Synagogue protesters protected by First Amendment, appeals court rules

CINCINNATI (CN) — An appeals court panel ruled Wednesday that weekly protests on the sidewalks outside a Michigan synagogue are constitutionally protected speech because they deal with matters of public concern.

The Sixth Circuit decision affirmed a federal judge's dismissal of various constitutional and state-law claims brought by members of Ann Arbor's Beth Israel Synagogue, who claim anti-Israeli protests have inflicted extreme emotional distress on the Jewish community.

Protesters have gathered outside the synagogue every Saturday since September 2003, and often carry signs with anti-Semitic messages that have included "Jewish Power Corrupts," "Resist Jewish Power," and "No More Wars for Israel."

Two members of the congregation, including Holocaust survivor Miriam Brysk, sued the protesters and the city of Ann Arbor in 2019, but to no avail.

U.S. District Judge Victoria Roberts, a Bill Clinton appointee, dismissed the suit in its entirety and determined the plaintiffs had not alleged an injury that would grant them standing to pursue constitutional claims.

Roberts ruled the congregants' emotional distress was not a concrete injury, and also emphasized that the peaceful protesters were entitled to the "highest level of constitutional protection" under the First Amendment.

The case was argued at the Cincinnati-based Sixth Circuit in April before a three-judge panel that included Chief U.S. Circuit Judge Jeffrey Sutton.

Sutton, an appointee of George W. Bush, wrote Wednesday's majority opinion. While he agreed with Roberts' ultimate decision to dismiss the case, he rejected her ruling regarding the plaintiffs' standing.

"The congregants' allegations in the end come comfortably within the scope of ... traditional harm. They have alleged that the protesters' relentless and targeted picketing of their services has caused them extreme emotional distress," he wrote. "We have 'consistently rejected' arguments that 'psychological injury can never be the basis for Article III standing.'"

Sutton left no room for doubt as he moved on to the merits of the plaintiffs' claims, however, and pointed out that "the protesters' actions come squarely within First Amendment protections of public discourse in public fora."

Despite being located outside a house of worship, Sutton emphasized that the subject of the protesters' speech – American-Israeli relations – and its location on a public sidewalk afforded it protection under the First Amendment.

He also rejected an injunction proposed by the plaintiffs that would prohibit any protests within 1,000 feet of the synagogue during weekend services.

"Understandable though the congregants' reaction to the protesters' speech may be," Sutton said, "that by itself – without physical impediments to their services or trespassing – cannot suffice as the kind of 'content-neutral justification' needed to make the proposed injunction a reasonable time, place, and manner restriction."

The panel deftly rejected other civil rights and civil conspiracy claims brought against both the protesters and the city, and ruled that because the city was not responsible for the protesters' speech – which was not made by a state actor – there was no conspiratorial conduct.

The congregants "merely allege that city police witnessed some protests and that city lawyers knew of the demonstrations but did not stop them. Nothing in the complaint indicates that the city agreed to inflict emotional distress on the congregants or injure them in any way," Sutton said.

U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, wrote a separate, concurring opinion to voice his agreement with Roberts' decision to dismiss for lack of standing.

"Plaintiffs' standing claim," he said, "requires a finding that they have a legally protected interest in not being offended by protester defendants' speech. No such right exists, nor could it exist."

U.S. Circuit Judge David McKeague, a George W. Bush appointee, rounded out the panel and joined with Sutton's majority opinion.

None of the parties immediately responded to requests for comment.

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