Dearborn, Michigan: Turning Terry Jones into a Martyr

by Crocker on April 25, 2011, 4:55 am

in Culture,Law,Politics,Religion

As Dodd Harris recently noted, “even asshats have Constitutional rights”. And Terry Jones – Koran-burning Florida pastor – is certainly that.

Yet, his recent run-in with the law in Dearbornistan was a textbook exercise in Constitutional violation. Jones was planning to demonstrate outside Dearborn’s large mosque and was prevented from doing so on the grounds that it would breach the peace:

A judge late Friday sent two Florida pastors to jail for refusing to post a $1 bond and barred them from visiting a Dearborn mosque or its adjacent property for three years unless the mosque’s leadership says otherwise. After a short time in jail they left on $1 bond each.

The stunning developments came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn. Critics slammed the decision to jail them, the court proceedings, and Wayne County prosecutors, saying they violated the men’s Constitutional rights.

Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set bond at $1 each for the two pastors. They refused to pay. And Somers ordered them remanded to jail.

Chaos broke out outside court as opposing factions yelled at each other. Jones and Sapp were led out of court by Dearborn police. That left Jones’ supporters stunned, given that he hadn’t even attempted to go to the mosque yet.

Note that Jones was prevented from demonstrating not because he would breach the peace but because the Muslims would – a classic “hecklers” veto. According to Harris:

So the fact that Terry Jones was jailed for, essentially, not promising that he wouldn’t hold a protest at a mosque, is unconscionable. Adding insult to injury, Judge Mark Somers ordered him to stay away from said mosque for 3 years, giving the proprietors a veto on his freedoms.

The Supreme Court has called prior restraint “the most serious and the least tolerable infringement on First Amendment rights” Nebraska Press Association v. Stuart (1976) and is presumptively unconstitutional. Prior restraint usually involves publication, rather than actual speech, but the parallels are unmistakable. Judge Somers should have thrown this case out–sua sponte if need be–immediately upon the filing of the indictment. Barring that, he should have held an immediate hearing on the constitutionality of the charges and dismissed it then. Having failed to throw the case out then, he should have entered a directed verdict at the close of the prosecutors’ evidence. Or a judgment notwithstanding the verdict after the jury returned guilty verdicts. But he did none of these things.

Judge Somers did mitigate his errors somewhat by setting bond for Jones and his compatriot at $1, but that is woefully insufficient to make up for everything that went before. The charges against Jones are obviously, patently, incontrovertibly unconstitutional. The entire basis of the indictment is that their planned protest would “likely breach the peace.”

But that is not the standard by which prohibition or punishment of the exercise of free speech is governed. Brandenburg v. Ohio (1969) requires three elements to be met before the state can step in:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

But here it was the prospect that his protest might cause a violent reaction by the targets of his protest, not his supporters, that the state used to justify their prior restraint of Jones’ First Amendment rights. There is simply no possible way to justify this prosecution.

This case is classic section 1983 bait. Open and shut case. With major damages.

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