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Police Department Unclear on the First Amendment:

The Daily Citizen (Searcy, Ark.) reports:

Just before noon Friday, [Brian] Barnett was standing at the northwest corner of Beebe-Capps Expressway and South Main, near a former feed store containing numerous Reeves signs, holding a sign. The sign's four lines said, "Debate Brian! Chicken s***; 1. Kyle Reeves; 2. Monte Betts." Barnett could be seen speaking to passersby as they rolled down their windows. Nearby workmen said they did not notice Barnett. [EV: It's clear from the article that the sign said "shit," and the "s***" is the newspaper's change.] ...

"You can probably get away with saying he's chicken, but since he's an alderman and a member of the city council, you can't," [Searcy Patrolman Tyrel] Johnson told Barnett. "That word is not acceptable." [EV: From the article and the accompanying photo, it seems that the interaction was recorded, which would explain why the newspaper claims it has an exact quote.] ...

When Sergeant Tom McGee arrived, the three went next door to a tire shop and Barnett could be heard offering to change the sign. Within minutes, however, Barnett was arrested, charged with disorderly conduct, apparently for refusing to obey an officer.

"I asked him on four occasions to remove those letters from that sign," McGee said. "He did remove the 'i' but I asked him to remove the entire word."

Barnett said on his first attempt to change the sign he changed the 'i' to an "L," and when the officers were still insistent, Barnett said he changed it to an "X." ...

"He didn't comply enough," said Terri Lee, police spokesman. "The 'i' was crossed out with a mark that looked like an "I." It wasn't enough. They [the officers] could still read it and they wanted it where it wasn't offensive to anyone." ...

It's quite clear that even vulgarities on signs are generally constitutionally protected (unless they're personal insults said directly to the insulted party). That's what the Court held in Cohen v. California as to "Fuck" on jackets, and it would equally apply to "Shit" on signs. And that's true even when sign is about "an alderman and a member of the city council," and even when the sign is "offensive to [some]one."

Thanks to my old friend (and now Arkansas State Representative) Dan Greenberg for the pointer.

UPDATE: D'oh! I accidentally mistyped "the First Amendment" as "the Fist Amendment" in the heading — as reader Dilan Esper pointed out, "Kind of changes the meaning."

Dilan Esper (mail) (www):
The "Fist" Amendment? I know some police departments who are very clear on that one.
10.20.2008 2:40pm
Bob in SeaTac (mail):
Fist Amendment? I guess that must be the enforcement by the law???
10.20.2008 2:41pm
wfjag:
Another problem that could have been fixed with Duct Tape.
10.20.2008 2:41pm
Sasha Volokh (mail) (www):
Aren't "fuck" and "shit" distinguishable?
10.20.2008 2:46pm
Obvious (mail):
So a person is locked up in a holding cell for a day or so (something I encourage all law students to experience), fingerprinted and photographed, content in the knowledge that eventually he will be released, charges will eventually be dropped, and MAYBE he'll get an apology. The authorities will then claim to have destroyed the fingerprints and photographs, though their incentive to do so is low. [There's a delightful Mencken quote on this, but I can't find it now.] Very doubtful he'll get any financial compensation for his lost time; very doubtful he'll get any financial compensation for any legal fees. Very doubtful any of the offending cops will lose pay, job, or go to jail for false arrest.

I'm not seeing the incentive structure here as working to make sure individual rights are not violated...
10.20.2008 2:51pm
EH (mail):
Obvious: The incentive is handled in training. Since this was the work of just one bad apple nothing further needs to be done. Simple!
10.20.2008 2:58pm
Paul Gowder ... (mail) (www):
"You can probably get away with saying he's chicken, but since he's an alderman and a member of the city council, you can't,"

Wow. That's not just missing the First Amendment, that's the exact opposite of the First Amendment -- it's like Alice in Wonderland's First Amendment, where you can say what you want about anyone so long as they're not a public official.
10.20.2008 3:02pm
gasman (mail):

