He wanted to protest outside the Islamic center in Dearborn but the city refused him a permit, fearful that some local Muslim might go nuts as a result. So they put him on trial, with the jury asked to determine what they thought his intent would be in holding the protest. If they thought his aim was peaceful, he’d be found not guilty; if they thought he meant to incite violence, then guilty as charged. Verdict: Guilty. Which means not only was this guy convicted of a speech crime he hadn’t yet committed (a.k.a. prior restraint), but it was only a crime in the first place because of the expected reaction from his opponents. In other words, it’s a de facto codification of the heckler’s veto.
The judge, likely recognizing the problems with the verdict, set Jones’s “peace bond” at all of $1. Jones refused to pay it on principle and was summarily carted off to jail. And now here we are:
The jury had been debating since 3:30 p.m .Thursday. The main issue of the trial was whether or not Jones’ main purpose was to say or do something that would incite violence. They came back with their verdict shortly after 6:30 p.m…
At the start of the trial, prosecutors presented their arguments before the jury. They argue that a protest outside the mosque in Dearborn would pose a significant safety issue. They argued that there is concern from authorities that someone may get hurt…
Dearborn Police Chief Ronald Haddad also took the stand to testify in the case. Chief Haddad denied the permit request that would allow the protest to take place outside of the mosque. He testified that there were concerns over safety. Terry Jones also questioned Chief Haddad. He referred to a conversation he had with the Chief and asked him what his impression was after they had met. Chief Haddad responded that Jones was cordial and did not appear to be violent in nature.
In case you’re unclear on whom they expected violence from, a little clarity:
Dearborn Police Chief Ronald Haddad testified today that there have been at least four serious threats made against Jones from metro Detroiters, arguing that his protest could lead to violence if allowed…
Speaking at a McDonald’s restaurant down the street from the courthouse, Jones — who’s defending himself — said he thought the proceedings are going well. And he said the government’s case was weak.
As he spoke, someone drove down Michigan Avenue yelling “Get out of Dearborn, you terrorist!”
I’m dying to hear constitutional lawyers weigh in on this, especially given the case’s superficial resemblance to the famous Skokie ruling. A state can criminalize speech that incites a riot, but those laws typically apply to incidents where a speaker is urging people on his own side to engage in violence. In order to convict him, you need to prove that he intended violence — which was what the Detroit jury looked at here — and also that violence, based on the circumstances, was imminent and likely. But even if you can prove both elements, prosecutors are typically limited to trying people after the protest has actually happened; finding a breach of the peace before the protest has occurred is a totally new one on me.
The other constitutional doctrine at play here, which I’ve written about before, is the “fighting words” exception to the First Amendment, which is an utter travesty and which has been used by the Supreme Court only sparingly over the years precisely because it’s so susceptible to abuse. The money quote from the famous Chaplinsky opinion:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
It’s the heckler’s veto, in other words. If you say something that’s so offensive to someone that, gosh darn it, they just can’t help but be violent in response, you can go to prison for it. Again, though: Typically you have to say something before you can be charged. Jones didn’t get a chance here, thanks to the state’s utter panic in shutting him down before one of the locals could run amok in outrage at whatever he had planned.
And so it came to be that this guy, a bona fide book-burner, is well on his way to free-speech martyrdom thanks to a state judicial system that’s (a) too stupid to realize that it’s brightening his spotlight by trying to silence him and (b) sufficiently concerned about Muslim violence itself that it ends up supporting part of his message. Wouldn’t surprise me if being sent to jail for trying to protest here was his goal all along.
Update: Semi-related: Remember the New Jersey transit worker whom Chris Christie fired for burning a Koran? He’s got his job back, along with $25,000 for his trouble. Quote: “This is the very essence of the First Amendment.”