophical beliefs, especially in the face of hostile opposition, is too important to

our democratic institution for it to be abridged simply due to the hostility of reactionary listeners

who may be offended by a speaker’s message. If the mere possibility of violence were allowed

to dictate whether our views, when spoken aloud, are safeguarded by the Constitution,

surely the myriad views that animate our discourse would be reduced to the “standardization of

ideas . . . by . . . [the] dominant political or community groups.” Id. at 4–5. Democracy cannot

survive such a deplorable result.

When a peaceful speaker, whose message is constitutionally protected, is confronted by a

hostile crowd, the state may not silence the speaker as an expedient alternative to containing or

14

See footnote 10.

15

Qualified immunity and the good-faith defense are discussed in greater detail in Part IV of this opinion.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 29

snuffing out the lawless behavior of the rioting individuals. See Watson, 373 U.S. at 535–36.

Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a

tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his

or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech]

cannot be made a substitute for the duty to maintain order in connection with the exercise of

th[at] right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939). If the speaker, at his

or her own risk, chooses to continue exercising the constitutional right to freedom of speech, he

or she may do so without fear of retribution from the state, for the speaker is not the one

threatening to breach the peace or break the law. However, the Constitution does not require that

the officer “go down with the speaker.”16 If, in protecting the speaker or attempting to quash the

lawless behavior, the officer must retreat due to risk of injury, then retreat would be warranted.

The rule to be followed is that when the police seek to enforce law and order, they must do so in

a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens.

See Gregory, 394 U.S. at 120 (“[A] police officer[’s] . . . duty is to enforce laws already enacted

and to make arrests . . . for conduct already made criminal.”) (Black, J., concurring). The police

may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if

that becomes necessary. Moreover, they may take any appropriate action to maintain law and

order that does not destroy the right to free speech by indefinitely silencing the speaker.

Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed

legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the

police to achieve their ends by using only those means that are the least restrictive with respect to

the speaker’s First Amendment rights.

“[T]he Constitution demands that content-based restrictions on speech be presumed

invalid and that the [g]overnment bear the burden of showing their constitutionality.” Alvarez,

132 S. Ct. at 2544 (citation, internal quotation marks, and ellipses omitted). Wayne County has

not come close to meeting that burden in this case. There was a force of approximately fifty

officers at the Festival—nineteen of whom were purposely unassigned so that they could respond

to changing circumstances. A crowd made up predominantly of adolescents began hurling

plastic bottles and other trash at the Bible Believers. Law enforcement officers, despite their

16

Kalven, supra, The Negro and the First Amendment, at 140.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 30

numbers, were virtually nowhere to be found, save for a few brief appearances. One of these

appearances was solely for the purpose of telling the Bible Believers that they could no longer

use their megaphone. At a later encounter, an officer came over not to reprimand the

troublemakers, but to inform the Bible Believers that they were free to leave the Festival. Each

time that an officer appeared, the adolescents’ lawless behavior relented, despite the lack of

official reprimand. Throughout the harassment and violence directed at them, the Bible

Believers remained calm and peaceful. While the Deputy Chiefs conferred with Corporation

Counsel, and prior to the Bible Believers being forced to leave the Festival, there were

approximately a dozen officers milling about in the background. Many of those officers were

sufficiently unoccupied to follow the Bible Believers and observe their fellow officer ticket them

for driving a vehicle without a license plate. By the WCSO’s own admission in its post-

operation report, the totality of the officers’ attempt to enforce the law constituted only a few

verbal warnings being directed at the lawless adolescents and one individual being cited.

Wayne County disputes the sufficiency of their manpower to quell the crowd, but this

contention is specious. The video record evinces next to no attempt made by the officers to

protect the Bible Believers or prevent the lawless actions of the audience. The record also

indicates a substantial police presence that went virtually unused. Wayne County claimed to

have assigned more law enforcement personnel to the Festival than had previously been assigned

to crowd control when the President of the United States visited the area. We cannot justifiably

set the bar so low for the police officers sworn to protect our communities (and occasionally the

President) that there is any debate as to whether it is reasonable that the result of a purportedly

sincere effort to maintain peace among a group of rowdy youths is few verbal warnings and a

single arrest.17

17

Judge Gibbons’ dissent makes much of the presence of actual—as opposed to potential—violence

directed at the Bible Believers by the adolescent audience. Gibbons Dis. 53–54. However, the dissent’s

unsupported, hyperbolic account of the Bible Believers as “bruised and bloodied,” Gibbons Dis. 54, ignores any

responsibility on the part of the WCSO to use some small part of its police force, and the aura of authority with

which a sheriff’s office is imbued, to attempt to protect the Bible Believers from the lawless behavior of the crowd.

Similarly, because the WSCO made no genuine efforts to utilize its officers to prevent or punish the unlawful

behavior of the adolescents, it is unfair, on this record, to characterize the crowd’s conduct as “undeterred by police

presence.” Gibbons Dis. 54.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 31

We do not presume to dictate to law enforcement precisely how it should maintain the

public order. But in this case, there were a number of easily identifiable measures that could

have been taken short of removing the speaker: e.g., increasing police presence in the immediate

vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or

threatening to arrest more of the law breakers, as was also requested; or allowing the Bible

Believers to speak from the already constructed barricade to which they were eventually

secluded prior to being ejected from the Festival. If none of these measures were feasible or had

been deemed unlikely to prevail, the WCSO officers could have called for backup—as they

appear to have done when they decided to eject the Bible Believers from the Festival—prior to

finding that it was necessary to infringe on the group’s First Amendment rights. We simply

cannot accept Defendants’ position that they were compelled to abridge constitutional rights for

the sake of public safety, when at the same time the lawless adolescents who caused the risk with

their assaultive behavior were left unmolested.18

The Bible Believers attended the Festival to exercise their First Amendment rights and

spread their religious message. The way they conveyed their message may have been vile and

offensive to most every person who believes in the right of their fellow citizens to practice the

faith of his or her choosing; nonetheless, they had every right to espouse their views. See

Cantwell, 310 U.S. at 309 (“The record played . . . would offend not only persons of [the

Catholic] persuasion, but all others who respect the honestly held religious faith of their

fellows.”). When the message was ill-received, the police did next to nothing to protect the

Bible Believers or to contain the lawlessness of the hecklers in the crowd. Instead, the WCSO

accused the Bible Believers of being disorderly and removed them from the Festival.19 On this

18

In his dissent, Judge Rogers maintains that when assessing whether to cut off speech being made to a

hostile crowd, law enforcement should be permitted to “tak[e] into account all of the factors” they routinely consider

in keeping the peace, including “the nature of the crowd, the resources available to police at the time, and other

factors bearing on law enforcement’s ability to control the scene around a speaker.” Rogers Dis. 64. We hold the

same. On this point, the difference between our view and that of Judge Rogers is that Judge Rogers believes that the

WCSO chose a constitutional course of conduct after considering these factors, and we find that they did not.

19

Contrary to Judge Rogers’ assertion, Rogers Dis. 62–63, the video record indicates that the WCSO

threatened to cite the Bible Believers for disorderly conduct not due to any purported failure to obey a police order,

but based on the unrest created by their speech. (R. 28-A, Raw Festival Footage, Time: 00:53:41 (Officer

Richardson: “I’m not telling you that you’re going to be arrested, but, you know, you are a danger to the public

safety. You’re disorderly.”); id. at 00:54:58 (“Alright, you need to leave . . . . If you don’t leave we’re going to cite

you for disorderly. You are creating a disturbance . . . I mean look at your people here . . . This is crazy.”).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 32

record, there can be no reasonable dispute that the WCSO effectuated a heckler’s veto, thereby

violating the Bible Believers’ First Amendment rights.

