The discussion of the American flag case reminded me of a much less noticed decision from a few weeks ago, Agema v. City of Allegan (W.D. Mich. Jan. 22, 2014).
David Agema (a Michigan state representative) and some other people organized a Jan. 26, 2012 event that included as a speaker Kamal Saleem. Saleem runs Koome Ministries, which aims to teach about what it sees as “radical Islam’s true agenda.” Plaintiffs say Saleem “has a unique perspective on the internal threat to America posed by Sharia law and radical Muslims as he was once a Muslim involved in terrorist activities who has since transformed himself and converted to Christianity.”
Shortly before the event was to take place, a woman approached the police officers at Allegan High School and “stated that Kamal Saleem had a $25 million dollar bounty on his head.” An Allegan police officer talked with Jones, Saleem’s bodyguard, who did not deny that a bounty existed. “Jones further stated that there had been death threats directed toward Kamal Saleem from Islamic extremists in the past.”
While the event was still in progress, Chief Hoyer ordered Plaintiffs to shut down the event. Other events were occurring simultaneously in other locations within the Allegan High School building while Saleem was speaking.
Plaintiffs argued that “comply[ing] with the demands of hecklers based on the viewpoint of the speaker and the content of the speech” unconstitutionally allows “the heckler’s veto” to trump the “Constitutional freedoms of Plaintiffs.” (“Hecklers” is used here broadly to refer not just to the person in the audience who shouts out immediate threats, but to anyone who threatens to attack a speaker.)
But the court concluded that the stopping of the event was constitutional. The high school classroom, the court concluded, wasn’t a “traditional public forum,” such as a street or a sidewalk, or a place that “the government has intentionally designated a place … as a public forum.” Rather, it was a “nonpublic forum” — government property that hasn’t been deliberately opened for speech:
Here, there are no allegations that the school was open for use by the general public; rather, permission to rent the school was secured from the building principal, and there is no allegation that permission was granted as a matter of course to all who sought it. “This type of selective access does not transform government property into a public forum.”
The First Amendment rule in nonpublic forums is that speech restrictions are constitutional if they are “reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.” And, the court said, this restriction was reasonable:
Plaintiffs allege in their First Amended Complaint that the January 26, 2012 event was stopped due to “death threats” from “Islamic extremists” while other events were occurring at the high school …. [Whether or not] public officials mistakenly assessed the credibility of the risk or the imminence of danger, Plaintiffs’ allegations, taken together, do not support the conclusion that the decision to stop the event was nonetheless unreasonable. “[T]he government does not need to wait ‘until havoc is wreaked to restrict access to a nonpublic forum.’”
Now I sympathize with the high school principal, who is trying to prevent harm to the people visiting his school. And while the Supreme Court has held that the government generally may not suppress speech on sidewalks or parks in order to prevent attacks on the speaker, it’s possible that these cases don’t apply when it comes to speech in a “nonpublic forum,” such as a government building. (But see Robb v. Hungerbeeler (8th Cir. 2004) and Chicago Acorn v. Metropolitan Pier and Exposition (7th Cir. 1998), which suggest that the cases do indeed apply even to nonpublic forums.)
Nonetheless, consider what incentives this sort of decision creates. If you don’t like a speaker, make death threats against him. Then, if you can somehow let American government officials know about those threats, the officials will kick the speaker out of the places that it rented to him for his speech. (Nor is the principle in the case limited to high school buildings — school wasn’t in session, and the government could raise a similar security objection for any government building where other people are present, or perhaps even a building whether this is the only event taking place.)