The Rights Of Muslims Trump The First Amendment In Dearborn

A controversial Florida Christian minister, Terry Jones, planned to publicly demonstrate against jihad and sharia law outside a mosque in Dearborn, Michigan, which is home to one of the largest Muslim-American communities in the country. A Detroit prosecutor and judge had other plans for Jones. Wayne County Prosecutor Kym Worthy filed an emergency petition in court to block Jones' planned demonstration because she said the threat of violence was too great to allow Jones to hold the planned gathering on Friday near the Islamic Center of America, the largest U.S. mosque. Judge Mark Somers ordered Jones to stay away from the mosque for at least three years after a jury found that his planned demonstration would likely disturb the peace, and then ordered him jailed after he refused to post a $1 peace bond before he would release him. The case appears to strike directly at the heart of long-established First Amendment jurisprudence barring prior restraint on the exercise of free speech rights. The Dearborn Free Press reports on the court's decision:

A defiant Terry Jones says he plans to protest next week at the Islamic Center of America in Dearborn despite a judge's order that he stay from the mosque for three years. The Quran-burning pastor from Florida said his rights were violated Friday by a judge due to the influence of Islamic law.


"We plan to protest next week in front of the Islamic Center," Pastor Terry Jones said today.

"The arrests, the whole proceedings, were a definite violation of our Constitutional rights," Jones added. "As a matter of fact, we were arrested and had not even committed a crime. It is a complete violation of our First Amendment right of freedom of speech. It was clearly influenced by the mosque. "

Jones had wanted to protest Friday against jihad and sharia outside the Islamic Center on Friday, but was thwarted by authorities. The center is the largest mosque in metro Detroit, a region with a sizable Muslim population.

On Friday, Judge Mark Somers ordered that Jones and Pastor Wayne Sapp be remanded to jail after a jury determined they would be likely to breach the peace. In his decision Judge Somers set a $1 cash bond for Jones and Sapp, and also said Jones and Sapp could not go to the mosque or adjacent property for three years.

One has to wonder where the American Civil Liberties Union was yesterday while Jones' constitutional rights were being trampled upon. It was the ACLU which took up the case of Neo-Nazis who wanted to parade through Skokie, Illinois, a predominantly Jewish Chicago suburb in 1978, and succeeded in declaring a local ordinance that required the demonstrators to obtain an unreasonable amount of liability insurance as a condition to obtaining their permit to demonstrate in the city as violating the controversial group's First Amendment rights. Judge Somers made quite apparent in his decision barring Jones from demonstrating outside the mosque for 3 years his belief that the rights of the Muslims who would be offended by Jones' demonstration trumped his free speech rights. Somers told Jones the only exception to his ban on visiting the mosque would be if the leadership of the mosque consented to his viist.

"Sharia is much closer than we thought," Jones said. "The judge even made a statement, that if the mosque elders and leadership would have desired the restraints placed on us of not going near the mosque be lifted, then he would have taken that into consideration. Thus proving that this whole thing is a direct violation of freedom of speech and that they are favoring the religion of Islam."

Critics claim that past actions of the city of Dearborn suggests a form of Sharia law is already being enforced in the community. Last year, Christians were arrested for passing out leaflets at a Muslim festival in the city. There have even been claims of police cover ups of murders that were carried out in the form of honor killings that are permitted under Sharia law as practiced in many predominantly Muslim countries throughout the world. The local Muslim community reacted with joy to Jones' arrest. "That's what we wanted," said one man. "He got lucky," yelled another man. I'll let you interpret what was meant by that last comment.

A little more than a month ago, the U.S. Supreme Court upheld the right of a controversial Christian church, Westboro Baptist Church, to hold anti-gay protests outside military funerals. The group carries signs that read "God Hates Fags" and "You're Going To Hell" at military funerals, a display that is very upsetting to grieving family members who are attending the funerals of their loved ones who have died while serving their country. Chief Justice John Roberts wrote in an 8-1 opinion:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said "God Bless America" and "God Loves You," would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly-ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” . . . . Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” 

It's hard to argue the facts of Jones' case would have reached any different outcome in the high court. He alerted local officials of his plans to conduct a peaceful demonstration. He was willing to keep a reasonable distance from the mosque. And his speech related to a matter of public concern that should be afforded "special protection" under the First Amendment. The only reason the judge offered for blocking his planned demonstration was his concern that it would lead to a disturbance because of how it might upset or arouse contempt from Muslims who objected to the content of his message. Surely the sensibilities of Muslims should be accorded no greater deference than those of the family members who lost loved ones while in service to their country at the occasion of celebrating their lives on this earth at their funerals.

UPDATE: Hat tip to Indy Student for the heads up on this. The ACLU of Michigan did file an amicus brief with the Michigan court siding with Jones' right to demonstrate. Here are some exerpts from it:

The American Civil Liberties Union of Michigan (ACLU) vehemently disagrees with the content of Pastor Jones’ and Mr. Sapp’s speech. However, if the First Amendment has any meaning, it is that the government cannot suppress the free speech because it – or anyone else – disagrees with the speech. As the Supreme Court recently held, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Indeed, the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.” Snyder v Phelps, 131 S Ct 1207, 1219 (2011) (citations and quotations omitted). Because these important constitutional concerns have not been adequately raised during the process of these proceedings, we feel it is crucial to provide the court with analysis . . .

On April 9, 2011, a group associated with Pastor Jones submitted a permit request to the City of Dearborn to hold a demonstration “[p]rotest[ing] Sharia and Jihad” in front of the Islamic Center of America, located at 19500 Ford Road in Dearborn, Michigan. The application stated that only two people were anticipated to attend the demonstration and Mr. Jones and Mr. Sapp have said that the demonstration would be peaceful. On April 15, 2011, Wayne County Prosecutor Kym L. Worthy filed a complaint in the 19th District Court of the State of Michigan “To Institute Proceedings To Prevent Crime” under MCL 772.1 et. seq., commonly known as the “peace bond” statute, to compel Pastor Jones and Wayne Sapp (“Mr. Sapp”), the defendants in the case, to appear before the court. Pet Comp, People v Terry Jones, et al, Case Nos 11S0229, 11S0231 (19th Dist Ct, Apr 15, 2011).

The peace bond statute may only be invoked when “a person has threatened to commit an offense against the person or property of another.” MCL 772.2. Ms. Worthy claims that Mr. Jones and Mr. Sapp are planning to incite a riot and therefore the court should set a bond in the amount necessary to cover the amount of money it will cost the City of Dearborn to police the event. A trial is being held today to determine whether defendants are likely “breach the peace.” MCL 772.4(2). If Mr. Jones and Mr. Sapp are found likely to breach the peace, the government will likely ask the court to require them to either pay the peace bond or be placed in the county jail. MCL 772.6.

It is a basic principle of First Amendment jurisprudence that one may not be charged a price to engage in expressive activity because others may react negatively to that expressive activity . . .

Amicus Curiae ACLU Fund of Michigan urges this court to deny the Wayne County’s Prosecutor’s unconstitutional attempt to use the peace bond statute as a prior restraint on constitutionally protected, albeit offensive, speech.

You can view the entire brief filed by the ACLU here. I'm not sure whether the ACLU objects to Jones' opposition to jihad or sharia law given the statement in their brief that it "vehemently disagrees with the content of [his] speech." That was the stated purpose of the exercise of his free speech rights.