[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Update: See this post for updates to the story.
Terry Jones, famous for having a Koran burned, has decided to go to Dearborn, Michigan, to do some sort of protest outside a mosque, today at 5 p.m. He has also stated that he has “no plans” to burn a Koran (but you do have to wonder if he might do some spontaneous combustion). So he sought a permit from the city, and the city is refusing to give it to him. From the reports it appears that the sticking point is this:
Prosecutors have sought the unspecified bond — Jones said it was up to $100,000 — for extra police in fear of a riot.
As Eugene Volokh has pointed out, this is almost certainly unconstitutional under Forsyth v. Nationalist Movement, where a city ordinance charging up to $1,000 for permits depending on costs was struck down. There were two basic concerns in that case. The first is the lack of standards in that law allowing for a great deal of discretion by county administrators in choosing the fee. Since I haven’t read the ordinance in question in Jones’ case, I will punt on whether that is an issue, except to quote this key passage on that subject, so you know what the law says:
Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is “inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”… To curtail that risk, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license” must contain “narrow, objective, and definite standards to guide the licensing authority.”… The reasoning is simple: If the permit scheme “involves appraisal of facts, the exercise of judgment, and the formation of an opinion,” … by the licensing authority, “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great” to be permitted[.]
But more fundamentally if the ordinance allows the fee to vary according to how controversial the speech is, that is flat-out unconstitutional, which appears to be what is going on, here. This is what the Supreme Court said to that:
The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. … Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob…. This Court has held time and again: “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” The county offers only one justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee.
It is often joked during all of this that Christians should commit acts of terror and generalized violence when their faith is blasphemed, in order to receive the respect accorded to Islam these days. This dark joke represents two criticisms. First, it is criticizing the fact that many of the same people who felt that not only should the Piss Christ be allowed to be made, but it should actually be funded by taxpayer dollars (which I always considered a violation of the Establishment Clause), now are advocating things like anti-blasphemy laws. Second, it is criticizing the terrible incentives those hypocrites are creating by rewarding bad behavior with the censorship those terrorists and rioters keenly desire. In rejecting this “cost of police protection” approach to permit fees the Supreme Court has prevented cities from creating that perverse incentive to get violent when one is offended.
And incidentally, that dark joke has started to take on some reality (which naturally I oppose, too).
So Jones challenged the claim in court and the judge sided with the city, but the final determination will be made by a jury:
With some of metro Detroit’s biggest political and religious leaders united behind Muslims in Dearborn, Florida Pastor Terry Jones is expected to appear in court this morning for a jury trial that will determine whether he can hold a rally at the largest mosque in the city.
This “bigot does not represent” us, Imam Hassan Qazwini, head of the Islamic Center of America in Dearborn, declared to a crowd of about 700 metro Detroiters at a rally that drew U.S. Rep. John Dingell, a Dearborn Democrat, and the local heads of the Catholic and Episcopal churches.
Qazwini’s mosque is where Jones wants to rally today against what he calls “the radical element in Islam.”
Jones appeared in court Thursday and refused to post a bond for the massive security effort Dearborn says it would have to deploy if Jones were allowed to rally. The judge then ordered the trial.
As Jones addressed reporters during a chaotic day, Dearborn residents shouted at him.
“Shame on you!” yelled Leyla Abdul-Ghani, 40, who is Muslim. “We are decent, hardworking people.”
Questions remained as to whether the pastor would be able to carry out his plan.
Dearborn officials and Wayne County prosecutors sought to convince Jones to post a bond for security costs if he wants to protest in Dearborn. And they urged him to rally not at the Islamic Center of America — his desired spot — but instead in front of their City Hall or civic center.
Dearborn District Judge Mark Somers sided with government officials, finding their arguments compelling. The officials argued that for logistical and security reasons, Jones should not be allowed to rally at the Islamic center.
Jones declined to post the bond, prompting the judge to order a jury trial for 8:30 a.m. that will decide whether Jones can hold his rally this evening.
Incidentally, the ACLU has done the right thing by taking Jones’ side:
Earlier today, the American Civil Liberties Union of Michigan and others criticized authorities, saying they had overstepped and were wrongly denying Jones his constitutional rights.
The government should “not impinge on a person’s right to protest, even when their speech is as distasteful and offensive as Rev. Jones’ is,” said Rana Elmir, communications director for the Michigan ACLU. “We should combat hate speech with more speech. I disagree vehemently with Rev. Jones’ message, but I believe wholeheartedly in his right to express himself.”
And here’s a little more on the city attempting to justify it:
Dearborn Police Chief Ron Haddad said there are serious problems with having Jones protest outside the Islamic Center of America, noting that Jones has received numerous death threats and has a $1.2-million bounty on his head from a Pakistan-based terrorist group.
Moreover, the mosque is surrounded by several churches that have Good Friday services, making traffic an issue, he argued. The site also is logistically a challenge because of its layout, he said.
The city already had denied Jones a permit to protest.
“It would have been chaos,” Dearborn Mayor Jack O’Reilly Jr. told the Free Press on Thursday. “We just couldn’t do that.”…
O’Reilly, an attorney, said the government has to make “reasonable accommodation” for free-speech rights, which he says the city routinely does by providing free-speech zones in front of Dearborn City Hall and the civic center.
