Seattle Cannot Stifle Viewpoints Because Some People Find Those Viewpoints Offensive

One of the most basic First Amendment rules is that the government (federal, state, or municipal) cannot suppress speech because of the viewpoint expressed. A blatant form of viewpoint censorship occurs when a law prohibits or punishes the expression of a particular opinion or viewpoint. Laws that prohibit what some call “hate speech,” for example, are frequently aimed at viewpoints that the drafters of the law dislike. Other types of viewpoint discrimination can arise when an otherwise neutral law is applied in a manner that punishes individuals who express certain viewpoints. For example, a local government can require a group to get a permit before having a march on public property. The local government, however, cannot refuse to grant such permits to groups with viewpoints the local government does not agree with.

Viewpoint discrimination also occurs when the government enforces a heckler’s veto. Heckling is common in political speeches, government hearings, public demonstrations, and comedy clubs. In most cases, heckling is nothing more than a nuisance. Heckling, however, is not always harmless. Some hecklers will prevent a speaker from starting or completing his or her presentation. Heckling that rises to this level is commonly referred to as a heckler’s veto. The heckler is vetoing the ability of the targeted speaker to present his or her viewpoints. In many cases, this conduct will violate a number of criminal laws such as laws against trespassing, assault and disorderly conduct. While a heckler’s conduct may violate criminal law, such actions by themselves do not violate the First Amendment. The First Amendment is violated, however, when the government takes the side of the hecklers and silences the disfavored viewpoint.

For example, protests are frequently met with counter-protests. These situations can become tense and even violent. Law enforcement officials can certainly arrest or detain protesters who engage in violence or break other laws. Law enforcement officials, however, violate the First Amendment when they take sides and silence one group of protesters because of the viewpoint they are expressing. This has, unfortunately, become a much more common problem, which is the subject of a decision by the federal appellate court for the Ninth Circuit in Meinecke v. City of Seattle.

In 2022, a pro-choice demonstration took place outside the federal building in Seattle to protest the Supreme Court’s decision overturning Roe v. Wade. Matthew Meinecke went to the demonstration by himself and held up a sign and read verses from the Bible. Meinecke did not address the issue of abortion but instead went to “convey his faith in Christianity to people who were in the area.” After about an hour, Meinecke was surrounded by a number of protesters. One of the protestors ripped Meincke’s Bible out of his hands. Meincke started to read from another Bible and a protester started to rip pages out of the new Bible. Then “five protestors, some clad in all black and wearing body armor, picked up Meinecke  . . . moved him across the street and dropped him on the pavement.” Meinecke walked back to his original spot with his sign and again started reading the Bible. This time, Meinecke was assaulted by several protestors who knocked him to the ground and took one of his shoes.

The police witnessed the assaults against Meinecke. The police characterized the protesters who attacked Meinecke as Antifa. One officer wrote in his report that “Antifa members . . . began to fight/assault” Meinecke. The police, however, took no action against the protesters who were assaulting Meinecke, taking his property and destroying it. If the incident ended here, it would represent a stain on the police officers who stood by and did nothing to protect an individual being assaulted for his beliefs. Instead of protecting Meinecke or arresting the people who assaulted him, the police ordered Meinecke to leave the area. Meinecke refused and the police arrested him. The police claimed that Meinecke’s refusing to leave when ordered constituted “obstruction” under a city ordinance that made it unlawful for a person to:

“obstruct a police officer if, with knowledge that the person obstructed is a police officer, he or she . . . [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 was taken to a police precinct but was not booked. “Meinecke was released after the abortion protest ended.”

Two days later, Seattle’s annual PrideFest took place at the Seattle Center, which is a public park. Meinecke went to the park “around noon and began to read from the Bible in a conversational tone.” Meinecke’s reading from the Bible upset some of the participants at the PrideFest. At first, some people held up a flag in front of Meinecke in order to prevent people from seeing him and made loud noises in order to prevent people from hearing Meinecke read. Some participants then got close to Meinecke and “howled and barked like dogs and mocked Meinecke.” Meinecke did not engage with these individuals and continued to read from the Bible. Meineke was obviously subjected to heckling, but just as he was free to convey his message in public, other members of the public were entitled to express their disapproval.

Things escalated. One protester poured water on Meineke’s Bible, which crosses into criminal behavior. More individuals approached Meinecke and started yelling at him. At this point, about 10 Seattle police officers approached Meinecke and told him to “move to a public area located outside the park.” The people who had gathered around Meineke started shouting at the police and demanded that the police remove Meinecke. Meinecke refused to leave. The police told Meineke that “they were imposing a ‘time, place, and manner’ restriction on him and ordered him to leave the park.” Meinecke again refused. The police then arrested Meinecke for obstruction. Meinecke was booked this time, but the City later informed Meinecke that it was not going to pursue the charges. Meinecke was “warned” that the City could bring up the charges at a later date, if they wanted.

