Full opinion text
CLAY, J., delivered the opinion of the court in which COLE, C.J., BOGGS, BATCHELDER, MOORE, KETHLEDGE, WHITE, and STRANCH, JJ., joined, and SUTTON and GRIFFIN, JJ., joined in part. BOGGS, J. (pp. 262-64), delivered a separate concurring opinion in which BATCHELDER, CLAY, and WHITE, JJ., joined. GRIFFIN, J. (pp. 264-66), delivered a separate opinion concurring in part, and dissenting from Part IV and the final two paragraphs of • Part I.C.4 of the majority opinion. SUTTON, J. (pg. 266), delivered a separate opinion concurring in part in Part I of the majority opinion, and in Parts II and III of the dissent of GIBBONS, J. GIBBONS, J. (pp. 266-74), delivered a separate dissent in which COOK and McKEAGUE, JJ., joined, and SUTTON, J., joined in part. ROGERS, J. (pp. 274-78), delivered a separate dissent in which GIBBONS, COOK, McKEAGUE, and DONALD, JJ., joined. OPINION CLAY, Circuit Judge. Plaintiffs Ruben Chavez (“Israel”), Arthur Fisher, Joshua DeLosSantos, and the Bible Believers (collectively “the Bible Believers” or “Plaintiffs”) appeal the district court order entering summary judgment in favor of Defendants Sheriff Benny N. Napoleon, Deputy Chief Dennis Richardson, Deputy Chief Mike Jaafar, and Wayne County (collectively “Wayne County” or “Defendants”). Plaintiffs initiated this constitutional tort action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their First Amendment rights to freedom of speech and free exercise of religion, as well as their Fourteenth Amendment right to equal protection of the laws. The district court held that Defendants’ actions in cutting off the Bible Believers’ religious speech did not violate the Constitution. We REVERSE the judgment of the district court in full and REMAND this case for entry of summary judgment in favor of Plaintiffs, for the calculation of damages, and for the award of appropriate injunctive relief, consistent with this opinion. BACKGROUND “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 562 U.S. 443, 458, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (citation and internal quotation marks omitted). “Nowhere is this [First Amendment] shield more necessary than in our own country for a people composed [from such diverse backgrounds].” Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Born from immigrants, our national identity is woven together from a mix of cultures and shaped by countless permutations of geography, race, national origin, religion, wealth, experience, and education. Rather than conform to a single notion of what it means to be an American, we are fiercely individualistic as a people, despite the common threads that bind us. This diversity contributes to our capacity to hold a broad array of opinions on an incalculable number of topics. It is our freedom as Americans, particularly the freedom of speech, which generally allows us to express our views without fear of government sanction. Diversity, in viewpoints and among cultures, is not always easy. An inability or a general unwillingness to understand new or differing points of view may breed fear, distrust, and even loathing. But it “is the function of speech to free men from the bondage of irrational fears.” Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Robust discourse, including the exchanging of ideas, may lead to a better understanding (or even an appreciation) of the people whose views we once feared simply because they appeared foreign to our own exposure. But even when communication fails to bridge the gap in understanding, or when understanding fails to heal the divide between us, the First Amendment demands that we tolerate the viewpoints of others with whom we may disagree. If the Constitution were to allow for the suppression of minority or disfavored views, the democratic process would become imperiled through the corrosion of our individual freedom. Because “[t]he right to speak freely and to promote diversity of ideas ... is ... one of the chief distinctions that sets us apart from totalitarian regimes,” Terminiello v. City of Chi, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), dissent is an essential ingredient of our political process. The First Amendment “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Id. If we are not persuaded by the contents of another’s speech, “the remedy to be applied is more speech, not enforced silence.” Whitney, 274 U.S. at 377, 47 S.Ct. 641 (Brandeis, J., concurring). And although not all manner of speech is protected, generally, we interpret the First Amendment broadly so as to favor allowing more speech. See Cox v. Louisiana, 379 U.S. 536, 578, 85 S.Ct. 466, 13 L.Ed.2d 487 (1965) (“[W]hen passing on the validity of a regulation of conduct, which may indirectly infringe on free speech, this Court ... weights] the circumstances in order to protect, not to destroy, freedom of speech.” (internal quotation marks omitted)) (Black, J., concurring). This case calls on us to confirm the boundaries of free speech protections in relation to angry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees. Set against the constitutional right to freedom of speech, we must balance the state’s interest in insuring public safety and preventing breaches of the peace. The scenario presented by this case, known as the “heckler’s veto,” occurs when police silence a speaker to appease the crowd and stave off a potentially violent altercation. The particular facts of this case involve a group of self-described Christian evangelists preaching hate and denigration to a crowd of Muslims, some of whom responded with threats of violence. The police thereafter removed the evangelists to restore the peace. Bearing in mind the interspersed surges of ethnic, racial, and religious conflict that from time to time mar our national history, the constitutional lessons to be learned from the circumstances of this case are both timeless and markedly seasonable. In this opinion we reaffirm the comprehensive boundaries of the First Amendment’s free speech protection, which envelopes all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result, of such offense, arouses violent retaliation. We also delineate the obligations and duties of law enforcement personnel or public officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the peace that may arise when constitutionally protected speech has stirred people to anger, and even to violence. Facts A. Dearborn and the Arab International Festival Dearborn — home of the world headquarters of the Ford Motor Company — is a city located in Wayne County, Michigan, that borders Detroit and has a stable population of approximately 100,000 people. Dearborn is also home to one of the largest populations of Arab Americans in the country — second only to New York City. Dearborn’s Arab American population is comprised of both Christian and Muslim families whose