6th Circuit Grants En Banc Rehearing To Christian Evangelists Who Preached At Arab Festival

The U.S. 6th Circuit Court of Appeals has voted to grant an en banc rehearing in Bible Believers v. Wayne County, (reh. granted Oct. 23, 2014). In the case, the 3-judge panel in a 2-1 decision, affirmed the district court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. (See prior posting.) Volokh Conspiracy has more on the case.

Conviction of Pussy Riot Band Member Upheld By Russia's Constitutional Court

Russia's Constitutional Court yesterday issued a decision rejecting a challenge by a member of the Pussy Riot punk rock band to her 2012 conviction for disorderly conduct (hooliganism). The conviction came after a protest performance at Christ the Savior Cathedral in Moscow. (See prior posting.)  Interfax reports band member  Nadezhda Tolokonnikova argued to the Constitutional Court that  Russian Criminal Code Article 213 unconstitutionally restricts her freedom of expression, classifies violations of religious rules a violation of public order, and criminalizes actions based only on the perception of a majority of the public. The Constitutional Court concluded however that the Law on Freedom of Conscience and Religious Associations calls for it to respect the internal rules of religious denominations. It also said:

If some actions are demonstratively insulting in nature and are devoid of any aesthetic or artistic value, they go beyond the limits of the lawful use of freedom of expression guaranteed by the constitution,

Tolokonnikova was released from prison last year in an amnesty. (See prior posting.)

Black Separatist Religious Group Wins Right To Demonstrate Outide of Mall

In Liberty Place Retail Associates, L.P., v. Israelite School of Universal Practical Knowledge, (PA Super. Ct., Oct. 14, 2014),  a 3-judge panel of the Pennsylvania Superior Court affirmed a trial court's denial of a permanent injunction to prevent a Hebrew Israelite religious organization from holding demonstrations on a public sidewalk outside a Philadelphia Center City shopping mall. At issue are hate-filled Black-separatist demonstrations held on a weekly basis. The court rejected the shopping mall's trespass and private nuisance claims. Philadelphia Daily News reports on the decision.

Suit Challenges MTA's Rejection of Anti-Hamas Ad

Reuters reported yesterday on a lawsuit filed by the American Freedom Defense Initiative claiming that its civil rights were violated when the New York City Metropolitan Transit Authority rejected its city bus ad that included the line: "Killing Jews is worship that draws us close to Allah - Hamas MTV". The MTA says they rejected the ad because it may incite violence.

9th Circuit: Ban On Soliciting At LAX Upheld Over Hare Krishna Challenge

In a case that slipped under my radar last month, the U.S. 9th Circuit Court of Appeals upheld a Los Angeles ordinance banning continuous or repetitive solicitation for the immediate receipt of funds at Los Angeles International Airport, rejecting a challenge to the ban by the Hare Krishna movement.  In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (9th Cir., Aug. 20, 2014), a 3-judge panel of the 9th Circuit held that major international airports have a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation.

6th Circuit Affirms Dismissal of Suit By Christian Evangelists Preaching At Arab Festival

In Bible Believers v. Wayne County, (6th Cir., Aug. 27, 2014), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, affirmed the distrct court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. The majority held that this action by the police did not violate plaintiffs' 1st or 14th Amendment rights:

The video from the 2012 Festival demonstrates that Appellants’ speech and conduct intended to incite the crowd to turn violent. Within minutes after their arrival, Appellants 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..... As in Feiner, the situation at the 2012 Festival went far beyond a crowd that was merely unhappy and boisterous; as Richardson explained to the Bible Believers, the threat of violence had grown too great to permit them to continue proselytizing.

Judge Clay dissented, saying:

This is a clear heckler’s veto, breaching the principle that “hostile public reaction does not cause the forfeiture of the constitutional protection afforded a speaker’s message so long as the speaker does not go beyond mere persuasion and advocacy of ideas [but rather] attempts to incite to riot.”

AP reports on the decision. [Thanks to How Appealing for the lead.]

Canada's Citizenship Oath To The Queen Does Not Violate Charter Rights

In McAteer v. Canada (Attorney General), (Ont. Ct. App., August 13, 2014), the Court of Appeal for Ontario rejected constitutional challenges to the requirement that immigrants who wish to become Canadian citizens must swear or affirm that "I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors." Two of the challengers were committed republicans whose consciences were offended by taking an oath to a hereditary monarch. They alleged that the oath violates their freedom of expression and their equality rights protected by Canada's Charter of Rights and Freedoms. Two other plaintiffs asserted that the oath violates their freedom of conscience and religion protected by the Charter:

The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposes that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposes that on account of the oath, she would feel bound to refrain from participating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in these proceedings, is that taking an oath to any human being is contrary to his conception of Judaism.

In rejecting the Charter challenges, the appeals court said:

Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

The Globe and Mail reports on the decision.

