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The case of Meinecke v. City of Seattle, 2024 U.S. App. LEXIS 9390 (9th Cir. 4/18/2024), arose after Matthew Meinecke was attempting to read Bible passages to attendees gathered in the City of Seattle during two occasions in June 2022: an abortion rally and an LGBTQ+ pride event.
Matthew Meinecke is a devout Christian who seeks to spread the message of the gospel at well-attended public events. When evangelizing, Meinecke often holds up signs, hands out literature and reads the Bible aloud. He also converses with members of the public and endeavors to answer their questions about Christianity.
Meinecke’s speech was not well received by those attending the abortion rally and the gay pride event. Attendees at these events began to abuse and physically assault Meinecke. Seattle police officers asked Meinecke to move and ultimately arrested him when he refused, rather than deal with the wrongdoers directly.
Meinecke sued City of Seattle and certain Seattle Police Department officers (together, “the City”), seeking a preliminary injunction to prohibit enforcement of the City’s “obstruction” ordinance against him. The federal district court denied the motion. In the opinion of the district court, consistent with the First Amendment, “the officers’ actions were content neutral.” The U.S. Court of Appeals for the Ninth Circuit reversed the federal district court based upon the First Amendment “hecklers veto” principle:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Consequently, 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.
Dobbs Protest
On June 24, 2022, the United States Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022), overturning Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which had held the Constitution of the United States generally protected the right of women to have an abortion. In response to “Dobbs,” a significant number of people gathered on Second Avenue outside the federal building in Seattle to protest the decision. Meinecke arrived that afternoon dressed in a shirt and tie and went to a public walkway adjacent to Second Avenue.
In his complaint, Meinecke claimed he “did not come to this event to condemn abortion” or even to “speak on this topic, but to convey his faith in Christianity to people who were in the area.” He simply held up a sign, read from the Bible, and handed out Christian literature.
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. The altercation soon escalated. As protestors, some of whom Seattle police characterized in their written reports as Antifa, encroached, Meinecke took hold of an orange-and-white traffic sawhorse. Five protestors, some clad in all black and wearing body armor, picked up Meinecke and the sawhorse, moved him across the street and dropped him on the pavement. One law enforcement officer who observed this interaction reported that “‘Antifa’ members began to fight/assault” Meinecke. Undeterred, Meinecke walked back to his original location by the federal building and resumed reading and held up a sign. While people gathered on the street, some approached Meinecke, knocked him down and took one of his shoes.
Seattle police finally intervened. Although the officers acknowledged that the protestors had assaulted Meinecke, they took no action against the perpetrators. They instead ordered Meinecke to leave the area. The precise dictates of the officers’ orders were in dispute. Meinecke maintained that the officers instructed him “to go where no one could hear his message or read his sign.” The City disagreed, claiming that Seattle police simply directed Meinecke to the other side of the street and that they told Meinecke that he “could still display his banner and exercise his First Amendment rights.”
After Meinecke declined to go to a different location, the police officers arrested Meinecke for obstruction. As cited by the court, Seattle Municipal Code Ordinance § 12A.16.010(A)(3) provided:
A person is guilty of obstructing a police officer if, with knowledge that the person obstructed is a police officer, he or she intentionally 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.
The police officers took Meinecke to the police precinct and kept him there for about two hours, but they did not book him. Meinecke was released after the abortion protest ended.
Public Park PrideFest
Seattle’s annual PrideFest took place on June 26, 2022, two days after the Dobbs rally. The event was held at the Seattle Center, a public park. Meinecke, again dressed in a shirt and tie, entered the park around noon and began to read from the Bible in a conversational tone.
Eventually, PrideFest attendees noticed Meinecke’s presence and 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 Meinecke, “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 10 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 then told Meinecke “that he was posing a risk to public safety” and again demanded he leave the park. Meinecke told the officers that he was not in any danger. The officers then arrested Meinecke for obstruction. Meinecke again was taken to the precinct. This time, though, the officers booked him. He was later released on bond. At his hearing a few days later, the City informed Meinecke that it was not pursuing the charges against him at that time, but it warned Meinecke that “it could bring up charges for this incident at a later time.”
