First Amendment Coalition » protected speech

Federal appeals court rejects lawsuit claiming police violated rights of protestors during 2008 Republican Convention

donal brown — Tue, 17 Jan 2012 20:52:05 +0000

The 8th U.S. 8th Circuit Court of Appeals found that police had not violated protestors ‘ First And Fourth Amendments rights when they arrested 400 people at the 2008 Republican National Convention in St. Paul, Minnesota.

The court cited widespread violence and vandalism in saying police were justified in conducting mass arrests to restore order. -db

From City Pages, January 13, 2012, by Aaron Rupar.

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Internet free speech: Federal judge dismisses stalker case

donal brown — Sat, 17 Dec 2011 18:13:27 +0000

A federal judge rejected a claim against a man who relentlessly pursued a religious leader on Twitter in a groundbreaking case on free speech and cyberstalking.

The judge said while the speech inflicted “substantial emotional distress,” “nucomfortable speech” was protected under the First Amendment. -db

From The New York Times, December 15, 2011, by Somini Sengupta.

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‘Overbroad doctrine’ upheld in Washington state ruling on car horns

donal brown — Mon, 31 Oct 2011 18:12:17 +0000

The Washington Supreme Court struck down a county noise ordinance forbidding honking car horns for purposes other than public safety. The Court ruled that the ordiance was overbroad in limiting legitimate expression. The decision came in a case in which a woman was arrested for honking her horn in front of a house of a person who protested that she was raising chickens violating homeowner association rules.

A justice writing for the majority set out several instances of horn honking that should be protected, “…a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says ‘honk if you support our troops,’ wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner.” -db

From a commentary for the First Amendment Center, October 31, 2011, by David L. Hudson Jr.

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Louisiana student sues in federal court after suspended for criticizing teacher on Facebook

donal brown — Tue, 25 Oct 2011 19:13:57 +0000

A Baton Rouge high school student sued school officials for suspending him and throwing him out of the honors club for criticizing a teacher on Facebook. The student made the comment from his home and removed it before school the next day.

The boy’s parents contend that the comment was intended as a joke and created no disturbance at the school so should be protected under the First Amendment. -db

From the Courthouse News Service, October 25, 2011, by Sabrina Canfield.

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School bus riders sue policeman for arresting them for making faces

donal brown — Mon, 24 Oct 2011 17:47:40 +0000

Two North Carolina men are suing a town and a member of its police force for arresting them for making faces at him while he drove behind the bus. The men were both minors attending high school when the incident occurred.

The lawsuit contends that the students were within their constitutional rights in making non-threatening faces and gestures at the police officer. -db

From the Courthouse News Service, October 24, 2011, by Ryan Abbott.

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Charges dropped against North Carolina student thrown off campus for criticizing college

donal brown — Mon, 17 Oct 2011 17:49:25 +0000

The Catawba Valley Community College dropped charges against a student, allowing him back on campus after they suspended him for two semesters for criticizing the college’s aggressive marketing of a debit card company to its students.

But the college has yet to change its policy regarding free speech online and is still requiring the student to notify the college when using computers on campus. -db

From a commentary for Foundation for Individual Rights in Education (FIRE), October 14, 2011, by Adam Kissel.

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First Amendment: Stolen valor case goes to U.S. Supreme Court

donal brown — Mon, 17 Oct 2011 16:54:08 +0000

The U.S. Supreme Court agreed to hear the case of a California man held criminally liable for lying about his military exploits. The 9th Circuit Court of Appeals ruled that the man’s lies were permissible under the First Amendment.

A dissenting judge wrote that the Supreme Court had already established that false statements of fact are not protected speech. -db

From the Courthouse News Service, October 17, 2011, by Barbara Leonard.

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Profanity not always protected by First Amendment

donal brown — Mon, 10 Oct 2011 16:07:45 +0000

A suburban Chicago city recently rescinded a law against profanity in public places out of concern that the law may run afoul of the First Amendment, but says David L. Hudson Jr. of the First Amendment Center, the Constitution does not always protect profanity.

The list of unprotected speech includes fighting words, true threats and incitement to violence or other unlawful acts. -db

From a commentary for the First Amendment Center, October 6, 2011, by David L. Hudson Jr.

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Free speech: Memo criticizing department head in community college ruled protected speech

donal brown — Thu, 18 Aug 2011 19:58:10 +0000

A California appeals court found that a memo sent by a disgruntled teacher, Raymond Launier, to a community college faculty criticizing the psychology department chair was protected speech. The ruling hinged on the issue of whether the memo was sent “without malice.”

The appellate judge said that given the testimony at trial, a jury could reasonably conclude Laurnier was not motivated by malice, and “Laurnier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom.” -db

From the Metropolitan News-Enterprise, August 16, 2011, by Shrri M. Okamoto.

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Federal appeals court rules article on Ohio mayor not libelous

donal brown — Mon, 25 Apr 2011 16:22:12 +0000

The 6th circuit U.S. Court of Appeals ruled against a mayor who sued for libel after a magazine published an article entitled “The Bizarre Boy Mayor” in which the writer said the mayor “pulled off stunts” such as limiting residents’ participation in meetings and seeking personal information about constituents including young women.

The appeals court sided with the lower court in concluding that the article was protected opinion, “Based upon the totality of the circumstances, we are convinced that there is no genuine issue of material fact as to whether the statements at issue constitute fact or opinion: the ordinary reader would accept the article as opinion.” -db

From The Reporters Committee for Freedom of the Press, April 22, 2011, by Kacey Deamer.

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ACLU sues in Washington state for right to run ad alleging Israeli war crimes

donal brown — Thu, 20 Jan 2011 19:41:09 +0000

Seattle Times
January 19, 2011
By Keith Ervin

After complaints about an ad set to run on Seattle buses alleging Israeli war crimes, King County withdrew the ad prompting a suit by the American Civil Liberties Union of Washington saying withdrawing the ads violated the First Amendment rights of the sponsoring group. -db

Federal appeals court says cheerleader must cheer for player accused of sexually assaulting her

donal brown — Tue, 28 Sep 2010 19:40:14 +0000

The 5th Circuit Court of Appeals ruled that a cheerleader’s refusal to root for an athlete accused of sexual assaulting her is not protected speech, and the school district had “no duty to promote” the cheerleader’s message. -db

Salon.com
Commentary
September 24, 2010
By Tracy Clark-Flory

Cheerleading is often maligned as an illegitimate, unchallenging sport — but you just try to imagine having to shake your pom-poms for an athlete accused of sexually assaulting you. An appeals court has ruled that a former high school cheerleader’s refusal to root for a basketball player who she claims sexually assaulted her, and who pleaded guilty to a lesser charge of simple assault, is not protected under the First Amendment as free speech.

In 2008, the girl, dubbed H.S. in court documents, claimed that athletes Rakheem Bolton and Christian Rountree sexually assaulted her at a party when she was 16. A grand jury initially declined to indict the pair, and school officials “ordered her to cheer for Bolton when the other cheerleaders cheered or go home,” reports First Amendment Center (FAC). H.S. agreed to go along with the routines, but refused to cheer for Bolton in particular, so she was cut from the squad. Her parents decided to sue the district attorney, the school district and the school’s principal, alleging in part that H.S. “was punished because of her ‘symbolic expression’ not to cheer for Bolton,” reports FAC. The suit was dismissed.

Months later, Bolton and Rountree were indicted and Bolton pleaded guilty to simple assault. Still, earlier this month, an appeals court upheld the original dismissal of the case, and its allegation of a First Amendment violation. A three-judge panel wrote that “in her capacity as cheerleader, H.S. served as a mouthpiece through which (the school district) could disseminate speech — namely, support for its athletic teams.” School officials “had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”

I didn’t think it was possible for cheerleading to look any less appealing to me — but, thank you, 5th U.S. Circuit Court of Appeals, for proving me wrong.

