Dearborn, Michigan seems to have a different conception of the First Amendment than the rest of the United States. Yesterday, after prohibiting two Koran-burning pastors from protesting outside of the Islamic Center of America, Judge Mark Somers ordered the men jailed after they refused to post a $1.00 bond (the prosecutors had asked for 45 thousand times that amount, but cooler heads prevailed.)
The judge agreed with a Dearborn jury that the protest threatened to breach the peace, which is not surprising in a city that boasts a large Arab and Muslim population.
The pastors ultimately paid the bond, and were released, but a condition of that release was a ban on the protest.
There's a problem here, one that the ACLU obviously figured out since they were monitoring the trial over concerns that the civil rights of Terry Jones and Wayne Sapp were being violated.
"Breaching the peace" is never grounds for keeping someone from speaking, unless those acts threaten imminent violence. In Brandenburg v. Ohio, the Supreme Court delineated the standard for judging inflammatory speech: speech cannot be prohibited unless it is designed, and likely to, incite imminent lawless action.
That's a two-prong test, which means both elements need to be present: (1) intent to incite to violence and (2) the likeliness that it will do so.
I suppose you could argue that a protest by men who believe, as Jones stated in court on Friday, that the Koran "promotes terrorist activities around the world" would anger some people. I suppose you could even say that it is designed to make them angry.
But you can only agree that the Brandenburg test is met if that sort of speech is likely to incite people to violence. And to do that, you have to agree that Muslims are less capable of self-control than, say, members of the military or the LGBT community when faced with the evil Westboro Baptist crowd at funerals. Back in March, as you will recall, the Supreme Court held that those pseudo-religious protesters were entitled to scream "God Hates Fags" at the services of fallen soldiers. No one seemed to be worried that a distraught mourner or a gay veteran would react violently.
There's an uncomfortable inference to be drawn from the fact that the judge and jury in Dearborn were afraid that a protest outside of an Islamic center, even one that included the burning of a Koran (which may or may not have been planned) would incite a riot. That implication wasn't lost on Dawud Walid, executive director of the Michigan chapter of the Council on American-Islamic relations ("CAIR") who said that "Mr. Jones has been made as [sic] a martyr for free speech."
Martyr or not, this certainly doesn't reflect well on the court, the jury, the prosecutor, or most especially, the people they're supposedly protecting, does it?