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