Jefferson center announces dubious awards for stifling free expression

donal brown — Tue, 13 Apr 2010 20:18:14 +0000

The Thomas Jefferson Center has made its 19th annual “Jefferson Muzzle” awards for those who demonstrated notable disregard for First Amendment last year. For the detailed list of the winners, go to Jefferson Muzzles. -db

First Amendment Center

Commentary
April 13, 2010
By David L. Hudson Jr.

An unusually diverse group of winners headlined the 19th annual “Jefferson Muzzle” awards, unveiled today by the Thomas Jefferson Center for the Protection of Free Expression.

Every year, the Virginia-based center has awarded the dubious distinctions around the anniversary of Thomas Jefferson’s birthday (April 13) to those persons, groups or entities that showed a flagrant disregard for fundamental First Amendment principles during the previous year.

Reflecting a pattern in recent years, several of this year’s recipients were cited for incidents of censorship in public schools. In North Dakota, the West Fargo School Board removed a school adviser because he allowed too much negative content in student-written editorial columns. In California, Principal S.K. Johnson of Orange High School ordered the lockdown of 300 copies of a student magazine because it glorified tattoos. In Puerto Rico, meanwhile, the Department of Education ordered the removal of five books from library shelves because they supposedly contained vulgar language.

“Public school administrators and schools boards often tend to follow the path of least resistance,” explained Robert O’Neil, founding director of the Thomas Jefferson Center. “As schools have moved toward policies of zero tolerance for controversial student speech, more incidents of censorship arise.” He noted that the climate of censorship in public schools has increased in a post-Columbine environment.

Another Muzzle went to the administration of Southwestern College in Chula Vista, Calif., for confining student protesters to a “free-speech patio.” Many universities have come under fire from First Amendment advocates for relegating demonstrators to so-called free-speech zones, but Southwestern College officials were even bolder with their “patio.”

“It is a novel design, if not a novel concept,” said O’Neil. “Free-speech zones are the more familiar and widespread concept. This patio concept limits and marginalizes student speech and clearly merits a Muzzle award.”

Meanwhile, prison administrators in Virginia earned a Muzzle for denying a routine request by an inmate for a CD of a Christian sermon. Kyle Mabe had requested a copy of the sermon “Life Without a Cross.” The Virginia Department of Corrections denied the request, though it allowed other inmates to obtain music CDs.

“This was a baffling and contradictory policy on the part of the corrections department,” O’Neil said, adding that the department also merited its award because it ended a successful program called “Books Behind Bars.”

The Oklahoma Tax Commission garnered a Muzzle for rejecting a request for an “IM GAY” vanity plate from the now-deceased Keith Kimmel. Officials denied Kimmel’s request even though they allowed heterosexual tags such as “STR8FAN” and “STR8SEXI.”

“We were quite startled at the lack of clarity in the state commission’s policy and then the stark difference in treatment” on sexual orientation, explained O’Neil.

Notably absent from this year’s list of Muzzles was the administration of President Barack Obama. Presidents George H.W. Bush, Bill Clinton and George W. Bush or high-ranking officials in their administrations earned Muzzles in the past. “There was only one Muzzle awarded to a federal government official (this year) and that was a member of the House of Representatives,” said O’Neil. “The rest are all state and local officials which is unusual.” He explained that it is “too early to tell” whether the Obama administration ultimately will do a better job of protection speech than past administrations.

The year’s list of Muzzles shows that censorship is alive and well. “It certainly doesn’t go away,” O’Neil said. “Some of the crudest forms of censorship we don’t see as much, but it is a continually evolving process and there are always plenty of examples.”

Southern California: Appeals court rules against student for Web site hate speech

donal brown — Thu, 18 Mar 2010 18:23:27 +0000

A California private school student lost an appeal of a decision against him for death threats he sent to a classmate on the classmate’s Web site. The court said the speech was not protected under the First Amendment since it conveyed serious expression to inflict bodily harm. -db

Courthouse News Service
March 17, 2010
By Avery Fellow

(CN) – A California private-school student who posted death threats on a classmate’s Web site isn’t shielded from hate-crime allegations, because the comments weren’t protected speech, a state appeals court ruled.

Even if the post was constitutionally protected “jocular humor,” as the student claims, it does not concern a “public issue” under the state’s anti-SLAPP law, the 2nd District Court of Appeal ruled.

A 15-year-old student at Harvard-Westlake School posted a message on another student’s Web site, stating, “I want to rip out your fucking heart and feed it to you. I’ve wanted to kill you. If I ever see you I’m … going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.”

The recipient of the spiteful messages sued for violations of the state’s hate-crime laws, defamation and intentional infliction of emotional distress. He had created the Web site to promote his singing and acting career; one of his songs has been broadcast nationally on satellite radio.

On the advice of police, the alleged victim withdrew from the private school. His family then moved to northern California, where he enrolled at a new school.

The appeals court in Los Angeles ruled that the post was a “true threat” and not constitutionally protected.

The post’s author failed to show that the victimized student’s claims were subject to the anti-SLAPP statute, which protects defendants from lawsuits meant to stifle First Amendment rights, the court ruled.

The messages “were motivated by a misperception of [plaintiff]‘s sexual orientation,” the ruling states. California hate-crimes laws protect individuals from threats of violence based on perceived sexual orientation.

“The threat in this case was not merely a few words shouted during a brawl; it was a series of grammatically correct sentences composed at a computer keyboard over a period of at least several minutes,” Justice Robert Mallano wrote.

“If the threat conveys a serious expression of an intent to inflict bodily harm at all or in any manner, it is not constitutionally protected,” Mallano added.

The defendant argued that his extreme dislike of the plaintiff’s radio song had motivated the post, not the plaintiff’s sexual orientation.

Justice Mallano found this argument absurd.

“That a one-time hearing of a song on the radio could generate so vitriolic a reaction defies reason,” he wrote.

Dissenting Justice Frances Rothschild said the post was protected speech, because the plaintiff is “a person in the public eye” due to his fledgling career in the entertainment industry.

She characterized the post as “just one more link in the chain of vulgar, adolescent rants.”

First Amendment: Federal court allows Nevada to ban brothel ads

donal brown — Mon, 15 Mar 2010 20:06:05 +0000

A federal appeals court ruled that the state of Nevada could regulate brothel ads under the First Amendment owing to the unique social and legal characteristics of prostitution. -db

Courthouse News Service
March 10, 2010
By Elizabeth Banicki

(CN) – Legal brothels in Nevada cannot publicly advertise under the protection of the First Amendment because prostitution is a “vice” with unique social and legal characteristics that must be regulated by the state, the 9th Circuit ruled.

The publishers of two Nevada newspapers that circulate in areas where prostitution is illegal, and the owner of a legal brothel sued Nevada for being too strict in regulating the advertising of prostitution.

The district court ruled that the state’s advertising restrictions were unconstitutional because they reach beyond pure commercial speech. The court concluded that the state failed to offer any compelling interest in support of its policy.

Nevada appealed, and the 9th Circuit reversed the district court’s ruling based on the state’s position that it is largely interested in regulating “the commodification of sex,” according the ruling.

“Taking into account the quite unique characteristics, legal and social, of prostitution, we conclude that Nevada’s regulatory scheme is consistent with the First Amendment,” the three-judge panel ruled.

The newspaper publishers claimed that what they proposed was the advertising of nothing more than information regarding a “commercial transaction,” which is protected by free speech, and that the state’s restrictions single out the advertising of prostitution and place it wrongfully under “strict scrutiny.”

The San Francisco-based appeals panel disagreed and ruled that the state’s regulations might target commercial speech, but that in the case of sex-related activities, legislators have the authority to place greater restrictions because they are generally disfavorable and so should be treated differently.

“Whether the law ought to treat sex as something, like babies and organs, that is ‘market-inalienable,’ or instead should treat it as equivalent to the sale of physical labor, is a question much contested among legal academics and philosophers,” the panel acknowledged.

Judge Marsha Berzon wrote that a strong reason for agreeing with the state’s position “derives from the degree of disfavor in which prostitution is held in our society.