The police use arrest when lesser infringements on individual liberty are warranted. If they thought a law was broken by the sign they merely needed to take photographs, obtain contact information of corroborating witnesses and present the whole package to the DA. Physically taking this man into custody did not advance the criminal proceedings, or prevent or thwart a crime. No one needed to be arrested.
Police use the power of arrest far too often and it is the arrest itself which is the punishment; officer as judge, jury, and jailer. He got this guy some time in the joint for having breached no law whatsoever. That's not much different than police thugishness that happens throughout the world in such nice places as communist russian, north korea, and iraq.
This is all possible because there is no check against such police power. At the very least justice would be served by having the officer docked a day's pay every time someone he arrests spends a day (or fraction thereof) in custody.
10.20.2008 3:08pm
common sense (www):
In this article, Justice Thomas states that he wishes more people who invoked constitutional rights had actually read the Constitution. I agree, and even more so I wish that those officers that the Constitution actually restricts would read the document from time to time.
10.20.2008 3:13pm
Aultimer:
[Cue whit to defend the jackbooted.]

I suspect the police involved are quite well acquainted with Sullivan, but figured that any case regarding the NYT must have been reversed by this point in the age of Hannity/Limbaugh.
10.20.2008 3:14pm
DiverDan (mail):
It seems there is a 42 U.S.C. 1983 action against the officer, at the very least (no qualified immunity there, I think, since there's a clear violation of the First Amendment); unfortunately, no action against the City, unless the person arrested can show that the City had a policy to arrest persons for putting up offensive signs. I personally think that Judge-made restriction on 1983 action has an adverse impact on the City's responsibility to train their officers, but apparently the Courts are more concerned with limiting the liability of government entities than they are about actually protecting civil rights.
10.20.2008 3:19pm
edit (mail):
Hey, Searcy is a good Christian town, home of Harding University. It is very family-oriented. It may be one of the last places in the USA where those words actually scandalous!
10.20.2008 3:26pm
ChrisIowa (mail):

Beebe-Capps Expressway

A more traveled route would be the .32-40 Expressway.
10.20.2008 3:31pm
SJE:
Police officer violates first amendment rights: just another right to add to the too-frequent violation of 4th, sometimes 5th and 2nd amendment rights. Hey, why not collect them all!

Is this the "new professionalism" Scalia speaks of?
10.20.2008 3:35pm
Ben P:

Hey, Searcy is a good Christian town, home of Harding University. It is very family-oriented. It may be one of the last places in the USA where those words actually scandalous!


Hardly University in Scarcely Arkansas.

Actually, about half of my High School graduating class went to Harding (from a Private Church of Christ HS) and this really doesn't suprise me much.

Then again, it wouldn't surprise me much in any small town in Arkansas.
10.20.2008 3:44pm
Happyshooter:
Michigan has a 'No vulgarity in front of women and children' statute in our state laws.

When it was run up on First Amendment/Art1, Sec5 (eq state provision) the court decided that supressing nasty speech in front of women was unconstitutional, but making it a crime in front of kids was allowable.

Saying "Hey, little kids ride down this road, cover this word up" would be just fine. "Hey, you can't not insult my boss" wouldn't be under anyone's rules.
10.20.2008 3:52pm
Thales (mail) (www):
This kind of thing happens all the time, and not just with vulgarities.
10.20.2008 5:22pm
Lior:
Eliminating sovereign immunity would quickly eliminate these kind of police behaviours. Since it was good for King George, however, surely it is good for his successors-in-interest?
10.20.2008 5:23pm
Thales (mail) (www):
At an ACLU branch several years ago, we had a case where a protester held up a sign reading "Dick Cheney: 19th Century Man" prior to a Cheney speech (in a public venue) Local police confiscated the sign and escorted the man from the premises.

Obvious has it right. There's not much of an incentive structure in place to prevent a recurrence of the same unconstitutional activity.
10.20.2008 5:27pm
Thales (mail) (www):
Make that "Dick Cheney: 19th Century Energy Man"
10.20.2008 5:27pm
tvk:
Well, actually, wouldn't the insult here be especially protected when the target is "an alderman and a member of the city council"?
10.20.2008 5:58pm
J. Aldridge:
I disagree that it is "quite clear that even vulgarities on signs are generally constitutionally protected." The freedom expressed in the First Amendment is the freedom from seditious libel, not the freedom to say whatever. Paul Madison has a great little essay out that proves exactly this beyond a shadow of a doubt.
10.20.2008 5:58pm
Obvious (mail):
Diver Dan: "It seems there is a 42 U.S.C. 1983 action against the officer"

Just to clarify, Dan, are you saying there is, in fact, in this case, an action brought against the officer, or merely saying that you believe there are grounds to bring a case? That is, are you following this case, or merely opining based on facts presented here?
10.20.2008 6:04pm
Michael B (mail):
"Police Department Unclear on the First Amendment"

Actually it was one or two officers at a local level, not a systemic or even a departmental problem.

