FIRST AMENDMENT PROTECTS FOOLISH SPEECH
A man named Michael Wood was no doubt recently relieved to learn that the First Amendment protects foolish, profane speech directed at police officers. As a result, his §1983 case can proceed against a number of Clark County Sheriff officers. Which may be a good result or a bad result depending on your perspective.
Mr. Wood decided to attend the Clark County, Ohio fair wearing a t-shirt that said “F*** the Police.” The Fair Director, Dean Blair, in the presence of a number of officers, asked Wood to leave the fair, even refunding Wood’s entrance fee as an incentive. The police officers then escorted Wood to the fair’s entrance gate. All the while, Wood spoke his mind, at different points referring to the police as “mother***ers,” “b**** ass f***ing pigs,” “f***ing thugs with guns that don’t uphold the United States Constitution” and “dirty rat bastards.” [I think I just set a personal record for most *s in a blog post].
Ultimately, the police arrested Wood and charged him with disorderly conduct and obstructing official business. The prosecutor dismissed the charges and Wood then filed a federal lawsuit under 42 USC §1983, claiming that the officers deprived him of his First Amendment rights and retaliated against him for exercising his First Amendment rights.
The trial court threw the case out, finding that the police had qualified immunity for their conduct. The Sixth Circuit Court of Appeals, however, reversed that decision and sent the case back for further proceedings.
The gist of the Sixth Circuit holding was that police are expected to handle a potty mouthed perp. So, there was no reason for the police to believe that Wood’s tirade would lead to an immediate breach of the peace. That’s what has to take place to constitute disorderly conduct. But the police were trained not to be provoked by the language Wood uttered, and indeed they weren’t. They continued to escort Wood out and did not react to his tirade.
The Sixth Circuit found that the law was sufficiently clear on this point – that spouting off foul language in itself doesn’t constitute a crime – that the police weren’t entitled to qualified immunity. Wood can proceed with his case. I’m sure in his words he is happy AF.
In its conclusion, the court noted that “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” It also noted, “the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”
So to protect the lofty aspirations of the First Amendment, we need, occasionally, to put up with foolishness. That is likely cold comfort for the police here, but it seems to be the law.