Street Preacher's Challenge To Permit Requirements Dismissed

In Craft v. Village of Lake George, New York, (ND NY, Aug. 7, 2014), a New York federal district court dismissed free speech, free exercise and equal protection challenges by a street preacher to the permit requirements of a resort town in New York's Adirondacks.  His "as applied" challenge to the solicitation permit requirements was dismissed because he denies ever soliciting money from passersby.  Thus "he could not be deprived of what he did not attempt or intend to exercise." HIs facial challenge to the seasonal permit requirement for handing out leaflets was held to be moot because the village subsequently made "sweeping changes" to the provisions of the Village Code being challenged.

Consent Decree Allows Gospel Tracts At Street Festivals

In Price v, City of Fayetteville, North Carolina, (ED NC, Aug. 7, 2014), a North Carolina federal district court entered a consent decree enjoining the city from restricting distribution of religious literature at private festivals on public streets that are free open to the public.  This specifically includes the Dogwood Festival and the Independence Day Concert held in downtown Fayetteville-- venues at which last year police prevented plaintiffs Tom Price and William Legg  from distributing gospel tracts. WRAL News reports on the court's action. [Thanks to Paul de Mello for the lead.]

Rules Limiting Area Around State Fair Where Preacher Can Speak Upheld

In Powell v. Noble, (SD IA, Aug. 5, 2014), an Iowa federal district court in a 40-page opinion refused to issue a preliminary injunction in a Christian preacher's challenge to rules barring his proselytizing in areas around the Iowa State Fair where he might impede traffic flow. The court held preliminarily that the entire Fairgrounds are a limited public forum, at least  during the days the Fair is held.  Restrictions on activities that could impede traffic flow are reasonable. However the court did enjoin defendants from arresting plaintiff (or threatening arrest) solely for protected speech in locations where Defendants conceded there was not interference with traffic flow. Des Moines Register reports on the decision.

Suit Challenges City's Denial of Equal Public Space To Atheist

The ACLU today announced the filing of a lawsuit against the city of Warren, Michigan on behalf of an atheist who was refused space for a table in the atrium of city hall for a "reason station,"  even though the city has permitted a local pastor to operate a "prayer station" in the atrium since 2009.  The complaint (full text) in Marshall v. City of Warren, (ED MI, filed 7/23/2014), sets out free speech and establishment clause challenges based largely on the letter sent by the city's mayor denying plaintiff's request. The letter reads in part:

It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.

All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions. Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation. To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this. 

Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

5th Circuit: Designs of Specialty Plates Are Private Speech Protected By 1st Amendment; Cert. Filed On Similar Issue

In Texas Division, Sons of Confederate Veterans, Inc. v. Vandergriff, (5th Cir., July 14, 2014), the U.S. 5th Circuit Court of Appeals held, in a 2-1 decision, that messages on state specialty license plates are private speech, not government speech.  The majority went on to conclude that the Texas Department of Motor Vehicles Board engaged in unconstitutional viewpoint discrimination when, because many members of the public found the design offensive, it rejected a vanity plate design that included the Confederate flag. The New Orleans Times-Picayune reports on the decision.

Meanwhile, ADF announced that a petition for certiorari (full text) was filed with the U.S. Supreme Court last Friday in Berger v. American Civil Liberties Union of North Carolina. In the case, the U.S. 4th Circuit Court of Appeals, finding that messages on vanity plates are private speech, held that North Carolina engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate. (See prior posting.)

Preacher Sues To Gain Access To Sidewalk Outside Iowa State Fair

The Des Moines Register reports on a federal lawsuit filed last month by Jason Powell who wants to share his Christian message with persons going to the Iowa State Fair next month.  He seeks a ruling that police acted unconstitutionally last year when they detained and photographed him after he insisted on holding a sign and preaching on the sidewalk just outside the entrance gate to the Fair. A police officer told Powell he had to move to the other side of the street. Powell's attorney says that the recent U.S. Supreme Court decision in McCullen v. Coakley striking down the abortion clinic buffer zone set up by Massachusetts law supports their case.

Supreme Court Grants Review In Church's Challenge To Sign Ordinance

The U.S. Supreme Court today granted certiorari in Reed v. Gilbert, AZ, (Docket No. 13-502, cert. granted 7/1/2014.) (Order List.) In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs.  The limits on temporary event signs are stricter than limits placed on various other types of signs, having the effect of favoring political and ideological signs over religious ones.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.) Here is the petition for certiorari. An ADF press release has more background.

Convictions of Anti-Gay Pride Protesters Reversed

In Faust v. State of Texas, (TX Ct. App., June 12, 2014), a Texas state appeals court reversed the convictions of two members of the Kingdom Baptist Church who were charged with interference with public duties.  The convictions grew out of the church members' attempt at a gay pride parade to cross a police line formed to keep a distance between KBC protesters and the parade. The court said in part:

The skirmish line at issue here was not narrowly tailored to serve the government’s interest in public safety. All members of the church were barred from proceeding down the street regardless of whether they had previously assaulted parade-goers or not, whether they were yelling profanity or threatening words or not, or whether they were even protesting at all. Although there was evidence that the police department had received complaints about the church’s “street preaching” many times in the past, the only evidence the church had ever reached beyond the boundaries of protected speech was that one of their members, Chad Sutherland, had assaulted a parade participant at the 2011 parade. There was no evidence that Sutherland was with the church members at the 2012 parade, that any of the members present at the 2012 parade were involved with the 2011 assault, or that any of the members present were threatening any parade-goers with imminent physical injury. ....

