Two years ago, Ruben Chavez, Arthur Fisher, and Joshua DeLosSantos, members of a Christian evangelical group known as Bible Believers, attracted a hostile crowd while preaching hellfire and damnation at the Arab International Festival in Dearborn, Michigan. The crowd, which consisted mostly of children, pelted the three evangelists with water bottles and other trash. Police responded by threatening to arrest Chavez and his friends for disorderly conduct unless they left the festival. According to the U.S. Court of Appeals for the 6th Circuit, banishing the provocative preachers from the public festival was perfectly appropriate and did not violate their First Amendment rights.

In a ruling issued yesterday, the appeals court says video of the incident "demonstrates that [the Bible Believers'] speech and conduct intended to incite the crowd to turn violent." How so? "Within minutes after their arrival," Judge Bernice Donald writes in an opinion joined by Judge Samuel Mays, Chavez and his associates "began espousing extremely aggressive and offensive messages—e.g., that the bystanders would 'burn in hell' or 'in a lake of fire' because they were 'wicked, filthy, and sick'—and accused the crowd of fixating on 'murder, violence, and hate' because that was 'all [they] ha[d] in [their] hearts.' These words induced a violent reaction in short order; the crowd soon began to throw bottles, garbage, and eventually rocks and chunks of concrete. Moreover, members of the crowd can be heard to shout 'get them' and 'beat the s*** out of them'; one Bible Believer was pushed to the ground. Chavez's face was cut open and bleeding from where he had been struck by debris."

Because bystanders reacted violently, in other words, that must have been the reaction Chavez and his friends aimed to elicit. The implication is that they were deliberately inciting a riot, meaning their speech was not protected by the First Amendment. But the majority opinion is ambiguous on this point. It also suggests that the the Bible Believers' preaching was constitutionally protected but that making them do it elsewhere amounted to a reasonable "time, place, and manner" restriction in light of the crowd's hostility. "The threat of violence had grown too great to permit them to continue proselytizing," Donald writes. She explains that Dennis Richardson, deputy chief of the Wayne County Sheriff's Office, "had a reasonable good faith belief that the threat of violence was too high because the Bible Believers had already been subjected to actual violence."

In a powerful dissent, Judge Eric Clay rebukes his colleagues for endorsing a "heckler's veto," as reflected in Richardson's words to Chavez: "What you are saying to them and they are saying back to you is creating danger." Richardson and the other defendants conceded that the Bible Believers' speech was constitutionally protected, Clay notes, and for good reason: It did not qualify as incitement, which requires an intent to provoke "imminent lawless action," or as "fighting words," i.e., "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Clay observes that "fighting words are defined solely by their impact on the 'average person,'" not the "average Muslim child." The fact that the vast majority of people at the festival did not respond violently to the evangelists shows that their preaching, however obnoxious, did not qualify for this (dubious) exception to the First Amendment.

Confronted by citizens lawfully exercising their First Amendment rights and bystanders lawlessly punishing them for it, the police sided with the violent hecklers. Clay argues that they should instead have tried a little harder to calm the crowd (which, again, consisted mostly of rowdy children), because their first duty in this situation was to protect the peaceful party:

In my view, the video tape shows that Defendants did just about nothing to control the crowd as it grew and became agitated. Defendants only stepped in to inform Plaintiffs that the police were powerless and that Plaintiffs needed to leave under threat of arrest. This is not good faith—it is manufacturing a crisis as an excuse to crack down on those exercising their First Amendment rights.

By validating such police work, Clay warns, the court is inviting more violence and more censorship:

Law enforcement is principally required to protect lawful speakers over and above law-breakers. If a different rule prevailed, this would simply allow for a heckler's veto under more extreme conditions. Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced. More perniciously, a contrary rule would allow police to manufacture a situation to chill speech. Police officers could simply sit by as a crowd formed and became agitated. Once the crowd's agitation became extreme, the police could swoop in and silence the speaker. The First Amendment does not contain this large a loophole.

Cathy Young discussed an earlier case involving evangelists at the Arab International Festival in her 2011 essay "Fear of a Muslim America."