That might sound like this case, in which an Arab Christian group sued over an anti-leafleting rule at the Arab International Festival on Dearborn (Michigan) city property. But the new case involves Christians who specialize in proselytizing to Jews; who allege that they were barred from leafleting and otherwise speaking in publicly accessible public streets — i.e., not just those portions that were blocked off for ticket-only access during the festival — at or near the Arts, Beats & Eats festivals in Pontiac, Michigan.
My analysis remains much the same as it was with the earlier incident: If indeed the plaintiffs were trying to speak or leaflet on public sidewalks that were generally open to the public, and if the police barred them from doing so either (1) because of the content of the speech, or (2) simply because they were leafleting or trying to speak to passersby (as opposed to, for instance, standing in a place where their leafleting or speech blocked pedestrian traffic), that would be unconstitutional.
The matter would be different if some group were putting on its own rally or some such, even in a public park or a public square, and got a permit that would let only its own members or invitees on the property on which the group itself spoke. In such a situation, the property could in effect be temporarily privatized, so that the group could express its own views without the interference of others. That, for instance, is why parade organizers (who have a valid parade license) are free to select who can participate in the parade, even though the parade proceeds down a city street.
But if the speech was in places which were open to public access, then the sidewalk remains a traditional public forum or at worst (from the plaintiff-speakers’ perspective) a nonpublic forum. Leafleting is generally constitutionally protected in both classes of forum. See Parks v. City of Columbus, a case from the federal circuit (the Sixth) in which the event took place.
Of course, all this depends on what actually happened (hence all the ifs); the city denies much of what the plaintiffs allege.
UPDATE: I originally described the group as Jews for Jesus, but a commenter pointed out that this is a different group of Christians who are trying to convert Jews; I have revised the post accordingly.
Kaonashi says:
Nothing is ever black and white but there seems to be a big enough disconnect in the stories here that they (probably Jews for Jesus (JFJ) but possibly the town) will have to fess up in court or commit perjury.
I agree with your analysis that in the end there is a very clear line on what’s protected and where and in what cases (temporary privatization) that doesn’t necessarily apply so there appears to be very little wiggle room.
If nothing else this will end up being a good way for JFJ to generate some PR and it will probably make the town look bad which makes me wonder if this entire thing is about the coverage they can generate.
November 27, 2009, 7:51 amThe Watcher says:
The Watcher notes two very important facts.
1. JFJ filed a complaint such as would be filed in other states for a civil rights case. In Michigan, paragraph allegations do not work well, and Michigan judges are very disposed to “deny” for answers.
2. The good Judge Hood caught this case. The defendant city is a black city. The plaintiffs are Jews. Judge Hood will make sure the correct side wins.
November 27, 2009, 11:02 amwm13 says:
The conflicting recollections displayed here of the precise details of an argument between a citizen and a policeman are unlikely to be the subject of a perjury prosecution. My guess is that there was inappropriate conduct by both argumentative leafleters and overbearing police officers, and that the case can and will be resolved by the city’s promulgating clear rules, complying with the principles stated by Prof. Volokh, regarding leafleting at future festivals.
November 27, 2009, 11:18 amdrunkdriver says:
1. I don’t understand what you mean by “paragraph allegations”- if you’re alluding to some sort of state pleading rules, this case is in federal court.
2. I’m sorry you believe a federal judge will base her rulings in the case on racism, and to me this calls into question your own credibility. But to the extent she decides the case on legal grounds, that is subject to appellate review, and the facts will be determined by a jury (which the plaintiffs demanded).
November 27, 2009, 12:02 pmStormy Dragon says:
I can’t speak about the JFJ case, but with regard to the first group mentioned, they weren’t just handing out leaflets. Their own video shows them following people around demanding they answer their “questions about Islam”. The security guards told them several times to stop and then to leave, at which point they refused to go. We’re then supposed to be shocked that if a security guard ejects you and you refuse to leave, they’ll start using a legally permissible level of physical force to make you leave.
November 27, 2009, 1:25 pmRichard Nieporent says:
The plaintiffs
arewere Jews.Fixed it for you, Watcher.
November 27, 2009, 1:34 pmGuy says:
Maybe an ignorant question, but does anyone know what percent of JFJ are ethnically Jewish, or were raised practicing Judaism? I’ve heard rumors that the organization is composed significantly of non-Jewish Christians who see the group as an opportunity to proselytize to Jews.
