No Heckler’s Veto: Fear of Violent Reaction to Speakers’ Views Can’t Justify …
From yesterday’s decision by Judge Ellen Hollander (D. Md.) in St. Michael’s Media, Inc. v. Mayor & City Council of Baltimore:
St. Michael’s Media, Inc. … [sued over Baltimore’s] denying plaintiff the right to hold a prayer rally and conference on November 16, 2021, at the MECU Pavilion …, situated in downtown Baltimore on Pier VI, in an area known as the “Inner Harbor.” The City owns the Pavilion, but it is managed by SMG, a private company that operates under the name “Royal Farms Arena.”
St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly.
On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.
The court concluded that MECU was either a “nonpublic forum” (government property that wasn’t generally open to the public for free speech) or a “limited public forum” (government property that was limited to speech by particular classes of speakers or on particular topics). But even in such fora, the government can’t discriminate based on viewpoint, and the court concluded that here such viewpoint discrimination was likely happening:
[T]he City Defendants invoked controversial, inflammatory speech by rally speakers, as well as plaintiff’s alleged support of the attack on the Capitol, as grounds for cancellation of plaintiff’s event. This is suggestive of viewpoint discrimination.
At length, the [City Defendants’] Opposition recounts the history of “incendiary and hateful rhetoric” of [St. Michael’s CEO Michael] Voris, [political strategist Steve] Bannon, and [Milo] Yiannopoulos. Perhaps to show plaintiff’s “propensity for disruption,” the Opposition also describes plaintiff’s position as an “active propagandist for the claim that the November 2020 Presidential Election was stolen from Donald Trump,” chronicling statements by Voris “glorif[ying] the January 6 “Capitol insurrectionists.” And, [the Mayor’s Chief of Staff Michael] Huber averred in his Declaration that Bannon and other intended speakers “support[ed] the January 6 attack on the Capitol….” Voris subsequently testified that in August 2021, when he spoke to [Baltimore City Solicitor James] Shea about the City’s decision, Shea claimed that St. Michael’s had “ties” to the January 6 attack on the Capitol.
The court concluded that Baltimore’s actions involved “unfettered discretion,” which tends to lead to viewpoint discrimination:
“The Supreme Court has long held that the government violates the First Amendment when it gives a public official unbounded discretion to decide which speakers may access a traditional public forum.” “[T]he danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” …
“First, [unbridled discretion’s] existence, ‘coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.'” “Second, ‘the absence of express standards’ renders it difficult to differentiate between a legitimate denial of access and an ‘illegitimate abuse of censorial power.'”
In Child Evangelism Fellowship of MD, the Fourth Circuit determined that the matter of unfettered discretion also applies to nonpublic and limited public forums…. “[T]he dangers posed by unbridled discretio
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