In his dissent from this part of our holding, Judge Griffin opines that although Cantwell

and Terminiello clearly established that police officers may not effectuate a heckler’s veto on

behalf of an irate mob, “those precedents left unanswered whether the police effectuate a

heckler’s veto when they remove a speaker for his own safety rather than because of the content

of the speech or its supposed effect on the crowd.” Griffin Dis. at 46–47. Fortunately, Cantwell

and Terminiello were not the last cases to speak on the issue of a heckler’s veto, and later cases

have made clear that excluding a speaker from a public forum, under most circumstances, will

not constitute the least restrictive means for coping with a crowd’s hostile reaction to her

constitutionally protected speech. See supra Part I.C. Such a result comports with the high

premium this nation places on speech safeguarded by the First Amendment.

Notably, a heckler’s veto effectuated by the police will nearly always be susceptible to

being reimagined and repackaged as a means for protecting the public, or the speaker himself,

from actual or impending harm. After all, if the audience is sufficiently incensed by the

speaker’s message and responds aggressively or even violently thereto, one method of quelling

that response would be to cut off the speech and eject the speaker whose words provoked the

crowd’s ire. Our point here is that before removing the speaker due to safety concerns, and

thereby permanently cutting off his speech, the police must first make bona fide efforts to protect

the speaker from the crowd’s hostility by other, less restrictive means. Although Glasson made

that requirement clear, and framed the removal of the speaker for his own protection as a last

resort to be used only when defending the speaker “would unreasonably subject [officers] to

violent retaliation and physical injury,” 518 F.2d at 909, the WCSO made no discernible efforts

to fulfill this obligation.

II. The First Amendment and Free Exercise

We next consider the Bible Believers’ claim that Wayne County violated their right to the

free exercise of religion. The right to free exercise of religion includes the right to engage in

conduct that is motivated by the religious beliefs held by the individual asserting the claim.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 33

Prater v. City of Burnside, 289 F.3d 417, 427 (6th Cir. 2002). The government cannot prohibit

an individual from engaging in religious conduct that is protected by the First Amendment. Id.

The Bible Believers’ proselytizing at the 2012 Arab International Festival constituted

religious conduct, as well as expressive speech-related activity, that was likewise protected

by the Free Exercise Clause of the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105,

108–10 (1943). Plaintiff Israel testified that he was required “to try and convert non-believers,

and call sinners to repent” due to his sincerely held religious beliefs. We do not question the

sincerity of that claim. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“[I]t is no business of

courts to say that what is a religious practice or activity for one group is not religion under the

protection of the First Amendment.”); cf. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,

2778 (2014) (“[T]he federal courts have no business addressing whether the religious belief

asserted in a RFRA case is reasonable.” (internal parentheses omitted)).

Free exercise claims are often considered in tandem with free speech claims and may rely

entirely on the same set of facts. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill.

of Stratton, 536 U.S. 150 (2002); Rosenberger, 515 U.S. at 841. Defendants prevented the Bible

Believers from proselytizing based exclusively on the crowd’s hostile reaction to the religious

views that the Bible Believers were espousing. Therefore, the free exercise claim succeeds on

the same basis as the free speech claim. See Watchtower Bible, 536 U.S. at 150, 159 n.8.

III. The Fourteenth Amendment and Equal Protection

The next inquiry is with respect to the Bible Believers’ equal protection claim. We have

held that:

The Equal Protection Clause of the Fourteenth Amendment commands that no

state shall . . . deny to any person within its jurisdiction the equal protection of the

laws. To state an equal protection claim, a plaintiff must adequately plead that the

government treated the plaintiff disparately as compared to similarly situated

persons and that such disparate treatment . . . burdens a fundamental right, targets

a suspect class, or has no rational basis.

Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (citations and

internal quotation marks omitted). Freedom of speech is a fundamental right. Lac Vieux Desert

Band of Lake Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 410 (6th Cir.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 34

1999). Therefore, Wayne County’s actions are subject to strict scrutiny. San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973). “In determining whether individuals are

‘similarly situated,’ a court should not demand exact correlation, but should instead seek relevant

similarity.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012)

(internal quotation marks omitted).

The Festival included a number of other religious organizations that came to share their

faith by spreading a particular message. There are several distinctions between the Bible

Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to

register for an assigned table under the information tent. Instead, they paraded through the

Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head.

Although these actions set them apart from the other speakers and religious organizations at the

Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival

grounds with or without signs if they chose to do so. The Bible Believers, like the other religious

organizations at the Festival, sought to spread their faith and religious message. Although they

declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful

while they passionately advocated for their cause, much like any other religious group. Wayne

County did not threaten the Bible Believers based on their decision to march with signs and

banners, but based on the content of the messages displayed on the signs and banners. The

county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible

Believers’ speech was found to be objectionable by a number of people attending the Festival.

Wayne County therefore violated the Bible Believers’ right to equal protection by treating them

in a manner different from other speakers, whose messages were not objectionable to

Festival-goers, by burdening their First Amendment rights. See Napolitano, 648 F.3d at 379.

IV. Qualified Immunity

Whether Deputy Chiefs Richardson and Jaafar can be held liable for civil damages is a

separate question from whether their actions violated the Constitution.20 Although Glasson

20

The Bible Believers are entitled to injunctive relief irrespective of the damages inquiry. See Harlow,

457 U.S. at 818 (“[G]overnment officials performing discretionary functions generally are shielded from liability for

civil damages”); Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (noting that qualified immunity is not

available in “a suit to enjoin future conduct”); see also Cannon v. City & Cty. of Denver, 998 F.2d 867, 876 (10th

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 35

spoke about a good-faith defense, qualified immunity—announced seven years after Glasson in

Harlow v. Fitzgerald—is the presently available affirmative defense for government officials

subject to liability under § 1983. In Harlow, the Supreme Court removed the subjective element

from the then-existing affirmative defense for government actors—the good faith inquiry.

Harlow, 457 U.S. at 819 (“By defining the limits of qualified immunity essentially in objective

terms, we provide no license to lawless conduct.”); see also Ohio Civil Serv. Emps. Assoc. v.

Seiter, 858 F.2d 1171, 1173 (6th Cir. 1988) (“The law of qualified immunity was dramatically

changed by the Court in Harlow v. Fitzgerald.”).

Pursuant to Harlow, “government officials performing discretionary functions generally

are shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

457 U.S. at 818. This standard presupposes two things: first, that the facts alleged by the

plaintiff are sufficient to state a constitutional claim; and second, that the constitutional right

which the officer has purportedly violated was clearly established at the time of the harm giving

rise to the action. Saucier v. Katz, 533 U.S. 194, 201–02 (2001), abrogated by Pearson v.

Callahan, 555 U.S. 223, 236 (2009) (holding that although the two-step inquiry set out in

Saucier “is often beneficial,” courts may “exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first”). Having already

found that the Deputy Chiefs effectuated an unconstitutional heckler’s veto, we need only decide

whether their actions violated law that was clearly established at the time of the 2012 Festival.

Whether a point of law is clearly established necessarily turns on its breadth—i.e., the level of

specificity at which it is defined. See Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012) (“[T]he

right allegedly violated must be established not as a broad general proposition, but in a

particularized sense so that the contours of the right are clear to a reasonable official.” (citations

and internal quotation marks omitted)). Although “existing precedent must have placed the . . .

constitutional question beyond debate,” “[a] case directly on point,” is not a prerequisite to

finding that a law is clearly established. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).