Meanwhile, the greater portion of the MSM is unclear on what journalism is, though they do provide a bemusing example of Newspeak and infotainment.
10.20.2008 6:39pm
R Gould-Saltman (mail):
Sez Michael B.: "Actually it was one or two officers at a local level, not a systemic or even a departmental problem."

Just how large do you think the Searcy police department is?


I'm looking at a P.D. web-site picture of Sgt. McGee, and while they don't have pics of his patrol shift up on the web-site yet, I'm gathering that Patrolman Tyrel and Sgt.McGee together made up about one third of the officers on patrol that shift.
10.20.2008 7:20pm
Helene Edwards (mail):
Let's see if I can write the 9th circuit opinion: "Although the officers' arrest of plaintiff and suppression of his viewpoint probably violated the First Amendment, we find no past cases involving political signs on the sides of one-lane roads in Searcy, AZ. The right involved here was therefore not clearly established as of September, 2008, and so defendants are entitled to qualified immunity. Affirmed."
10.20.2008 7:39pm
Dave N (mail):
Helene,

2 things.

First, you obviously are unaware of 9th Circuit jurisprudence and how liberal that Court has been in the past (and often still is).

Second, and perhaps more important, Searcy is in Arkansas, not Arizona. Arkansas is in the Eighth Circuit.
10.20.2008 8:37pm
Michael B (mail):
You have a point RGS. So be it, reform is needed in Searcy, Arkansas. May it proceed apace. Onward.
10.20.2008 8:37pm
Dave N (mail):
Just before noon Friday, [Brian] Barnett was standing at the northwest corner of Beebe-Capps Expressway and South Main, near a former feed store containing numerous Reeves signs, holding a sign.
Just glad it wasn't Randy.
10.20.2008 8:40pm
Helene Edwards (mail):
@Dave N:

Sorry about the state error. I've seen your posts, you're a reasonable guy. Would you please read Center for Bio-Ethical Reform v. L.A. County Sheriff and tell what's "liberal" about the 9th's view of QI? Thanks.
10.20.2008 8:50pm
whit:

[Cue whit to defend the jackbooted.]




except i won't because they are clearly wrong here. this is a blatantly false arrest, and there is absolutely no defense of the cops in this case because they simply had their heads up their okoles.

what anti-cop bigots like you don't understand is that it is possible to

1) defend the cops when they are CORRECT
2) and extend the benefit of the doubt when the facts aren't clear

and yet criticize cops when they do the wrong thing.

that's what i do. i do not defend them when they are wrong.

imo, this guy should clearly win metric a**loads of money because it's a blatantly false arrest and there is no excuse for anybody to be given a badge and powers of arrest, who doesn't understand basic civil rights.
10.20.2008 10:03pm
jccamp (mail):
With all the hyperbole about jackbooted thugs, maybe the OP should have continued with the rest of the story...

"Within minutes, Barnett was taken out of the car, given a citation and was allowed to go free. The sign was returned to Barnett and he was told he could stand where he chose with the sign. Barnett, confused as to why he was allowed to continue displaying the altered sign, now showing an "X" over the "i," was told the matter would be explained to him further at his Nov. 20 court date in White County District Court, Searcy Division."


More...

"Officers responded to a caller who said Barnett's sign contained profanity and that they were concerned that Barnett was standing too close to the street. After citing Barnett, McGee cautioned Barnett about standing too close to the street."

We don't even know what the sign waver was cited for. Maybe it was actually for something like a pedestrian on a limited access roadway, which might be justified no matter how much the cops actually addressed the wording on the sign, not the waver's position relative to the roadway. So it sounds like the officers were sent to the scene after a civilian complaint about profanity on the sign. It also sounds like they didn't know about Cohen v California but that they were soon informed to let the sign-holder go about his business by someone with more experience and/or common sense.

I suspect if we were to ask the average person on the street if one could hold up a sign next to a public highway which used profanity, one would get a fair number of "No's." I also tend to doubt that the police academy in Searcy, Arkansas included a detailed session on which public profanity might be arrestable and which might not.

