By Eugene Volokh
March 3, 2014
The discussion of the American flag case reminded me of a much less noticed decision from a few weeks ago, Agema v. City of Allegan (W.D. Mich. Jan. 22, 2014).
David Agema (a Michigan state representative) and some other people organized a Jan. 26, 2012 event that included as a speaker Kamal Saleem. Saleem runs Koome Ministries, which aims to teach about what it sees as “radical Islam’s true agenda.” Plaintiffs say Saleem “has a unique perspective on the internal threat to America posed by Sharia law and radical Muslims as he was once a Muslim involved in terrorist activities who has since transformed himself and converted to Christianity.”
To hold this event, plaintiffs rented a room at Alleghan High School for $90. They also asked the local police department to provide two officers as security. Then,
Shortly before the event was to take place, a woman approached the police officers at Allegan High School and “stated that Kamal Saleem had a $25 million dollar bounty on his head.” An Allegan police officer talked with Jones, Saleem’s bodyguard, who did not deny that a bounty existed. “Jones further stated that there had been death threats directed toward Kamal Saleem from Islamic extremists in the past.”
While the event was still in progress, Chief Hoyer ordered Plaintiffs to shut down the event. Other events were occurring simultaneously in other locations within the Allegan High School building while Saleem was speaking.
Plaintiffs argued that “comply[ing] with the demands of hecklers based on the viewpoint of the speaker and the content of the speech” unconstitutionally allows “the heckler’s veto” to trump the “Constitutional freedoms of Plaintiffs.” (“Hecklers” is used here broadly to refer not just to the person in the audience who shouts out immediate threats, but to anyone who threatens to attack a speaker.)
But the court concluded that the stopping of the event was constitutional. The high school classroom, the court concluded, wasn’t a “traditional public forum,” such as a street or a sidewalk, or a place that “the government has intentionally designated a place … as a public forum.” Rather, it was a “non-public forum” — government property that hasn’t been deliberately opened for speech:
Here, there are no allegations that the school was open for use by the general public; rather, permission to rent the school was secured from the building principal, and there is no allegation that permission was granted as a matter of course to all who sought it. “This type of selective access does not transform government property into a public forum.”
The First Amendment rule in non-public forums is that speech restrictions are constitutional if they are “reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.” And, the court said, this restriction was reasonable:
Plaintiffs allege in their First Amended Complaint that the January 26, 2012 event was stopped due to “death threats” from “Islamic extremists” while other events were occurring at the high school …. [Whether or not] public officials mistakenly assessed the credibility of the risk or the imminence of danger, Plaintiffs’ allegations, taken together, do not support the conclusion that the decision to stop the event was nonetheless unreasonable. “[T]he government does not need to wait ‘until havoc is wreaked to restrict access to a non-public forum.’”
Now I sympathize with the high school principal, who is trying to prevent harm to the people visiting his school. And while the Supreme Court has held that the government generally may not suppress speech on sidewalks or parks in order to prevent attacks on the speaker, it’s possible that these cases don’t apply when it comes to speech in a “non-public forum,” such as a government building. (But see Robb v. Hungerbeeler (8th Cir. 2004) and Chicago Acorn v. Metropolitan Pier and Exposition (7th Cir. 1998), which suggest that the cases do indeed apply even to non-public forums)
Nonetheless, consider what incentives this sort of decision creates. If you don’t like a speaker, make death threats against him. Then, if you can somehow let American government officials know about those threats, the officials will kick the speaker out of the places that it rented to him for his speech. (Nor is the principle in the case limited to high school buildings — school wasn’t in session, and the government could raise a similar security objection for any government building where other people are present, or perhaps even a building whether this is the only event taking place.)
Maybe the speaker will still be able to speak in “traditional public forums,” such as parks or sidewalks. But it’ll be a lot harder, because you will have effectively enlisted American government officials in your speech-suppression jihad. Plus what a low-cost tactic this is — you needn’t actually put yourself a risk by attacking the speaker, or by identifying yourself as the threatener. You can just make the threats anonymously online (or make them from a country that sympathizes with the threats), and then count on others to inform government property managers about the threats (again, with no risk of punishment).
And, as I’ve noted before, behaviour that gets rewarded gets repeated. If this works for this speaker, why not for other speakers? Don’t like Pam Geller? Threaten to kill her, and then it’ll be harder for her to speak (whether or not you’re planning to make good on the threats).
Don’t like Mark Steyn? Michelle Malkin? Eugene Volokh? Threaten to kill them, too. Then when one of them shows up to a speech at, say, a public university, someone can just tell the university about the threat, and maybe the university will do the same thing that Alleghan High School did.
Plus of course “Islamic extremists” aren’t the only people out there that are willing to issue a death threat or two, if the threats have such payoffs (and don’t even have to put the threateners at personal risk). Animal rights extremists, anti-abortion extremists, environmentalist extremists — what’s the lesson that behaviour such as this is teaching them?
The sad fact is thuggery often works, as the speakers themselves become too frightened to speak, or as listeners become too frightened to come to listen. But the question is whether the government should help the thugs, by restricting speech in light of their threats.
(I should note that the court decision rightly rejected plaintiffs’ claims against Council on American-Islamic Relations-Michigan, People for the American Way, and people associated with those two groups. Those claims rested on the theory that those defendants had asked the school to cancel the event; but even if the cancellation was unconstitutional, people have a First Amendment right to petition the government to do things, and even to do unconstitutional things.)
Eugene Volokh teaches free speech law, religious freedom law, and church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.