Cir. 1993) (“The protestors also seek declaratory and injunctive relief against the officers. Unlike the claim for

money damages, there is no qualified immunity to shield the defendants from claims for these types of relief.”);

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (“Qualified immunity . . . does not

bar actions for declaratory or injunctive relief.”).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 36

Deputy Chief Defendants Richardson and Jaafar contend that, “no ‘clearly established’

law existed on the subject of correct law enforcement response to a situation where speakers may

or may not be engaged in protected speech, the audience in proximity to the speech reacts

violently, and the deputies do not have sufficient manpower to restrain the audience, to protect

the speakers, and to ensure their own safety.” See Appellee Supp. Br. at 21–23. The Deputy

Chiefs’ position is untenable and unsupported by the record. As is evident from the Supreme

Court opinions detailed above, and as explicitly stated in Glasson, “[a] police officer has the duty

not to ratify and effectuate a heckler’s veto . . . . Instead, he must take reasonable action to

protect from violence persons exercising their constitutional rights.” 518 F.2d at 906.

Defendants were specifically put on notice of this requirement, insofar as the Bible Believers

quoted this precise language in a letter that was sent to Wayne County.

To the extent that Glasson’s discussion of a good-faith defense confused the issue of

whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson

nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no

serious attempt to quell the lawless agitators, could subject them to liability. In Glasson, the

Court rejected the officers’ claims that the size of their force was insufficient to quell the

hecklers that were purportedly “near to riot.” Id. at 910. The Court explicitly stated the

requirement that the police “take reasonable action to protect from violence persons exercising

their constitutional rights,” id. at 906 (emphasis added), and found the officers’ actions

unreasonable because they failed to call for reinforcements and failed to recognize the speaker’s

right to be protected from violence. Id. at 910. These facts are substantially the same as those

before us today.

Defendants emphasize the fact that Glasson involved an officer tearing up a sign in

response to agitated hecklers, as opposed to officers removing a speaker in an attempt to quell an

angry crowd that was actually engaged in violent retaliation. These distinctions are immaterial.

The violence here was not substantial, much less overwhelming, and speech, whether it be

oration or words written on a poster, is speech nonetheless. Moreover, this case was also about

removing from view signs that were considered offensive by a group of hecklers—as Israel

informed the Deputy Chiefs, his group was no longer preaching during the latter portion of the

onslaught against them. Finally, it should be noted that Glasson involved a more compelling

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 37

state interest—protection of the President—yet the officers’ actions were still deemed to be

unreasonable. See Wood v. Moss, 134 S. Ct. 2056, 2061 (2014) (citing Watts v. United States,

394 U.S. 705, 707 (1969)) (“[S]afeguarding the President is . . . of overwhelming importance in

our constitutional system.”).

Had the Bible Believers refused to leave, and consequently been arrested, charged, and

convicted of disorderly conduct, the convictions could certainly be held invalid pursuant to

Gregory.21 The Bible Believers’ decision to comply with the police officers’ demands, under

threat of arrest for disorderly conduct—as opposed to the speaker’s decision in Gregory to

disregard the officer’s command—cannot stand for the proposition that there was no clearly

established law as to whether the police may threaten to arrest a peaceful speaker in order to

calm a hostile crowd of hecklers.22 Gregory, like this case, involved protestors who used

offensive language and, in response, were assaulted with debris by a violent crowd of hecklers.

21

Disorderly conduct is governed by Mich. Comp. Laws § 750.167. The only provision of this statute that

is at all remotely relevant to the Bible Believers’ conduct is subsection (l), which reads: “A person who is found

jostling or roughly crowding people unnecessarily in a public place.” As in Gregory:

The so-called ‘diversion tending to a breach of the peace’ . . . was limited entirely and exclusively

to the fact that when the policeman in charge of the special police detail concluded that the

hecklers observing the march were dangerously close to rioting and that the demonstrators and

others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave,

and Gregory—standing on what he deemed to be his constitutional rights—refused to do so. . . .

[T]he conduct involved here could become ‘disorderly’ only if the policeman’s command was a

law which the petitioners were bound to obey at their peril. But under our democratic system of

government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on

his beat. . . . To let a policeman’s command become equivalent to a criminal statute comes

dangerously near making our government one of men rather than of laws. There are ample ways

to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy

and unwieldy weapon.

Gregory, 394 U.S. at 120–21 (Black, J., concurring) (citations omitted).

22

Judge Gibbons’ dissent maintains that the clearly established right on which we base our holding is a

speaker’s “specific right . . . to be free from an effective removal when his safety and the safety of others have been

compromised by an unforeseen violent mob occasioning physical injury on both the speaker and innocent

bystanders.” Gibbons Dis. 52. This statement both misapprehends our holding and mischaracterizes the record.

With regard to the factual inaccuracies, there is no indication that anyone other than the Bible Believers themselves,

including any so-called “innocent bystanders,” suffered physical injury as a result of the audience’s hostile reaction

to the group’s proselytizing. Further, after the first bottle was thrown, and the Bible Believers informed the officer

objecting to their use of the megaphone that they were being pelted with garbage by the adolescent crowd, there was

nothing “unforesee[able]” about the risk of further aggression from this particular audience. In terms of legal

misconceptions, contorting our opinion to hold that a constitutional violation inevitably occurs when a speaker is

removed after his safety has been compromised by a lawless mob ignores our emphasis on law enforcement’s

obligation to attempt to prevent violence occasioned by unruly crowds—as the law enforcement agency’s resources

permit—before resorting to cutting off constitutionally protected speech. This order of operations, which first

requires officers to make sincere efforts to maintain order and protect the speaker, assures that law enforcement’s

conduct is narrowly tailored to serve the compelling government purpose of assuring public safety.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 38

On facts such as these, state-sanctioned penalties for alleged breaches of the peace cannot

withstand constitutional scrutiny.

V. Monell: Municipal Liability

Finally, we address municipal liability. Municipalities are not vicariously liable for the

actions of their employees. However, a municipality may be found responsible for § 1983

violations, and held liable for damages pursuant to Monell v. New York City Department of

Social Services, if the plaintiff demonstrates that the constitutional harm suffered was a result of

the municipality’s policy or custom. 436 U.S. 658, 694 (1978); see also Bd. of Cty. Comm’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997).

A plaintiff may demonstrate the existence of a policy, custom, or usage in a variety of

ways, two of which are relevant to this appeal. First, she may provide evidence of a formal

policy officially adopted by the county. Monell, 436 U.S. at 690. Second, a single

unconstitutional act or decision, when taken by an authorized decisionmaker, may be considered

a policy and thus subject a county to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986).

We conclude that Wayne County Corporation Counsel’s involvement in drafting a letter

to the Bible Believers, and in sanctioning the Deputy Chiefs’ decision to remove the Bible

Believers from the Festival, easily resolves the matter of municipal liability. “Monell is a case

about responsibility.” Id. at 478. Therefore, with respect to a single decision, municipal liability

is appropriate “where the decisionmaker possesses final authority to establish policy with respect

to the action ordered.” Id. at 481 (footnote omitted). Corporation Counsel informed the Bible

Believers by way of letter that “under state law and local ordinances, individuals can be held

criminally accountable for conduct which has the tendency to incite riotous behavior or

otherwise disturb the peace.” Then the Deputy Chiefs consulted Corporation Counsel at the

Festival to confirm that they could threaten the Bible Believers with arrest for disorderly conduct

because the Bible Believers speech had attracted an unruly crowd of teenagers. As discussed at

length, speech cannot be proscribed simply because it has a “tendency” to cause unrest or

because people reacted violently in response to the speech. Ashcroft, 535 U.S. at 253 (“[T]he

mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 39

Corporation Counsel’s misstatement of the law in a letter may not constitute an official policy,

but her direction and authorization for the Deputy Chiefs to threaten the Bible Believers with

arrest based on the prevailing circumstances is certainly an action for which she “possesse[d]

final authority to establish municipal policy.” See Wayne Cty. Muni. Code § 4.312 (Corporation

counsel is the chief legal advisor to the County CEO and “all County agencies,” including the

Sheriff’s Office). The relevant facts in this case bearing on municipal liability are substantially

similar to the facts of Pembaur. See 475 U.S. at 484 (“The Deputy Sheriffs who attempted to

serve the capiases at petitioner’s clinic found themselves in a difficult situation. Unsure of the

proper course of action to follow, they sought instructions from their supervisors. The

instructions they received were to follow the orders of the County Prosecutor. The Prosecutor

made a considered decision based on his understanding of the law and commanded the officers

forcibly to enter petitioner’s clinic. That decision directly caused the violation of Petitioner’s

Fourth Amendment rights.”). Therefore, Wayne County is liable.

