The Ninth Circuit just came down on the side of free speech in Meinecke v. City of Seattle. This case presented the issue of a (rowdy and even violent) majority silencing a peaceful minority opinion — and the police taking the side of the majority. It highlights a complex legal issue: can the government silence someone because others don't like their message? The federal court said "nope." Let's find out why.
Meet Matt Meinecke
Matthew Meinecke, the named plaintiff in the lawsuit, is a devout Christian in the Seattle area. He’s made it his mission to spread the message of the gospel – particularly by showing up to well-attended public events and evangelizing. He’ll hold up signs, hand out Christian literature, and read out loud from the Bible. He’ll also talk to passersby and answer their questions about Christianity.
June 2022 was a busy month for Meinecke. That month, he attended two different public events. The first was the protest of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, which overturned Roe v. Wadeand the right to abortion. The second was Seattle’s annual PrideFest.
The Dobbs Protest Incident
At the Dobbs protest, Meinecke apparently didn’t attend to protest one way or another about the abortion decision. Rather, he claims he was there “to convey his faith in Christianity to people who were in the area.” As usual, he held up a sign, handed out Christian literature, and read from the Bible. But things escalated when protestors surrounded him, seized and ripped his Bibles, with one seizing his Bible. Meinecke pulled out another from his bag, but another protestor grabbed that one and started ripping off pages. Protestors (who Seattle police later described as “Antifa”) encroached on Meinecke, and even physically lifted and moved him across the street. When he walked back to his original location to begin reading again, protestors knocked him down and took one of his shoes.
When police arrived, instead of taking any action against the protestors (who they acknowledged had assaulted Meinecke), the ordered Meinecke to leave. There is a bit of he-said-she-said about what exactly the police told him. Meinecke says that they told him to go where no one could hear him or read his sign. The City of Seattle claims that the police merely instructed him to cross the street, where he could still display his banner and exercise his First Amendment rights. Either way, Meinecke refused to move, so the officers arrested him under the offense of “obstruction,” though he was released without being booked after the protest was over.
The PrideFest Incident
Apparently undeterred from that experience, Meinecke attended the city’s PrideFest two days later and repeated his MO. But there, too, the other attendees acted hostile towards him. They began “dancing near him, holding up a flag to keep people from seeing him,” and making “loud noises so he could not be heard.” Some “stood close to Meinecke and howled and barked like dogs, and mocked Meinecke, while he read passages from the Bible. Meinecke did not engage with them.” One guy even poured water on his Bible, but the Christian kept reading aloud. Hours later, more PrideFesters gathered around him and began yelling, which attracted police attention.
Similarly to the earlier incident, the police asked him to move to an area outside the park where the festival was taking place. Again, Meinecke declined and continued reading from his Bible. When a PrideFester demanded Meinecke’s removal, the police told him “that they were imposing a ‘time, place, and manner’ restriction on him and ordered him to leave the park.” When he declined again, that told him “that he was posing a risk to public safety.” Eventually, the police again arrested him for obstruction. This time, he was booked, though the city told him a few days later that it was not pressing charges. The city did warn him that “it could bring up charges for this incident at a later time.”
Arrest and Lawsuit
On both occasions, Seattle police arrested Meinecke under a city ordinance that punishes citizens for disobeying police orders to stop a behavior (even if it’s protected speech) when it risks injury to any person in the area.
Last spring, Meinecke sued the city and its police department. He asked the court for an injunction that would stop the Seattle police from further arresting him for his preaching. The federal district court denied that request, and he appealed to the Ninth Circuit – who ruled in his favor.
Ninth Circuit's Analysis
The First Amendment, which applies to both states and the feds, forbids states from acting in a way (such as making or enforcing a law) that restricts protected free speech. “Free speech” isn’t limited to just the words you say, but also signs you hold up and actions you take that send messages. When a citizen like Meinecke brings a claim against the government that they’ve encroached on their free speech rights, the court goes through a multi-factor analysis to see who’s in the wrong.
The first question is whether the speech in question qualifies for protection; the City agrees that what Meineicke was trying to do or say qualified as protected speech under the First Amendment. Importantly, what Meineicke was doing was peaceful and not antagonistic, so he didn’t risk running afoul of “inciting speech” or “fighting words,” which might disqualify someone from getting free speech protection.
The second question is what “forum” (space or venue) the speech occurred in, because depending on “how public” the venue in question is, it may merit more or less first amendment protection. But that isn’t the issue, either. The City agrees that the places Meineicke’s speech occurred in — a public park and public sidewalks — are especially important places for free speech protection. In other words, the places Meineicke was choosing to exercise his freedom of speech were “super public” and therefore afforded him the highest degree of free speech rights.
What’s the issue then? Well, just because these first two questions are answered in Meineicke’s favor don’t automatically mean that the government can’t shut down his speech. It just means that the court will analyze the law to the highest standard possible, strict scrutiny, and the government needs a really, really good reason to trump his free speech. That’s where the third step of the analysis comes in. It asks: are the reasons the State is giving for excluding someone from free speech sufficiently justified under that high standard?
Content Based Restrictions
This is where “content-based restrictions” come into play. Imagine the court is deciding if a police officer can tell someone to be quiet at a concert. A content-neutral restriction would be like the officer saying "Everyone needs to quiet down so the music can be heard." This rule applies to everyone, regardless of what they're saying. The court would likely approve this because it protects public safety (significant government interest) and allows people to talk elsewhere (ample alternative channels).
On the other hand, a content-based restriction would be like the officer saying "Only people cheering for the band can talk." This rule targets the content of speech (cheers vs. criticism). The court is stricter on these because they can easily shut down unpopular ideas. For content-based restrictions, courts hold the bar highest for the officer. They'd need a really good reason to silence someone (e.g., a direct threat of violence) and show there's no other way to achieve it (e.g., arresting the troublemaker).
Government's Actions Were Not Justified
In the Meinecke case, the court decided the city's restrictions silenced Meinecke because of his message (religion), not because it caused a public safety issue.
As Judge Jay S. Bybee wrote in his order, “[c]urtailing speech based on the listeners’ reaction is rarely — if ever — the least restrictive means to achieve the government’s interest in safety . . . [t]he officers could have required the protestors to take a step back from Meinecke. They could have called for more officers — as they did after Meinecke was arrested. They could have erected a free speech barricade. They could have warned the protestors that any sort of physical altercation would result in the perpetrators’ arrests. And they could have arrested the individuals who ultimately assaulted Meinecke.”
After all, if protestors shouting down someone else gets could get that person silenced instead of the loud protestors, it would become a “heckler’s veto.” Since the police choose to zero in on Meinecke instead of the protestors, their method of control wasn’t justified. The Ninth Circuit approved Meinecke’s injunction. So it looks like, for now, the poor man will be left alone by the Seattle police, if not the general public.
Related Resources:
- ACLU Defends Trump Against Judge's Gag Order on Free Speech Grounds (FindLaw's Law and Daily Life)
- Can the Government Get Involved in Religious Disputes? (FindLaw's U.S. Constitution Pages)
- Student Rights at School: Free Speech (FindLaw's Law and Daily Life)