November 27, 2009, 1:49 pmDoug Sundseth says:
I’m not a Jew, but it is my understanding (gleaned from people like our hosts) that “Jew” refers to both an ethnicity and a religion. If the pamphleteers were ethnically Jewish at the time of the incident, then your statement would seem to be incorrect, as they are still precisely as Jewish now. If Guy’s question is apposite, then it would seem that your statement is also incorrect, as then the pampleteers were unlikely to have ever been Jews.
Do you have some information to indicate that some other scenario applies here, or are you just snarking without factual basis?
November 27, 2009, 2:30 pmloki13 says:
I haven’t been this outraged since my leafleteers, Christians for Muhammad, were banned from the local TJ Maxx. Bad times, man, bad times.
November 27, 2009, 3:04 pmJ. Aldridge says:
They were justly barred from leafleting. Public walkways does not give anyone a right to be heard. They are for walking.
November 27, 2009, 3:35 pmVinny B. says:
I think the question is simple. If Muslims are offended, then they should not be permitted. After all, isn’t the standard for pretty much everything else?
November 27, 2009, 3:44 pmEugene Volokh says:
Vinny B.: I’m missing something — where are the Muslims in this incident?
November 27, 2009, 4:05 pmPurple Kooaid says:
All missionaries with J4J are ethnic Jews or married to ethnic Jews.
November 27, 2009, 4:14 pmSomeone passing out leaflets may not be, but the paid staff all are.
The Watcher says:
The Watcher does not seek to argue, only to watch and recall, thus he will explain.
Michigan judges, state or federal, are accepting of an answer of “deny” in the case of a paragraph type allegation, where the defendant can make any sort of claim at all that any portion of the numbered allegation may somehow not be 100% true.
As for Judge Hood…
November 27, 2009, 4:18 pmthe Watcher has said enough. It may be a lie, or she may judge based on race as a consideration. Saying anything else will lead to an argument.
DangerMouse says:
They were justly barred from leafleting. Public walkways does not give anyone a right to be heard. They are for walking.
You’ve never walked through Times Square.
November 27, 2009, 4:46 pmPurple Kooaid says:
In June 2006 in St. Louis, there were Christians passing out literature at the annual Pridefest at Tower Grove Park (a public park and public pridefest w/ parade down adjoining streets). The police threatened arrest to this group of Jewish Christians called Apple of His Eye. They sued in federal court for violation of first amendment rights. They won and St. Louis city had to pay $80k in attorney fees. The text of the permanent injunction is at http://www.appleofhiseye.org
November 27, 2009, 5:51 pmEugene Volokh says:
The Watcher: What exactly do you mean by “it may be a lie”? It sounded like you were saying that your own statement may be a lie — in which case why did you make it?
More broadly, I’m puzzled by your blacks vs. Jews assertion. As I understand it, Jews for Jesus are a Christian group that is generally very much disliked by many American Jews. A city’s attempt to restrict Jews for Jesus (if that’s what happened here) is hardly an anti-Jewish move.
November 27, 2009, 6:25 pmRon Snyder says:
Watcher: You are not allowed to make up your own facts. Stubborn things, those darn facts.
Dearborn is NOT a black city, though Detroit is.
Detroit, as of the 2000 census, 81.6 % black.
Dearborn, as of the 2000 census, 31.4 % Arab (presumably American).
When I lived in Detroit the racist crook Coleman Young was Mayor. When I lived in Dearborn is was kind of like Ozzie & Harriet-land. I would not live in Dearborn unless I faced Mecca five times a day.
November 27, 2009, 7:12 pmThe Watcher says:
The Watcher uses only memory, which may fail. The reader is advised to confirm all writings. A good start would be her single published article, followed by the sermons of her husband. Follow that up with conversion with Michigan lawyers who practice in the federal system, and ask why they feel the need to hire black co-counsel when before the good judge.
As to the mistaken reader allegation about dearborn, the Watcher was refering to Pontiac, famed as the namesake of the car brand and former home of the very cool Fiero (body by Budd). That city is currently at least 85% black– city government currently 71% black.
November 27, 2009, 7:43 pmPurple Kooaid says:
Let me just add that Jews for Jesus is a separate group from the congregation in this case. That is a bit confusing and you might want to clarify.