Summary

From a constitutional standpoint, this should be an easy case to resolve. However, it is

also easy to understand Dearborn’s desire to host a joyous Festival celebrating the city’s Arab

heritage in an atmosphere that is free of hate and negative influences. But the answer to

disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s

veto through threat of arrest by the police. The adults who did not join in the assault on the Bible

Believers knew that violence was not the answer; the parents who pulled their children away

likewise recognized that the Bible Believers could simply be ignored; and a few adolescents,

instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’

message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel,

effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous

adolescents to dictate what religious beliefs and opinions could and could not be expressed.

This, the Constitution simply does not allow.

The chief flaw affecting the dissents of Judges Rogers and Gibbons is that they

acknowledge law enforcement’s obligation to protect the public in general, and speakers

exercising their First Amendment rights in particular, Rogers Dis. 64; Gibbons Dis. 53–55, but

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 40

seek to avoid holding the WCSO accountable to this standard by distorting the factual record to

reflect an out-of-control situation in which the officers were powerless to quell the violence or

reign in the mob. The “mob” in this case was comprised mostly of children and teenagers. The

“violence,” though not imaginary, involved little more than plastic bottle and garbage throwing.

As evidenced in the video record, the WCSO’s efforts to prevent this behavior were virtually

non-existent. Instead, the officers largely ignored the lawless conduct of the crowd and directed

what little attention they paid to the Bible Believers’ situation—prior to ejecting the group—to

quieting and then silencing their speech.

“Speech is often provocative and challenging. It may strike at prejudices and

preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Terminiello, 337 U.S. at 4. Excluding viewpoints and ideas from the marketplace damages us by

occasioning the risk that we might subject ourselves to “tyrannies of governing majorities,”

Whitney, 274 U.S. at 376 (Brandeis, J., concurring), and thereby forestall “the advancement of

truth, science, morality, and [the] arts,” 1 Journals of the Continental Congress, 1774–1789,

Letter to the Inhabitants of Quebec, 108 (Aug. 26, 1774). These are but a few of the reasons that

the First Amendment is integral to the vitality and longevity of a free society. These are the

reasons why we must accept our differences and allow our fellow citizens to express their views

regardless of our distaste for what they have to say.

CONCLUSION

Because the Wayne County Defendants impermissibly cut off the Bible Believers’

protected speech, placed an undue burden on their exercise of religion, and treated them

disparately from other speakers at the 2012 Arab International Festival, solely on the basis of the

views that they espoused, Wayne County Defendants violated the Bible Believers’ constitutional

rights under the First and Fourteenth Amendments. Deputy Chief Defendants are civilly liable to

the Bible Believers for having violated law that is clearly established by the Supreme Court

precedent set forth in Gregory v. City of Chicago, 394 U.S. 111 (1969). Wayne County is civilly

liable because one of its chief legal policymakers counseled and authorized the Deputy Chiefs’

actions. Therefore, we REVERSE the grant of summary judgment by the district court in favor

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 41

of Defendants, and REMAND this case for entry of summary judgment in favor of Plaintiffs, for

the calculation of damages, and any other appropriate relief, consistent with this opinion.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 42

_________________

CONCURRENCE

_________________

BOGGS, Circuit Judge, concurring. I concur in Judge Clay’s thorough analysis of the

facts and law in this case. I write separately only to clarify a few important issues involved in

this case and to respond to some of the misconceptions in other opinions.

I would have thought that a simple examination of pre-existing First Amendment law

would make the following points quite clear. Brandenburg v. Ohio held that obnoxious speech

cannot be suppressed, even if the speaker is inciting listeners in favor of such speech, unless the

speech is likely to incite those listeners to imminent lawless action directed at others. 395 U.S.

444, 447 (1969) (per curiam). Gregory v. City of Chicago made clear that the government

cannot suppress speech (in that case, allegedly provocative demonstrations by civil-rights

protestors in Chicago) simply because opponents are threatening to become unruly. 394 U.S.

111, 111–13 (1969). As Judge Clay amply demonstrates, everything that happened in this case

falls exactly within the above-mentioned cases. The Bible Believers were in a place they had a

right to be—a public area—doing what they had a right to do—speaking about their religious

beliefs—when they were set upon and put in some degree of physical danger by those who

disagreed with their message.

Despite the colorful language in Judge Rogers’s dissent, the motivations of the Bible

Believers, and their status as a “majority” or “minority,” are of absolutely no importance as to

their legal rights or the legality of the government’s actions. “[A] function of free speech under

our system of government is to invite dispute. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs

people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (emphases added). “In the realm

of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets

of one man may seem the rankest error to his neighbor. To persuade others to his own point of

view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have

been, or are, prominent in church or state, and even to false statement. But the people of this

nation have ordained in the light of history, that, in spite of the probability of excesses and

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 43

abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on

the part of the citizens of a democracy.” Cantwell v. Connecticut, 310 U.S. 296, 310 (1940)

(emphasis added). “[I]f there is any principle of the Constitution that more imperatively calls for

attachment than any other it is the principle of free thought—not free thought for those who

agree with us but freedom for the thought that we hate.” United States v. Schwimmer, 279 U.S.

644, 654–55 (1929) (Holmes, J., dissenting) (emphasis added).

Contrary to these precedents, Judge Rogers characterizes the speakers as the disruptors,

imposing themselves upon and unsettling unsuspecting passersby. That may or may not be a fair

characterization, but it is in no way different from most free-speech cases that arise in public.

All of the quotations above are from cases where the speakers upset other people. The Jehovah’s

Witnesses in Cantwell, for example, played phonographs criticizing the Roman Catholic Church

in a largely Catholic neighborhood, much like the Bible Believers criticized Islam at the Arab

International Festival. They may do it out of love or out of hate, but it makes no difference to the

First Amendment.

Judge Rogers appears to present a new theory of unprotected speech: speakers are not

protected from arrest if they have some subjective intent that violence should be visited upon

themselves. No hint of this appears in any previous cases, and Gregory certainly implicitly

rejects it. Judge Rogers’s arguments are reminiscent of those in his earlier opinion in Defoe,

which established as the doctrine in our circuit alone that public-school officials have broad

discretion to restrict student speech depending on the nature, not the effect, of the speech. Defoe

ex rel. Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010) (Rogers, J., concurring) (controlling

opinion). In this dissent, that erroneous doctrine is extended beyond the school setting and

expanded to deny the applicability of past free-speech doctrine when a speaker is maliciously

seeking publicity for certain religious views.

The fact that someone can come up with a novel method of attacking a clearly established

doctrine, which novel attack has not previously been specifically rejected, does not detract from

the doctrine’s being “clearly established.” Otherwise, no doctrine could ever be clearly

established, as our law schools exist in large part precisely to teach how to come up with new

theories. The one situation in which I might think that an issue of material fact remained would

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 44

be if the disorder created by the attackers threatened to spill out to the general public, or to create

a threat to general public safety. But the defendants here do not even make an effort to raise that

as a factual argument, and an examination of the extensive video of the incident does not show a

likelihood of violence to anyone other than the plaintiffs in this case.