Federal District Court
Meinecke filed suit against City of Seattle and certain Seattle Police Department officers, asserting a federal civil rights claim under 42 U.S.C. § 1983 for violation of his free speech rights under the First Amendment. In his motion for a preliminary and permanent injunction, Meinecke sought an order from the federal district court against the City and police officers to prohibit:
Defendants from enforcing “time, place, and manner’ restrictions” and applying Seattle municipal code ordinance § 12A.16.010(A)(3) to eliminate protected speech in traditional public whenever they believe individuals opposing the speech will act hostile toward it.
The district court denied Meinecke’s motion. In so doing, the federal district court found “there is no indication in the record that the City’s police officers acted based on the content of Mr. Meinecke’s speech.” Further, in the opinion of the district court, “the Seattle police officers did not act to ‘silence’ Mr. Meinecke, nor did they evict or banish him from the forum.” Meinecke appealed.
First Amendment Standard
As cited by the federal appeals court, the First Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment, providing: “The States shall make no law... abridging the freedom of speech.” U.S. Const. amend. I. Further, in addressing First Amendment claims, the appeals court would consider the following three steps:
First, we must decide whether the relevant speech is protected by the First Amendment; second, we must identify the nature of the forum; and third, we must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard.
In this particular instance, the court found “the First Amendment protects religious speech like Meinecke’s.” In addition, the court noted “the City does not attempt to justify its actions based on theories of incitement or fighting words.” Moreover, the court recognized “Meinecke’s speech occurred in traditional public fora,” which includes public sidewalks and a public park. As characterized by the court, the park at issue in this case, the Seattle Center, is an “especially important locale for communication among the citizenry.”
Strict Scrutiny Review
Under the circumstances, the appeals court would then determine “whether the City’s restrictions satisfied the requisite level of scrutiny.” As noted by the court, content-based restrictions on First Amendment speech in a traditional public forum are “presumptively invalid” and, therefore, “subject to strict scrutiny.” That being said, the court acknowledged that “municipalities may permissibly issue time, place, or manner restrictions,” which meet the following three constitutional requirements:
(1) It must be content-neutral; (2) it must be narrowly tailored to serve a significant governmental interest; and (3) it must leave open ample alternative channels for communication of the information.
On appeal, the City had claimed it had enforced a permissible content-neutral “time, place, or manner restriction” on Meinecke’s speech. In response, Meinecke argued “the City’s actions were content-based and fail strict scrutiny.”
The appeals court agreed with Meinecke: In the opinion of the court, “the restrictions on his speech were content-based heckler’s vetoes, and the City has not carried its burden to justify those restrictions under strict scrutiny.”
Content-Based “Heckler’s Veto”
In determining the restrictions were not constitutional content-neutral restrictions under the First Amendment, the federal appeals court reviewed the application of the Seattle obstruction ordinance, which had provided the legal basis for Meinecke’s arrest. In so doing, the court noted, “as read by officers on the scene,” the obstruction ordinance “would allow or disallow speech depending on the reaction of the audience.” Accordingly, the appeals court held the City’s enforcement of the ordinance against Meinecke would violate the First Amendment’s prohibition against content-restrictive regulations by creating a “heckler’s veto”:
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. As such, it is a form of content discrimination, generally forbidden in a traditional or designated public forum….
[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers, or simply because bystanders object to peaceful and orderly demonstrations. Listeners’ reaction to speech is not a content-neutral basis for regulation.
Violent Audience Reaction
Given the particular facts in this case, “including the video available from police body cameras,” the appeals court found “the Seattle police directed Meinecke to leave the area because of the reaction his Bible-reading provoked at the Dobbs and PrideFest protests.” As characterized by the court, “[t]he evidence in the record is indisputable that the officers curbed Meinecke’s speech because of the potential reaction of the listeners.” Moreover, the appeals court found the City had acknowledged “the restrictions were the direct result of assaults on Meinecke and the threat to public safety posed by the protestors”:
Those threats did not come from Meinecke, and there is no evidence of any protester being arrested for physical altercations and threats of violent behavior, including those who seized and ripped his Bible, poured water on him, took his shoes, and physically carried him across the street.
