UDPATE, 10/13/2021: Baltimore city is filing an appeal of the district court's ruling, asking the Fourth Circuit Court of Appeals to reverse Judge Hollander's decision. In the meantime, St. Michael's Media has filed a motion to hold Baltimore in contempt for violating Judge Hollander's order not to interfere with plans for the rally.
"This motion would not be necessary if the City of Baltimore and its agents were not hellbent on ensuring that the Plaintiff's prayer rally not go forward," wrote Attorney Marc Randazza on behalf of St. Michael's Media. "It is not abiding this Court's orders, and it is doing whatever it takes to ensure that its will to censor this group is made into reality."
Wednesday morning, as St. Michael's Media resumed discussions with the managers of MECU Pavilion to hold the prayer rally, manager Teresa Waters responded by email noting, "[P]er the City we are still in a holding pattern and not allowed to execute the contract."
"The September 14 order is still in effect and yet, within hours of this Court finding that the City violated St. Michael’s First Amendment rights, the City yet again violated the TRO," Randazza wrote.
What more does the City need to persuade it that the First Amendment is not optional, but mandatory, for a state actor? And how much latitude does this Court wish to give to a state actor that will not abide its clear orders? Further, at what point has SMG simply been subsumed into the City government, so much that it is a mere tool of the City rather than acting independently?
We are beyond that point.
The motion also asks the court to prohibit Baltimore city attorneys from representing the managers of the MECU Pavilion because of the impossible "conflict of interest."
At this point, the City has SMG captive. It is using this private entity to achieve what it cannot achieve on its own. The Court has evidence of this. It is time to protect St. Michael's First Amendment rights, and the Court cannot simply take the City's word for it that it keeps being the beneficiary of unexplained coincidences that coincide with what it wants, when SMG has made it clear that this is no coincidence.
The contempt hearing is scheduled for Thursday at 3 p.m. ET in Judge Hollander's court room in the U.S. District Court for the District of Maryland.
BALTIMORE (ChurchMilitant.com) - Church Militant has won its case against the city of Baltimore, Maryland.
Tuesday night, Judge Ellen Hollander handed down a legal victory for St. Michael's Media by granting a preliminary injunction against city officials, who had interfered to quash the Bishops: Enough Is Enough prayer rally, scheduled for Nov. 16 at the MECU Pavilion on Pier XI.
"Plaintiff has demonstrated a substantial likelihood that it will prevail on the merits of its free speech (Count I) and assembly (Count IV) claims under the First and Fourteenth Amendments," wrote the judge in her order. "[T]he balance of the equities favors plaintiff; and an injunction is in the public interest."
In a separate 86-page memorandum, she wrote, "The First Amendment to the Constitution is at the heart of this case."
"The judge clearly took her time to ensure that she got the constitutional issues right," said attorney Marc Randazza, who represented St. Michael's Media.
"I think that this is a great victory for the First Amendment," he added. "I had no doubt that we would prevail. "
The court ruling comes after St. Michael's Media sued Baltimore, accusing it of fabricating a pretext to cancel the rally because the city — likely acting in collusion with the U.S. bishops, who will be holding their fall general assembly next to the MECU Pavilion on Nov. 16 — opposes this apostolate's message.
In his Sept. 27 reply brief, Randazza argued, "Defendants have provided no factual basis or evidence that any violence might occur at Plaintiff's rally — and no support for the notion that Plaintiff would cause enough violence to disturb a poorly positioned wine glass, much less enough to warrant a suspension of the First Amendment."
The court agreed.
After substantial analysis of precedent in her memo, Judge Hollander wrote, "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."
"City Defendants invoked controversial, inflammatory speech by rally speakers, as well as plaintiff's alleged support of the attack on the Capitol, as grounds for cancellation of plaintiff's event," she noted. "This is suggestive of viewpoint discrimination."
She raised the "heckler's veto" — the decision to cancel a rally owing to fears of the crowd's reaction to speakers — which has been repeatedly held to be unconstitutional by the Supreme Court.