“Forty-nine of all fifty states today prohibit all sales of sexual services,” she wrote. “The federal government recognizes the link between prostitution and trafficking in women and children, a form of modern day slavery.”

Judge John Noonan concurred, stating that “the United States may constitutionally suppress speech that offers sexual intercourse for sale.”

Southern California: Workers want right to solicit work on street corner

donal brown — Mon, 08 Feb 2010 17:51:21 +0000

Day laborers in Costa Mesa are contesting a city law that bans them from seeking employment on city streets. The laborers want “solicitation speech” included as protected speech under the First Amendment. -db

Courthouse News Service
February 8, 2010
By Elizabeth Banicki

SANTA ANA, Calif. (CN) – Day laborers say Costa Mesa enforces an unconstitutional ordinance that prohibits them from seeking employment on public streets. The Asociacion de Jornaleros or Association of Day Laborers claims the 2005 ordinance violates the First and 14th Amendments.

The plaintiffs, Asociacion de Jornaleros of Costa Mesa and the Colectivo Tonantzin or Tonantzin Collective, say they are “dedicated to protecting the interests of immigrant workers and their families.”

The city claims it enacted its law because of residents’ complaints about noise and loitering.

But the workers say that “Solicitation speech is indisputably a form of expression entitled to the same constitutional protections as traditional speech.”

The city allows people to protest the war in Iraq shouting and waving signs, the groups say. So it cannot fairly ban someone from waving a sign to seek work.

The ACLU and the Mexican American Legal Defense and Educational Fund (MALDEF) have filed seven previous federal lawsuits in California over the past 12 years challenging such ordinances, the Los Angeles Times, reported, and the workers either settled or prevailed in all of them.

The workers say the ordinance is overboard, vague, and lends itself to discriminatory enforcement. They want its enforcement enjoined, and damages for constitutional violations.

They are represented by Gladys Limon with MALDEF and Belinda Helzer with the ACLU.

Michael Jackson’s dermatologist fights anti-SLAPP to sustain defamation suit against plastic surgeon

donal brown — Wed, 03 Feb 2010 21:37:31 +0000

Michael Jackson’s dermatologist is fighting an anti-SLAPP motion to keep his lawsuit going against a plastic surgeon he says defamed him for suggesting that he was instrumental in providing the medication that killed the singer. -db

The Los Angeles Wave
February 2, 2010
By Wire Services

A dermatologist who alleges a plastic surgeon defamed him by publicly implying that he had a hand in the late Michael Jackson’s death is rebutting an attempt to have his lawsuit dismissed.

Lawyers for Drs. Arnold Klein and Steven Hoefflin will square off in Los Angeles Superior Court on Feb. 11 because the plastic surgeon’s attorneys have filed an anti-SLAPP — Strategic Lawsuit Against Public Participation — motion in a bid to have the case thrown out.

“It is not clear to me why Dr. Hoefflin holds the malice for me that he manifested by stating publicly that I was instrumental in providing the medication that caused Michael Jackson’s death,” Klein states in his sworn declaration filed last Friday.

Klein’s lawsuit against Hoefflin, filed Sept. 14 in Los Angeles Superior Court, alleges slander, trade libel, false light, intentional and negligent infliction of emotional distress and unfair competition.

Klein contends Hoefflin made statements in a newspaper interview hinting that Klein may be implicated in Jackson’s death. According to the lawsuit, Hoefflin told a reporter for the British tabloid The Sun on Aug. 26 that Jackson’s personal physician, Dr. Conrad Murray, would have asked Klein to tell him how to administer propofol and would have counted on him to be his source of the drug and to guide him in its use.

Klein says anyone reading the statements “would erroneously believe that Dr. Klein was implicated in the homicidal death of Michael Jackson, either as the source of the lethal propofol and/or as the guide to whoever was responsible for the lethal propofol treatment of Michael Jackson.”

In court papers filed Oct. 30 seeking dismissal of Klein’s suit, Hoefflin maintains that he spoke out on a matter of public interest and therefore what he said is protected speech.

But in his declaration, Klein says he never met or spoke to Murray, nor did he provide the doctor with propofol or with instructions on how to administer it.

“On the day Michael Jackson died I was working with patients,” Klein says. “I received no telephone calls that day from Conrad Murray or from anyone claiming to act on his behalf.”

Klein states he and Hoefflin occasionally worked together in the past, but no longer do so and are now competitors.

Jackson died June 25 at age 50. The coroner’s office ruled that his death was a homicide and that it was caused by “acute propofol intoxication.”

Murray, who administered propofol to Jackson at his rented Holmby Hills estate on the morning of his death, is under investigation but has not been arrested or charged in connection with the singer’s death.

Hoefflin claimed after Jackson’s death that he was an authorized spokesman for the singer’s mother, Katherine Jackson, and that he also was working on a book with her, even though her lawyers said she did not give the physician permission to speak on her behalf, according to Klein’s suit.

Free speech case: Prosecutors won’t file charges on posting of distasteful anti-Muslim images

donal brown — Mon, 11 Jan 2010 22:28:54 +0000

Minnesota prosecutors declined to file charges against a man posting crude anti-Muslim images in front of a mosque and a Somali-owned store in St. Cloud.-DB

Minneapolis Star Tribune
January 7, 2010
By Patrick Condon

MINNEAPOLIS (AP) – Two Minnesota prosecutors say they won’t file charges against a man who investigators say admitted posting anti-Muslim images in front of a mosque, a
Somali-owned store and other spots.

They say the cartoons are protected under the First Amendment.

The posters put up last month in the St. Cloud area depicted images such as the Prophet Muhammad engaged in bestiality and an Islamic crescent with a swastika inside it.

Some in the community say there should be legal consequences. But the chief prosecutors in both counties where the cartoons were found said they must be considered free speech.

Stearns County Attorney Janelle Kendall called it a “classic First Amendment case.” Benton County Attorney Robert Raupp says religious criticism is protected speech, even if it is offensive.

Professor argues art should be protected speech under the First Amendment

donal brown — Tue, 05 Jan 2010 21:36:21 +0000

A University of Iowa law professor says that since a work of art can be interpreted in various ways, it can not be treated as other unprotected speech since its message is not “intended, serious and imminent.” -DB

The Washington Post
Opinion
January 5, 2010
By Randall P. Bezanson

If a National Endowment for the Arts panel decides, based on artistic merit, to provide NEA funding for Robert Mapplethorpe’s homoerotic art, what can the government do about it?

The head of the NEA, following a law passed by Congress, would surely deny the funding because the art is dangerous — indecent and inconsistent with traditional American values. He would be wrong.

To the question “What can government do about dangerous art?” my answer is, “Nothing.”

Mapplethorpe’s art is nonrepresentational. It is art whose aesthetic character evokes meaning in the diverse minds and imaginations of viewers rather than in the force with which a proposition is communicated to an audience. Warhol, say, rather than Dolce & Gabbana.

Mapplethorpe’s art is within a class of art that, from time immemorial, has been censored because of the harms that are claimed to flow from the art itself, such as blasphemy, rage, and destruction of property.

Why should “harmful” art be absolutely free from government restriction under the Constitution? There are two basic reasons. The first goes to the meaning of nonrepresentational art. Simply put, there is no single message and meaning, or even a narrow range of meanings.

Take Serrano’s “Piss Christ” photograph, to pick another particularly aesthetic and emotive example. To some its meaning is just “hateful;” to others it is blasphemous; still others believe it reflects the evil done in the name of religion; and there are those to whom it reflects the obscurity of Christ and his teachings in an evil and condemned world of sin. And so on. It really doesn’t matter what Serrano meant.

How about Pollock, who took obscurity to a new level? Or Duchamp, the non-obscurity of whose urinal in “Fountain” evoked thousands of meanings?

