BALTIMORE (ChurchMilitant.com) - In yet another victory against the city of Baltimore, a federal appeals court has issued a unanimous ruling in favor of St. Michael's Media.
Wednesday afternoon, the 4th U.S. Circuit Court of Appeals published a three-sentence order affirming the lower court's ruling that St. Michael's has a right to hold a prayerful bishops' protest in Baltimore on Nov. 16. The substance of the order states: "Upon consideration of submissions relative to this appeal, the court affirms the district court's order and opinion."
All three judges — Henry Floyd, Paul Niemeyer and G. Steven Agee — were unanimous in their ruling.
"I am entirely non-surprised by this ruling," said Marc Randazza, attorney for St. Michael's. "I think the city's appeal raised absolutely nothing worthy of review. Apparently, the 4th Circuit thinks so too, since they ruled so quickly and so resoundingly in our favor."
"We are disappointed by the Court's decision and remain concerned about the potential public safety threat to Baltimore City property posed by the rally," said Cal Harris, spokesman for Mayor Brandon Scott, adding that "we will abide by the direction of the courts."
Several groups had filed friend-of-the-court briefs arguing in St. Michael's favor, including the First Amendment Lawyers Association, the Center for American Liberty and, surprisingly, The Satanic Temple.
A cross-appeal by St. Michael's on the question whether an enforceable contract existed at the time the city quashed the rally remains pending in the 4th Circuit.
City officials, namely Baltimore chief of staff Michael Huber and city solicitor James Shea, had stepped in on Aug. 5 to cancel our "Bishops: Enough Is Enough" prayer rally, scheduled for Nov. 16 at the MECU Pavilion in Baltimore's Inner Harbor. Saint Michael's held the same rally in the same location in 2018, without incident.
Approximately 2,200 people had signed up as of Aug. 4 this year, when city officials quashed the event, with thousands of dollars spent by St. Michael's up to that point planning and organizing the rally.
On an Aug. 5 phone call with St. Michael's CEO Michael Voris, Shea claimed there were unspecified reports of Church Militant's "ties" to the Jan. 6 Capitol protest — ties Voris vigorously denied, and which have never been proven.
The city later changed its story when it was unable to prove ties to Jan. 6, instead claiming it objected to two speakers: former Trump advisor Steve Bannon and conservative commentator (and priest abuse victim) Milo Yiannopoulos. The city cited fears of "violence," "disruption" and even "loss of life" if counterprotestors were to appear on Nov. 16.
Church Militant has noted the extensive ties Shea has to the Baltimore archdiocese and the U.S. bishops, who stand to benefit the most through cancellation of the protest. The U.S. bishops' fall general assembly is taking place directly next door at the Baltimore Marriot Waterfront Hotel, with a clear view from the bishops' conference room windows onto the MECU Pavilion, where thousands of participants are expected to be praying and protesting against bishop corruption.
On Sept. 13, Church Militant sued the city for violating this apostolate's First Amendment right to free speech and assembly, among other things.
"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," Randazza argued in a Sept. 27 reply brief.
On Oct. 12, in an 86-page memorandum, U.S. District Judge Ellen Hollander granted Church Militant's request for a preliminary injunction, affirming our right to peacefully protest bishop corruption, and finding the city had engaged in unconstitutional viewpoint discrimination.
"The First Amendment to the Constitution is at the heart of this case," she wrote, going on to note, "The City cannot conjure up hypothetical hecklers and then grant them veto power."
"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," she noted.
The memo devoted a large portion of its analysis to the "heckler's veto" — the decision to cancel a rally owing to fears of the crowd's reaction — 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.
The city had tried a second time to block the rally in mid-October, asking Hollander to prevent Church Militant and SMG (managers of the MECU Pavilion) from entering into a contract. Collins argued that if the judge did not grant the city's request, the city would suffer "irreparable harm," while St. Michael's would encounter only minor inconveniences by being forced to wait several weeks to continue plans for the rally.
The court disagreed.
"[D]efendants could run out the clock by obtaining a stay, with no decision by the 4th Circuit in time for the rally," Hollander wrote in an Oct. 20 order rejecting the city's request.
The city's repeated attempts to run out the clock in order to prevent Church Militant's prayer rally have failed, with the 4th Circuit's order the latest rejection of Baltimore's attempts to trample on Catholics' right to gather, pray and speak out against bishop corruption.
St. Michael's separate lawsuit against the city remains pending in the district court.
Read the court order below.