Block on Trump's Asylum Ban Upheld by Supreme Court
This is a tough question: What do police officers do when a group called Bible Believers, carrying a severed pig's head and yelling about a "pedophile prophet," are confronted at the Arab International Festival in Dearborn, Michigan, by Muslim children with rocks and bottles?
The "peaceful" proselytizers are kind of asking for it. But you don't want to crush their speech rights by giving in to the hecklers who are pelting them with rubble. Eventually, after things started to get out of hand, and the leader of the Bible Believers group was bleeding from a cut on his face, police stepped in and escorted the group out of the festival.
The original case split 2-1 in the Sixth Circuit, with the majority siding with the police officers and the dissent arguing that the cops didn't go far enough to protect speech rights. Now, the full Sixth Circuit will give the case the en banc treatment.
Split Panel Sides With Police
In August, the three-judge panel's majority emphasized the danger: to the crowd, the Bible Believers, and the police. This wasn't a peaceful disagreement at this point -- the issue had escalated to the point of a mini-riot, with the Bible Believers' leader bleeding. The police were simply stepping in to prevent further violence. The majority distinguished this from heckler's veto cases by pointing out that rioting and fighting had already begun:
We reiterate that a state must not "unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions." [...] But, here, had the WCSO wanted merely to preserve desirable conditions, they could have intercepted the Bible Believers shortly after their arrival at the 2012 Festival. Instead, they allowed the Bible Believers to proceed until the threat of "violent retaliation and physical injury" became too great, at which point they "discharge[d] their duty of preserving the peace by removing the speaker[s] for [their] own protection."
The dissent wanted more from the police, arguing that they did very little, other than stand around and watch, before escorting the Bible Believers out of the festival. The dissent also noted that the police "themselves aver that they dedicate more police to the Festival than they do to a presidential visit or the World Series" and would not have even needed a "sizeable police presence to control a crowd of children."
"This is not good faith," the dissent argued. "[I]t is manufacturing a crisis as an excuse to crack down on those exercising their First Amendment rights."
How Long Do You Wait for a Riot?
Let's be clear here: Among the real-life participants, there were no innocent parties. The "children" were acting like idiots by throwing bottles and rocks. (Then again, they are kids.) The proselytizers were anything but peaceful: There's preaching, and then there's being a group of idiots hell-bent on starting a riot. (A pig's head? Calling Mohammed a "pedophile"? That's not preaching, that's provoking a conflict.)
But none of that is the point. The issue is whether the police did their job. And there is a fine line here between giving in to hecklers with rocks and protecting a group (who themselves, arguably, were heckling) from a bubbling riot. It's a close case -- the en banc opinion should be interesting.