Meinecke sued the City and requested an injunction against his being arrested for obstruction due to the hostile reaction some people have to his reading the Bible in public. The district court denied Meinecke’s petition for an injunction. The Ninth Circuit reversed the district court’s decision and ordered the district court to enter an injunction against the City.

Meineke reading his Bible on a public sidewalk and a public park represents speech protected by the First Amendment. Further, Seattle and the Seattle police department must know that their ability to restrict speech on a public sidewalk and public park is extremely limited. It is hard to comprehend a major American city believing it can suppress speech in a public forum like a sidewalk and park due to the speaker’s viewpoint.

Seattle tried to avoid the obvious by arguing that the police were simply demanding that Meinecke comply with a reasonable time, place and manner restriction. A city can impose reasonable time, place and manner restrictions on speeches, protests and demonstrations. A city, for example, can prohibit demonstrations in the middle of the night in a residential neighborhood. Further, a city can prohibit mass gatherings in the middle of a city without the group first obtaining a permit. Seattle’s argument that it could impose a time, place and manner restraint on one person reading from a Bible on a sidewalk or park (like Meinecke) is, on its face, highly questionable.

Seattle’s argument, however, suffered from an even more grievous defect. While a city can impose reasonable time, place and manner restraints on conduct protected by the First Amendment, it cannot impose those restraints based on the speaker’s viewpoint. Nor can a city “transmute” its actions into a content neutral restraint by “incanting the words ‘time,’ ‘place,’ and ‘manner.”

The Ninth Circuit had little trouble concluding that the police took sides when they arrested Meinecke. The police did not arrest Meinecke because he was violent towards anyone. Instead, on both occasions, the people around Meinecke became aggressive and violent because of Meinecke’s statements. When the police ordered Meinecke to move and then arrested him, the police were responding to hecklers that wanted to silence Meinecke. The Court stated that 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.” Choosing sides like the Seattle police did is viewpoint discrimination.

Given that Meinecke’s arrests constituted viewpoint discrimination, the court then applied what is called “strict scrutiny” to the actions taken by the police. Seattle now had the heavy burden of proving that Meinecke’s arrests were supported by a compelling state interest and that actions by the police were narrowly tailored or the least restrictive means to meet that interest. This is an incredibly difficult standard to meet. The Court noted that it “is rare that a regulation restricting speech because of its content will ever be permissible.”

With respect to the heckler’s veto, the Court stated that “[c]urtailing speech based on the listeners’ reaction is rarely—if ever—the least restrictive means to achieve the government’s interest in safety.” The Court pointed out that “if speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech.” The police had many options they could have pursued other than arresting Meinecke. The court stated that:

The officers could have required the protestors to take a step back from Meinecke. They could have called for more officers—as they did after Meinecke was arrested. They could have erected a free speech barricade. They could have warned the protestors that any sort of physical altercation would result in the perpetrator’s arrest. And they could have arrested the individuals who ultimately assaulted Meinecke.”

Instead, the police chose the easy or politically palatable solution, which was to arrest a single, and non-violent individual who was reading from the Bible. The police chose the side of the mob and, in doing so, violated the First Amendment.

In a city that is heavily slanted in one political direction, law enforcement officers can face a dilemma when they have an individual or group that is challenging the city’s political orthodoxy. If the disfavored individual or group is targeted by aggressive hecklers, law enforcement officials may face considerable political blowback if they arrest the hecklers that support the city’s political leanings. Indeed, some officers may strongly agree with the viewpoints held by the hecklers. While most law enforcement personnel are loath to watch an individual get assaulted by a mob that is enraged by the individual’s political positions, on some occasions they may have strong incentives to take the side of the mob. The path of least resistance may entail appeasing the mob and arresting the person or persons targeted by the mob. The First Amendment does not allow the government or law enforcement to act in such a manner. Indeed, such a position by a city and its police is the beginning of the end of free speech rights in that city.

At The Law Offices of George M. Sanders, P.C., we stand as vigilant guardians of the fundamental right to free speech—a cornerstone of democracy and personal liberty. Our society thrives on the open exchange of ideas, the ability to question the status quo, and the freedom to express one’s beliefs without fear of retribution. Have you or someone you know faced challenges in exercising these rights? Contact The Law Offices of George M. Sanders, P.C. today for a consultation. Together, we can safeguard your freedom of expression, ensuring that your rights are not just protected but vigorously defended.