November 2014 - Parks & Recreation - 33

Applying these principles to the facts of the case, the federal appeals court determined a video of the 2012 Festival
had demonstrated that the speech and conduct of the Bible
Believers was " intended to incite the crowd to turn violent. "
Within minutes after their arrival, Appellants began espousing extremely aggressive and offensive messages - e.g.,
that the bystanders would " burn in hell " or " in a lake of fire "
because they were " wicked, filthy and sick " - and accused
the crowd of fixating on " murder, violence and hate " because
that was all they had " in their hearts. "
These words induced a violent reaction in short order; the
crowd soon began to throw bottles, garbage, and eventually rocks and chunks of concrete. Moreover, members of the
crowd can be heard to shout " get them " and " beat the s***
out of them " ; one Bible Believer was pushed to the ground.
Chavez's face was cut open and bleeding from where he had
been struck by debris. And the crowd itself continued to swell
and swarm, undeterred by the WCSO's attempts to contain it.
Under these circumstances, the federal appeals court
found " the situation at the 2012 Festival went far beyond a
crowd that was merely unhappy and boisterous. " On the contrary, the court accepted WCSO's explanation provided to
the Bible Believers at the time that " the threat of violence had
grown too great to permit them to continue proselytizing. "
In so doing, the federal appeals court acknowledged " a
state must not unduly suppress free communication of views,
religious or other, under the guise of conserving desirable
conditions. " However, in this particular instance, the court
found WCSO had " a reasonable good faith belief that the
threat of violence was too high because the Bible Believers
had already been subjected to actual violence. "
[H]ad the WCSO wanted merely to preserve desirable
conditions, they could have intercepted the Bible Believers
shortly after their arrival at the 2012 Festival. Instead, they
allowed the Bible Believers to proceed until the threat of
" violent retaliation and physical injury " became too great,
at which point they discharged their duty of preserving the
peace...by removing the speakers for their own protection.

court in favor of defendants WCSO and Wayne County.
(Note: This three-judge panel decision is not necessarily final. On September 8, 2014, a petition was filed for
a " rehearing en banc " (i.e., by all of the judges) on the
Sixth Circuit Court of Appeals. If reconsidered by the entire Sixth Circuit, the three-judge panel decision described
herein could be modified for reversed. Moreover, while
unlikely, there is slight possibility that that the U.S. Supreme Court could eventually accept this case for review
to clarify and/or redefine the general constitutional principles governing the " heckler's veto. " )
Links to additional YouTube videos of 2012 Arab Festival incident: www.youtube.com/watch?v=B4Ws1YWuzyQ, www.youtube.com/watch?v=HOL_ommK3qg,
www.youtube.com/watch?v=FLKarYXjG4c, www.youtube.com/watch?v=kkfVAeG3rn4.
James C. Kozlowski, J.D.,Ph.D., is an attorney and Associate
Professor in the School of Recreation, Health and Tourism at George
Mason University (jkozlows@gmu.edu). Webpage with link to Law
Review article archives (1982 to present): http://mason.gmu.
edu/~jkozlows.

Conclusion
Accordingly, the three-judge panel of the federal appeals court,
with one judge dissenting, concluded WCSO's threats to cite
the Bible Believers " for disorderly conduct if they refused to
leave do not amount to effectuating a heckler's veto. " On the
contrary, the court found WCSO's conduct was " objectively
necessary under the circumstances " and did not violate the
free-speech rights of the Bible Believers. As a result, the federal appeals court affirmed the judgment of the federal district

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November 2014 - Parks & Recreation

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