Judge Rogers defends the police actions as mere “direction[s] to a citizen.” Rogers

Dissent, at 63. Yet the police clearly infringed the liberty interests of the Bible Believers. The

standard definition of an arrest is when a person “is not free to go.” If an officer gives a

command “stay or we will arrest you,” that person is not free to go and is surely arrested.

Similarly, here the police order was “leave, or we will arrest you.” The plaintiffs were not free

to stay any more than you would be if the police came to your house and said, “come with us to

our police car or we will arrest you”; you are not free to stay and are surely under arrest.

See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force

. . . or, where that is absent, submission to the assertion of authority.”).

But, Judge Rogers argues, if the police cannot force speakers to leave, those speakers will

be able to “get the police to help [them] attack and disrupt something like a minority cultural

identity fair, even if the police are not inclined to do so.” Rogers Dissent, at 60. The pellucid

flaw in Judge Rogers’s dystopian scenario is that there is no police obligation to assist speakers

in communicating their message. The law simply requires the government to refrain from

silencing speakers. Requiring officers to refrain from interfering with speech can hardly be

equated with affirmatively enlisting unwilling officers to “help” speakers.

Judge Rogers’s opinion also has the disturbing implication that courts should decide who

is a majority and who is a minority, and accord lesser rights to those whom judges deem a

majority and greater rights to those whom they deem a minority. Rogers Dissent, at 60, 65. The

dissent makes explicit what may be implicit in the views of some: that First Amendment rights

only belong to those who “speak truth to power” and not those who “speak power to truth”; to

those who “question authority” and not those who would “question those who question

authority.” This is wrong both as a matter of doctrine and of practice. Again, no Supreme Court

case indicates that your rights depend on whether you are “punching up” or “punching down,”

and indeed virtually all of them hold to the contrary.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 45

Further, in this specific circumstance it is highly dubious that the plaintiffs here,

representatives of what most would consider an extreme and ill-mannered evangelical group, are

imposing themselves on a minority. They were outnumbered in the immediate area, in a political

jurisdiction (Dearborn) in which the “minority” is in a clear preponderance, and in a wider area

(Wayne County) whose political leanings are clearly shown by the actions of the police both in

this circumstance and in the previous correspondence in the record. It is both dangerous as a

matter of doctrine and misleading on the facts to make anything at all in this case rest on the

concepts of “majority” and “minority.”

Judge Rogers concludes his dissent by observing that it is “unfortunately ironic” that the

Bible Believers could invoke “cases involving minority civil rights protests.” Rogers Dissent, at

65. But the real irony is that the very principle he articulates to allow the suppression of speech

could just as easily be used against civil-rights protesters challenging racism or religious

intolerance. 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. I would have thought that if anything was “clearly

established” in First Amendment law, it is that our view of “irony” does not trump the

Constitution.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 46

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

GRIFFIN, Circuit Judge, concurring in part and dissenting in part. I agree with the

majority opinion that both the officers and Wayne County violated the Bible Believers’ First

Amendment rights. However, I would hold that Deputy Chiefs Richardson and Jaafar are

entitled to qualified immunity because the right at issue was not clearly established at the time of

the 2012 Arab International Festival. For this reason, I join the majority opinion except for Part

IV and the final two paragraphs of Part I.C.4, from which I respectfully dissent.

The doctrine of qualified immunity “shields government officials from civil damages

liability unless the official violated a statutory or constitutional right that was clearly established

at the time of the challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(citation omitted). A right is clearly established when, “at the time of the challenged conduct,

‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have

understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011) (emphasis added) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Put

another way, “existing precedent must have placed the statutory or constitutional question

beyond debate.” Id.

As Judge Clay correctly notes, when defining the scope of the right at issue, courts must

be cautious to define the right neither too narrowly nor too broadly. To that end, we must define

the right at issue “not as a broad general proposition, but in a particularized sense so that the

contours of the right are clear to a reasonable official.” Reichle, 132 S. Ct. at 2094 (internal

citation and quotation marks omitted). Here, the right at issue is properly defined as the right to

exercise one’s free speech rights in the face of a hostile crowd without the government

effectuating a heckler’s veto by removing the speaker for his own safety.

At the time of the 2012 Arab International Festival, “existing precedent” had not placed

this constitutional question “beyond debate.” Ashcroft, 131 S. Ct. at 2083. Although the

Supreme Court’s decisions in Cantwell v. Connecticut, 310 U.S. 296 (1940), and Terminiello v.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 47

City of Chicago, 337 U.S. 1 (1949), had established the general proposition that police officers

may not effectuate a heckler’s veto, those precedents left unanswered whether the police

effectuate a heckler’s veto when they remove a speaker for his own safety rather than because of

the content of the speech or its supposed effect on the crowd. Indeed, whether removing a

speaker for his own safety amounts to a heckler’s veto is the very question we resolve in this

case. And, though we answer that question in the affirmative, we had not done so at the time of

the 2012 Arab International Festival.

Contrary to the position of the majority opinion, precedent in fact confirms that at the

time of the 2012 Arab International Festival, the right at issue was debatable. In Glasson v. City

of Louisville, 518 F.2d 899 (6th Cir. 1975)—decided well after Cantwell and Terminiello—this

court opined that when police fear a violent crowd may inflict physical injury, “they may

discharge their duty of preserving the peace by intercepting his message or by removing the

speaker for his own protection without having to respond in damages.” Id. at 909. Though we

now correctly reject this part of Glasson as dicta and overrule this principle of law, we do so for

the first time. Indeed, Wayne County’s pre-festival letter to the Bible Believers—which forms a

basis for my conclusion that Wayne County is liable—explicitly relies on this passage from

Glasson. The letter itself is evidence that the law in this area was not as clear as the majority

opinion suggests as it relies on Glasson for the proposition that officers may constitutionally

remove speakers for their own protection, and states that “[t]he law as announced in Glasson is

among the laws [that Wayne County] is duty-bound to uphold.”

Nor does Glasson otherwise clearly establish the right at issue in this case. There, this

court held that the police violated the plaintiff’s First Amendment rights when they destroyed the

plaintiff’s anti-Nixon poster that had agitated a crowd of Nixon supporters. Glasson, 518 F.2d at

902, 906. But, unlike this case, the crowd in Glasson was not actually violent towards the

speaker; they were merely “hollering” and “cheered” when the officers destroyed the poster. Id.

at 902. Thus, Glasson did little more than reinforce the basic principle that the police may not

effectuate a heckler’s veto. Glasson’s holding alone does not answer the question presented by

this case: whether the police effectuate a heckler’s veto by removing a speaker for his own

safety. In fact, Glasson suggests that they do not.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 48

Moreover, although numerous Supreme Court decisions opine generally regarding the

constitutional infirmity of a heckler’s veto, none answer the specific question posed by this case.

See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 880 (1997) (opining about the

heckler’s veto in the context of online fora); Pleasant Grove City, Utah v. Summum, 555 U.S.

460, 468 (2009) (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J.,

dissenting)) (restrictions on government speech amount to a heckler’s veto).

