November 2014 - Parks & Recreation - 32

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so doing, however, such governmental restrictions would also have to be
narrowly tailored to serve a significant
governmental interest, and leave open
ample alternative channels for communication of the information.
Applying these principles to the
facts of the case, the federal appeals
court held " WCSO's Operations
Plan was content-neutral. "
The Plan merely stated that the
WCSO would ensure safety and
keep the peace. Although the Plan
mentioned that Bible Believers might
appear and attempt " to provoke our
staff in a negative manner and attempt to capture the negativity on
video camera, " it said nothing about
regulating the content of their speech
and nothing about imposing any prior restraints on Appellants. Instead,
it merely flagged a potential source
of conflict before emphasizing professionalism and the need for an even
temperament.
The Plan did not require that the
WCSO take any actions other than
keep the peace. Accordingly, the Plan
did not create any content-based restrictions on speech.
Having found the Plan was content-neutral, the court determined
" WCSO could impose reasonable
time, place and manner restrictions
on protected speech that were narrowly tailored to serve a significant
governmental interest and that provided alternative channels for communication of the information. "
Heckler's Veto
The federal appeals court then considered whether implementation of WCSO's content-neutral Plan nonetheless
abridged freedom of speech for the Bible Believers based on the First Amendment's ban on the " heckler's veto. " As
described by the court, " [t]he heckler's
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veto principle recognizes that listeners'
reaction to speech is not a content-neutral basis for regulation. "
[H]ostile public reaction does not
cause the forfeiture of the constitutional protection afforded a speaker's message so long as the speaker does not go
beyond mere persuasion and advocacy
of ideas and attempts to incite to riot.
Accordingly, the question before the
court was whether the hostile public reaction to the Bible Believers' speech had
effectively prompted WCSO's threat to
cite the Bible Believers for disorderly
conduct if they did not leave the Festival. If so, the Bible Believers contended
WCSO's actions effected an unconstitutional " heckler's veto " on their First
Amendment free speech rights.

by removing the speaker if the officers'
conduct was reasonable and undertaken in good faith " . Moreover, the federal appeals court noted: " Courts should
not 'second guess' police officers who
are often required to assess a potentially dangerous situation and respond to
it without studied reflection. "
In this particular instance, the Bible
Believers had argued " they did not incite the crowd at the 2012 Festival to violence. " As a result, the Bible Believers
claimed WCSO had " effectuated an
impermissible heckler's veto when they
threatened to cite the Bible Believers if
they did not leave. " The district court
had rejected this argument.
In the opinion of the federal district
court, " the actual demonstration of vi-

According to the appeals court, freedom of speech
principles do not sanction " incitement to riot. "
According to the federal appeals
court, police " must take reasonable
action to protect from violence persons
exercising their constitutional rights. "
In so doing, the appeals court acknowledged that the government has a right
to prevent a speaker from urging his
opinion upon an audience with an intent to incite violence.
[T]he law does not expect or require officers to defend the right of a
speaker to address a hostile audience,
however large and intemperate, when
to do so would unreasonably subject
them to violent retaliation and physical injury. In such circumstances,
they may discharge their duty of preserving the peace by intercepting his
message or by removing the speaker
for his own protection.
Accordingly, the court found " individual officers could prevent hostility...

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olence here provided the requisite justification " for WCSO's intervention,
" even if the officials acted as they did
because of the effect the speech had on
the crowd. " Further, the federal district
court found WCSO was " not powerless to prevent a breach of the peace
in light of the imminence of greater
disorder " engendered by the Bible
Believers' speech. The federal appeals
court agreed. According to the appeals
court, freedom of speech principles do
not sanction " incitement to riot. "
When clear and present danger
of riot, disorder...or other immediate
threat to public safety, peace or order
appears, the power of the State to prevent or punish is obvious...[A] speaker
can incite to violence even if no such
eventuality be intended by making
statements " likely to provoke violence
and disturbance of good order. "

November 2014 - Parks & Recreation

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