Rusfeldt v. City of New York

The First Amendment right to free speech is not dependent on the likeability of the message, and reactions of violence do not override this foundational individual right. The Liberty Justice Center has filed an amicus brief in Rusfeldt v. City of New York to defend this principle: police may not silence a peaceful speaker because others react violently to his message.

During New York City’s 2021 PrideFest, Pastor Aden Rusfeldt stood on a public sidewalk—off the official parade route—holding signs and preaching a religious message sharply critical of LGBTQ+ lifestyles. While his speech was inflammatory, he presented it peacefully and was squarely within the protection of the First Amendment.

As a crowd gathered, some PrideFest participants began hurling objects and issuing threats at Pastor Rusfeldt because they disliked his message. Several New York Police Department officers watched the confrontation unfold from across the street, only intervening when the crowd became violent. Instead of addressing the illegal behavior of the crowd, NYPD ordered Pastor Rusfeldt to leave the area. When he politely refused and invoked his constitutional right to speak in a public forum, officers arrested him for failing to disperse.

At trial, the district court allowed the jury to uphold this “solution,” instructing that officers do not violate the First Amendment so long as they are motivated by a desire to “promote public order.” A jury ruled for the City of New York, and the district court denied Rusfeldt’s post-trial motion for judgment as a matter of law.

On appeal, the Liberty Justice Center urges the Second Circuit to reverse. The Supreme Court has long rejected the “heckler’s veto”—a regime where government silences a peaceful speaker because a hostile audience threatens violence. Under decisions like Forsyth County v. Nationalist Movement, Cantwell v. Connecticut, Terminiello v. City of Chicago, and Bible Believers v. Wayne County, police must protect speakers from violent mobs, not reward mob violence by arresting the speaker.

“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.