The second reason is that the law, and especially the First Amendment, insists on cause and effect, carefully proven, before expression can be banned. The First Amendment assumes that speech is an intentional act of a person communicating a message to an audience that reasonably understands that message. Such a speaker can be held responsible for harm his message produces if it is intended, serious, and imminent.

Who, under this standard, is responsible for the danger posed by nonrepresentational art? Not the artist, who unleashes emotion and imagination knowing that any specific idea about meaning will be frustrated from the outset. Not the art, which carries no single meaning but is, instead, just an aesthetic “thing.”

No, the parties responsible are us, the audience. In the case of harm, it’s some people who found a message others didn’t and took matters into their own hands. Their imagination and sensibility caused a harm – perhaps a fatwa, perhaps property destruction – and it is they who are responsible for their own volitional acts.

Randall P. Bezanson, the David H. Vernon Professor of Law at the University of Iowa College of Law, is the author of “Art and Freedom of Speech,” published by the University of Illinois Press in August.

Courts consider distinction between hyperbole and real threat

donal brown — Mon, 30 Nov 2009 20:00:09 +0000

This week two courts will hear arguments on whether particular threats should be considered the protected speech of hyperbolic rhetoric or taken as real threats. -DB

First Amendment Law Prof Blog
November 24, 2009
By Kathleen Bergin

Upcoming trials test the boundary between ‘true threats’ and hyperbolic on-line speech

The trial of Hal Turner is scheduled to begin on December 1 in Brooklyn, NY. He’s the man accused of making threats on his website against three Seventh Circuit judges after they issued a decision to uphold Chicago’s ban on handguns. (prior post links to web transcript). Law.com reports that a federal judge has already ruled as a matter of law that Turner’s posts fall into the category of unprotected threats, leaving open the question of whether Turner harbored the requisite intent that is necessary to obtain a conviction. According to the report, Turner plans to establish a defense based on his work as an FBI informant, which he says taught him how to engage in hyperbolic rhetoric without breaking the law.

Meanwhile, two men from Massachusetts have been charged with making threats against a probation officer and a state trooper in a rap video they posted on You-Tube. The video, entitled “Watch 4 Me,” identifies both the trooper and probation officer by name, shows images of a woman with a gun pointed at her head, and the sound of gun shots in the background. A hearing is scheduled in that case for November 30.

School denies students right to wear anti-Islam T-shirt

donal brown — Mon, 30 Nov 2009 19:46:51 +0000

The American Civil Liberties Union is suing a school district in Gainesville, Florida for punishing students for wearing T-shirts promoting their religious beliefs that included anti-Islam slogans. -DB

American Civil Liberties Union
Opinion
November 25, 2009
By Brandon Hensler

Islam is of the Devil.

That is the T-shirt slogan that instigated a hailstorm of debate in Gainesville, Fla., about where to draw the line between offensive speech and speech that is intended to incite harm or violence. The T-shirts in question were worn to school by students of varying ages from elementary to high school.

Initially, students — all members of the Dove World Outreach Center, a Christian church — went to school wearing shirts with “Jesus answered ‘I am the way and the truth and the life; no one goes to the Father except through me’” and “I stand with Dove World Outreach Center” on the front and “Islam is of the Devil” on the back. School administrators responded by banning the shirts, and in some cases, suspending the students.

The ACLU of Florida filed a federal lawsuit against the Alachua County School District charging that school administrators unlawfully censored students’ free speech for wearing T-shirts promoting their religious beliefs about Christianity and Islam in school and at school events earlier this school year.

While school officials have a responsibility to both protect students and ensure that all students are able to pursue their education free of disruption, harassment, discrimination and intimidation, they failed here by banning free speech. Regardless of the offensive nature of the message on the shirts, it is protected speech.

The Alachua County School Board’s policy allowing school officials to ban messages that are “offensive to others” is very subjective, and fails to hold officials to clear standards setting out what speech can be banned. No disruption ever occurred in the school to warrant the T-shirt ban. Indeed, the school board eventually banned the T-shirts even with the back covered so that the message could not be seen because everybody would know what was underneath!

Furthermore, in an event that made it clear school officials were willing to go to any length to ban the shirts, administrators instructed police to eject the students and their parents from school property during an Alachua County high school football game in October. The students and their parents wore three different versions of the shirts to the game and did not disrupt the game or engage in disruptive behavior with other fans. They were still removed from the premises because school officials found the message offensive.

In an attempt to prevent litigation, the ACLU submitted 27 different slogans that the students wanted to wear and asked the district which would be banned — the district refused to offer any guidance. The students have not worn the shirts to school since the October incident for fear of disciplinary action by the school officials.

The ACLU, which has a rich history of defending religious freedom, is seeking a court order so that the students can begin wearing the shirts to express their religious viewpoint. The views of these students may be in the minority, but that is precisely why they need protection: so their views are not trampled by the majority. Free speech for one; free speech for all.

A recent Independent Alligator editorial summed it up well: Were it not for the freedom of the press and other freedoms we enjoy as Americans, we might not have the opportunity to share views about this church or other contentious issues.

Court hears arguments against government penalization of false statements

donal brown — Thu, 05 Nov 2009 20:01:21 +0000

A federal court of appeals heard arguments this week on whether the government can impose criminal penalties on a man for falsely claiming he served in the military and earned the Congressional Medal of Honor. The man was convicted of violating the Stolen Valor Act which prohibits lying about military service. -DB

Metropolitan News-Enterprise
November 5, 2009
By Kenneth Ofgang

A federal act making it a crime to falsely claim that one holds the Congressional Medal of Honor violates the First Amendment, the attorney for a former member of the Three Valleys Municipal Water District board told a Ninth U.S. Circuit Court of Appeals panel yesterday in Pasadena.

“In some cases, false speech is protected speech,” Deputy Federal Public Defender Jonathan D. Libby told the judges. “This is one of those cases.”

Xavier Alvarez was elected to the water board in 2006 by south Pomona voters. Asked to introduce himself at his first meeting, he explained that he had served for 29 years in the Marine Corps and held several decorations, including a Medal of Honor for pulling the flag from the embassy in Iran during the hostage crisis in the 1970s.

In fact, he had never served in the military. He was convicted of violating the Stolen Valor Act and was placed on probation, the conditions of which included service at a veterans’ home.

Alvarez remained a member of the board, however, until last month, when he was sentenced by Los Angeles Superior Court Judge Michael Camacho to five years in state prison for misappropriating district funds by qualifying his ex-wife for insurance benefits.

Both Libby and Assistant U.S. Attorney Craig Missakian were questioned pointedly by Judges Jay Bybee and Milan D. Smith Jr. as to how far the government can go in penalizing false statements.

It would be “astonishing” for a court to find as a general proposition that lies enjoy free speech protection, Bybee said, and Libby did not disagree. But the defense attorney insisted that the Stolen Valor Act, which contains no requirement that the lie be made with intent to defraud or deceive, or be made under oath, crosses the line.

Under questioning by Smith, Libby acknowledged that the government “has a legitimate interest to protect here.” But that interest does not require a criminal statute, Libby said, because Congress could have imposed civil liability in favor of anyone injured by a violation.

The reputations of actual Medal of Honor recipients—94 of whom are currently living—are already protected because anyone can go to a government website containing their names and personal histories, Libby added.

Bybee acknowledged that lying in the political process is common, and that a degree of free speech protection likely exists for falsehoods told in support of, or in opposition to, political objectives. But he questioned whether that same principle applies to the specific falsehoods banned by the Stolen Valor Act.

“What interest is this speech spurring?” he asked.

Libby suggested that Alvarez’s speech was in part political, since he was an elected official seeking to inflate his reputation.

Smith, the brother of former U.S. Sen. Gordon Smith, an Oregon Republican, said the statute might be overbroad. But he said he was troubled by the “open-ended concept” of constitutional protection for false speech.

He contrasted Alvarez’s boasts with Daniel Ellsberg’s leaking of the Pentagon Papers, an event that may have sped up American disengagement from Vietnam.