In sum, § 1983 does not require that defendant officers anticipate what we decide in this

case: that police effectuate a heckler’s veto when they remove a speaker from a hostile crowd

for the speaker’s own safety. At the time of the 2012 Arab International Festival, reasonable

minds could have differed whether the officers’ treatment of the Bible Believers violated clearly

established federal law. For these reasons, I respectfully dissent from Part IV and the final two

paragraphs of Part I.C.4 of the majority opinion.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 49

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

SUTTON, Circuit Judge, concurring in part and dissenting in part. I agree with the

majority that the Bible Believers engaged in protected speech in a traditional public forum. I

agree with the majority that the defendants curtailed the Bible Believers’ speech on the basis of

its content. And I agree with the majority that the defendants had other options short of

removing the Bible Believers from the festival to deal with the public-safety problems generated

by their speech. For these reasons, I must conclude that strict scrutiny governs the defendants’

actions and that they have not satisfied it. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231

(2015). In each of these respects, I therefore join Part I of the analysis in Judge Clay’s opinion.

I part ways with this component of the majority opinion to the extent it draws the conclusion that

a “heckler’s veto” supplies a freestanding doctrinal basis for concluding that the defendants

violated the Bible Believers’ First Amendment rights.

That leaves (mainly) the question of qualified immunity. I agree with Judge Gibbons that

the obligations of the defendants in this unusual setting were not clearly established at the time of

the festival and accordingly join Parts II and III of her dissenting opinion. As Judge Gibbons’s

opinion shows—and as the stark differences among the many opinions in this case confirm—the

First Amendment requirements in this area did not provide the kind of clarity we normally

demand before imposing after-the-fact, money-damages liability on individual officers. Pity the

police officer then—and perhaps even now—tasked with identifying the lines of permissible and

impermissible peace-officer conduct in this non-peaceful area.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 50

_________________

DISSENT

_________________

GIBBONS, Circuit Judge, dissenting.

I.

Although I have concurred in Judge Rogers’s opinion, it is useful here, where there is

strong disagreement among members of the court, to provide another alternative path to the same

result.

II.

On account of the alleged constitutional violations, the Bible Believers seek declaratory

relief, injunctive relief, nominal damages, and attorneys’ fees. As discussed below, however,

Bible Believers are not entitled to any of these remedies. Even assuming, arguendo, the

majority’s position that a violation of the Bible Believers’ constitutional rights exists, qualified

immunity bars the suit against Officers Jaafar and Richardson in their individual capacities. The

municipality is also not liable on the remaining damages claims because Bible Believers cannot

establish that the allegedly unconstitutional action was the result of a municipal policy. Lastly,

dispensing with the remaining claims, the plaintiffs’ prayers for declaratory and injunctive relief

are precluded by the absence of a credible threat or imminent injury.

A. Qualified Immunity

Bible Believers’ damages claim against the officers in their individual capacities should

fail under qualified immunity because there was, and still remains, no clearly established law

pertaining to this specific right.

Qualified immunity affords a broad shield, ensuring “that those who serve the

government do so with the decisiveness and the judgment required by the public good.” Filarsky

v. Delia, ––– U.S. ––––, 132 S. Ct. 1657, 1665 (2012) (internal quotation marks omitted). In

doing so, it “gives government officials breathing room to make reasonable but mistaken

judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 51

Stanton v. Sims, ––– U.S. ––––, 134 S. Ct. 3, 5 (2013) (per curiam) (emphasis added) (internal

citations and quotation marks omitted). The majority’s holding effectively strips the officers of

this broad protection, and instead of providing the officers with breathing room, all but

suffocates them.

To determine whether a government official is entitled to qualified immunity, we must

ask whether “a constitutional right would have been violated on the facts alleged” and, if so,

whether the right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 200–01 (2001).

The order of analysis is within the courts discretion. Pearson v. Callahan, 555 U.S. 223, 236

(2009). In this case, “it is plain that [the] constitutional right is not clearly established,” leaving

the constitutional question as an “essentially academic exercise.” See id. at 236–37 (permitting

courts to avoid potentially “difficult constitutional questions”). My analysis therefore centers on

whether the constitutional right that the defendants purportedly violated was clearly established.1

In determining whether a right is clearly established, it is imperative to articulate the right

at issue with the appropriate specificity. Saucier, 533 U.S. at 202 (“The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” (emphasis

added)). If the right is characterized at its most general level, the second prong in qualified

immunity analysis would serve no purpose. See Ashcroft v. al-Kidd, ––– U.S. –––, 131 S. Ct.

2074, 2084 (2011) (“We have repeatedly told courts . . . not to define clearly established law at a

high level of generality. The general proposition, for example, that an unreasonable search or

seizure violates the Fourth Amendment is of little help in determining whether the violative

nature of particular conduct is clearly established.” (internal citations omitted)).

The definition, therefore, must be “particularized” in such a way that “[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson, 483 U.S. at 640, 107 S. Ct. 3034 (internal citations

omitted). A case directly on point is unnecessary, but “existing precedent must have placed the

constitutional question beyond debate.” Sims, 134 S. Ct. at 5 (quoting Ashcroft v. al-Kidd,

1

My analysis would remain the same whether or not a genuine issue of material fact exists as to whether a

constitutional violation occurred.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 52

563 U.S. —–, —–, 131 S. Ct. 2074, 2083 (2011)). To assist in its determination, the court

should “look first to the decisions of the Supreme Court, and then to the case law of this circuit.”

Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002).

Here, contrary to the majority’s characterization, the right in question is not the general

right to free speech in spite of a crowd’s outrage, but the more specific right of a speaker to be

free from an effective removal when his safety and the safety of others have been compromised

by an unforeseen violent mob occasioning physical injury on both the speaker and innocent

bystanders. A court has yet to find that there is such a right. Thus the determinative question is

whether the officers could reasonably have believed—based on pre-existing precedent—that the

First Amendment did not preclude them from effectively removing the Bible Believers. See

Occupy Nashville v. Haslam, 769 F.3d 434, 445 (6th Cir. 2014) (“What matters is that reasonable

government officials could, like the State Officials here, understand the law very differently.”) If

pre-existing precedent would lead “officers of reasonable competence [to] disagree on [the]

issue, immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). There is

not one single case predating the conduct at issue that prohibits effectively removing a speaker in

a materially similar context. This alone weighs against a finding that the law was clearly

established because the officers would not have had “‘fair notice that [their] conduct was

unlawful.’” Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (quoting Brosseau v.

Haugen, 543 U.S. 194, 200 (2004)).

The majority says that the “heckler’s veto” doctrine—“firmly establish[ed]” by the

Supreme Court as well as this court in Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975)

(Op. at 22, 36)—clearly established the Bible Believers’ rights. But the Supreme Court’s

decisions in this department offer little guidance about today’s case. None of the cases cited by

the majority to derive the “heckler’s veto” rule involved government officials acting against a

speaker because of actually occurring violence, as opposed to signs of trouble that had not

spilled over into violence. See Gregory v. City of Chicago, 394 U.S. 111, 111–12 (1969); Cox v.

Louisiana, 379 U.S. 536, 550 (1965); Edwards v. South Carolina, 372 U.S. 229, 231 (1963);

Terminiello v. City of Chicago, 337 U.S. 1, 6 (1949); Cantwell v. Connecticut, 310 U.S. 296, 309

(1940). The majority sums up these decisions as “affirm[ing] the principle that ‘constitutional

rights may not be denied simply because of hostility to their assertion or exercise.’” (Op. at 25

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 53

(quoting Cox, 379 U.S. at 551).) The principle of course is right, see Snyder v. Phelps, 562 U.S.

443, 458 (2011), but it does not tell us what police should do when verbal “hostility,” such as

mere “muttering” and “grumbling,” see Cox, 379 U.S. at 543, descends into violence. Later

cases say that the government may in some circumstances combat “actual” problems related to

speech, especially when public safety is on the line. See, e.g., McCullen v. Coakley, 134 S. Ct.

2518, 2535 (2014); Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011); Schenck v.

Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997).

