Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment
One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don't like, they often steamroll Constitutional rights in their hurry to shut this speech down.The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about "public safety" to justify their incursion on people's rights. These justifications rarely justify the overreach.Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won't sue. Maybe they happen because governments assume nebulous "public safety" concerns won't be examined thoroughly if they are sued. Or maybe they just assume that, because they're using the public's money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn't any particular government employee's money at stake.That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a "prayer rally." What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn't unconstitutionally shuttered the event. (via Courthouse News Service)Here's some brief background by the court, which doesn't highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].
St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel (“Hotel”), a private facility located near Pier VI.On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.Given the average government's "for the children" protestations whenever it plans to violate rights, you'd think a rally criticizing a religious entity infamous for sexual abuse of children would be right up its rhetorical alley. You'd assume wrong -- not if its "allies" include people the elected officials of Baltimore find noxious. (That list includes Yiannopoulos, former Trump advisor Steve Bannon, and Newsmax commentator Michelle Malkin.)St. Michaels sued, alleging First Amendment violations. The court (unsurprisingly) agrees. First, it notes a similar rally by the same group in 2018 which resulted in no acts of violence or any other threats to public safety. Nevertheless, city officials insisted this time would be different.
Michael Huber, Mayor Scott’s Chief of Staff, avers that the discussions between SMG and St. Michael’s “came to the attention” of the City in July 2021. In particular, the City learned that St. Michael’s planned a rally featuring speakers “known for encouraging violent actions that have resulted in injuries, death, and property damage.” In the City’s view, some of the speakers would “provoke a strong reaction and raise the potential for clashes and disturbances,” given the “very real potential [that the speakers] would use [the rally] to incite violence and public disruption.”While it's true some of the threat matrix may have changed following an unprecedented attack on the Capitol building in Washington, DC by so-called conservatives apparently hoping to negate a peaceful presidential election, no previous experience with this group should have led city officials to this conclusion. And, while the forum being rented was privately-owned, the city has some say in the issuance (and, in this case, rescinding) of contracts. When it interceded -- for internally inconsistent reasons -- it violated the plaintiff's rights.
Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications.As to the matter of discretion, the City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff’s plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael’s. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City’s actions here. As far as the Court is aware, none exist.As the court notes, the main concern the city had appeared to be about those who would show up and protest the St. Michael's protest, rather than the supposed "incendiary" participants working with St. Michael's. That only adds to the list of ways the city violated the First Amendment.
The City’s invocation of a heckler’s veto also raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City’s decision. And, at the hearing, counsel for the City placed considerable weight on the City’s concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the “persistent and insidious threat[s] to first amendment rights” discussed in Berger, 779 F.2d at 1001…This is not an acceptable justification for regulating speech.And more along those same lines:
As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when “used as a mere pretext for suppression expression” based on viewpoint. This includes, for example, “where the asserted fears of a hostile audience reaction are speculative and lack substance.”Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.St. Michael's gets its injunction against the City of Baltimore. The show will go on. The City violated the group's rights when it decided the people who didn't secure the venue were so potentially dangerous the speakers who rented the venue shouldn't be allowed to speak. A heckler's viewpoint is indistinguishable from viewpoint discrimination in situations like these. The city decided in favor of one viewpoint (the counterprotesters [a.k.a., the hecklers] and decided the other viewpoint (St. Michael's) had no right to be heard.