“What public good is your client doing her that warrants this level of constitutional protection?” he asked.

But Smith also asked Missakian whether Congress can ban lies that lack identifiable negative consequences. The prosecutor acknowledged that the government cannot ban lying “about a person’s age or about whether there is a Santa Claus,” but said Congress could protect against “a more generalized harm.”

The law is not so broad, he said, as to allow prosecution of someone who makes a hyperbolic claim that is not intended to be believed, or who participates in a theatrical performance.

Smith also asked Missakian about the claim that Alvarez’s speech was political, and that prosecuting him for it was akin to a revival of the Sedition Act used by 18th Century Federalists to punish criticism of their performance in office.

Missakian said that while participants in public discourse are entitled to “breathing space,” that concept “doesn’t extend to intentional lies.”

In a brief rebuttal, Libby returned to the argument that Alvarez’s speech was political, which led to nervous laughter in the room after Smith attempted a play on words following mention of Alvarez’s service on the “water board.”

“We don’t want to talk about the waterboard,” he commented, bringing a half-smile to the face of Bybee, sitting immediately to his right. Bybee has been sharply criticized for his authorship, while serving as assistant attorney general in the administration of George W. Bush, of a memo suggesting that detained enemy combatants could be subjected to “enhanced interrogation techniques.”

The third member of the panel, Senior Judge Thomas G. Nelson, participated via videoconference but did not ask any questions.

Supreme Court lets stand lower court ruling that Illinois need not offer ‘Choose Life’ license plates

donal brown — Tue, 06 Oct 2009 19:55:25 +0000

The Supreme Court rejected a free speech claim from Choose Life Illinois Inc. upholding an appellate court ruling that the plate would have given the impression that Illinois was taking sides in the abortion controversy. -DB

Boston Tribune
By David G. Savage
October 5, 2009

WASHINGTON, D.C. — Illinois need not offer “Choose Life” license plates to motorists, under a ruling the Supreme Court let stand today.

The justices turned down a free-speech claim from Choose Life Illinois Inc., a group that supports adoption and opposes abortion.

It had gathered more than 25,000 signatures from persons who wanted a “Choose Life” plate, but the state refused to issue the specialty plate. State officials said Illinois did not want to appear to be taking a position on the abortion issue.

Choose Life Illinois sued the Secretary of State’s office in 2004 after twice failing to get the General Assembly to approve a specialty plate that would read “Choose Life.”

The group said the plate was intended to support adoption-service providers, and it promised that none of the charitable proceeds from the plates would support anti-abortion political activities.

A federal court in Chicago sided with the group, ordering the state in January of 2007 to manufacture “Choose Life” license plates.

U.S. District Judge David Coar concluded that the state’s nearly 60 specialty license plates amount to private speech protected under the First Amendment.

“Where the government voluntarily provides a forum for private expression, the government may not discriminate against some speakers because of their viewpoint,” Coar wrote.

Coar said the case boiled down to whether a specialty plate constituted an individual’s personal speech or the speech of the government itself. “It is undisputed that the reason for not approving the plate was because of the politically controversial nature of the message,” Coar wrote.

The state’s argument that the plate represented government speech didn’t hold water because the state charges an extra fee to people who want to get them, Coar ruled. “It would be surprising indeed for the state to require a private individual to create, apply for and pay for what would be considered government speech,” Coar wrote.

Coar recognized the controversial nature of his ruling. The state “argues that if the ’Choose Life’ message is permissible, then the state would also have to issue Ku Klux Klan or Nazi plates to avoid viewpoint discrimination,” he wrote. “The issue of whether there may be any limits on the right to have messages displayed … does not have to be decided in this case.”

Coar’s ruling, however, was overturned by the Seventh Circuit Court of Appeals in November of 2008.

A three-judge panel of the appeals court ruled that state officials were not violating the First Amendment by declining to issue specialty license plates relating to abortion.

Because the state has excluded the “entire subject” of abortion from its specialty license plate program, its decision to reject a “Choose Life” license plate is permissible under the First Amendment, the appellate court held.

The appeals court concluded that the state’s decision to exclude the subject of abortion from license plates is based on the “reasonable rationale that messages on specialty license plates give the appearance of having the government’s endorsement, and Illinois does not wish to be perceived as endorsing any position on the subject of abortion.”

On Monday morning, the Supreme Court affirmed the appellate ruling.

Despite Monday’s setback in the high court, 24 states offer “Choose Life” license plates, and efforts are under way to gain approval in 14 more states.

High court hears arguments: animal rights versus free speech

donal brown — Tue, 06 Oct 2009 18:59:35 +0000

The U.S. Supreme Court heard arguments this week on whether videos of dogfights are protected speech under the First Amendment. The Obama administration is asking the court to reinstate the Federal Depiction of Animal Cruelty law, restricting the sale of videos and depictions of animal cruelty. -DB

NPR
October 6, 2009
By Deborah Tedford

Animal rights groups and free speech advocates squared off in a major First Amendment battle Tuesday, as the U.S. Supreme Court prepared to decide whether videos of illegal dogfights are protected speech.

In oral arguments, the Obama administration asked the justices to reinstate the Federal Depiction of Animal Cruelty statute. The 10-year-old law prohibits the sale of videos and other depictions of animal cruelty in jurisdictions where the activities shown are illegal unless they have “serious value.”

But Virginia filmmaker Robert Stevens argued in court filings that the law is too broad and violates his constitutional right to free speech. In 2005, Stevens was convicted of producing violent videos of dogfights and sentenced to 37 months in prison, but a federal appeals court found the law unconstitutional and overturned his conviction.

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At issue in U.S. v. Stevens is whether animal cruelty should be categorized as expression so reprehensible that it does not deserve First Amendment protection. That hasn’t been done since the court’s landmark 1982 ruling on child pornography.

During arguments Tuesday, several of the justices indicated that they may agree with Stevens.

“Why not do a simpler thing?” Justice Stephen Breyer asked a lawyer for the government. “Ask Congress to write a statute that actually aims at the frightful things they were trying to prohibit.”

Stevens’ lawyer Patricia Millet said Congress must be careful when restricting an individual’s right to free speech, noting lawmakers should use “a scalpel, not a buzzsaw.”

Representing the government, Deputy Solicitor General Neal Katyal said Congress was careful to exempt hunting, educational, journalistic and other depictions from the law. Katyal urged the court not to wipe away the legislation in its entirety, but to allow courts to decide on a case-by-case basis whether videos are prohibited.

Justice Samuel Alito asked if whether the court should focus on the potential prosecution of hunters, “or do we look at what’s happening in the real world?”

Congress passed the law in 1999 with an eye toward limiting Internet sales of “crush videos,” which show women crushing small animals with their bare feet or while wearing high-heeled shoes, according to Rep. Elton Gallegly (R-CA), who sponsored the anti-cruelty legislation.

“Other crimes often go hand-in-hand with animal fighting, including illegal gambling, drug trafficking and acts of human violence,” Gallegly said in a statement on his Web site. “Virtually every arrest for animal cruelty has also led to additional arrests for at least one of these criminal activities. Moreover, gratuitous cruelty toward animals dehumanizes all of us and is simply wrong.”

The case has generated a large amount of interest, in part because of the dogfighting conviction of pro football player Michael Vick in 2007. Vick served nearly two years for running an interstate dogfighting ring from his home in Virginia and was released in May.

Stevens, a pit bull enthusiast, has said he opposes animal cruelty. In court documents, he maintained he did not stage the dogfights and that the videos were intended to be instructional guides for pit bull owners.

He has garnered support from major news organizations and free speech advocates, who argued that the law could discourage efforts to investigate such activities as seal clubbing or animal testing in the cosmetic and pharmaceutical industries if video or photographic images are obtained.

“Images of bullfighting in Spain, historical footage of cockfighting in Louisiana and documentaries about clubbing seals in Canada all could be prosecuted under the statute,” the American Civil Liberties Union stated in a court brief supporting Stephens.