"It is a fundamental principle of First Amendment jurisprudence that the '[l]isteners' reaction to speech is not a content-neutral basis for regulation,' Hollander wrote, citing the 1992 Supreme Court case Forsyth County v. Nationalist Movement.
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.
She added, "The City cannot conjure up hypothetical hecklers and then grant them veto power."
The city's arguments for canceling the rally seemed to have been contrived after the city was sued:
Given the addition of new grounds, this raises the question of whether these added concerns were actually factors in the decision at the time or, instead, developed after the fact to justify what took place. In the absence of any contrary evidence, reference to these reasons creates a strong suggestion of post hoc rationalization.
The court seemed particularly concerned about the lack of "standards, policies or procedures" pertaining "to the City's exercise of its discretion as to use of the Pavilion."
This had been the focus of much of the judge's questioning in Baltimore, where she asked pointed questions of city attorney Renita Collins as to the standards the city uses to determine when to cancel an event. Collins was unable to provide any clear answers.
"Here, the City has asserted public safety justifications for its action," Hollander noted in her memo. "Determining whether that assertion is a pretext for suppression of viewpoint has been made difficult precisely because of the City's ad hoc, standard-free approach to its intervention in the Pavilion booking process."
Judge Hollander wrapped up her First Amendment analysis thus:
In sum, the unbridled discretion exercised by the City; its use of the heckler's veto as an explicit justification; its shifting, post hoc rationalizations; and the City's invocation of political rhetoric by rally organizers and speakers point to the conclusion that plaintiff is likely to succeed on the claim that the City engaged in viewpoint discrimination with respect to plaintiff’s political views.
Randazza remarked, "The City's hostility toward Church Militant was impossible to fully understand, but I am happy that the judge noticed that they were constantly shifting their story."
The judge appeared to paint an overall positive picture of St. Michael's Media, noting the "passionate beliefs" of staff as well as abuse victims who testified in court on Sept. 30 and Oct. 1 in Baltimore.
"The testimony of several witnesses for plaintiff, including [Michael] Voris, [Christine] Niles and [James] Grein, a victim of sexual child abuse committed by a high-ranking member of the clergy, made clear the passionate beliefs held by many of those affiliated with St. Michael's," Hollander wrote.
Father Paul John Kalchik of Chicago was also among those who took the stand.
"Father Kalchik plans to speak at the rally 'about the evils of sexual predation,' a topic for which he claims he was 'silenced for 39 years,'" Hollander wrote. "He also complains that 'Church officials have been stone deaf' in 'ridding the Church of these predators.'
"As he explained in his Declaration, the rally will also provide 'comfort' to victims of sexual child abuse and demonstrate that they are 'not invisible anymore,'" she explained.
Hollander noted Grein's moving testimony: "At the hearing, Grein poignantly explained the significance of his experience in speaking publicly for the first time about his abuse at plaintiff's 2018 rally in Baltimore," she wrote. "He offered that he is looking forward to attending the 2021 rally to 'heal by speaking.'"
Milo Yiannopoulos also testified, revealing he too is a child victim of sex abuse.
"As Yiannopoulos put it, confronting those who cover up the abuse is the 'crux' of the prayer rally," Hollander noted. "And, given the proximity of the location to the Hotel, the bishops will not be able to overlook the 3,000 attendees."
Responding to the city attorney's claims Yiannopoulos has "promoted" pedophilia, the judge noted:
In his testimony, Yiannopoulos called the City's accusation of pedophilia "revolting" and "grotesque." Although he acknowledged his history of "biting commentary," which is sometimes quite "caustic," he maintains that he is not the provocateur that he once was. Although in the past he participated in some "purposefully" provocative events, Yiannopoulos stated that he has since become a more "prayerful" person. And, he claims that he has "fallen off the radar of all but the most determined violent agitators." Moreover, he expressly condemned the use of violence.
Judge Hollander also noted the numerous declarations filed in court by members of Church Militant Resistance, a number who traveled to Baltimore during the court hearings, testifying to their "purely peaceful intentions" for the rally and their abhorrence of violence.
Read the full memorandum below.