national origins include Lebanon, Armenia, Yemen, Iraq, and Palestine, among other nations. Beginning in 1996 and continuing for 17 years thereafter, each June, Dearborn celebrated its Arab heritage and culture by hosting the Arab International Festival. The Festival, which was free to the public, featured Middle Eastern food, music, artisan booths, cultural acts, and other amusements, including carnival rides. A principal purpose of the Festival was to promote cultural exchange. Each year, the Festival took place on a stretch of Warren Avenue, covering several blocks temporarily closed to vehicular traffic. The street became a pedestrian thoroughfare lined with vendors and information booths. The brick and mortar stores lining the Warren sidewalks also remained open. The Festival attracted people from around the world, and by 2012, it was the largest festival of its kind in the United States, annually drawing more than 300,000 people over the course of three days. Given the size of attendance and the Festival’s focus on cultural exchange, a diverse array of religious groups requested permission to set up information booths on the Festival grounds. The Festival also had a history of attracting certain Christian evangelists who preferred to roam free among the crowd and proselytize to the large number of Muslims who were typically in attendance each year. These evangelists would come from across the country to distribute leaflets up and down the sidewalks of Warren Avenue in the heart of the Festival. This practice was disrupted in 2009 when the Dearborn police enforced an anti-leafletting policy promoted by the American Arab Chamber of Commerce — the Festival’s primary sponsor — -and ratified by the City. A panel of this Court subsequently held that Dear-born’s anti-leafletting policy unconstitutionally encroached on the free speech rights protected by the First Amendment because it failed to serve a substantial government interest and it was not narrowly tailored, as is required with respect to any time, place, or manner restriction on protected speech. See Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir.2011). The City of Dearborn thereafter ceded to the Wayne County Sheriffs Office (“WCSO”) primary responsibility over Festival security in future years. B. The Bible Believers The Bible Believers were among the self-described evangelical groups that attended the Festival for the purpose of spreading their Christian beliefs. The founder and leader of the Bible Believers, known as “Israel,” testified that due to his sincerely held religious beliefs he was required “to try and convert non-believers, and call sinners to repent.” Therefore, Israel and his Bible Believers regularly engaged in street preaching, which consisted of advocating for their Christian beliefs and parading around with banners, signs, and tee-shirts that displayed messages associated with those beliefs. Many of the signs and messages displayed by the Bible Believers communicated overtly anti-Muslim sentiments. In 2011, Israel attended the Festival with a number of Bible Believers to preach to the crowd of Festival-goers. Upon their arrival at the Festival on Friday, June 17, 2011, the Bible Believers were directed to a protected area on the Festival grounds referred to as a “free speech zone.” When they returned to the Festival on Sunday, June 19, the Bible Believers were informed that the free speech zone had been removed and would not be made available again. The Bible Believers therefore opted to walk the public streets and sidewalks, spreading their message to those who passed by. The quintessential attribute of the Bible Believers’ message was intolerance, principally proclaiming that Mohammed was a false prophet who lied to them and that Muslims would be damned to hell if they failed to repent by rejecting Islam. This message was not well received by certain elements of the crowd. The Bible Believers allege that they were assaulted by various members of the crowd and that the WCSO initially watched and did nothing, then eventually silenced the Bible Believers by kicking them out and requiring them to leave the Festival grounds. They also alleged that Deputy Chief Jaafar personally arrested one of the Bible Believers to the delight of the “violent Muslims.” No formal action was taken by either party as a result of this alleged incident. C. May 2012 Pre-Festival Letters and Preparation Israel and his Bible Believers determined to return to Dearborn the following year for the 2012 Arab International Festival. Prior to the Festival, the Bible Believers, through their counsel, sent a letter to Defendants Wayne County and Sheriff Napoleon recounting the Bible Believers’ experience at the 2011 Festival. The letter also apprised Defendants of the Bible Believers’ expectations for the group’s return visit: In light of the past actions by the officers, I write to remind the Wayne County Sheriffs Department [sic] of two points; First, the officers have a duty to protect speakers like Israel from the reactions of hostile audiences. See Glasson v. City of Louisville, 518 F.2d 899, 906 (6th Cir.1975) (“A police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.”). If the officers allow a hostile audience to silence a speaker, the officers themselves effectively silence the speaker and effectuate a “heckler’s veto.” The First Amendment simply does not countenance this scenario. See, e.g., Forsyth County, 505 U.S. at 134 [112 S.Ct. 2395]; Boos v. Barry, 485 U.S. 312, 320-21 [108 S.Ct. 1157, 99 L.Ed.2d 333] (1998). See also Smith v. Ross, 482 F.2d 33, 37 (6th Cir.1973) (“[S]tate officials are not entitled to rely on community hostility as an excuse not to protect, by inaction or affirmative conduct, the exercise of fundamental rights.”). Second, Israel has the First Amendment right to engage in peaceful expression on streets and sidewalks during the Arab International Festival. See, e.g., Saieg v. City of Dearborn, 641 F.3d 727, 737-41 (6th Cir.2011) (invaliding [sic] ban on literature distribution on public sidewalks open to public during the Arab International Festival). (R. 13-7, May 9, 2012 Ctr. for Relig. Expression Ltr., PGID 110). Wayne County, through its Corporation Counsel, responded by letter on June 14, 2012. The letter indicated Wayne County’s disagreement with respect to both the characterization of events at the 2011 Festival and with the Bible Believers’ interpretation of the law regarding the WCSO’s duties to the public and to the Bible Believers. Corporation Counsel noted the WCSO’s intent to “maintain public order consistent with its legal obligations,” but specifically disclaimed any “‘special relationship’ between the WCSO and Mr. Israel” to avoid the possibility that Israel would assert in subsequent litigation that the WCSO owed Bible Believers a heightened measure of protection. (R. 