In St. Michael’s Media, Inc v. Mayor and City Council of Baltimore, (D MD, Oct. 12, 2021), a Maryland federal district court in an 86-page opinion held that the city of Baltimore violated the free speech and assembly rights of St. Michael’s (also known as “Church Militant”) when it instructed the company managing the city-owned Pavilion to cease contract discussions with Church Militant. Church Militant was planning a protest prayer rally across from the Fall General Assembly of the U.S. Conference of Catholic Bishops. According to the court, Church Militant:
“often criticizes the current leadership” of the Catholic Church for what it perceives as “corruption in the Church,” including the Church’s protection of priests and others implicated in the sexual abuse of minors…. In addition, St. Michael’s “is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB.” … In particular, it “disagrees with, and criticizes, a number of the USCCB’s positions on religious doctrine and morality, as well as the Catholic Church’s covering up of the sexual abuse committed by priests.”
The city contended:
Church Militant is attempting to hold an event on November 16, 2021 with confirmed speakers including Steve Bannon and others whose speaking engagements and statements have a track record of inviting protestors and counter protestors and supporting the January 6 attack on the Capitol in Washington, D.C. According to available media reports, their events and statements have a demonstrated history of inciting property destruction, physical assaults, and other violence….
The court held, however:
Even under the more lenient standard applied to nonpublic and limited fora, viewpoint discrimination is constitutionally impermissible…. I conclude that plaintiff is likely to succeed on the merits of its claim that the City was not viewpoint-neutral in barring the rally. Therefore, I need not consider whether the City’s actions would have been reasonable in the absence of viewpoint discrimination….
Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications….
The City cannot conjure up hypothetical hecklers and then grant them veto power…. Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.
The court granted a preliminary injunction and the city has appealed to the Fourth Circuit.