Public Safety or Prior Restraint? Quran-Burning Pastor Barred From Protesting In Front of Michigan Mosque

Even for the most committed civil libertarians, it is hard to work up sympathy for Quran-burning Pastor Terry Jones. However, that is the plight of free speech advocates — you often end up supporting the most obnoxious members of our society. In Dearborn, Michigan, the order barring Jones from protesting utside of the Islamic American Center raises some constitutional concern.

It appears that the matter was presented to a “jury” which found a proposed protest by Jones and his associate Wayne Sapp was likely to breach the peace and incite violence.

This is a rather novel system where a jury is allowed to rule a protest to be a danger based on the anticipated response of others.

After a general matter, the use of such a jury does not improve the matter in terms of free speech. A jury of citizens is even more likely to support silencing unpopular individuals or groups. The Constitution generally does not allow for the prior restraint of speech based on the anticipated response of others. This is why a Nazi organization was given the right to march in Skokie, Illinois.

It reportedly took a jury 3 hours to deliberate and rule against the pastor. Mitigating the effect in this case is the fact that Jones was only required to post $1 though it is not clear what liability he had to assume in the act of posting in light of the finding of the potential for violence. Moreover, he may have wanted to preserve his claim for an appeal. Jones was taken into custody when he refused to pay the bond. The bond was paid by an unknown third party.

What is equally problematic was the argument of prosecutors that Jones should only be allowed to protest at another site in a “permit free zone.” That would appear a significant limitation on speech.

The prosecutors insisted that the sheriff was correct in denying the permit outside of the mosque.

It did not help Jones that he was carrying a firearm that accidentally discharged in the parking lot at Detroit TV State WJBK Thursday night.

In its closing argument, the Wayne County Prosecutor’s Office argued, “Just because we have the first amendment doesn’t mean you can say anything or do anything at any time.” This statement was tied to the over-used argument that you cannot yell “Fire” in a crowded theater. It is a maddening argument that is used to justify all sorts of prior restraints. Here the prosecutors are analogizing Jones’ religious beliefs to yelling “fire” — an argument that is merely a way to say that someone’s views are too unpopular to be freely expressed.

Source: WXYZ as first seen on Reddit.

Jonathan Turley