But animal rights advocates and law enforcement agencies around the country argued that removing the profit motive from “blood sports” is a valuable tool for law enforcement authorities.

“The importance of the law in stopping animal cruelty cannot be overstated,” said Sgt. David Hunt of the Franklin County Sheriff’s Department. “It’s a powerful tool to go after those who profit from illegal animal cruelty and promote criminal behavior.”

From NPR staff and wire reports

Court rules teacher can pursue suit over political speech

donal brown — Mon, 17 Aug 2009 22:08:11 +0000

Ruling on a teacher’s claim that he was dismissed for criticizing the school administration, a federal judge said it is already established that public employees do not enjoy First Amendment protection while at work but that the teacher could pursue his suit against the school district on the basis of the teacher’s claim that he also was forced out for his off-campus political activities. -DB

Metropolitan News-Enterprise
August 17, 2009
By Kenneth Ofgang

A former teacher at San Fernando High School may sue school officials whom he alleges forced him out of his job for complaining about how the school was run and engaging in off-campus political activities, including Mayor Antonio Villaraigosa’s campaign, the Court of Appeal for this district ruled Friday.

Div. Three, in an unpublished opinion by Justice Patti S. Kitching, said Los Angeles Superior Court Judge James R. Dunn erred in finding qualified immunity and sustaining a demurrer to Alberto Gutierrez’s third amended complaint stating a 42 U.S.C. Sec. 1983 claim.

Gutierrez resigned from the Los Angeles Unified School District in 2007 after 10 years of employment, the last five at San Fernando. He claims that despite “very good” or “outstanding” evaluations the first four years he was there, he was downgraded and constructively terminated.

Political Events

The events that led to his being forced to resign, he said, included speaking at the Mexican American Political Association conference, appearing as a guest on a Spanish radio talk show, attending an event organized by the Los Angeles Community College District regarding the dropout problem, and speaking at a League of Women Voters meeting about military recruitment on campus.

He originally alleged that he was retaliated against for a number of statements he made at school, including his opposition to the Iraq war. But those allegations were rejected under Garcetti v. Ceballos (2006) 547 U.S. 410, holding that a public employee lacks First Amendment protection for statements made in the course of official duties.

In a third amended complaint, he alleged the defendants—two principals, a vice principal and an assistant principal—retaliated against him because he “joined the Mayor, Antonio Villaraigosa, in the Mayoral political campaigning efforts to change the structure of the LAUSD, so that it would have to be accountable to the Mayor’s office,” he alleged in the third amended complaint.

‘Closed Ranks’

Administrators “closed ranks” and took “aggressive actions” against him, including placing false reprimands in his personnel file and urging students, parents and other teachers to file false complaints against him, he said, because he had persisted in complaining about deficiencies in the school.

Among his complaints, he explained, were that the school had a high dropout rate, particularly among Hispanics; that teaching materials were inadequate; that students were loitering on campus and cutting classes without sanction; that students were attending on-campus concerts involving vulgar music and viewing R-rated films in the library, without parental consent, in violation of district policy; and that military recruiters were allowed to enter classrooms while they were in session.

Kitching, writing for the Court of Appeal, said the allegations were sufficient to withstand demurrer.

While the defendants argued that the actions alleged could not have amounted to constructive termination, Kitching said it was unnecessary for the plaintiff to show constructive termination because the written reprimands were sufficiently adverse employment actions to support a claim.

The justice went on to say that the trial judge erred in ruling that the defendants were entitled to qualified immunity.

Treated as True

The allegations of the complaint, Kitching wrote, are that the plaintiff was retaliated against for statements he made off campus, on matters of public concern. While the defendants claimed that Gutierrez was reprimanded solely for misconduct that occurred at school, the plaintiff’s allegations must be treated as true for purposes of demurrer, the justice said.

She rejected the contention that allegations of retaliation for complaining about school conditions and supporting Villaraigosa were improperly pled because they were inconsistent with earlier allegations that he was retaliated against for his opposition to the Iraq war. The claims were not necessarily conflicting, she said, because the defendants “could have been motivated to retaliate against Gutierrez because of his views about the Iraq war and his statements off-campus about the alleged deficiencies at SFHS.”

If Gutierrez was retaliated against for off-campus statements about matters of public concern, voiced as a citizen and not merely as a teacher, the justice wrote, the defendants violated clearly established law, precluding a finding of qualified immunity at the pleading stage.

The appeal was argued by Michael Strumwasser of Strumwasser & Woocher for the defendants and Humberto Guizar for the plaintiff.

The case is Gutierrez v. Rodriguez, B205542.

Federal court rules sheriff’s deputy criticism not protected speech

donal brown — Mon, 03 Aug 2009 18:36:41 +0000

While criticizing a sheriff for reacting in an irresponsible way to criticism of his use of personnel, the 7th Circuit ruled that the sheriff could discipline the deputy who brought the criticism. The deputy had argued that he had a right under the First Amendment to speak without suffering retaliation. -DB

First Amendment Center
July 30, 2009
By David L. Hudson Jr.

A Wisconsin sheriff who transferred a deputy to patrol a crime-ridden neighborhood on foot in retaliation for criticism in a newsletter did not violate the First Amendment, because the deputy’s speech was “on a matter of purely private concern,” a federal appeals court recently ruled. However, the appeals court criticized the sheriff’s response as “childish,” “potentially harmful” and “irresponsible.”

The controversy began in May 2005 after the Milwaukee County Deputy Sheriffs’ Association criticized Sheriff David A. Clarke Jr. for directing on-duty officers to escort him to and from the airport. The association called the escorts an improper use of the county’s resources.

A few weeks later Clarke posted the following message on the roll-call board of the sheriff’s department:
“If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others.”“
Deuteronomy, Chapter 20, Verse 8.”

Michael Schuh, an 18-year veteran of the department who worked as a bailiff, took offense at Clarke’s statement and responded two days later in the association’s newsletter, the Star. Schuh’s response published in the newsletter in July 2005, said:

“If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your home when you’re out of the house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).”

In response, Clarke reassigned Schuh — whom he did not know previously — to patrol a very dangerous Milwaukee neighborhood on foot. He also required Schuh to take a bus to and from his new position. Schuh served in this capacity from July to September 2005, before receiving a transfer. He did not suffer a loss in pay or benefits from the retaliatory action.

Schuh and the Milwaukee Deputy Sheriffs’ Association sued, claiming that Clarke violated the First Amendment by retaliating against Schuh for his comment in the newsletter. They also challenged the department’s new confidentiality policy, which required employees to “keep official agency business confidential.” They also filed some state-law claims.

A federal district court granted Clarke summary judgment, which resulted in dismissal of the federal claims.

Schuh and the association appealed to the 7th U.S. Circuit Court of Appeals. On July 21, the 7th Circuit panel affirmed the lower court in Milwaukee Deputy Sheriffs’ Association v. Clarke, beginning its opinion with memorable language: “The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, ‘Sticks and stones may break my bones, but words will never hurt me.’”

First examining the retaliation claim, the panel easily determined that Clarke retaliated: “The record is crystal clear that Clarke responded to Schuh’s remarks by reassigning him to a dangerous neighborhood on a newly created mission of questionable public utility.” The panel further found that “Sheriff Clarke’s response was a childish and potentially harmful reprisal for a two-sentence statement, and we do not condone his conduct.”

However, the panel still ruled against Schuh and the association because it determined that Schuh’s expression did not address a matter of public concern or importance. Public employees have First Amendment protection for speech if they are speaking as citizens, if the speech addresses a matter of public importance and the employees’ free-speech rights outweigh the employer’s interests in a disruptive-free workplace.

The panel found that Schuh spoke as a citizen when he wrote the response because he wrote it off-duty and his job did not require him to write for the newsletter. However, the panel determined that Schuh’s statement did not meet the public-concern requirement, because the speech “was a purely personal response to Sheriff Clarke’s Deuteronomy quote.”