13-8, Corp. Counsel Reply, PGID 112). The letter went on to “remind [the Bible Believers] that, under state law and local ordinances, individuals can be held criminally accountable for conduct which has the tendency to incite riotous behavior or otherwise disturb the peace.” (Id. at 113). In conclusion, Corporation Counsel likewise cited to Sixth Circuit precedent to support the County’s view that its obligations to protect the Bible Believers’ speechmaking had limitations: [L]aw enforcement personnel are not required “to defend the right of a speaker to address a hostile audience, however large and intemperate, when to do so would unreasonably subject them to violent retaliation and physical injury.” Glasson v. City of Louisville, 518 F.2d 899 at 909 (6th Cir.1975). Rather, “[i]n such circumstances, they may discharge their duty of preserving the peace by intercepting his message or by removing the speaker for his own protection ... IT (Id. at 113). Earlier that month, Deputy Chief Jaafar circulated an Operations Plan memorandum, addressed to Sheriff Napoleon, which outlined the policies and procedures to be followed by the WCSO throughout the course of the 2012 Arab International Festival. The second item in the memorandum addressed potential “situation[s]” that could lead to trouble at the Festival. Among the purported situations was “a radical group calling themselves ‘The Bible Believers’ ” that had been attracted to the Festival in recent years, and that would “possibly show up at the festival trying to provoke [the WCSO] in a negative manner and attempt to capture the negativity on video camera.” (13-5, Ops. Plan, PGID 100). Deputy Chief Jaafar instructed his officers “to be alert and professional at all times ... [and to] [r]epeat as many times as necessary” the appropriate orders to any group causing trouble. (Id.) As an example, he suggested repeating the following command: “Sir, you are causing a disturbance, please keep moving.” (Id.) He also noted that the WCSO would “not abridge or deny anyone’s Freedom of Speech, unless public safety becomes [a] paramount concern.” (Id.) The WCSO decided to employ both regular and reserve officers “to ensure public safety, keep the peace, and maintain order in the event there is a disturbance.” (Id. at 101). According to Deputy Chief Richardson, a greater number of WCSO personnel were “allocated to the Festival ... than ... to the World Series or to the President of the United States when he visits Michigan.” (R. 13-6, Richardson Aff., PGID 107). The number of personnel also exceeded the number “allocated to other large festivals in Michigan.” (Id.) The Operations Plan listed 51 officers (excluding those in command), most of whom were assigned to one of six zones. Among this group, there were also 19 officers (including 6 mounted units) who were not assigned to any one specific zone, allowing them to respond to changing needs and circumstances. D. The 2012 Arab International Festival The Bible Believers returned to Dear-born in 2012, at approximately 5:00 p.m. on Friday, June 15, for the 17th Annual Arab International Festival. As they had done the previous year, the Bible Believers traveled to the Festival so that they could exercise their sincerely held religious beliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his followers to hurl words and display messages offensive to a predominantly Muslim crowd, many of whom were adolescents. These messages were written on their tee-shirts and on the banners and signs that they carried. The following is a sampling of the Bible Believers’ messages: “Islam Is A Religion of Blood and Murder” “Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers” “Prepare to Meet Thy God — Amos 4:12” “Jesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be Blotted Out” “Trust Jesus, Repent and Believe in Jesus” “Only Jesus Christ Can Save You From Sin and Hell” “Turn or Burn” “Fear God” (R. 20-2, Israel Deck, PGID 176-77). In addition to the signs, one of the Bible Believers carried a severed pig’s head on a spike, because, in Israel’s own words, it would “ke[ep] [the Muslims] at bay” since “unfortunately, they are kind of petrified of that animal.” (R. 28-A, Raw Festival Footage, Time: 00:49:45). Laden with this imagery, the Bible Believers entered the Festival and began their preaching. At first, few people paid attention other than to glance at what appeared to be an odd assembly. The first speaker told the crowd that they should not follow “a false prophet,” who was nothing but an “unclean drawing” and “a pedophile.” (Id. at 00:01:40). He continued by telling what was by then a group made up of approximately thirty teenagers that “[y]our religion will send you to hell.” (Id. at 00:03:30). Tensions started to rise as a few youths became incensed after the speaker taunted, “You believe in a prophet who is a pervert. Your prophet who wants to molest a child,” and “God will reject you. God will put your religion into hellfire when you die.” (Id. at 00:03:56, 00:04:38). This continued as a few of the teens became agitated, until one youth simply told his friends to “quit giving them attention,” convincing some members of the crowd to disperse. (Id. at 00:06:07). After approximately seven minutes of proselytizing, some elements of the crowd began to express their anger by throwing plastic bottles and other debris at the Bible Believers. An officer was captured on video observing the scene without intervening or reprimanding the juvenile offenders. The size of the crowd ebbed and flowed. At one point an officer approached the Bible Believers and commanded that the speakers stop using a megaphone or be cited for violating city ordinances. The Bible Believers relented, but also responded by noting that “these angry kids are a little bit more vicious than the megaphone.” (Id. at 00:16:16). A few minutes later, an officer did ask thé kids to back up and subsequently removed one of the teenagers who he saw throwing a bottle. However, all police presence and intervention dissipated after this minimal and isolated intervention. The Bible Believers continued preaching for another ten minutes without the megaphone, all while a growing group of teenagers jeered and heckled, some throwing bottles and others shouting profanities. At one point, a parent stepped in to reprimand his child for participating in the assault. The onslaught reached its climax when a few kids began throwing larger items such as milk crates. By that time, the Bible Believers had stopped all speech-making whatsoever. A number of debates spawned between members of the crowd (which had continued to swell) and individual Bible Believers. A particularly emotional youth debated with a Bible Believer the merits of his group’s bigoted views, noting that he had studied both the Quran and the Bible, and that Muslims believe in the same First