A Michigan Jury Finds That Muslims Can’t Be Expected To Control Themselves and Pastor Jones Gets His Birmingham Jail Moment (Update: Released!)
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Update: Via Volokh we get this brief from the ACLU. The law element has been well-covered, but they bring expertise of local procedure.
Basically this is a special process by which a person can be accused of planning to breach the peace. And if they plan to breach the peace, they can be charged a bond to cover the estimated costs of such breach. So what we have is a full-on Minority Report situation, where we are prosecuting him not for what he has done, but what he might do. Indeed, more precisely we are prosecuting him based on what others might do if he does something that he might not himself do. That explains, procedurally what was going on, but it doesn’t make it any less appalling (or change my analysis significantly). It is also prior restraint of the most appalling form and bluntly, will not withstand appeal. It might take the Supreme Court to do it, but this law will be rendered a dead letter before this is over.
Incidentally, in response something Allah (the blogger) said, the Fighting Words doctrine is uncertain as constitutional law these days. For instance, in Texas v. Johnson the incitement of others to breach the peace, the so-called heckler’s veto, was treated under the more stringent Brandenburg standard (discussed here). That might be the true standard these days.
The only time the Fighting Words Doctrine allowed a person to be restrained before the Supreme Court appears to be Chaplinsky v. New Hampshire. In that case a Jehovah’s Witness told a cop as he was being arrested that
`You are a God damned racketeer’ and `a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’
It is unthinkable that a person could be prosecuted for saying that today. Indeed if that was the case, we could arrest virtually the entirety of Indymedia and the Democratic Underground. So I think the Fighting Words Doctrine might very well be a dead letter.
Update (II): Jones has been released. I will write more later but this article fills in many of the blanks.
Well, as a temporary conclusion to a story I have followed all day, Pastor Jones is in jail tonight. As you might recall from previous posts, he wished to protest outside a mosque in Dearborn, Michigan. The city attempted to impose a “peace bond” on him charging him for anticipated security expenses. As I have stated in a prior post, that is flat-out unconstitutional, because it would vary according to how controversial the speech would be and thus would be a content-based restriction. So they went to a jury trial and then this happened:
The stunning development came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn.
Pastor Sapp is famous for being the man who actually burned the Koran, under Jones’ direction.
Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set
bond at $1 each for the two pastors.
They refused to pay. And Somers ordered them remanded to jail.
This frankly doesn’t compute with me. My understanding is that the posture of the trial was to figure out if they had to pay to get a permit. If they refused to pay, they simply didn’t get a permit and then they had to decide whether to protest anyway. So something is not adding up, here.
Of course I have long said that legal reporting is very poor and maybe there is something crucially missing in the understanding of the trial. For instance, Eugene Volokh seems to think that their actual freedom was at stake.
Now it may be possible to prosecute them under some theory of attempted protest without a permit, or conspiracy to do the same, but really, truthfully, they should have waited until they were closer to actually engaging in the forbidden act.
Was that legal? Well, this is where the difference between an as-applied challenge and a facial or overbreadth challenge becomes relevant. Most of the time a statute is only unconstitutional if it allows the government to do an unconstitutional thing and then the government attempts to do that unconstitutional act. But in the area of the First Amendment (and abortion) there is a doctrine called the “overbreadth doctrine” which says that even if the restriction in this case is Constitutional as applied, because the statute could be applied in an unconstitutional way in the future, it is unconstitutional. That is because in part that the mere existence of an unconstitutional aw would reduce speech because many are not willing to do what Jones did—go to jail just to challenge the law. The overbreadth doctrine, therefore, is designed to combat this “chilling effect.”
Applied here, I think that if the statute set a $1 flat fee for all permits of this variety, then I think that statute would be unconstitutional. But the problem is that the statute could vary significantly and apparently varies directly in respect to the estimate cost of security, which in turn is based on how controversial the speech is expected to be. And as I said before, black letter law says that is a content-based regulation and thus impermissible under the First Amendment. After all, it is plainly obvious that a man planning to burn a King James Bible would be unlikely to face such resistance.
So tonight Pastor Jones is going to be in jail, I suppose. Perhaps there, like Martin Luther King, Jr., he will write A Letter From A Dearborn Jail. Those who disapprove of his message might consider it gross to compare him to Dr. King, but in fact the bare text of Dr. King’s letter reveals a strong parallel:
Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.
So like Dr. King, Jones refused to pay a permit fee for his protest. And likewise Jones followed Dr. King’s rule for open, loving defiance of the law:
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law
And just as Dr. King said that an unjust law is no law at all, it is much simpler for Pastor Jones to say that an unconstitutional law is no law at all; that is indeed the doctrine of Marbury v. Madison.
And you might still say that given the almost-saintly status that Dr. King enjoys among the American people that it is a little obscene to give Pastor Jones that status. I admit I have made no great study of Pastor Jones as a person, or his opinions, because I consider it profoundly irrelevant to the discussion. But that being said, if you don’t like Jones’ message you should be infuriated by the actions of the Michigan authorities tonight. If they had done nothing Jones would have probably done his protest, and more than likely there would have been at worst a few heated words. And then two weeks later everyone would have forgotten.
Instead their actions have thrown a spotlight on Dearborn’s problem with freedom, and put a megaphone in Pastor Jones’ hands. They have forced people who otherwise would not have supported the man to consider him a sympathetic figure. And all on the theory that apparently Muslims are uniquely incapable of controlling their anger when offended.
Yeah, Pastor Jones is in jail tonight, but I suspect that before the bailiff took him into custody, he thought, whatever you do, don’t throw me in the briar patch…
Their victory is pyrrhic at best.
H/T: Allah (the blogger, not the deity).
[Posted and authored by Aaron Worthing.]