If you expect small town, rural cops to have the knowledge and judgement of law school graduates, then be prepared to recruit and pay for them. If, on the other hand, all you require is a GED and all you pay is entry level wages by any standard, then you should expect this to happen from time to time.
10.21.2008 1:14am
whit:

If you expect small town, rural cops to have the knowledge and judgement of law school graduates


um...

i expect cops to have better knowledge and judgment than law school graduates, but that's me.

ime, they usually do.

so spare me the elitism.

and i have seen exactly ZERO evidence in my career that small town/rural cops are less knowledgeable about the law than city cops. and i've worked both. fwiw, one of the most wonkish guys i ever met on the law was a cop in an agency of 4 full time cops. the guy was frigging brilliant. just like there is a subtle bias in society (anti-southern and anti-rural), the same is extended to cops - ie cops in rural areas and small dept's are just "dumb hicks". not supported by evidence ime.

and cops should DEFINITELY know more about the law (specifically civil rights law) than the average citizen who might not think it's ok to hold a sign with the word "fuck" near a "public highway"

when it comes to free speech, it's not about what's ok. most people rightly think it's not OK to shout racial hate speech near a public highway either. it isn't strictly "ok". but it's legal, and cops should know that.

thank you for correcting the kneejerkers who were complaining about the guy's ARREST (see: Gasman et al) in another stunning example of anti-cop bigotry superseding reading ability.

yes, the cops arrested, but it was a cite and release (commonly referred to as "tag and release"). detain the guy, get his info, write the criminal cite, and release him with that summons and let the COURTS sort it out.

here's the critical issue. regardless of what the academy taught about Cohen v. California (which i admit to never having heard of), cops are taught to have good judgment and restrain when it comes to problematic issues involving exercise of civil rights - like speech.

and it appears by citing and releasing, they did if not the BEST thing, a decent compromise. that's the whole point of a criminal cite- let the court sort it out and don't make the summary custodial arrest/booking.

you are also correct that for all we know, the disorderly charge MIGHT have been in relation to "pedestrian interference" and not the sign's contents.

but... considering all the hoo-ha the cops made over him changing the sign, that's not an assumption i'm comfortable with.
10.21.2008 1:36am
Fub:
whit wrote at 10.21.2008 12:36am
you are also correct that for all we know, the disorderly charge MIGHT have been in relation to "pedestrian interference" and not the sign's contents.

but... considering all the hoo-ha the cops made over him changing the sign, that's not an assumption i'm comfortable with.
That's why I agree with your 10.20.2008 9:03pm, that
imo, this guy should clearly win metric a**loads of money because it's a blatantly false arrest and there is no excuse for anybody to be given a badge and powers of arrest, who doesn't understand basic civil rights.
But I raise you one. I think the particular cops responsible for the violation of rights, not just the municipality or the insurance carrier, should be subject to some serious attitude adjustment by (presently nonexistent) law.

As long as the cop (in this case but the government official generally) can walk scot free with no consequence or even acknowledging responsibility, he and his brethren will continue violating rights just because they can. They have no incentive not to.
10.21.2008 4:19am
Joel Rosenberg (mail) (www):
whit's right about what should happen, but it's worth noting that he's not claiming that it will. I don't think that's because he's smart, although I think he is; I think it's because he's not stupid.

Say the victim files an 1863 action, and pays an attorney some small five figures to handle it, and assume that it doesn't get tossed on immunity grounds, and finally, three years later, goes in front of a Federal jury, who (let's be generous) hits the cop with $50,000 in punitives (I know: fat chance) which, along with the attorney, his city/department picks up.

That is, as I understand such things, about the low end of how quickly this gets done, and way beyond the high end of what kind of punitives would be imposed. But, even if that happened, would that work pour encouragez les autres?
10.21.2008 10:37am
Dilan Esper (mail) (www):
yes, the cops arrested, but it was a cite and release (commonly referred to as "tag and release"). detain the guy, get his info, write the criminal cite, and release him with that summons and let the COURTS sort it out.

It's worth noting that if a law is unconstitutional, that's a privilege against arrest as well as prosecution. Especially in the modern world, where arrest means your fingerprints and possibly DNA go into a database, a computer record is made of what you were doing, etc.
10.21.2008 3:20pm
plutosdad (mail):
"unless they're personal insults said directly to the insulted party"

Isn't that the case here?