Testament as the followers of Christianity. This brief moment of reasoned debated devolved into a shouting match, and ended when the youth was pulled away by an unidentified individual. A few minutes later, the crowd of youths became quiet after four mounted officers simply rode by, without making commands or pausing — even for a moment. The calm persisted while Israel gave an interview to a local news crew. But once this interview ended, and the police and camera crews left the scene, the Bible Believers again were assaulted with flying debris. The Bible Believers turned away from the crowd and started moving through the Festival for a second time. A large contingent of children ran after them, and the relatively light cascade of debris intensified into a barrage of bottles, eggs, and other debris being hurled upon the Bible Believers. When the Bible Believers again resettled at a new location, and with their backs no longer facing the crowd, the torrent died down. At some point during the deluge, Israel was struck in the face, which resulted in him suffering a small laceration. When an officer arrived on the scene a few minutes later, the children’s belligerence and the assaultive behavior again ceased. The officer bellowed at a few youths to move out of the way; they complied immediately. He then told Israel, “you are a danger to public safety right now,” and stated that the WCSO did not have the manpower to keep the Bible Believers safe. (Id. at 00:43:12). The officer then suggested that the Bible Believers always “have the option to leave,” while he simultaneously ignored Israel’s plea that some sort of police presence just remain in the general vicinity. The officer departed, and the bottle throwing resumed. A few minutes later, a group of officers returned to the area and cut a path through the crowd in order to approach Israel and his followers. Deputy Chiefs Richardson and Jaafar pulled Israel aside for the purpose of telling him that the Bible Believers would be escorted out of the Festival. But Israel responded that he was unprepared to leave without having the opportunity to finish walking his parade route while exercising his First Amendment rights. Richardson explained to Israel, “We have the responsibility of policing the entire festival, and obviously your conduct especially is causing this disturbance and it is a direct threat to the safety of everyone here.” (Id. at 00:48:30). He also noted that “part of the reason they throw this stuff ... is that you tell them stuff that enrages them.” (Id. at 00:49:03). Israel protested, first by noting that the disturbances only occurred in the absence of any police presence, and second, by commenting that the Bible Believers had stopped preaching altogether during the previous twenty minutes and were only carrying signs. Israel suggested that if the WCSO just assigned two officers to insure that the crowd of adolescents surrounding the Bible Believers’ demonstration remained nonviolent, all concerns about public safety would be resolved. Deputy Chief Jaafar chimed in at this point by telling Israel that the WCSO could not provide individual officers for every group that wanted to protest at the Festival, and that Israel’s group needed to leave because his group’s conduct was “attracting a crowd and ... affecting public safety.” (Id. at 00:50:40). When Israel continued to protest that he was not speaking and his signs were permissible, Richardson, again, pointed to the Bible. Believers’ speech as the cause for the unrest. He stated, “ya know, apparently what you are saying to them and what they are saying back to you is creating danger.” (Id. at 00:50:48). Richardson continued suggesting that Israel leave, but Israel refused to do so unless the WCSO was prepared to threaten Israel with the prospect of being arrested. Richardson expressed fear that the situation was escalating and stated, “the problem is that one of your people’s gonna get hurt, or one of the crowd is gonna get hurt, or one of my officers is gonna get hurt.” (Id. at 00:52:41). When Israel again inquired whether the Bible Believers would be arrested if they did not leave the Festival, Richardson only committed to saying that they would “probably” be cited if they did not allow themselves to be escorted out. He thereafter told Israel that the Bible Believers were being “disorderly,” to which Israel replied, incredulously, “I would assume 200 angry Muslim children throwing bottles is more of a threat than a "few guys with signs.” (Id. at 00:53:48). Following this exchange, Deputy Chiefs Richardson and Jaafar conferred with Corporation Counsel. Another half dozen officers stood along the edge of the barricaded area to which the Bible Believers had been secluded. On the other side of the barricade, the Festival continued. Richardson returned to speak with Israel and confirmed that Israel and his Bible Believers would be cited for disorderly conduct if they did not immediately leave the Festival. (Id. at 00:55:03) (“If you don’t leave we’re gonna cite you for disorderly.”). Israel complied, and the Bible Believers were escorted out of the Festival by more than a dozen officers. Four mounted officers also surveyed the scene on the edge of the Festival where the Bible Believers were being directed to exit. The Bible Believers loaded into a van and departed. However, two WCSO cruisers immediately began following the van and pulled the Bible Believers over within only a few blocks of the Festival — a third cruiser pulled up shortly thereafter. Officers claimed that the Bible Believers were stopped because they had removed the license plate from their vehicle prior to their departure. After waiting for nearly thirty minutes, they were issued a citation. By that time, two additional officers had arrived on bicycles, bringing the total number of law enforcement personnel involved in this traffic stop to eight officers. The WCSO made a post-operation report summarizing its version of the day’s events. The report noted that the WCSO was “able to ke[ep] reasonable control of civil peace[, but] [a]s the crowd progressed] around the protestors to an unsafe level, we suggested to the protestors to leave the area immediately because public safety was being jeopardized.” (R. 13-9, Post-Op. Rpt., PGID 114). The report further noted that “[a]ny subjects that were seen throwing objects [were] immediately taken into custody.” (Id.). They apparently did not see very much. Only one citation was issued to a 21-year old man who was caught throwing a bottle. The WCSO officers also issued three verbal warnings and briefly detained three juveniles, ranging in age from twelve to seventeen, before ultimately releasing them to the custody of their respective parents. In summary, the Bible Believers attended the 2012 Festival for the purpose of exercising their First Amendment rights by