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Police Concern About Public Safety Sufficient to Justify Shutdown of Speech at School

January 29, 2014
Western Michigan Federal Courts

In a lawsuit arising out of a well-publicized incident in West Michigan, Agema v. City of Allegan involved a lawsuit by former Michigan State Representative David Agema and others against the City of Allegan and others alleging that their constitutional rights of freedom of speech and freedom of assembly were improperly infringed. The lawsuit involved a speech by Rep. Agema and Kamal Saleem, the head of Koome Ministries, a nonprofit organization "which teaches about the dangers of radical Islam." The plaintiffs had rented Allegan High School as a forum for Rep. Agema and Mr. Saleem to speak.

Two days prior to the speech, the Allegan Public School District received a letter from several organizations stating that the school should not allow Mr. Saleem to speak at the high school because "we believe [Mr. Saleem] spreads hatred and intolerance."  Additionally, shortly before the event, a woman approached Allegan police officers who were present at the high school and "stated that Kamal Saleem had a $25 million bounty on his head."  During the police's inquiry into this "bounty," Mr. Saleem's bodyguard also told police "that there had been death threats directed towards Kamal Saleem from Islamist extremists in the past."  While the event was in progress, the Allegan police chief ordered the plaintiffs to shut down the event, citing public safety concerns.

The Hon. Janet T. Neff dismissed the plaintiffs' claims for a variety of reasons. First, the court noted that, as to the City of Allegan, it could only be held liable if it had adopted an "official municipal policy of some nature [which] caused a constitutional tort" and "cannot be held liable solely because it employs a tortfeasor . . . ."  The court concluded that the plaintiffs had failed to identify any City of Allegan policy by which the City of Allegan itself was depriving the plaintiffs of their constitutional rights of freedom of speech and freedom of assembly.

The court also concluded that Allegan High School was not a public forum, in that permission to rent the school was required from the building principal, who did not automatically grant such permission to all who sought it. As such, under the rules governing non-public forums, access to the high school could be restricted as long as the restrictions are "reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view."  In this case, the court concluded that, even accepting as true the plaintiffs' allegations that the Allegan police mistakenly assessed the risk or imminence of danger, the plaintiffs had not sufficiently alleged that the decision to stop the event was unreasonable, as "the government does not need to wait until havoc is wreaked to restrict access to a non-public forum."

The court also dismissed tortious interference of contract claims brought by the plaintiffs against the parties that wrote to the Allegan Public Schools to object to Mr. Saleem's speech. The court held that the Noerr-Pennington doctrine shielded the defendants from any liability for exercising their First Amendment rights to petition the school district not to allow their forum to be used for Mr. Saleem to speak.

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