The Dearborn group may indeed be Jewish people for Jesus, but they are not part of Jews for Jesus, which is an entirely different group based out of San Francisco w/ offices all over the world.
November 27, 2009, 8:05 pmGuest Again says:
The Watcher really is quite wrong on facts: as noted Dearborn is not black and West Dearborn is very much ethnically muslin (both U.S. and (recent) immigrants. I practice in the E.D. District Court in Detroit and his assertion about needing to engage black co-counsel is nonsense. The judges in the E.D. are both black and white(the latter being a predominent majority)and there is not a single hint of racism among any of them. Dearborn, West Dearborn, Detroit and SE MI generally has undergone a lot of recent immigration (like many metro areas across the country and as this country has generally experienced for over 200 years)and the oldest immigrants from the Middle east were Caldean (Christian)and they have been a part of the fabric of Detroit for over 100 years. Lamb, hummus, baba ganusche are among the long time staples of all those living in the D. The more recent immigration has enlivened cultural life here in the D. Warren Avenue running through Detroit and the Dearborns is filled with arabic shops, resteraunts and mosques and is a fascinating new addition to the city’s cultural life. I believe the event that JFJ was at probably was a celebration of this and I suspect that JFJ are there for publicity.
November 27, 2009, 9:00 pmBut don’t slander the fine judges of the E.D.
Ron Snyder says:
Guest Again: “…living in the D.” What a quaint phrase.
“Enlivened” and “Fascinating” are not quite the adjectives I would use to describe the urban blight of “the D.” and its surrounding communities.
When I compare “the D.” of 1975 to “the D.” of 2009, it is to cry. The D. does have a reputation, and has earned it.
November 28, 2009, 2:50 amGuy says:
Uatu, isn’t it a violation of your oath of non-interference to comment on a legal blog?
November 28, 2009, 7:56 amGuest Again says:
Ron Snyder. Well maybe it is “quaint” but there is positive and negative in every burg and the blog touched on a positive event when (properly) wondering about the constitutional aspects of the JFJ speakers. I suppose I could have gone negative, but I see immigration as one of the greatest strengths of this country and one of the consistently positive things in the D. (I admit to not understanding the anti immigration movement in the southwest, but assume drugs and crime drive it and submerge discussion of its positive effects)
November 28, 2009, 11:41 amSure its tough for many around, and especially in, the D but people are resilient. You can celebrate that or wallow in the negative. I’m not ready to do the latter and I don’t think most people that are here are either. And the shot at the burbs isn’t fair either. Most of the migration from the city has been to the burbs for those that can afford to escape and the burbs are becoming far more diverse than ever before and that too has been a positive thing. The poor economy really takes almost all of everyone’s attention. The D’s ex mayor and councilmembers criminality appears to actually have started changing the D electorate’s “where’s mine?” and “whatever” attitudes. The frustration now is with the slow pace of cleaning up the rest of the political gang of criminals.
byomtov says:
Doug Sundseth,
I’m not a Jew, but it is my understanding (gleaned from people like our hosts) that “Jew” refers to both an ethnicity and a religion. If the pamphleteers were ethnically Jewish at the time of the incident, then your statement would seem to be incorrect, as they are still precisely as Jewish now.
The term “Jew,” is, in fact, sometimes used to refer to an ethnic group and sometimes to those who hold certain religious beliefs. The two groups obviously overlap heavily, but not completely.
In the context of a religious group called “Jews for Jesus” it is quite obvious that the religious meaning, and not the ethnic one, is intended. Indeed, the ethnic meaning is useless. Over the centuries many ethnic Jews have converted to Christianity – some even voluntarily – and these are all “ethnic Jews for Jesus,” though no one ever refers to “Catholic Jews,” or “Methodist Jews,” or whatever.
And when the word “Jew” is used in the religious sense it is simply dishonest to talk about “Jews for Jesus.” There is no such thing, any more than there are “Catholics for Zeus.” These people are frauds, and I would evaluate any claim they make with that in mind.
November 29, 2009, 1:56 pmYankev says:
The plaintiffs
November 30, 2009, 11:08 amarewereclaim to be Jews. Ffixed it for you. JFJ contains a fair number of people who were never Jews by anyone’s dfinition.
Yankev says:
So they claim.
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December 2, 2009, 8:13 pm