spreading their anti-Islam religious message. When a crowd of youthful hecklers gathered around the Bible Believers, the police did nothing. When the hecklers began throwing bottles and other garbage at the Bible Believers, a WCSO officer intervened only to demand that the Bible Believers stop utilizing their megaphone to amplify their speech. Virtually absent from the video in the record is any indication that the police attempted to quell the violence being directed toward the Bible Believers by the lawless crowd of adolescents. Despite this apparent lack of effort to maintain any semblance of order at the Festival, each time the police appeared on the video — to reprimand the use of the Bible Believers’ megaphone, to suggest that the Bible Believers had the “option to leave” the Festival, to trot by on horseback while doing next to nothing, and to expel the Bible Believers from the Festival under threat of arrest — the agitated crowd became subdued and orderly simply due the authoritative presence cast by the police officers who were then in close proximity. Only once is an officer seen removing one of the bottle-throwing teens. Israel, when faced with the prospect of being arrested for disorderly conduct, observed, “and you would think we would be complaining, but we’re not.” (R. 28-A, Raw Festival Footage, Time: 00:55:16). The Bible Believers were thereafter escorted from the Festival and ticketed by a large group of WCSO officers for removing the license plate from their van. Procedural History On September 25, 2012, the Bible Believers initiated this suit, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Eastern District of Michigan. The complaint alleged that Defendants violated the Bible Believers’ rights of free speech and free exercise, protected by the First Amendment, as well as their right to equal protection of the laws, guaranteed by the Fourteenth Amendment. Defendants answered, and then subsequently moved, simultaneously, for summary judgment and dismissal of all of the Bible Believers’ claims. The Bible Believers filed a response to Defendants’ motion, which included a cross-motion for summary judgment, and Defendants filed a reply. The district court issued an opinion granting Defendants’ motion for summary judgment, denying the Bible Believers’ cross-motion for summary judgment, and dismissing the Bible Believers’ claims, The Bible Believers thereafter filed a timely notice of appeal. The issues were briefed and the case was argued before a three-judge panel of this Court the following year. The panel, in a split decision, affirmed the judgment of the district court granting summary judgment to Wayne County and the individual Defendants. Bible Believers v. Wayne Cty., 765 F.3d 578 (6th Cir.2014). The Bible Believers petitioned for en banc rehearing. We granted that petition, thereby vacating the panel opinion, id. (opinion vacated, reh’g en banc granted Oct. 23, 2014), and heard oral argument for a second time on March 4, 2015. DISCUSSION Standard of Review We review de novo an appeal from a grant of summary judgment. Gillie v. Law Office of Eric A. Jones, LLC, 785 F.3d 1091, 1097 (6th Cir.2015). Summary judgment is appropriate when there exists no genuine dispute with respect to the material facts and, in light of the facts presented, the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. “The court may look to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits when ruling on the motion.” Gillie, 785 F.3d at 1097 (citation and internal quotation marks omitted). The facts must be viewed in the light most favorable to the non-moving party and the benefit of all reasonable inferences in favor of the non-movant must be afforded to those facts. Id. The mere “scintilla of evidence” within the record that militates against the overwhelming weight of contradictory corroboration does not create a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Analysis I. The First Amendment and the “Heckler’s Veto” Free-speech claims require a three-step inquiry: first, we determine whether the speech at issue is afforded constitutional protection; second, we examine the nature of the forum where the speech was made; and third, we assess whether the government’s action in shutting off the speech was legitimate, in light of the applicable standard of review. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Saieg, 641 F.3d at 734-35. We need only to address steps one and three because the parties agree that the Festival constituted a traditional public forum available to all forms of protected expression. The parties strenuously dispute whether the Bible Believers’ conduct constituted incitement to riot, and they also dispute the level of scrutiny that should be applied to this case. Ultimately, we find that Defendants violated the Bible Believers’ First Amendment rights because there can be no legitimate dispute based on this record that the WCSO effectuated a heckler’s veto by cutting off the Bible Believers’ protected speech in response to a hostile crowd’s reaction. We address the following items in turn: protected versus unprotected speech; the appropriate level of scrutiny to be applied in a public forum given the facts of this ease; the precedents upon which the heckler’s veto doctrine is built; the rule derived from those precedents; and the rule’s application to this case. We then address whether the individual Defendants are liable or, instead, can seek refuge in the affirmative defense of qualified immunity. Finally, we consider whether Wayne County can be held liable for the actions of its law enforcement personnel. A. Protected Speech The First Amendment offers sweeping protection that allows all manner of speech to enter the marketplace of ideas. This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted. The protection would be unnecessary if it only served to safeguard the majority views. In fact, it is the minority view, including expressive behavior that is deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment. See, e.g., Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43-44, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (recognizing First Amendment rights of Neo Nazis seeking to march with swastikas and to distribute racist and antiSemitic propaganda in a predominantly Jewish community); Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (recognizing the First Amendment rights of Ku Klux Klan members to advocate for white supremacy-based political reform achieved through violent means); Texas v. Johnson, 491 U.S. 397, 405-06, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (recognizing flag burning as a form of political expression protected by the First Amendment); Snyder, 562 U.S. 443, 454-56, 131 S.Ct. 1207 (2011) (recognizing a religious sect’s right to picket military funerals). “[I]f it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (citation omitted). Religious views are no different. “After all, much political and religious speech might be perceived as offensive to some.” Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). Accordingly, “[t]he right to free speech ... includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker’s message may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Any other rule “would effectively empower a majority to silence dissidents simply as a matter of personal predilections,” Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Edüd 284 (1971), and the government might be inclined to “regulate” offensive speech as “a convenient guise for banning the expression of unpopular views.” Id. at 26, 91 S.Ct. 1780. We tolerate the speech with which we disagree. When confronted by offensive, thoughtless, or baseless speech that we believe to be untrue, the “answer is [always] more speech.” Williams-Yulee v. Fla. Bar, — U.S. -, 135 S.Ct. 1656, 1684, 191 L.Ed.2d 570 (2015) (Kennedy, J., dissenting). Despite the First Amendment’s broad sweep, not all speech is entitled to its sanctuary. There are a limited number of categorical exclusions from the comprehensive protection offered by the Free Speech Clause. These exclusions are rooted in history and tradition, and include only those forms of expression that are “long familiar to the bar” as falling outside the confines of First Amendment protection. United States v. Alvarez, — U.S. -, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion) (citation and internal quotation marks omitted). Two areas of unprotected speech that have particular relevance to the interaction between offensive speakers and hostile crowds are “incitement to violence” (also known as “incitement to riot”) and “fighting words.” Both classes of speech are discussed below. 1. Incitement The right to freedom of speech provides that a state cannot “proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting'or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827 (footnote omitted). Advocacy for the use of force or lawless behavior, intent, and imminence, are all absent from the record in this case. The doctrine of incitement has absolutely no application to these facts. The Bible Believers’ speech advocated for their Christian beliefs and for harboring contempt for Islam. This advocacy was purportedly intended to convince Muslims at the Festival that they should convert to Christianity. Regardless of the wisdom or efficacy of this strategy, or of the gross intolerance the speakers’ conduct epitomized, disparaging the views of another to support one’s own cause is protected by the First Amendment. See, e.g., Snyder, 562 U.S. at 454, 131 S.Ct. 1207 (placards reading “You’re Going to Hell,” “Priests Rape Boys,” and “God Hates Fags,” “certainly convey[ed] ... [a] position on those issues” and constituted protected speech). The only references to violence or lawlessness on the part of the Bible Believers were messages such as, “Islam is a Religion of Blood and Murder,” “Turn or Burn,” and “Your prophet is a pedophile.” These messages, however offensive, do not advocate for, encourage, condone, or even embrace imminent violence or lawlessness. Although it might be inferred that the Bible Believers’ speech was intended to anger their target audience, the record is devoid of any indication that they intended imminent lawlessness to ensue. Quite to the contrary, the Bible Believers contacted Wayne County prior to their visit, requesting that the WCSO keep the public at bay so that the Bible Believers could “engage in their peaceful expression.” It is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot. And unsurprisingly, “[t]here will rarely be enough evidence to create a jury question on whether a speaker was intending to incite imminent crime.” Eugene Volokh, Crime-Facilitating' Speech, 57 Stan. L.Rev. 1095, 1190 (2005). In Hess v. Indiana, the Supreme Court held that a protestor who yelled, “We’ll take the fucking street again,” amidst an agitated crowd that was already resisting police authority could not be punished for his speech. 414 U.S. 105, 107, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). Because “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,” Ashcroft v. Free Speech Coal, 535 U.S. 234, 253, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), speech that fails to specifically advocate for listeners to take “any action” cannot constitute incitement. Hess, 414 U.S. at 109, 94 S.Ct. 326. Wayne County relies on Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951), to support the proposition that the Bible Believers’ speech was subject to sanction, and that such sanction does not offend the Constitution. In Feiner, the Supreme Court upheld a conviction for breach of the peace where, in the context of a civil rights rally, a speaker “gave the impression that he was endeavoring to arouse the Negro' people against the whites, urging that they rise up in arms and fight for equal rights.” Id. at 317, 71 S.Ct. 303. The majority, over a vigorous dissent, supported its holding by relying on police testimony that the crowd had become restless, “and there was some pushing, shoving and milling around.” Id. The majority described the scenario as a “crisis.” Id. at 321, 71 S.Ct. 303. Thus, it has been said that Feiner “endorses a Heckler’s Veto.” Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 89 (Jamie Kalven ed.1988). The better view of Feiner is summed up, simply, by the following truism: when a speaker incites a crowd to violence, his incitement does not receive constitutional protection. See Glasson v. City of Louisville, 518 F.2d 899, 905 n. 3 (6th Cir.1975) (“For over twenty years the Supreme Court has confined the rule in Feiner to a situation where the speaker in urging his opinion upon an audience intends to incite it to take action that the state has a right to prevent.”). Feiner lends little support for the notion that the Bible Believers’ speech amounted to incitement. The Bible Believers did not ask their audience to rise up in arms and fight for their beliefs, let alone request that they hurl bottles and other garbage upon the Bible Believers’ heads. Subsequent Supreme Court precedent illustrates that the speaker’s advocacy in Feiner itself could no longer be sanctioned as incitement. See, e.g., United States v. Williams, 553 U.S. 285, 298-99, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (“To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (“[T]he mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (citation omitted)); Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 450, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974) (rejecting the notion that “any group that advocates violen[ee] ... as an abstract doctrine must be regarded as necessarily advocating unlawful action”); see also 5 Ronald D. Rotunda & John E. No-wak, Treatise on Constitutional Law: Substance and Procedure § 20.39(a) (5th’ ed.2013) (noting that “[t]he authority of Feiner has been undercut significantly in subsequent [Supreme Court] cases”). In Claiborne Hardware Co., a speaker explicitly proposed to a large crowd that anyone who failed to abide by the terms of an agreed upon boycott would have to be “disciplined.” 