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.