Further, the appeals court noted, “[t]he City cannot point to any legitimate time, place, or manner restriction at issue here.” On the contrary, the court found “the invocation of ‘time, place, and manner’ appears to have been a shorthand for the convenience of the officers in maintaining order for the primary events”:
To be sure, the June 24 protest was an impromptu reaction to the Supreme Court’s Dobbs decision that very same day. Although we are sensitive to the logistical difficulties of handling such a dynamic situation, the City acted on Meinecke’s speech (and on the record before us, no other speech) based exclusively on the reaction of Meinecke’s audience.
PrideFest presents an even easier case, because the gathering was planned and the City was aware of that event well in advance. At both events, the Seattle police targeted Meinecke’s speech only once the audience’s hostile reaction manifested. That is part and parcel of a heckler’s veto.
The appeals court further noted the district court had agreed with the City’s contention that “the police officers merely sought to relocate Meinecke’s speech rather than ban it outright.” Accordingly, the district court had held the “officers did not act to ‘silence’ Mr. Meinecke, nor did they evict or banish him from the forum,” but only “ordered Mr. Meinecke to move to a safer location.” The federal appeals court rejected this argument. In so doing, the appeals court acknowledged “the government cannot escape First Amendment scrutiny simply because its actions can somehow be described as a burden rather than outright suppression”:
While the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms, such as normal conversation, have historically been more closely associated with the transmission of ideas than others. When the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.
Assuming “the officers simply instructed Meinecke to cross the street,” the appeals court still found “their directions burdened Meinecke’s speech”:
Meinecke hands out literature and engages in conversation and answers questions about Christianity. 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…. 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.
Accordingly, the federal appeals court held the “City’s attempt to relocate Meinecke’s speech, and subsequently arresting him for failing to comply, was a content-based burden on Meinecke’s expressive activity.” Moreover, the court found “the City did so only in response to the actual and potential reaction of the audience.”
Compelling Public Security Interest
Since the restrictions on Meinecke’s speech were not content neutral, the federal appeals court would then subject the City’s actions to “strict scrutiny” review:
To satisfy strict scrutiny, a restriction on speech is justified only if the government demonstrates that it is narrowly tailored to serve a compelling state interest. It is rare that a regulation restricting speech because of its content will ever be permissible.
In this case, the federal appeals court noted: “The parties do not dispute that public safety and security are compelling interests.” Accordingly, the issue before the court was “whether the City’s restrictions satisfy the narrow tailoring element of strict scrutiny.” In addressing this issue, the federal appeals court would determine “if a less restrictive alternative would serve the Government’s purpose.” If so, under strict scrutiny judicial review, acknowledged “the Government must use that alternative” to satisfy the narrow tailoring requirement of the First Amendment:
Even if a state intends to advance a compelling government interest, we will not permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech.
Moreover, the federal appeals court noted: “Curtailing speech based on the listeners’ reaction is rarely, if ever, the least restrictive means to achieve the government’s interest in safety”:
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. Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists.
Less Restrictive Alternatives
Under strict scrutiny review, the federal appeals court would, therefore, determine whether the City’s application of speech restrictions was narrowly tailored to the City’s compelling interest in public safety and security. Under the circumstances, the court noted “there were several less speech-restrictive alternatives to achieve public safety”:
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 perpetrators’ arrests. And they could have arrested the individuals who ultimately assaulted Meinecke.
Moreover, the court found the City had failed to produce “the sort of concrete proof necessary to establish that restricting Meinecke’s speech was the only way to avoid violence.” Instead, the court noted the police report on Meinecke’s arrest had simply indicated: “when resources allowed in the past, SPD [Seattle Police Department] would try and keep the two opposing groups separated”:
The government doubtlessly has an interest in maintaining public order. But even undeniably admirable goals must yield when they collide with the Constitution.
Conclusion
Since “the City had other means of vindicating its interests without restricting Meinecke’s speech,” the federal appeals court found “Meinecke has established a likelihood of success on his First Amendment claim.” The federal appeals court, therefore, determined “the district court could have enjoined the City and its officers from enforcing § 12A.16.010A)(3) against Meinecke in public parks and streets based on the anticipated hostile reaction of an audience.”
As a result, the federal appeals court reversed the decision of the district court’s and remanded (i.e., sent back) the case to the district court “with instructions to enter a preliminary injunction consistent with this opinion in favor of Meinecke.”
James C. Kozlowski, J.D., Ph.D., is an Attorney and Emeritus Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).