458 U.S. at 902, 102 S.Ct. 3409. The speaker also stated, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck,” Id. Nonetheless, this speech was not deemed by the Court to be incitement. Id. at 928-29, 102 S.Ct. 3409. The Supreme Court has repeatedly referred to Brandenburg — not Feiner — as establishing the test for incitement. See, e.g., Whitcomb, 414 U.S. at 447-48, 94 S.Ct. 656 (“We most recently summarized the constitutional principles that have evolved in this area[ — incitement—]in Brandenburg.”); Claiborne Hardware Co., 458 U.S. at 928, 102 S.Ct. 3409 (“The emotionally charged rhetoric of [the plaintiffs] speeches did not transcend the bounds of protected speech set forth in Brandenburg.”); see also James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir.2002) (“The Court firmly set out the test for whether speech constitutes unprotected incitement to violence in Brandenburg.”). The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech. 395 U.S. at 477, 89 S.Ct. 1860. The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile reaction of a crowd does not transform protected speech into incitement. 2. Fighting Words A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); see also Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.1997). We rely on an objective standard to draw the boundaries of this category — no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (citation and internal quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (Stevens, J., concurring); accord Cohen, 403 U.S. at 20, 91 S.Ct. 1780 (defining fighting words as a “direct personal insult”). The Bible Believers’ speech cannot be construed as fighting words because it was not directed at any individual. Furthermore, the average individual attending the Festival did not react with violence, and of the group made up of mostly adolescents, only a certain percentage engaged in bottle throwing when they heard the proselytizing. B. Free Speech in Public Fora Next, we must determine the character of Defendants’ actions. In public fora, the government’s rights to “limit expressive activity are sharply circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (public streets are the “archetype of a traditional public forum”). Speech restrictions in these fora fall into two categories: content-based restrictions or time, place, and manner restrictions that are content-neutral. United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Saieg, 641 F.3d at 734. The parties’ dispute is centered on whether Wayne County’s actions were content neutral — a distinction that determines the applicable level of constitutional scrutiny. Connection Distrib. Co. v. Reno, 154 F.3d 281, 290 (6th Cir.1998). “Listeners’ reaction to speech is not a content-neutral basis for regulation,” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992), or for taking an enforcement action against a peaceful speaker. See Brown v. Louisiana, 383 U.S. 131, 133 n. 1, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (“Participants in an orderly demonstration in a public place are not chargeable with the danger ... that then-critics might react with disorder or violence.”); Glasson, 518 F.2d at 905. Therefore, we find that Wayne County’s actions were decidedly content-based. It is indisputable that the WCSO acted against the Bible Believers in response to the crowd’s negative reaction. Deputy Chief Richardson told Israel, “your conduct especially is causing this disturbance;” “part of the reason they throw this stuff ... is that you tell them stuff that enrages them;” “apparently what you are saying to them and what they are saying back to you is creating danger;” and therefore, “[i]f you don’t leave we’re gonna cite you for disorderly.” The sum of Wayne County’s counterargument to the charge that the Bible Believers’ expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan was content-neutral, and that the WCSO’s only consideration was maintaining the public safety. This contention fails in the face of abundant evidence that the police have effectuated a heckler’s veto. It is irrelevant whether the Operations Plan is content-neutral because the officers enforcing it are ordained with broad discretion to determine, based on listener reaction, that a particular expressive activity is creating a public danger. Cf. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 97, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“[B]ecause of then-potential use as instruments for selectively suppressing some points of view, this Court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity.”); see also Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir.2008) (“If the statute, as read by the police officers on the scene, would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’ ” (citing Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970))). C. The Heckler’s Veto and Police Obligations It is a fundamental precept of the First Amendment that the government cannot favor the rights of one private speaker over those of another. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Accordingly, content-based restrictions on constitutionally protected speech are anathema to the First Amendment and are deemed “presumptively invalid.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 853, 358, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009). An especially “egregious” form of content-based discrimination is that which is designed to exclude a particular point of view from the marketplace of ideas. Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; Perry Educ. Ass’n, 460 U.S. at 62, 103 S.Ct. 948 (Brennan, J., dissenting) (“Viewpoint discrimination is censorship in its purest form and govern.ment regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’ ”). The heckler’s veto is precisely that type of odious viewpoint discrimination. Cf. Police Dep’t of Chi, 408 U.S. at 98, 92 S.Ct. 2286 (“ ‘[T]o deny this ... group use of the streets because of their views ... amounts ... to an invidious discrimination.’ ” (quoting Cox, 379 U.S. at 581, 85 S.Ct. 466 (Black, J., concurring))). Both content- and viewpoint-based discrimination are subject to strict scrutiny. McCullen v. Coakley, — U.S. -, 134 S.Ct. 2518, 2530, 2534, 189 L.Ed.2d 502 (2014). No state action that limits protected speech will survive strict scrutiny unless the restriction is narrowly tailored to be the least-restrictive means available to serve a compelling government interest. United States v. Playboy Entm’t Grp., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Punishing, removing, or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Terminiello v. City of Chi, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chi, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). A review of Supreme Court precedent firmly establishes that the First Amendment does not countenance a heckler’s veto. 1. Early Cases: Clear and Present Danger The “clear and present danger” test, first articulated by Justice Holmes in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), is a flexible means to protect speech while recognizing that the government might have legitimate reasons for imposing speech-restrictions due to exigent circumstances: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. 249 U.S. at 52, 39 S.Ct. 247. The Supreme Court in Cantwell v. Connecticut and in Terminiello v. City of Chicago utilized the clear and present danger test to establish the rights of speakers not to be silenced on account of listeners’ hostility toward their message. In Cantwell, a Jehovah’s Witness was convicted for inciting a breach of the peace after going into a predominantly Catholic neighborhood and playing (to bypassers who were willing to listen) a phonograph recording. that demonized Catholicism. 310 U.S. at 302-03, 309, 60 S.Ct. 900. Two listeners of the recording were so offended that they threatened the Witness that he better leave or face violent retaliation. Id. at 309, 60 S.Ct. 900. The Court recognized that with religion and pqlities in particular, “[t]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement.” Id. at 310, 60 S.Ct. 900. Invoking the now-familiar clear and present danger test, the Court found that the expressive activity did not fall outside of the confines of free speech protection and therefore it could not lawfully be penalized by the state. Id. at 310-11, 60 S.Ct. 900. In Tenniniello, the Supreme Court again applied the clear and present danger test to overturn a conviction based on a statute that allowed the state to punish speech based on crowd hostility — i.e. a heckler’s veto. 337 U.S. at 4-5, 69 S.Ct. 894. The hostility was quite real in that instance, as the crowd had gathered outside the auditorium and begun throwing icepicks, bottles, and rocks, in response to the speaker’s remarks. Id. at 15, 69 S.Ct. 894 (Jackson, J., dissenting). Justice Douglas wrote for the Court that “freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive'evil that rises far above public inconvenience, annoyance, or unrest.” 337 U.S. at 4, 69 S.Ct. 894 (citations omitted). He noted that constitutionally protected speech “may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Id. Therefore, the state cannot sanction speech, consistent with the Constitution, solely on the basis that it “stirred people to anger, invited public dispute, or brought about a condition of unrest.” Id. at 5, 69 S.Ct. 894. Cantwell and Tenniniello instruct that offensive religious proselytizing, as well as speech that drives a crowd to extreme agitation, is not subject to sanction simply because of the violent reaction of offended listeners. Feiner came shortly after these cases, and it highlighted a significant flaw with the clear and present danger test in this context; chiefly, “it allows an audience reaction, if hostile enough, to be a basis for suppressing a speaker.” Erwin Chemerinsky, Constitutional Law: Principles and Policies 1041 (4th ed.2011). The Supreme Court recognized this flaw and eschewed any reliance on the clear and present danger test in the civil-rights era cases involving hostile crowds. See, e.g., Gregory, 394 U.S. at 112-13, 89 S.Ct. 946. Those cases reasserted, as paramount, the right of the speaker to not be silenced. 2. Civil-Rights Era: Protect the Speaker In Edwards v. South Carolina, 187 black college and high school students were convicted for breach of the peace following a peaceful protest, where, in small groups, the students marched to the Columbia, South Carolina state house carrying placards bearing messages in support of equality and civil rights. 372 U.S. at 229-30, 83 S.Ct. 680. During the demonstration, between 200 and 300 white observers gathered in a horseshoe around the students. Id. at 231, 83 S.Ct. 680. The police threatened the students with arrest after “apprehend[ing] immin[ent] violence” by a number of troublemakers in the crowd of onlookers. Id. at 245, 83 S.Ct. 680 (Clark, J., dissenting); id. at 231 & n. 4, 83 S.Ct. 680 (majority opinion). The Supreme Court reversed the convictions, distinguished Feiner as being a ease involving incitement, and reaffirmed Ter-miniello by recognizing that expressive activity cannot be proscribed merely because it “ ‘stirred people to anger, invited public dispute, or brought about a condition of unrest.’ ” Id. at 238, 83 S.Ct. 680 (quoting Terminiello, 337 U.S. at 5, 69 S.Ct. 894). Similarly, in Cox v. Louisiana, a student civil rights organizer led 2,000 fellow students in a peaceful protest outside of a courthouse in downtown Baton Rouge. 379 U.S. at 538-40, 85 S.Ct. 453. Approximately 100 to 300 white onlookers gathered to watch .the protest. Id. at 541, 85. S.Ct. 453. When the student leader suggested to the protestors that they stage a sit-in at the segregated lunch counters in town, the crowd of onlookers reacted with jeers and became agitated. Id. at 550, 85 S.Ct. 453. Police feared that “violence was about to erupt” from the crowd of onlookers and dispersed the student protestors with a canister of tear gas, arresting the student leader the following day for breach of the peace. Id. at 548, 550 n. 12, 85 S.Ct. 453. The Supreme Court invoked Edwards, noting that the “evidence showed no more than that the opinions which the students were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection,” and overturned the conviction because “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Id. at 551, 85 S.Ct. 453 (citation, brackets, and internal quotation marks omitted). Finally, in Gregory v. City of Chicago, a group of civil rights protestors peacefully marched around the Mayor of Chicago’s home to draw attention to and air their frustration with the slow pace of integration in Chicago’s public schools. 394 U.S. at 111, 89 S.Ct. 946. The protestors were assaulted by onlookers with rocks and eggs, despite “a determined effort by the police to allow the marchers to peacefully demonstrate.” Id. at 117, 89 S.Ct. 946 (Black, J., concurring). The protestors hurled invective back at their hecklers; but otherwise “maintained a decorum that sp[oke] well for their determination simply to” exercise their constitutional rights. Id. The police determined that the hecklers “were dangerously close to rioting,” and therefore ordered the protestors to leave. Id. at 120, 89 S.Ct.