Appeals Court: Just Because Speech Provokes Negative Reactions Doesn’t Mean It’s Not Protected

The best response to speech you don’t like is more speech. It definitely isn’t whatever the hell happened here. And that not only includes the Seattle Police Department’s decision to go after the person being physically harassed by other protesters, but the actions of the protesters themselves, whose physical aggression somehow encouraged police officers to start violating the First Amendment.

It’s a mess. Fortunately, this decision [PDF] from the Ninth Circuit Appeals Court cleans it up. (h/t Courthouse News Service)

The plaintiff is Matthew Meinecke, a self-described “street preacher” who lives in Seattle. On June 24, 2022, Meinecke showed up at a pro-choice protest of the Supreme Court’s Dobbs decision. According to Meinecke, he held up a sign, read from the Bible, and handed out Christian literature.

This didn’t go well for him, according to his allegations.

Protestors surrounded Meinecke after about an hour. One protestor seized Meinecke’s Bible. Meinecke retrieved another Bible from his bag and continued reading aloud. Another protestor grabbed hold of—and ripped pages from—the new Bible.

Things then escalated. Meinecke was then carried across the street by protesters. He immediately returned to where he had been standing. He was once again accosted by these protesters, who took things even further.

While people gathered on the street, however, some approached Meinecke, knocked him down, and took one of his shoes.

That’s when the Seattle PD, which had officers on the scene already due to the pro-choice protest, decided to get involved. The two parties dispute what officers actually told the street preacher. He maintains they told him to go somewhere where no one could hear or see him. The city’s lawyers claim the officers simply told Meinecke to go back across the street to where the protesters had deposited him earlier. Either way, he refused to comply and was arrested for obstruction, mainly this part of the city statute: “[i]ntentionally refuses to cease an activity or behavior that creates a risk of injury to any person when ordered to do so by a police officer.”

Meinecke appeared to be the only person at risk of injury, but I guess that counts under the law since it says “any person.” Despite this, he was held for two hours at the PD, but ultimately was never booked or charged.

Two days later, Meinecke did pretty much the same thing while attending the city’s PrideFest. And that incident pretty much ended up the same way.

Eventually, PrideFest attendees noticed Meinecke’s presence. As the district court found, they began “dancing near him, holding up a flag to keep people from seeing him,” and making “loud noises so he could not be heard.” According to his complaint, “a couple of attendees stood close to Meinecke and howled and barked like dogs, and mocked Meinecke, while he read passages from the Bible. Meinecke did not engage with them.” Another individual poured water on Meinecke’s Bible. Meinecke kept reading aloud.

After a couple of hours, more PrideFest attendees gathered around Meinecke and began yelling. This attracted the attention of about ten law enforcement officers, who asked Meinecke “to move to a public area located outside the park.” Meinecke declined and continued to read from his Bible. A PrideFest attendee shouted at the officers, demanding Meinecke’s removal. The officers then told Meinecke “that they were imposing a ‘time, place, and manner’ restriction on him and ordered him to leave the park.” Again, Meinecke declined to leave. The officers told
Meinecke “that he was posing a risk to public safety,” and they again demanded he leave the park. Meinecke told the officers that he was not in any danger. The officers then arrested Meinecke for obstruction.

This time, however, he was booked, charged, and released on bond. He sued the city, its PD, and the officers involved in his arrests. While Meinecke is seeking an injunction, he is not challenging the constitutionality of the law itself… just the way it was enforced against him in particular.

The Appeals Court agrees with Meinecke. These two arrests were clear violations of his First Amendment rights.

Meinecke does not bring a facial challenge to the Seattle obstruction ordinance under which he was arrested. It makes little difference to our analysis, however, that the ordinance is facially neutral. If a facially neutral statute “as read by officers on the scene[] would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’” Ctr. For Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008). The City’s enforcement actions against Meinecke are content-based heckler’s vetoes. Our precedent on this point is clear: “The prototypical heckler’s veto case is one in which the government silences particular speech or a particular speaker ‘due to an anticipated disorderly or violent reaction of the audience.’” Santa Monica Nativity Scenes Comm.[…]

It is apparent from the facts, including the video available from police body cameras, that the Seattle police directed Meinecke to leave the area because of the reaction his Bible-reading provoked at the Dobbs and PrideFest protests.

That’s now how it works. The hecklers don’t get to set the government’s agenda. The city argued that’s not what actually happened — that officers responded to the people responding to Meinecke’s speech with harassment, violence, and theft by deciding Meinecke was the real problem here. The city claimed this was nothing more than the usual “time, place, and manner” restrictions governments can apply when it engages in constitutional regulation of speech.

But that’s the thing: this isn’t that. This is the other thing, as the Appeals Court points out:

[I]ncanting the words “time,” “place,” and “manner” over a content-based restriction does not transmute it into one that is content neutral. The evidence in the record is indisputable that the officers curbed Meinecke’s speech because of the potential reaction of the listeners.

The city also argued that the officers’ commands would have merely inconvenienced Meinecke, rather than silenced him. Ta-da! No First Amendment violation! Wrong again, says the court:

Even assuming that the officers simply instructed Meinecke to cross the street, their directions burdened Meinecke’s speech. Meinecke had a right, just as those participating in the anti-Dobbs rally or the celebration of PrideFest, to use public sidewalks and streets for the peaceful dissemination of his views. Like the petitioners in McCullen, Meinecke “hands out literature” and “engages in conversation and answers questions” about Christianity. The evidence is even clearer as to the officers’ restrictions during PrideFest. The district court recognized that the officers “ordered him to leave the park” altogether. When the police single out a nonthreatening speaker for discipline, the government is simply choosing sides in the debate and using the obstruction statute to enforce its choice.

Back it goes to the lower court with an order to grant Meinecke’s request for an injunction. And, hopefully, this ruling will deter officers from making the same mistake in the future. As the Appeals Court notes in the decision, the officers had plenty of options when handling these two altercations and chose the worst option both times. If the city wants to enforce its obstruction statute it can still do that. It just can’t do it in a way that violates constitutional rights. And the government should never side with the hecklers and carry out their veto for them.