Schuh and the association contended that his comment addressed the waste of taxpayer dollars and the use of officers for illegitimate purposes. But the panel concluded that “in the end, Schuh cannot avoid that he wrote his short statement, which on its face merely questioned Sheriff Clarke’s courage, for purely personal reasons.”

The appeals court also rejected the challenge to the department’s policy of keeping official business confidential. The plaintiffs had argued that such a policy amounted to an unconstitutional prior restraint on expression because it shut down speech entirely. However, the panel interpreted the policy to apply only to speech not protected by the First Amendment — speech “grounded in the public employee’s professional duties.”
Copyright 2009 First Amendment Center

Gates case: Disorderly conduct or protected speech?

donal brown — Thu, 30 Jul 2009 16:34:09 +0000

Concerning the arrest of the Harvard Professor Louis Gates, a commentator for Forbes Magazine says it is important to look beyond the racial and class issues to those of the First Amendment. Does loud and offensive necessarily constitute disorderly conduct? -DB

Forbes Magazine
Commentary
July 28, 2009
By Harvey A. Silverglate

The now-infamous Gates story has gone through the familiar media spin-cycle: incident, reaction, response, so on and so forth. Drowned out of this echo chamber has been an all-too-important (and legally controlling) aspect: the imbroglio between Harvard Professor Henry Louis Gates, Jr., and Cambridge Police Sgt. James Crowley has more to do with the limits (or breadth) of the First Amendment than with race and social class.

The issue is not how nasty the discourse between the two might have been, but whether what Professor Gates said–assuming, for argument’s sake, the officer’s version of events as fact–could by any stretch of both law and imagination constitute a ground for arrest for “disorderly conduct” (the charge leveled) or any other crime. Whether those same words could be censored on a college campus is a somewhat different–though related–question.

First, a quick recap. Gates returned to his Cambridge residence from an overseas trip to find his door stuck shut. With his taxi driver’s assistance, he forced the door open. Shortly thereafter, a police officer arrived at the home, adjacent to the Harvard University campus–in my own neighborhood, actually–responding to a reported possible burglary.

Upon arrival, the officer found Gates in his home. He asked Gates to step outside. The professor initially refused, but later opened his door to speak with the officer. Words–the precise nature of which remains in dispute–were exchanged. Gates was arrested for exhibiting “loud and tumultuous behavior.” The police report, however, in Sgt. Crowley’s own words, indicates that Gates’ alleged tirade consisted of nothing more than harshly worded accusations hurled at the officer for being a racist. The charges were later dropped when the district attorney took charge of the case.

It is not yet entirely clear whether there was a racial element to the initial decision by a woman on the street–working for Harvard Magazine, no less!–to call the police, although that is looking unlikely. It remains disputed whether Sgt. Crowley treated Professor Gates any differently than he would treat a white citizen in the same position. (In fact, if one accepts Crowley’s claim that he dished out to Gates equal treatment under the law, this case stands as a dire warning to all citizens as to the dangers inherent in exercising one’s constitutional right to free speech when in an exchange with a police officer–but more on that below.)

Indeed, Crowley did not arrest Gates for breaking and entering, for by then he was clearly convinced that the professor did live in the building. (For one thing, Harvard University Police officers had by that time arrived at the scene, and they easily could have checked not only that Gates was on the faculty, but that he lived in the Harvard-owned residential building. Gates is one of the most widely known faces in the Harvard community.) Instead, Crowley arrested the diminutive and disabled professor (he uses a cane to walk and bears a passing resemblance to the French painter Henri de Toulouse-Lautrec) for disorderly conduct–the charge of choice when a citizen gives lip to a cop.

By longstanding but unfortunate (and, in my view, clearly unconstitutional) practice in Cambridge and across the country, the charge of disorderly conduct is frequently lodged when the citizen restricts his response to the officer to mere verbal unpleasantness. (When the citizen gets physically unruly, the charge is upgraded to resisting arrest or assault and battery on an officer.) It would appear, from the available evidence–regardless of whether Gates’ version or that of Officer Crowley is accepted–that Gates was arrested for saying, or perhaps yelling, things to Crowley that the sergeant did not want to hear.

As one of Crowley’s friends told The New York Times: “When he has the uniform on, Jim [Crowley] has an expectation of deference.” Deference and respect, of course, are much to be desired both in and out of government service–police want it, as do citizens in their own homes or on their porches or on the street. However, respect is earned and voluntarily extended; it is not required, regardless of rank.

Some have posited that Crowley’s tolerance for citizen vituperation was lower because the speaker was a black man, or a member of the city’s economic and social elite. As a four-decade (and counting) criminal defense and civil liberties lawyer, I can say with reasonable assurance that while there might have been some degree of racial or, more likely, class animus that underlay the contretemps between citizen and officer here, fundamentally the situation can, and should, be analyzed as a free speech case.

Why? Because any citizen–white, black, yellow, male, female, gay, straight, upper or middle or lower class–who deigns to give lip to a police officer during a neighborhood confrontation or traffic stop stands a good chance of being busted. And this is something in police culture nationally–and probably all around the world (I’ve observed Frenchmen giving lip to Paris flics and gendarmes, also with bad results for the civilians)–that begs for change.

And so, before the dreaded thought-reform charlatans start coming out of the woodwork in order to prescribe yet more “sensitivity training” for Cambridge’s finest, everyone should take a step back and ask why so many citizens–including Professor Gates, who, it is conceded, did not assault Officer Crowley–end up being arrested for uttering mere words. Because, whether the words were as perfunctory and non-objectionable as Gates’ claim that he asked for Crowley’s name and badge number, or as heated as Crowley’s claim that Gates let loose a stream of loud and offensive insults, they were, well, just words. Put more simply, why do we as a society so often ignore traditional notions of First Amendment freedom to speak one’s own notion of truth to power when one party to the confrontation is wearing a uniform, a badge and a gun?

Some of the media commentary is quite remarkable, replete with claims that Crowley had a right to arrest Gates because the professor was loud and offensive. Yet what has happened to the notion that under the First Amendment, loudness is OK as long as one is not waking up neighbors in the middle of the night (known as “disturbing the peace”), and offensiveness is fully protected as long as it stops short of what the Supreme Court has dubbed “fighting words”?

This gets us to the heart of the matter. Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella. Think about it: We wouldn’t even need a First Amendment if everyone restricted himself or herself to soothing platitudes. I’ve been doing First Amendment law for a long time and I’ve never had to represent someone for praising a police officer or other public official. It is those who burn the flag, not those who wave it, who need protection.

The test for the limits of such freedom was first and most famously enunciated by Justice Oliver Wendell Holmes, who wrote of the need for protecting “the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Holmes wrote this dissenting opinion in a 1919 Supreme Court case in which a majority affirmed the espionage conviction of five Russian-born Jewish radicals for publishing a pamphlet that sought to provoke resistance to the American war effort as well as to American efforts to undermine the Russian Revolution. Holmes’ view eventually became the law of the land as other Supreme Court justices came to agree with him.

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

Supporters of Sgt. Crowley’s power and right to arrest Professor Gates–assuming the worst version of what Gates spewed at the officer–rely on the “fighting words” doctrine. But there is a problem with such reliance: The Supreme Court’s affirming of a conviction for disturbing the peace based upon “fighting words” directed to a police officer has never been replicated since the original 1942 fighting words doctrine was announced in Chaplinsky v. New Hampshire.

In that infamous speech case, Walter Chaplinsky, proselytizing on the street in Rochester, N.H., denounced organized religion as a “racket.” When Chaplinsky would not moderate his verbal attack, and when the crowd got angry and restive, a police officer took Chaplinsky toward the police station (but did not yet arrest him). During this trip, Chaplinsky accused the city marshal of being “a goddamned racketeer” and “a damned Fascist,” and went on to charge that “the whole government of Rochester are Fascists or agents of Fascists.” For this, Chaplinsky was arrested and charged under a statute prohibiting anyone from addressing “any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call[ing] him by any offensive or derisive name.”

