"Free Speech Zone" Follies

Koran-burning pastor Terry Jones is convicted of inciting violence before the fact.

In a case that tests the limits of the First Amendment, controversial pastor Terry Jones, who runs the Dove World Outreach Center in Gainesville, Florida, and fellow pastor Wayne Sapp, were arrested and jailed last Friday by Dearborn, Michigan police after refusing to post a one dollar “peace bond” ordered by District Judge Mark Somers. The judge’s order came after a six-person jury ruled that both men would “breach the peace” if they held a protest outside the Islamic Center of America. Jones vowed to file a lawsuit against prosecutors and promised to return for a rally in Dearborn next Friday at 5 p.m.

After three hours of deliberation, the jury sided with prosecutors who had sought a $25,000 bond from the preacher and his associate, claiming their protest outside the mosque would likely start a riot. Prosecutors also told both men they could be jailed for up to three years if they declined to pay the $1 peace bond in protest. “I strongly voice my disagreement with the ruling,” said Sapp, when asked by Somers if he had any comment. “The peace bond is to prohibit free speech.” Both men subsequently paid the bond and were released.

But Sapp has a point. The “peace bond” is the result of a law enacted in 1927 which “may require a person to give security to keep the peace.” Yet this particular application of it appears to be somewhat novel, as the law has been used primarily in domestic violence cases to protect spouses from violent partners. Charlie Langton, lawyer and WJBK Fox 2 legal analyst, was taken aback by the ruling. “Nobody expected this,” he said. “It is prior restraint, but the judge followed the letter of the law. It’s purely legal because it’s never been challenged. That is not right. It’s an old law that I don’t think applies to this case. I think they’ll have to appeal it.”

Yet this was not the most controversial part of Judge Somers’ ruling. In a move that reportedly roiled the courtroom, he also ordered both men to stay away from the Dearborn mosque property – and the area surrounding it – for three years. In a bizarre addendum, Somers said the order would remain in effect, unless mosque leaders asked him to rescind it in the future.

The American Civil Liberties Union (ACLU) had unsuccessfully petitioned the state of Michigan to throw the case out, contending that Dearborn officials had violated Jones’s free speech protections, even as ACLU spokeswoman Rana Elmir was upset that the trial had given unwarranted publicity to a “divisive and fringe figure” by banning his demonstration. “We vehemently disagree with Mr. Jones and his cohorts. However, this is a complete abuse of the court process and all those involved should be ashamed,” she said. ”I believe that Rev. Jones came to Dearborn for his 15 minutes of fame and the judge and prosecutors have now effectively given him hours of that…In a free society no one should be thrown in jail for speech, even as distasteful and offensive as Mr. Jones is,” she added.

Wayne County Prosecutor Kym Worthy disagreed: “These proceedings were solely about public safety,” she said in a statement.

“This was never about prohibiting free speech or fearing rioting, but about a situation that could potentially place the public in danger in Dearborn.”

The case arose from a request by Terry Jones for a permit to demonstrate on public property across the street from the Islamic Center on Good Friday. Dearborn police denied the request claiming that that particular area, where four churches and the mosque are located, would be crowded with thousands of worshippers on that day, and that protecting Jones and his followers from violence would cost $46,000. Dearborn Mayor John “Jack” O’Reilly Jr. contended that Jones’s demonstration would create traffic problems, and in an open letter to Jones published last Wednesday, ridiculed Jones’s contention that Sharia Law had any influence in Dearborn, and urged the preacher to stage his protest in one of the city’s ”free speech zones.”

Free speech zones are the result of a 1989 Dearborn ordinance requiring permits for demonstrations to be secured 30 days in advance. In 2003, the ACLU sued the city with regard to that limitation, when a protest against Israel was held in response to their soldiers entering the Palestinian refugee camp in Jenin. In 2005, the federal Court of Appeals sided with the ACLU, and in 2008 the law was changed leading to the free speech zones. Former Macomb County Prosecutor Carl Marlinga contends that the law may give the city some leeway, but that it ”cannot pigeonhole someone into a free speech zone if they have a valid reason for wanting to conduct speech in a different public place.” The Mayor stood by the law. ”Nothing is static and the Constitution is not static either–it’s evolved,” he said.

