It seems that some people choose to exercise their First and Second Amendment rights concurrently. In other words, there seems to be a trend of armed protests, where guns are openly carried — especially when protesting religions.
Armed protests in Phoenix, Arizona1 and now Irving, Texas2 are being held outside mosques. Protesters argue it is their First Amendment right to free speech and their Second Amendment right to bear arms protects their rights to armed protests.
It is an interesting constitutional question. Does the introduction of guns to a protest change the constitutional protections?
*** It should be noted that I when I refer to armed protests in this article, I am only speaking about protests where guns are openly carried.
The United States Supreme Court has repeatedly upheld the right to protest, especially when on public grounds, on a topic of public concern. “The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”3 The speech can come in many forms, including the offensive, non-politically correct type and it will still be protected. The content of the speech can even be as repulsive as the speech of the Westboro Baptist Church is at funeral protests, and it is constitutionally protected.4
Furthermore, both Texas and Arizona where the armed protests have occurred, so far, generally permit the open carry of guns.5 These state laws define the Second Amendment’s right to keep and bear arms, by describing when and where guns are permitted.
But a protest may have a different character than an armed protest. I am going to argue that the addition of guns to a protest fundamentally changes the nature of the speech. The addition of openly carrying guns in a protest likely causes two distinct constitutional problems for the armed protesters to receive First Amendment protection.
It could be argued, and I would make the argument, that in certain contexts offensive speech coupled with the open carry of guns constitutes fighting words.
It is well settled that fighting words are not constitutionally protected speech. “The English language has a number of words and expressions which by general consent are ‘fighting words’ when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight.”6 This is judged by an objective standard, what a reasonable person would find would “likely to provoke violent reaction.”7
Here protesters in the video above are using controversial language. Protesters can be seen wearing shirts which say “Fuck Islam.” This language alone is appears to be protected speech, but when openly carried guns are associated with it then meaning can change considerably. In the video, protest organizer Mr. John Ritzheimer, suggests the guns are there for protection against the issue he is protesting. Taking Mr. Ritzheimer at his word, the protesters had the option of concealed carrying their weapons while protesting for protection.
If the protesters concealed their weapons during the protest, then the controversial language would be judged on its own. Instead, the gun becomes part of the message that is conveyed and must be part of the analysis whether it becomes a “fighting word” or not. Each situation is different and would need to be judged by the facts of the case.
However, both of the armed protests mentioned above have similar fact patterns. Each mosque was peacefully practicing its religion. There is no indication that either mosque ever made threats or disturbed the peace. It does not appear the protest in Irving breached the peace. However, it is suggested in the video above, that the Phoenix protest may have caused a breach in the peace (three fights allegedly occurred during the protest). This point may be moot because fighting words do need to actually start a fight, it just speech that is “likely to provoke a violent reaction.”
Perhaps merely open carrying guns at a protest is enough to “provoke a violent reaction” and for the armed protesters to lose their First Amendment protections.
The captive audience doctrine is applied when an individual has a right not to listen or see an offensive message. “The First Amendment permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech.”8 Typically the captive audience doctrine is applied to an individual’s home. It works as an extension of the “castle doctrine” which states that a person’s home is his castle, and should be provided more constitutional protection in his home.
The captive audience doctrine has been used outside of the home sparingly. In Lehman v. Shaker Heights, 418 U.S. 298 (1974), the court held a city’s public transit system held a captive audience and could restrict speech. In Madsen v. Women’s Health Center, Inc., 512 US 753 (1994), the court stated in part that speech can be restricted around abortion clinics because of the patient being held captive by medical circumstance. The California Supreme Court even hinted in Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121, 160-62 (Cal. 1999) (Werdegar, J. concurring) that a judicial injunction to protect against continued workplace discrimination could invoke the captive audience doctrine, since employees could not escape the discriminatory speech.
The basic premise from all of these cases is “the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.”9 Here the members of the mosques are at best not being left alone and at worst intimidated and harassed by the protesters while trying exercise their fundamental right to freedom of religion.10 It is questionable, at best, if those attending religious services at the mosque would be free to practice their religion when they may not even feel safe going to their place of worship.
I would argue that the captive audience doctrine provides a reasonable restraint on this potentially very scary speech (armed protests).
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- Sara Sidner and Ed Payne, Mohammed cartoon contest: Protest held outside Phoenix mosque, CNN, May 30, 2015, available at: http://www.cnn.com/2015/05/29/us/mohammed-cartoon-contest/.
- Justin Wm. Moyer, Armed anti-Muslim protesters stage ‘strange’ protest outside mosque in clock kid’s hometown, Washington Post, Nov. 23, 2015, available at: https://www.washingtonpost.com/news/morning-mix/wp/2015/11/23/armed-anti-muslim-protesters-stage-strange-protest-outside-mosque-in-clock-kids-hometown/.
- Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011) (internal quotation marks omitted).
- See generally Snyder v. Phelps, 131 S. Ct. 1207 (2011).
- E.g. Ariz. Rev. Stat. § 13-3101(A)(7).
- Chaplinsky v. New Hampshire, 315 US 568, 573 (1942).
- Cohen v. California, 403 US 15, 21 (1971); see Terminiello v. Chicago, 337 US 1, 4 (1942) (stating speech is unprotected when it “produce[s] a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest..).
- Frisby v. Schultz, 487 US 474, 487 (1988).
- Rowan v. Post Office Dept., 397 US 728, 736 (1970); see Lehman v. Shaker Heights, 418 US 298, 307 (1974) (Douglas, J. concurring) (“While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it.”).
- Wisconsin v. Yoder, 406 US 205, 214 (1972).