The Supreme Court’s infrequent invocation of a “heckler’s veto” rationale confirms the

lack of guidance that the concept provides. The closest the Court has come to the facts of this

case when using the term is in a footnote to a 1966 plurality opinion. See Brown v. Louisiana,

383 U.S. 131, 133 n.1 (1966) (plurality opinion). Even then, that use of “heckler’s veto” does

not help us because the Court invoked the term in the context of potential as opposed to actual

violence, reasoning that it would be unfair to suppress peaceful protestors due to the danger that

critics “might” react with disorder or violence. Id. On a few other occasions, the Court has used

“heckler’s veto” as shorthand for the undesirability of opponents being able to cut off some

disfavored speech, idea, or policy, but none of those cases has any bearing here. See, e.g.,

Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2115 (2015) (Roberts, C.J., dissenting);

Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009). In the last analysis, the Supreme

Court had not clearly established that the officers acted unconstitutionally in asking the Bible

Believers to leave in the face of ongoing violence, and the “heckler’s veto” does nothing to fill

that gap in authority.

Nor did Glasson—the only case that remotely mirrors the circumstances at issue—clearly

establish the law that controls this case. There, a police officer tore up the plaintiff’s sign

because a group across the street, apparently angered by the sign’s message, began screaming at

the plaintiff and, as a result, the officer feared for the plaintiff’s safety. Glasson, 518 F.2d at

902–03. The Sixth Circuit held that the police officers were liable for a First Amendment

violation. Id. at 912. The court found that “[t]he state may not rely on community hostility and

threats of violence to justify censorship.” Id. at 906. For “[t]o permit police officers . . . to

punish for incitement or breach of the peace the peaceful communication of . . . messages

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 54

because other persons are provoked and seek to take violent action against the speaker would

subvert the First Amendment.” Id. at 905.

According to the majority, Glasson put the officers on notice that removing the Bible

Believers in this circumstance could subject them to liability. (Op. at 36.) In so holding, the

majority again ignores the same factual difference—Glasson involved no violence and the case

before us involved a violent mob inflicting physical harm on the speakers. In Glasson, the

unruliness of the crowd was limited to muttered threats unaccompanied by action; it did not

involve actual, physical violence. Id. Here, Bible Believers (and potentially other bystanders)

were showered with rocks, plastic bottles, garbage, and milk crates. (DE 1, Complaint, ¶ 46.)

The Bible Believers were bruised and bloodied, with one Bible Believer bleeding from his

forehead. (Id. at 57). The majority attempts to mitigate the pointed difference between the two

scenarios by proclaiming that the violence here was “much less overwhelming.” (Op. at 36.)

While the majority’s tolerance for pain is certainly admirable, hundreds of teenaged children

throwing a deluge of objects—ranging from bottles to rocks to milk crates—can fairly be

characterized as an overwhelming display of aggression and violence.

Glasson can be further distinguished from this case by the officers’ respective responses

to the crowds. The officers in Glasson made absolutely no attempt to calm the crowd. Id. at

905. In this case, although the majority faults the officers for not doing enough, neither party

disputes that the officers warned, detained, and cited several debris-throwers in an attempt to rein

in the chaos.

While the holding in Glasson may clearly establish that an officer must refrain from

infringing on the right of a speaker when a crowd becomes angry and threatens violence, it does

not clearly establish an officer’s appropriate response to a physically violent and unruly mob of

mostly children who are undeterred by police presence.

Moreover, despite Glasson’s ultimate conclusion, the court in Glasson made clear that

police officers “may discharge their duty of preserving the peace by . . . removing the speaker for

his own protection” when a hostile audience would unreasonably subject law enforcement to

physical injury. 518 F.2d at 909. Such a pronouncement echoes a recurrent principle: the First

Amendment does not afford one an unfettered right to exercise free speech in the face of

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 55

jeopardizing the safety of members of the public. Police officers are charged with protecting the

“‘lives, limbs, health, comfort, and quiet of all persons.’” Grider v. Abramson, 180 F.3d 739,

752 (6th Cir. 1999) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). And the

Supreme Court has made plain that when a “clear and present danger” of disorder or other

“immediate threat to public safety” appears, “the power of the state to prevent or punish is

obvious.” Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940). No court has ever

recognized a First Amendment right that is so absolute that it can stymie police efforts to cope

with highly volatile situations. Markedly, this court has emphasized that police officers must

take the actions necessary to protect the physical safety of citizens and the overall public order.

See Grider, 180 F.3d at 752.

The majority, seemingly disapproving the ramifications of Glasson, overrules it “to the

extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a

police officer not to effectuate a heckler’s veto.” (Op. at 26.) The majority’s decision to

overrule Glasson ought to tell us all we need to know about the clearly established inquiry. At

the time of the incident, it was not sufficiently clear to a reasonable officer that removing the

Bible Believers for their own protection violated the First Amendment. Otherwise, there would

be no need to overrule this part of Glasson. Implicit—in truth explicit—in the majority’s

decision is the recognition that officials could understand the law differently at the time of this

incident.2

Even after today’s decision, officials could understand the law differently. “Heckler’s

veto,” as the many separate writings in this case suggest and as the Supreme Court’s own cases

confirm, is more often used as a debater’s point rather than as a doctrinal tool. Even on its own

terms, the “rule” does not mean that the government must invariably ignore an opponent’s

reaction in deciding how to treat speech. The doctrines of “incitement to imminent lawless

action,” Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (per curiam), and “fighting words,”

2

Indeed, the tenets of Glasson and Cantwell, when viewed in tandem, could lead a reasonable officer to

conclude that he may not punish a speaker for peaceful expression merely because the listeners seek to take violent

action against the speaker; but, the officer may remove a speaker for his own protection if the audience becomes so

violent as to potentially harm—or, as was the case here, actually harm—the speaker, an officer, or a bystander.

When viewed through this lens, a reasonable officer, aware of the material distinctions between this case and

Glasson, could believe that the escalating violence at the Arab Festival presented an example of when police may

remove the speaker for his own protection.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 56

Cohen v. California, 403 U.S. 15, 20 (1971), allow censorship based on listener reactions, indeed

even potential reactions. The majority seems to suggest that the “heckler’s veto” cases mean

that, once a speaker is outside these categories of “unprotected speech” and enters the field of

“protected speech,” the listeners’ reactions to speech may never be the basis for government

regulation. Surely that is not the law—and at least the Supreme Court has never said it is. “Such

a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with

common sense and with our jurisprudence as well.” R.A.V. v. City of St. Paul, 505 U.S. 377, 384

(1992).

Apparently recognizing as much, the majority suggests at one point that the police may

limit speech in order to protect the speaker from a violent reaction, but only as a last resort. (Op.

at 22 (“Punishing, removing, or by other means silencing a speaker due to crowd hostility will

seldom, if ever, constitute the least restrictive means available to serve a legitimate government

purpose.”).) But at other points, the majority implies this is not the rule at all and that the police

may never limit speech in order to protect the speaker, even if doing so is the only way to protect

the speaker from serious injury or even death at the hands of an angry mob. (Op. at 28 (“Simply

stated, the First Amendment does not permit a heckler’s veto.”); see also Op. at 44 (“The law

simply requires the government to refrain from silencing speakers.”) (Boggs, J., concurring).)

Given these mixed signals, it is not even obvious what has been clearly established by today’s

opinion, much less clearly established what the law was when these officers were forced into

action.