This is not the first time protests against Islam have been thwarted by Dearborn police. In June 2010, four Christian missionaries were arrested on public property outside an Arabic festival, and charged with disorderly conduct for attempting to pass out pamphlets promoting Christianity. Mayor O’Reilly wrote a letter defending the arrests. The following September, a jury acquitted the quartet.

There is speculation that Terry Jones was motivated by that incident, and that is why he had sought to hold his protest specifically outside the mosque. Throughout the trial, Jones said as much, that his intention was to protest both jihad and Sharia law, and that he had no plans to repeat his previously controversial action of burning a Koran, nor would he make any attempt to defile images of the prophet Muhammad. “We are not criminals,” said Jones, acting as his own lawyer. “All we want to do is exercise our First Amendment rights.”

During closing arguments, assistant prosecutor Robert Moran claimed that ”[J]ust because we have the first amendment doesn’t mean you can say anything or do anything at any time,“ calling the planned protest a “recipe for disaster.“ Jones countered that free speech zones were unconstitutional and that protesting at the court house (the free speech zone he was offered) was not proper, because he and Sapp were not protesting American laws, but Sharia, which made the mosque the “right venue” for his demonstration. He added denying him a permit based on what might happen is nothing more than a surrender to “intimidation and fear.”

In a separate closing argument, co-defendant Wayne Sapp made a better point. He explained that while the prosecution was arguing that their actions were intended to breach the peace, “all of the evidence prosecutors have presented is about the actions of others.” Mr. Sapp’s argument was unintentionally buttressed by Dearborn Police Chief Ronald Haddad, who testified that, while he had received at least four serious threats made against Jones, and that counter-protests might bring as many as 10,000 people into the area, his impression of Jones after they met was that he was “cordial and did not appear to be violent in nature.”

It is hard to see this case as anything but a shambles, best explained by Hot Air’s Allahpundit:

[Jones] wanted to protest outside the Islamic center in Dearborn but the city refused him a permit, fearful that some local Muslim might go nuts as a result. So they put him on trial, with the jury asked to determine what they thought his intent would be in holding the protest. If they thought his aim was peaceful, he’d be found not guilty; if they thought he meant to incite violence, then guilty as charged. Verdict: Guilty. Which means not only was this guy convicted of a speech crime he hadn’t yet committed (a.k.a. prior restraint), but it was only a crime in the first place because of the expected reaction from his opponents.

There is no question that Terry Jones is a rabble-rouser, and that his previous stunt of burning a Koran demonstrates a level of bigotry and disrespect that should trouble reasonable people. Yet there is something even more troubling about Muslims who used the previous incident as justification for murder and mayhem half a world away in Afghanistan, where 12 U.N. workers were killed in retaliation. In this particular case, it is particularly telling that the judge, who ordered payment of peace bond and issued a three-year ban; the prosecutors, who brought the case to trial; and the jurors, who convicted the two defendants, are apparently blind to their own prejudices:  all three entities assumed that any demonstration by Jones, et al., no matter how peaceful, would result in violence–by Muslims. It was a prejudice so compelling that Jones and Sapp were convicted before the fact.

In context, it is worth remembering that just under two months ago, in a lopsided 8-1 decision, the Supreme Court upheld the right of Fred Phelps and the Westboro Baptist Church protesters to picket the funerals of American soldiers. And last Thursday, a New Jersey transit worker who burned pages of the Koran on 911 was re-hired, given back pay and awarded $25,000 for pain and suffering, after the state settled a lawsuit filed by the ACLU.

Jones says he’s headed back to Dearborn next week and plans to hold his protest.  Whether the judge, the prosecutors and the police will reconsider their ill-advised decisions is anyone’s guess.  No one has to like the man or his intentions, but as Jones himself reminded the court during his trial, the First Amendment “is only valid if it allows us to say what other people do not like.”

Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.