Hey, Mayor O’Reilly, in case you were asleep in Constitutional law class, this is the correct “free speech zone:”
Indeed, Mayor O’Reilly wrote an open letter (read: obvious posturing) to Jones saying things like this:
First of all, Dearborn supports the Constitution as well as any city in America. Our commitment to the Constitution is unwavering, not merely convenient, which makes your hyperbole about Sharia Law being practiced in the courts or civil law of Dearborn nonsensical. So, you are coming to protest against an imaginary threat that doesn’t exist in our community. Not in our courts, not at our City Hall, not on our streets and not in any of our places of worship.
Still, because we do understand the Constitution here, we are not preventing you from expressing your free speech. In fact, in Dearborn, we’ve even gone one step farther than most communities in support of free speech. We established, by ordinance,“Permit Free Zones” intended for demonstrations and free speech.
Right, so his belief is that the Constitution is unwavering, and not merely a matter of convenience. But you should only practice your constitutional right to free speech in a zone that is convenient to him. Glad he cleared that up.
Jones, meanwhile, has pretty much said that regardless of whether he gets the permit, he plans to go forward:
Jones isn’t likely to relent. He’s said for weeks that he plans to demonstrate outside the Ford Road mosque with or without a permit. Earlier today, Jones said the mosque is the ideal site for his protest against “radical Islam” and Sharia, or Islamic, law.
“There is no place better than there to present this message,” said Jones, the pastor of the Dove World Outreach center in Gainesville, Fla.
Jones said he is planning to bring a pistol to protect himself in case of violence, but has no plans to burn an Islamic holy book.
“We are coming there totally in peace,” said Jones, who said he will be joined by several other people including a rabbi.
And he elaborated more about the gun thing:
“We have made it very clear that we are coming there with very, very peaceful intentions,” Jones told the television station. “We will be armed. We do have concealed weapons permits.”
Um, you have concealed carry permits… in Michigan? Because I could be wrong, but I don’t believe that a Florida permit will travel.
And, by the way, he was not kidding about that:
Police were called Thursday night after Koran-burning pastor Terry Jones accidentally discharged his firearm in the parking lot of a television station, where he had just conducted an interview, MyFoxDetroit.com reported.
“Pastor Terry Jones just discharged his firearm in our parking lot,” myFOXdetroit.com announced on its Facebook page.
“He claims it was fired by accident. The shot went into the floorboard of his car. No one was hurt. Police on scene.”
Southfield Police confirmed the gun accidentally discharged. No charges were filed, and police gave the gun back to Jones before sending him on his way.
The FOX-owned WJBK television station where the incident took place has a policy of not allowing guns inside the building.
And while that is worth a good chuckle, it’s really hard to blame him for carrying a gun given the million dollar bounty on his head. We might rightfully criticize his gun safety skills, but not his righteous desire to be able to defend himself. And I guess the fact that the cops gave him his gun back suggests he had a lawful right to carry it (sweeping aside constitutional concerns that might be present in this situation in light of recent Second Amendment cases).
Whether you like this guy’s message or not, on the narrow issue of his First Amendment right to protest, he is absolutely in the right. And if you happen to dislike his message you should be doing a facepalm right now, because Dearborn is giving him legitimacy.
Ironically one of the people who hate him the most gets that:
Majed Moughni, a Dearborn attorney, agreed that Jones has the right to protest. Moughni is not a fan of Jones, having burned him in effigy last year because he had threatened to burn the Quran.
But Moughni said it’s wrong for the city and county to try to hinder Jones’ rights. “Instead of him being the bad guy, now he’s the hero,” Moughni said. “They’ve turned him into a hero of the First Amendment.
“The prosecutors should withdraw their demands and let him speak as he wishes, which is his right under the Constitution.”
Indeed, here’s the truly boneheaded element of all of this. From what I gather, Pastor Jones is condemning the Koran because he feels it is an evil book that leads to violence. Meanwhile, the entire foundation of this attempt to limit his speech is based on… the fear that Muslims will resort to violence in the name of their faith. Which if true kind of tends to prove Jones right, doesn’t it?
So, if I was a Muslim leader living there I would pursue a two pronged approach. First, I would petition the mayor to let him protest for free, or after paying a mild, content-neutral fee. I might even offer to pay that fee (subject to my financial limitations). And I would make it very clear to city officials that I take great offense at the notion that Muslims are incapable of self-control. Second, then I would organize a very quiet, dignified, peaceful counter protest. I would be determined to prove Jones wrong.
Indeed, what I said to Liaquat Ali Khan the other day still applies:
If there is ever a day when I am convinced that Muslims as a group are incapable of responding peacefully to offense, including the burning of their holy book, that is the day I decide that Islam is a threat to America. And on that day I will start advocating things like an exclusion of all Muslims from this country.
Consider it the “anti-trust” theory of freedom of religion. You are free to believe in any religion… that will respect my freedom of religion. But if you can’t reconcile your faith to my practice of freedom of religion, then it is your freedom that will be restricted, not mine.
As it stands now, the reaction so far has supported Jones’ thesis. But naturally I will need more evidence than I am likely to see this afternoon.
[Posted and authored by Aaron Worthing.]