A situation where officers could understand the law in different ways, both at the time

they acted and after this court acts, is precisely the type of occasion in which police officers

should be shielded from personal damages liability. See Malley, 475 U.S. at 341 (finding that

immunity should be recognized in those instances where officers of reasonable competence

could disagree on the issue). The fact that reasonable officials can differ in their responses

confirms that it was not “plainly incompetent” for the police to believe they had a right to

effectively remove the Bible Believers. Stanton, 134 S. Ct. at 5.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 57

B. Municipal Liability

As Monell has informed us, a municipality is only liable for constitutional violations

resulting from official policies or customs. The “official policy” requirement “distinguish[es]

the acts of the municipality from the acts of employees of the municipality. Pembaur, 475 U.S.

479. An official policy commonly refers to “formal rules or understandings . . . that establish

fixed plans of action to be followed under similar circumstances.” Id. at 480. In this regard, the

majority admits that Corporations Counsel misstatement of the law in the letter responding to

Bible Believers does not amount to an official policy. (Op. 38–39.) Nevertheless, because a

single decision by “government authorized decisionmakers” can also denote official policy,

Pembaur, 475 U.S. at 481, the majority finds that liability attaches to the municipality through

the Corporation Counsel’s instruction advising the Deputy Chiefs to threaten to issue the Bible

Believers a citation. (Id.) I must respectfully disagree.

The Bible Believers have presented no evidence from which a reasonable jury could find

that Corporations Counsel, or the Deputy Chiefs for that matter, possessed final decision making

authority. Unlike in Pembaur, where the Deputy Sheriffs were instructed by their supervisors to

follow the orders of the County Prosecutor, 475 U.S. 469, thus imbuing the Prosecutor with final

decisionmaking authority, here the evidence is devoid of any such instruction. Instead, the

Deputy Chiefs merely conferred with Corporation Counsel because, after all, its duty is to

“provide legal services” such as “advis[ing], consult[ing] or represent[ing]” Wayne County

officers. Wayne Cnty. Muni. Code § 4.312. Some advice to an officer, though perhaps ill-

conceived, does not metamorphose Corporation Counsel into a decisionmaker with final

authority. Indeed, nothing in the municipal code vests Corporation Counsel with “final authority

to establish policy.” Pembaur, 475 U.S. 478; see also id. at 483 (“Authority to make municipal

policy may be granted directly by a legislative enactment or may be delegated by an official who

possess such authority[.]”). Nor does the evidence show that Corporation Counsel was bestowed

with such authority by a final decisionmaker. Advice amounts to nothing more than a

recommendation, not a decision. Therefore, no genuine issues of material fact exist as to

whether the violation of the Bible Believers constitutional rights stemmed from Wayne County’s

policies or customs.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 58

C. Declaratory and Injunctive Relief

Because qualified immunity only protects officials from damages liability in their

individual capacities, Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001), and finding no

Monell liability only protects the county and officers from damages in their official capacity, the

next step is to address whether the Bible Believers are entitled to declaratory and injunctive

relief. They are not; the plaintiffs failed to sufficiently allege standing to claim injunctive and

declaratory relief. See Kusens v. Pascal Co., Inc., 448 F.3d 349

That the plaintiffs have standing to pursue their damages claims has no bearing on

whether they have standing to request injunctive and declaratory relief. They “must demonstrate

standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., 528 U.S. 167, 185 (2000). A prayer for both declaratory and injunctive relief requires an

assessment of whether the plaintiff has demonstrated a legitimate likelihood of future harm.

See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (“[T]he question in each case

is whether the facts alleged, under all the circumstances, show that there is a substantial

controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory

judgment.” (emphasis added)); City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). For the

allegation of future harm to be sufficient, there must be a “substantial risk that the harm will

occur,” or the threatened injury must be “certainly impending.” Susan B. Anthony List v.

Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal quotation marks omitted); see Grendell v. Ohio

Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (“‘[W]hen seeking declaratory and injunctive

relief, a plaintiff must show actual present harm or a significant possibility of future harm in

order to demonstrate the need for pre-enforcement review.’” (quoting Nat’l Rifle Assoc. of Am. v.

Magaw, 132 F.3d 272, 279 (6th Cir. 1997)).3

The Bible Believers’ plans to continue to take an active role in advocating their religious

beliefs at a future Arab Festival is insufficient to demonstrate that future harm is likely. Bible

Believers fear that “they will again be attacked by Muslims and given the option by [the officers]

3

The inquiry focuses exclusively on prospective conduct. Lyons, 461 U.S. at 103 (“[P]ast exposure to

illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by

any continuing, present adverse effects.” (internal quotation marks and alterations omitted)). Thus, the fact that

Bible Believers were threatened with disorderly conduct at the 2012 Arab Festival is irrelevant to the determination

of whether injunctive relief is apposite.

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 59

to either cease their free speech activity or face arrest for disorderly conduct.” (DE 1,

Complaint, ¶ 70.) The facts in record belie any contention that they will be exposed to the same

or similar circumstances as present here. For the past seventeen years the Arab Festival has gone

on virtually without incident—let alone any event remotely similar to the one at issue. This is so

despite the annual presence of a multitude of Christian missionaries and evangelists from across

the country. (DE 1, Compliant, ¶ 17). Even the Bible Believers concede that during this time

“there was little to no conflict between the Christians and the Muslims who attended the Arab

Festival.” (Id. ¶ 24.) In fact, Bible Believers’ attendance at the festival—including the day

before the incident in question—was largely uneventful.

Given that the Arab-American Festival is no longer an annual event in Dearborn,4 there

are serious doubts surrounding the very existence of the Festival in the future. Thus, the prospect

of a recurring problem is not only “highly conjectural” and indefinite, but also “rest[s] on a string

of actions the occurrence of which is merely speculative.” Grendell, 252 F.3d at 833. This

speculative injury is not sufficient to bestow the Bible Believers with standing to pursue

declaratory and injunctive relief. Thomas v. Campbell, 12 F. App'x 295, 297 (6th Cir. 2001)

(citing Lewis v. Casey, 518 U.S. 343, 351–52 (1996)).

III. Conclusion

In conclusion, I must respectfully disagree with my colleagues who believe that we

should reverse. Even assuming a violation of the Bible Believers constitutional rights, they are

not entitled to any relief: qualified immunity defeats plaintiffs’ individual damages claims

against the officers; the absence of a municipal policy responsible for the alleged constitutional

violations prevents the plaintiffs from holding Wayne County liable; and finally, the lack of an

imminent and credible injury precludes standing for the plaintiffs’ prayers for injunctive and

declaratory relief.

4

Cancelling the Arab International Festival Was an Admission of Defeat, ARAB AMERICAN

NEWS (Apr. 2, 2015, 9:51 AM), http://www.arabamericannews.com/news/news/id_10291/Canceling-the-Arab-

International-Festival-was-an-admission-of-defeat.html; Niraj Warikoo, ACLU Supports Free-Speech Rights of anti-

Islam Group,DETRIOT FREE PRESS (Dec. 26, 2014, 9:37 AM), http://www.freep.com/story/news/local/michigan/way

ne/2014/12/26/aclu-supports-free-speech-rights-christian-group-hates-islam/20899957/. See Logan v. Denny’s Inc.,

259 F.3d 558, 578 n.9 (6th Cir. 2001) (citing Ieradi v. Mylan Labs, Inc., 230 F.3d 594, 598 n.2 (3d Cir. 2000)

(noting that it was proper for an appellate court to take judicial notice of newspaper articles even when the articles

were not before the district court)).

No. 13-1635 Bible Believers, et al. v. Wayne County, et al. Page 60

_________________

DISSENT

_________________

ROGERS, Circuit Judge, dissenting. Today’s holding provides a roadmap that

effectively advises how to force the police to help disrupt a minority’s speech and assembly

rights. It is as if we are advising as follows:

Yes, you can get the police to help you attack and disrupt something like a

minority cultural identity fair, even if the police are not inclined to do so. Tell the

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