In Berger v. City of Seattle, the 9th Circuit Court of Appeals recently reaffirmed the “bedrock principle” that the protections afforded by the First Amendment are “nowhere stronger than in streets and parks.” This principle was given bluster in a case involving street performers, only one of whom complained that they were being too heavily regulated and could not perform wherever they liked.
As a First Amendment challenge, the case marks a victory for a narrow class of citizens not generally thought of as an oppressed class. Elsewhere, as one evangelical Christian group discovered last week, the same bedrock principle remains elusive to religious groups, which have traditionally been oppressed and whose speech rights were the inspiration for the protections enshrined in the First Amendment.
Arabic Christian Perspective (“ACP”) is an Anaheim-based charitable organization that does something anyone but an evangelical Christian might think extremely foolish: its members and volunteers try to convert Muslims to Christianity by attending their events and gathering near – but not at – their mosques. Its soft-spoken founder and director, George Saieg, is from the Sudan, where he witnessed firsthand the persecution of Christians by Muslims before emigrating to the U.S. in 1996. An ordained minister with the Calvary Church of Santa Ana, California, Saieg fearlessly approaches his mission with zeal and a reverence for the Bill of Rights.
That approach surprisingly has led to numerous success stories. Surprising because the penalty of Muslim conversion to Christianity is death – all the more reason why ACP would wish to proceed with caution while carrying out its outreach efforts.
To that end, it spends tens of thousands of dollars each year on DVDs, booklets, Bibles and other literature to distribute. Its volunteers simply offer a packet of material to people walking by. No coercion is involved, no hard-sell, no in-your-face confrontation. Such an approach would not merely be counterproductive, but it could also turn hostile. And in five years of using this approach at the annual Arab International Festival in Dearborn, Michigan, ACP has been very effective standing along the sidewalks that parallel the street where business establishments remain open to the general public and where the public is generally invited to roam.
This year was different. Dearborn, population 97,775, is a Detroit suburb and home to world headquarters of the Ford Motor Company. As of the 2000 Census, more than one-third of the city's population is of Arab descent, and it is the home of the nation’s largest mosque. Such a large concentration of Arab Americans offers a rich source of possibilities for ACP’s volunteers, who travel from all over the country each year to mingle with an estimated 300,000 visitors to the festival.
In past years, ACP’s volunteers peacefully walked through the festival street, but voluntarily restricted themselves to passing out their material on the sidewalks. Visitors to the festival graciously accepted the material. Afterwards, volunteers would trek through the neighborhoods of Dearborn knocking on doors, often being invited in for tea or coffee. In fact, there has never been an incident involving violence or a threat of violence in all the past years.
That fact did not stop the Dearborn Police Department from ordering ACP to confine its volunteers to a distant corner location where they would be unlikely to draw many passersby. The police did not explain the basis for this action. Following their practice of providing advance notice of their visit to local police departments, ACP gave a courtesy call to Dearborn authorities. The courtesy only made the group a target.
As ACP’s general counsel, I was contacted. I have seen cities hostile to religion before. I had sued Los Angeles County on behalf of the David Horowitz Freedom Center and its affiliated Individual Rights Foundation when the county removed a Cross from its seal. When Dearborn wouldn’t budge, I recruited the Thomas More Law Center, a religious liberty law firm based nearby in Ann Arbor, Michigan, to initiate legal action and to obtain an immediate court order permitting ACP to distribute its material just as they done in each prior year.
Under well-established law, a street or a park is considered to be a “traditional public forum.” These are places, which, according to the U.S. Supreme Court, “by long tradition or by government fiat have been devoted to assembly and debate” and where “the rights of the state to limit expressive activity are sharply circumscribed.”
Streets and parks, according to our high court, have always been “held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In these “quintessential public forums,” the public’s speech rights are expected to be resolutely protected. A government regulation can limit it only to serve a compelling state interest, and it must be drafted narrowly to achieve that end. Government may also enforce regulations of the time, place, and manner of expression so long as they are “content-neutral,” are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
These requirements would seem to substantially cramp government’s power to muzzle those wishing to enjoy the freedom of expression and assembly guaranteed by the First Amendment in public streets and parks. But in the U.S. District Court for the Eastern District of Michigan, a judge agreed with the city that the constraints placed on ACP were reasonable time, place and manner restrictions. The group of some 90 volunteers, traveling from every corner of the nation, would be ordered to stay away from the open street and public sidewalks of the festival but allowed to distribute their material around the corners, far from the event. In other words, everyone but ACP was welcome at the festival, and since the city did not seek to curb the activities of any other individual or group, only ACP’s speech rights were affected by the court’s ruling.
The testimony at the TRO hearing provided by the police chief verified that ACP had not been responsible for causing public disturbances in prior visits. And no other security or safety issues were mentioned at the TRO hearing.
The festival offered to allow ACP to set up a booth, but insisted that its members remain at the booth and not distribute their material at any other location. This was a shrewd move by the festival organizers. At first, their offer seemed like a reasonable “alternative channel of communication” in which ACP could reach just as many, if not more, festival gatherers.
But after being offered two locations to pitch their tent, ACP was moved from its first choice in the center of the Festival near the police tent to a distant outpost, where the group handed out little more than a few hundred packets of material.
Elsewhere at the festival, and unknown to the Dearborn Police Department, were other Christians peddling their own material. Pat Rojas was one of them. Hounded by the festival’s private security patrol, he and another evangelical Christian were taken from the sidewalk to the security tent, where they were detained and harassed before being physically ejected from the festival, driven out in a security vehicle, and ordered not to return. According to Rojas, “Hezbollah” was tattooed on their arms.
“One security guard tried to initiate a fight with us by saying all Christian Americans are losers, that our credit cards are all charged up, that our wives have left us, that our children hate us, and that we are all financially broke,” a frustrated Rojas told me. “Another guard took my ID and refused to return it. My life was threatened.”
The lawsuit filed by my firm and Rob Muise of the Thomas More Law Center will shine a light on the grave injustice ACP, Rojas and others experienced in Dearborn. It asks whether Dearborn is a city of tolerant people and fair-minded public officials, or Dearbornistan, a center of dhimmitude where Christians are unwelcome.
This police crackdown, on behalf of the U.S. Muslim minority, poses a serious challenge to our constitutional freedom. More than 250 years ago, James Madison, the father of the First Amendment, witnessed an imprisoned Baptist minister preaching from his jailhouse window. Just 23-years-old at the time, he noted that approximately “5 or 6 well meaning men” were in jail in a nearby county “for publishing their religious sentiments which in the main are very orthodox.”
“I have neither patience to hear, talk, or think of anything relative to this matter,” he wrote a friend, “for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.”
The disturbing situation in Dearborn is a vivid reminder of Madison’s frustration and the need to preserve the protections for religious groups especially. After all, the First Amendment was specifically adopted for their protection, and only incidentally protects street performers.