CINCINNATI (CN) --- The city of Ann Arbor, Michigan, must better enforce its protest and sign ordinances to prevent the harassment of members of its Jewish community as they enter synagogue to attend worship services, a group of citizens argued Tuesday before a Sixth Circuit panel.
Several members of the Beth Israel Congregation sought to revive First Amendment claims against not only the city, but also a group of protesters who have demonstrated outside the Beth Israel Synagogue every Saturday morning since September 2003.
The protesters hold signs during their weekly demonstrations as members of the congregation enter the synagogue, some of which include anti-Semitic messages like "Jewish Power Corrupts," "Resist Jewish Power," and "No More Wars for Israel."
Marvin Gerber and Miriam Brysk, a Holocaust survivor, filed suit in federal court in 2019 alleging the protesters cause them "extreme emotional distress," and also accused Ann Arbor of failing to enforce several city codes.
U.S. District Judge Victoria Roberts, an appointee of Bill Clinton, gave short shrift to the synagogue members' allegations and dismissed the case in its entirety in August 2020. She held the plaintiffs failed to allege a concrete injury that would grant them standing to pursue constitutional claims, and reinforced the protesters' right to gather peacefully outside the synagogue.
"Indeed, the First Amendment more than protects the expressions by defendants of what plaintiffs describe as 'anti-Israeli, anti-Zionist, and anti-Semitic,'" Roberts wrote in her opinion. "Peaceful protests such as this -- on sidewalks and streets -- is entitled to the highest level of constitutional protection, even it disturbs, is offensive, and causes emotional distress."
In their brief to the Sixth Circuit, Gerber and Brysk argued Roberts misinterpreted the scope of the relief they requested, which they claim involved only "the imposition of reasonable time, place and manner conditions" on the protests.
They accused the district court of ignoring the affidavits of several synagogue members that attested to the disgust and anxiety caused by the protesters' signs, and said the emotional distress constitutes an "intangible injury" that grants them standing.
"The court deliberately mischaracterized the relief they were seeking, claiming they were seeking a blanket injunction against the protesters' exercise of free speech in all public areas, in order to set up a straw man which it could easily knock down," the brief states.
The protesters' brief to the Cincinnati-based appeals court echoed the language used by Roberts in her opinion and called their activities outside the synagogue "core political speech entitled to the highest First Amendment protection."
Ann Arbor defended its refusal to restrict the protesters' activities in its appellate brief, pointing out that no members of the Jewish community are prevented from entering the synagogue or exercising their First Amendment right to freedom of religion.
"The protesters' signs and messages relate to political issues and matters of public concern," the city said. "They are not directed at the plaintiffs or any specific person, nor do they advocate or incite direct violence against the plaintiffs, their fellow congregants, the synagogue, Israel, or Jews."
Attorney Marc Susselman argued on behalf of the synagogue members, and was confronted by U.S. Circuit Judge Eric Clay immediately after he made his opening statement. Clay, a Clinton appointee, took issue with a portion of Susselman's brief that characterized Judge Roberts as racially biased because she failed to cite a certain case in her decision to dismiss his client's complaint.
"That sort of allegation," the judge said, "sort of detracts from your credibility as an advocate ... [and is] a pretty extreme position. I've just never seen anything like that from an attorney."
Susselman attempted to clarify his position, but was cut off by U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee.
"You probably ought to apologize," Sutton suggested.
The attorney took the hint and told the court he did not intend to question Roberts' integrity, before moving on in his argument.
Sutton asked about the facts presented by his clients in their complaint and seemed skeptical of their sufficiency to establish a concrete injury.
"You can't just put a label on it and say emotional distress" to establish standing, he said.
Susselman told the three-judge panel his clients are forced to see the signs every time they attend sabbath services. He emphasized that children are also exposed to the anti-Semitic messages, one of whom claimed in a deposition she felt "under attack" and was thankful when her family moved away.
"This is targeted picketing in a residential area in spades, and has been happening every Saturday for 17 years," he said.
Attorney John Shea argued on behalf of the protesters and was questioned by Sutton about the lower court's finding regarding standing.
"It's hard to imagine," the judge said, "that Article III wipes out emotional distress claims."
Shea told the panel he does not doubt the sincerity of the plaintiffs' claims, but pointed out that even if standing existed, there would be no First Amendment claim for speech on public sidewalks and streets, "no matter how offensive."
Attorney Timothy Wilhelm argued on behalf of Ann Arbor and told the court Susselman and his clients want to "turn the First Amendment on its head."
"The First Amendment is not designed to be used as a sword to stifle others' speech," the city's attorney said.
Wilhelm asked the panel to uphold the lower court's decision, saying the "subjective, intangible emotional injuries" alleged by the synagogue members are insufficient to establish standing.
U.S. Circuit Judge David McKeague, a George W. Bush appointee, rounded out the panel. No timetable has been set for the court's decision.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.