The skirmish line prohibited all members of the church from exercising their right of free speech merely because of their association with the church. This is far too broad a limitation.... Although we do not believe that the police were required to wait until violence erupted before they stepped in, we do believe there must have been some indication that the public’s safety was at risk beyond the history of one assault by a member of the organization who may not even have been present at the time the skirmish line was in place..... Because the skirmish line was not narrowly tailored, it was an unconstitutional infringement upon Appellants’ right of free speech.

Christian News reports on the decision.

Christian Student Challenges University's Speech Code

A lawsuit was filed last week in an Oklahoma federal district court challenging the Expressive Activity Policy and Equal Opportunity Policy of Cameron University, a public university in Lawton, Oklahoma.  The complaint (full text) in Harper v. McArthur, (WD OK, filed 5/14/2014), alleges that Daniel Harper, an evangelical Christian student at the University, was prevented from handing out a flyer criticizing the beliefs of a student organization, the World Mission Society. The university claims that Harper's flyer violates the university's prohibition on "offensive" and "discriminatory" speech.  It allows literature to be handed out on campus only if it is from a student organization and has been approved for distribution by the University. The suit claims that the University speech code violates the 1st and 14th Amendments as well as the Oklahoma Religious Freedom Act. Alliance Defending Freedom announced the filing of the lawsuit.

Saudi Online Liberal Religious Activist Gets Increased Sentence On Retrial

Reuters and International Business Times report that yesterday Saudi Arabian online activist Raif Badawi was sentenced to 1000 lashes, ten years in prison and a fine equivalent to $266.600 (US) in his retrial on charges of "setting up a website that undermines general security " and "ridiculing Islamic religious figures".  Badawi is the co-founder of the Saudi Arabian Liberals website, set up to discuss liberal interpretations of Islam and political matters.  Originally he was sentenced to 7 years in prison and 600 lashes (see prior posting), but the sentence was overturned on appeal by Badawi's lawyers who argued that the sentence was too harsh.  The criminal court in the city of Jeddah however has now imposed an even harsher sentence. The prosecution's attempt to charge Badawi with apostasy (punishable by death) was dismissed in last year's original trial.

Virginia Settles Suit Challenging Limits On Student Preaching On Campus In Wake of New Law Assuring Speech Rights

The Hampton Roads (VA) Pilot reports that a proposed consent decree was filed in Virginia federal district court last Friday in Parks v. Members of the State Board  of the Virginia Community College System. In the suit, a student who wished to preach on campus challenged the rules at Thomas Nelson Community College that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance. (See prior posting.) Under the consent decree, which still requires court approval, students will be allowed to speak freely on campus without joining a recognized student organization or registering in advance. Also colleges will not unreasonably limit the outdoor areas in which students can speak.

This development comes the same day that Virginia Governor Terry McAuliffe signed HB 258 (full text) which bars public colleges in Virginia from imposing restrictions on student speech in outdoor areas of campus unless they are reasonable, content-neutral and narrowly tailored to serve a significant interest and leave open ample alternative channels for communication.

Community College Student Preacher Challenges Campus Speaker Rules

The Hampton Roads (VA) Daily Press reported yesterday on a lawsuit filed earlier this month by a Christian student against the board of the Virginia Community College System, the Hampton, Virginia-based Thomas Nelson Community College and various college officials.  The complaint (full text) in Parks v. Members of the State Board  of the Virginia Community College System, (ED VA, filed 3/13/2014), challenges the constitutionality of college rules that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance.  Plaintiff, Christian Parks, was stopped after he began preaching in an open courtyard area on campus. The suit claims that the campus speaker rules violate the free speech, free exercise and due process clauses of the Constitution.

Court OK's Firing of 3 By Adventist University For Violating Church Doctrine

Last week the Riverside, California Press-Enterprise reported on a March 5 decision by a Riverside County Superior Court judge dismissing a lawsuit against Seventh Day Adventist-affiliated La Sierra University by the school's former vice president of development; former Arts and Science dean, and a former biology professor.  The three were pressured by the University's board president into resigning after they made derogatory remarks about church officials and violated church teachings on the consumption of alcohol.  School officials found out about remarks the three made when a conversation between them that had been recorded fell into officials' hands. (Transcript of conversation.) The trial court said in part: "the church is entitled to make its own decisions about how to respond when employees of a church-run school are deemed to have violated SDA (Seventh-day Adventist) doctrine."

A comment on the decision published by ReligiousLiberty​.TV contends:

While the official line was that the three plaintiffs had been caught drinking alcohol on an audio recording the real motivation had more to do with the heretofore untouched issue of creationism.  Two of the plaintiffs were outspoken critics of the Adventist view of literal creationism and the lawsuit revealed the concerns that church leadership has had regarding the way that Adventist beliefs had been downplayed at La Sierra.

UPDATE: Here is the full transcript of the March 5 summary judgment hearing in the case, Kaatz v. Graham.