That’s the issue in Bormuth v. City of Jackson, 2012 WL 5493599 (E.D. Mich. Nov. 13). The facts, as alleged by plaintiff, though largely verified by plaintiff’s e-mail exchange with the professor:
JCC instructor John Yohe occasionally hosted a public poetry event, which included both a reading by a featured poet and an “open microphone” time for anyone else who wanted to perform. In late 2010, Bormuth read a poem during “open mic” that led Yohe to ask whether Bormuth would like to be the featured poet at a future reading. Bormuth proclaims himself a pagan, and his poetry often criticizes Christianity. Yohe assured Bormuth, however, that Yohe was “not bothered by any anti-Christian subject matter.” “In fact,” Yohe wrote, “I’m very open to it!” In response Bormuth described his background, including his repeated trouble with people who retaliated against him for “t[elling] the truth about their evil religion” and for failing to observe “their ‘respect all religious path’ politically correct bullshit.” Yohe wrote back, “Thanks for the background. I’m no fan of Christianity either, and I liked your [poetry] presentation,.. as did others. So let’s try it once [Bormuth’s being a featured poet] and see what happens.”
About two months later, in February, 2011, Bormuth emailed Yohe and asked to enlist as an “open mic” performer for the next reading. “[It] seems like you are drawing more people who want to read,” he noted. Yohe answered, “Sorry, I can’t give you special treatment. You have to show up early like every one else!” To this Bormuth replied that he had twice seen names already on the “open mic” sign-up sheet when the sheet appeared at a reading. Yohe explained that a JCC student can sign up before the event. He added, “If you don’t like the way I run things, don’t come.” In response Bormuth said that he would stop attending the readings if Yohe thought his absence best served Yohe’s students. Bormuth proposed, however, that Yohe’s students might learn from Bormuth, a rare “druidic bard” who “speak[s] for the beings this society denies a voice.” Yohe replied, “The reason people don’t like you is not because you’re anti-christian, but because you’re an arrogant asshole. You are not welcome at my readings. Do not write to me again.”
In a September 27, 2011, email to a JCC administrator, Bormuth said that he planned to attend Yohe’s poetry reading the next day and that he would sue JCC for religious discrimination if Yohe excluded him while allowing a specific “christian woman” to perform. An email discussion ensued among the administrator, Yohe, and a JCC dean, Todd Butler. Yohe reported that Bormuth never appeared on September 28; but, he wrote, “My fear is that [Bormuth] likes attention…. My big fear is that he will try to make a scene at the next reading.” Writing to Bormuth on October 5, Butler said that Yohe could not accommodate all performers because of time constraints, not religion. Bormuth responded, “Your excuse is lame and [I] do not buy it.”
On October 25, 2011, Bormuth went to the restaurant holding that night’s poetry reading. He found Yohe and asked to sign up as an “open mic” performer. Yohe said Bormuth could not participate; but Bormuth persisted, until Yohe said “I’m sorry you are doing this” and went to speak with the restaurant’s manager. A restaurant employee then asked Bormuth to leave, but Bormuth refused; he “noted that he was one of the best poets in Jackson County and that the [JCC] students might enjoy hearing him [.]” A few minutes later two police officers arrived. They too told Bormuth to go. Bormuth insisted he had a First Amendment right to stay, and he stayed, so the officers arrested and removed him. The City of Jackson charged Bormuth with trespassing. Assistant city attorney Gilbert Carlson tried the case, and Bormuth won an acquittal.
The court dismissed plaintiff’s claims against various defendants on various immunity grounds, but ordered that “JCC and Yohe … submit a paper of no more than twenty pages answering (1) whether JCC’s hosting the poetry reading meant that the private restaurant became a traditional or limited public forum, (2) if the restaurant was a public forum, what Bormuth needs to prove to establish a Section 1983 claim against JCC or Yohe, and (3) why Bormuth can or cannot prove a claim against JCC or Yohe.”
I’m inclined to say that government employees putting on government-sponsored speech events, such as panel discussions or poetry readings, should have considerable flexibility to decide whom to invite, including based on the speaker’s viewpoint; and that would be true even as to “open mic” events, where they would basically invite everyone but exclude a few perceived troublemakers. Still, the legal question whether the poetry reading’s generally open nature made it a “limited public forum” in which viewpoint discrimination is an interesting one; I’ll be curious to see the court’s eventual decision on this. (If a university deliberately excluded speech hostile to a particular religion, that might violate the Establishment Clause, though that’s not clear, and in any event the court decision suggests that plaintiff wasn’t making such an argument.)