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From the AoSHQ U Continuing Ed. Curriculum »
April 21, 2011

Dearborn Suspends the First Amendment

The problem and genius of the First Amendment is that it even protects dumbasses and that in defending free speech we sometimes I have to defend efforts at speech that is of truly questionable value.

This is that problem case:

Dearborn denied a permit Wednesday for Quran-burning Pastor Terry Jones' planned protest outside the Islamic Center of America on Good Friday.

Jones could be arrested if he goes ahead with the protest outside the mosque without a permit, said city spokeswoman Mary Laundroche. She added that the permit had been denied for "public safety reasons."

The permit denial is just part of the First Amendment problem here. A county prosecutor, citing her fears that the protest will spark a riot, has also filed a petition with the local court to issue an injunction to prevent Jones from protesting. (I always wondered what happens to the lawyers in the bottom third of their class.)

Both of these actions -- the permit denial and an injunction, if the court grants it -- violate the First Amendment. This is a heckler's veto. Dearborn and the county prosecutor aren't saying that Jones will commit any violence. Rather, they expect that the Muslims in Dearborn will be simply unable to control themselves in the face of religious criticism and start a riot.

Right up front, please note that Jones says he's not going to burn a Koran at this protest; he's just going to waive signs and make a lot of noise, apparently. His is entirely lawful behavior; it is the anticipated unlawful behavior of Dearborn's Muslim population that is feared.

This sort of content-based prior restraint is presumptively unconstitutional and has only ever been upheld in seriously limited circumstances (actually, I'm having trouble thinking of one off the top of my head, but I'm sure it's happened a few times). According to the Supreme Court the Constitution permits this type of prior restraint only where it is both "necessary to serve a compelling state interest" and "narrowly drawn to achieve that end."

The city and the county prosecutor say that the compelling state interest is public safety and traffic, since they assume that the local Muslims will start a riot in the face of religious criticism from Koran-burner Jones. They've also offered to let Jones speak in a "free speech zone" at City Hall.

Assuming that public safety and traffic concerns are more than just mere state interests, but compelling state interests (traffic flow? really?), denying Jones' permit to protest in the traditional public forum (a sidewalk) across the street from the Islamic center is in no way narrowly drawn because it isn't Jones' entirely lawful speech, but the entirely speculative unlawful activity of others that are actually prompting concerns for safety and traffic. Both could also be addressed by increasing police presence and, you know, actually enforcing traffic and public safety laws.

But since that is too much trouble, they have apparently suspended the First Amendment in Dearborn. I also can't help but wonder if this is a simple attempt to suppress the speech of a despicable guy like Jones masquerading as "public safety" concerns.

I hope we get a chance to find out. Jones says he's going anyway and that he and his followers will be armed to protect themselves if the Dearborn PD won't. Everyone should say a prayer for Dearborn tomorrow.

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posted by Gabriel Malor at 01:05 PM

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