10 | JULY 28 • 2022
PURELY COMMENTARY
ANN ARBOR RULING continued from page 8
addressing once she ruled
that the plaintiffs did not
have standing, because in
the absence of standing she
did not have jurisdiction to
address the merits of the free
speech issue.
Notwithstanding, the
Sixth Circuit held that the
protesters’ right of free
speech precluded granting
the injunctive relief which the
plaintiffs were seeking, stating
that because the protesters
were engaging in speech
which addressed matters of
public concern — the Israeli-
Palestinian conflict — and
were doing so in a traditional
public forum — a street in a
residential area in front of the
synagogue — the use of the
signs was absolutely protected
by the First Amendment and
any injunction which placed
reasonable time, place and
manner limitations on their
conduct would violate their
freedom of speech.
In the subsequent petition
for certiorari which I filed in
the Supreme Court seeking
the high court’s interjection,
I argued that the signs which
display antisemitic hate speech
do not relate to matters of
public concern, and the fact
that they were commingled
with signs which addressed
matters of public concern did
not clothe the hate speech
with the mantle of First
Amendment protection.
I argued that this was not
just true of a Jewish house
of worship. It was true of the
houses of worship of every
religion — hate speech in
proximity to any house of
worship, be it a Protestant
or Catholic church, a
predominantly African-
American church, a Muslim
mosque, or a Hindu or Sikh
temple, does not constitute
protected free speech, and
such speech can be curtailed
to protect the right of worship,
just as the speech of anti-
abortion protesters — even
without the presence of what
is legally referred to as “state
action” — can be curtailed
to protect what, prior to this
year, was a constitutional right
of women.
The Supreme Court denied
the petition, which would
have required the vote of four
of the nine Justices to grant.
The vote was confidential and
unavailable to the litigants or
their attorneys.
But the fact that the
Supreme Court denied
certioriari does not mean
that the court agreed with the
Sixth Circuit’s decision. As
the Supreme Court has stated
in several decisions, denial
of a petition for certiorari
means nothing more than
that it failed to garner four
votes. It does not constitute an
affirmance of the lower court’s
decision.
ATTORNEY FEES
I am now faced with an
even more serious issue
than whether the protesters’
antisemitic hate speech in
proximity to a synagogue
is protected by the First
Amendment. While the
petition for certiorari was
pending in the Supreme
Court, the protesters filed
a motion before Judge
Roberts requesting that she
award attorney fees to their
attorneys.
Such a request, in the context
of the kind of civil rights
litigation which this lawsuit
represented, is rarely granted
to defendants. The policy,
which has been expressed in
numerous Supreme Court and
Sixth Circuit decisions, is to
encourage attorneys to take
such cases in order to vindicate
citizens’ constitutional and
statutory rights, even where the
facts present new and unique
circumstances. Awarding
attorney fees to defendants
who prevail in such lawsuits
would discourage citizens and
attorneys from litigating such
cases, to the detriment of the
policy.
Therefore, in order to
discourage awarding attorney
fees to defendants, the
Supreme Court has held in
several decisions that the
defendants must demonstrate
that the lawsuit was
“frivolous,” and totally without
merit.
In this case, however,
the Sixth Circuit, in its 2-1
decision, explicitly stated:
“Plaintiffs’ claims may
be wrong and ultimately
unsuccessful, but the fourteen
ALEX SHERMAN
An antisemitic sign outside the synagogue