The Supreme Court upheld the conviction on the ground that Chaplinsky had used “fighting words” likely to provoke an immediate violent response from the listener. The high court deemed such language to be “insulting or ‘fighting’ words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

“Such utterances are no essential part of any exposition of ideas,” the court ruled, and they could be banned in “the social interest in order and morality.”

However, a conviction for the use of such language has never since been upheld, and First Amendment lawyers and constitutional scholars widely deem it a dead letter. In fact, in 1943–only one year after its decision in Chaplinsky–the high court had obvious second thoughts about part of its earlier “fighting words” rationale. The court in Cafeteria Employees Local 302 v. Angelos, said that the use of the word “Fascist” (the precise “fighting word” used by Chaplinsky) is “part of the conventional give-and-take in our economic and political controversies.” Thus, the word was protected under federal labor laws.

The dam holding back “bad” words having thus been broken, by 1949 the Court took the further step of reversing the disturbing-the-peace conviction of a suspended Catholic priest and followers of the notorious anti-Semite Gerald L. K. Smith. Father Arthur Terminiello gave a speech in Chicago attacking “Communistic Zionist Jews,” moving an unsympathetic crowd to violence against him. Justice William O. Douglas wrote, in an opinion for the high court that reversed the conviction, that the “function of free speech under our system of government is to invite dispute. It 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.”

Thus, the Court sent a message that the First Amendment prohibits the punishment of words merely because they might produce an angry reaction. Terminiello was particularly important because the offensive language, even though it in fact produced a violent reaction, was not viewed as “fighting words.” It was the job of the police to arrest the violent members of the crowd, not the speaker.

And, to the extent that tossing an expletive at some hothead on the street might conceivably produce a violent reaction, surely such words directed to a trained police officer should not be expected to incite such a response. To be sure, much of police training is specifically directed at producing a peace officer who knows how and when to keep a violent response wrapped under a highly polished discipline. It would be an insult to any law enforcement agent to assume that he or she would respond, with violence, to unpleasant–even offensive–words. Hence, even at its worst, Gates’ reaction to the officer’s presence and questioning cannot by any stretch be deemed grounds for an arrest. Professor Gates, in other words, was fully protected by the First Amendment. It was the officer’s duty to restrain his own response, particularly the exercise of his official powers of arrest.

Indeed, the expansive nature of First Amendment rights, even in a confrontation with official power, was made vivid in the 1971 Supreme Court case, Cohen v. California. Paul Cohen was arrested in the Los Angeles County Courthouse for wearing a jacket emblazoned with the words “Fuck the Draft.” He was convicted for “offensive conduct” because, the state court ruled, “offensive conduct” meant “behavior which had a tendency to provoke others to acts of violence.” Even though no one actually threatened Cohen, said the state court, an attack was “reasonably foreseeable.”

The Supreme Court reversed. The great conservative justice John Marshall Harlan wrote that “Fuck the Draft” was not “obscene” and that its offensiveness did not render it unprotected–even in the corridors of a courthouse! In Cohen, the high court essentially recognized the emotive function of expression, placing emotion alongside logical argument as political speech worthy of constitutional protection. The court spoke to the value, in a free society, of allowing the individual citizen to choose how to express himself. This recognition of the value of self-expression was coupled, in the Court’s view, with an inability of the state to make a principled distinction between “offensive” language and other language, because it is “often true that one man’s vulgarity is another’s lyric.”

There is a certain irony, however, that Professor Gates should be caught up in a controversy that, at bottom, is about the limits of free speech in confronting official power. The irony grows out of the fact that two of the major ways in which an American can run into big trouble for mouthing off without adequate self-censorship are: (1) let a police officer know that you’re not happy with being, or feeling, hassled, or (2) say something politically incorrect on a college campus. In this regard, both Cambridge and Harvard are more typical than special.

University censorship in the name of not “offending” others, including (perhaps especially) members of “historically disadvantaged groups” is now an old story. Professor Alan Charles Kors and I elucidated the sorry state of free speech on campuses of higher education, including Harvard, in our 1998 book The Shadow University: The Betrayal of Liberty on America’s Campuses. Soon thereafter we co-founded The Foundation for Individual Rights in Education to battle the contagion of censorship in the academic world.

Subsequently, I’ve written from time to time about the infliction of penalties for speech that is too frank and potentially found offensive by various categories of students deemed (often degradingly so) by censorious college administrators to be particularly sensitive to insults or even insulting ideas.

Indeed, Professor Gates, to his enormous credit, has parted ways with the ubiquitous speech police on his own and other campuses. In September 1993, Gates wrote for The New Republic a powerful critique of campus “harassment codes” that outlaw unpleasant speech. Gates was dealing with a typical university speech code, such as the one in force at the time (and still in force on campuses all around the country) at the University of Connecticut, that banned “treating people differently solely because they are in some way different from the majority, … imitating stereotypes in speech or mannerisms, … [or] attributing objections to any of the above actions to ‘hypersensitivity’ of the targeted individual or group.”

Gates labeled this hypersensitivity provision “especially cunning” because “it meant that even if you believed that a complainant was overreacting to an innocuous remark, the attempt to defend yourself in this way could serve only as proof of your guilt.” In other words, self-defense against claims of uttering “harassing” speech only furthered the culpability of the accused in the Orwellian world of academic censorship.

Under Gates’ own analysis of the University of Connecticut “harassment” speech code, neither Officer Crowley’s words to Gates, nor the professor’s responses, nor the officer’s replies to those responses, should prove the guilt of either. There was no violence. There were only words, some of which might have been insulting and otherwise unpleasant. And in a free society, verbal expression–even if disagreeable–should never lead to clamped handcuffs.

This is the long and short of it. For whatever significance that columnists, bloggers and commentators project onto the Gates-Crowley confrontation, it was, and likely should remain in the absence of new and compelling evidence to the contrary, a free speech matter governed by the First Amendment to the Constitution.

This will not, perhaps, please those who would like to turn it either into a “teachable moment” for either racial profiling (a phenomenon that doubtless exists, but likely played no role in this case and certainly did not account for Officer Crowley’s initially confronting Professor Gates, whose actions sparked a citizen’s 911 call to the police rather than a spontaneous police stop) or into an example of why police need to protect themselves while on duty (words may wound, but not in any sense recognized by the Constitution).

The Cambridge Police Department and the District Attorney of Middlesex County wisely agreed with Gates and his lawyers to dismiss the charge of “disorderly conduct.” Perhaps the dismissal was occasioned by the discomfort prosecutors–and perhaps both sides–were feeling about proceeding to a criminal trial where both Gates’ and Crowley’s words would be on public display. But the D.A. had another reason for dismissing the charge: Had Professor Gates and his lawyers raised a First Amendment defense, the defendant almost certainly would have prevailed–if not at the trial court level, then in the appellate courts–and the scope of the “disorderly persons” statute would have been severely limited in all future citizen-police confrontations. The future use of handcuffs to penalize a citizen mouthing-off against official authority would have been, at long last, curtailed. Perhaps the common good would have been better served had the case proceeded to trial after all.

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if “free” means anything meaningful, it means being left alone–especially in one’s own home–when one is not breaking the law.

Sgt. Crowley had every right to check on what was reported as a possible break and entry. But as soon as he realized that the occupant was entitled to be in the house, he should have left. He admits in his own police report that he was indeed able to ascertain Professor Gates’ residency and hence right to be in the house.

As for Professor Gates’ inquiries into the officer’s identity and badge number (as Gates describes the confrontation) or his tirade against the officer (as Crowley reports), the citizen was merely–even if neither kindly nor wisely–exercising his constitutional right when faced with official power. Even if Professor Gates were wearing a “Fuck You, Cambridge Police” jacket, the officer would have been obligated to leave the house without its occupant in handcuffs.

Harvey A. Silverglate is co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial paperback, 1999). Kyle Smeallie assisted in the preparation of this piece.

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