(NEW YORK, N.Y.)—The First Amendment is built on the foundational principle that individuals are free to express their viewpoint in public settings without fear of retaliation. In the case of Pastor Aden Rusfeldt, this right was violated simply because of a crowd’s reaction to his speech, and instead of defending his rights as a peaceful speaker, the New York Police Department arrested him. The Liberty Justice Center has filed an amicus brief in the U.S. Court of Appeals for the Second Circuit in Rusfeldt v. City of New York, urging the court to hold that police may not silence a peaceful speaker because a hostile crowd threatens violence.
In June 2021, Pastor Aden Rusfeldt stood on a public sidewalk in lower Manhattan during New York City’s LGBTQ+ PrideFest, far from the official parade route. In his hand he held a sign with inflammatory verbiage and preaching aloud, he expressed a message that many found deeply offensive. As a crowd of PrideFest participants gathered, some began shouting, making threats, and throwing objects.
Although New York Police Department officers watched the situation develop, they chose not to restrain the violent crowd. Instead, they repeatedly ordered Pastor Rusfeldt—the peaceful speaker—to leave. When he politely declined and invoked his First Amendment rights to speak in a public forum, officers arrested him for failing to disperse.
A federal jury later sided with the City of New York, and the district court upheld the verdict under a “promote public order” standard and by requiring Pastor Rusfeldt to prove that officers lacked probable cause for his arrest.
The Liberty Justice Center’s brief urges the Second Circuit to reverse as the Supreme Court has long rejected the “heckler’s veto”—a regime where government silences a peaceful speaker because a hostile audience threatens violence. When government action is triggered by the content of a speaker’s message and the hostility it provokes, it is a content- and viewpoint-based restriction that must satisfy strict scrutiny—a standard the City cannot meet.
“Law enforcement cannot allow the ‘heckler’s veto’ to cancel the First Amendment in today’s polarized society,” said Ryan Morrison, Senior Counsel at the Liberty Justice Center. “Otherwise, the first group that resorts will always win the debate.”
The Liberty Justice Center is asking the Second Circuit to reaffirm that the government cannot “choose winners and losers in the marketplace of ideas” by siding with a hostile crowd over a peaceful speaker. The Constitution demands that police protect speech—even, and especially, when it angers the mob.
The Liberty Justice Center’s amicus brief in Rusfeldt v. City of New York can be found here.