I mean, yeah the police officer probably didn't have that as his reason (maybe if the sign were directed at some nobody he wouldn't have cared). But it seems the sign IS directed at the alderman, since it is written in the imperative form. He's just holding the sign up for everyone to see, but I don't see how the sign is not telling the alderman to "debate brian!"
10.21.2008 4:42pm
Joel Rosenberg (mail) (www):
I think this is where we get into the "Barney Fife" exceptions to various provisions of the Bill of Rights; the cop in this case has an honest, ignorant, stupid, unprofessional belief that the use of a word he disapproves of is criminal, so there's no harm, no foul.
10.21.2008 6:04pm
Bill McGonigle (www):
Business plan: raise capital from a bunch of libertarian-minded financiers to setup a phone bank (virtual these days) staffed by folks with a good working knowledge of civil rights, and sell subscriptions to police departments for pretty cheap ($100/officer/year, for instance). Then when they have a rights question they can 'go back to their squad car' and get on the horn for consultation.

Separately, somebody else should establish a fund to prosecute these types of offenses, where the victim rarely has the means to do so.

If the latter happened, the former would be much more popular and easily a good bargain.
10.21.2008 6:07pm
NickM (mail) (www):
I too think a blatant First Amendment violation of this nature is more likely to happen in a small town than a big city, but for reasons having nothing to do with the knowledge, ethics, or ability of the local police. Rather, in a small town it's much easier for a peeved local politician to interfere with the officer's job if the officer doesn't shut down a local gadfly.

Nick
10.21.2008 7:12pm
whit:

whit's right about what should happen, but it's worth noting that he's not claiming that it will. I don't think that's because he's smart, although I think he is; I think it's because he's not stupid.

Say the victim files an 1863 action, and pays an attorney some small five figures to handle it, and assume that it doesn't get tossed on immunity grounds, and finally, three years later, goes in front of a Federal jury, who (let's be generous) hits the cop with $50,000 in punitives (I know: fat chance) which, along with the attorney, his city/department picks up.



you people are missing something. like i said, if it was a "tag and release", it changes the assessment a bit.

iow, he was briefly detained, then released. as i understand the previous post on this topic, he most likely was not removed from the scene, fingerprinted, photographed (e.g. booked), etc.

he was id'd, briefly detained, criminally cited, and released.

while i CERTAINLY think it was 100% wrong to do so, that is much less egregious than taking the guy away and booking him.

and fwiw, i never thought the cop should be personally sued. i said the guy should win plenty of money. i see no evidence the cop acted with any sort of animus. he made a mistake, and that sucks, but it hardly justifies the cop being personally sued (sucessfully). but then i think the (limited) immunity that cops enjoy is a good thing, and i have explained several times the dire unintended consequences (depolicing) that we risk if he remove these protections.

i note also in this case that the cops are responding to a complaint. iow, they did not "on-view" this incident. i see this a fair amount in my dept (and others) that people (especially administrators) seem to think that if a citizen is making a complaint that a person is doing X, that this justifies AT LEAST a "subject stop" of this person. i HEARTILY disagree. but the reality is that it's true that many admin's and cops see it that way.

example: in WA state, it is CLEARLY a civil right to "openly carry" a firearm. any citizen is free to do so. VERY few do. i can guarantee you that (especially in liberal neighborhoods) if joe citizen sees some guy (especially if he is poorly dressed, dark complected, etc.) walking around his neighborhood with a gun in a holster, he will call police. i have heard some officers claim (they are wrong) that in this scenario it would be ok to make an investigatory stop of this guy because clearly a member of the public was alarmed, and thus this would fall be ok, and we've gone back and forth under this, but i think it's clear that NO subject stop is justifiable based on open carry (unless you have knowledge the person is a felon, or has a restraining order against him,. etc.)

the (wrong ) cops and admins argue that since (especially if there are multiple calls from alarmed citizens) RCW 9.41.270 is arguably violated:
"It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons."

that the cop SHOULD make the stop. again, they are wrong.

contrarily, several citizens call in to say joe blow is walking down the street with a gun(s) in a holster, approaching a school, etc. and the cop on duty says 'sorry, not a crime' and refuses to respond or does respond, drives by the guy, and doesn't stop the guy. and the guy walks into the school and starts shooting. cop gets hung out to dry. ah, 20/20 hindsight.

i realize the instant case involves speech, not guns, but it's the same to me - a matter of civil rights.

a citizen has the right to carry a gun on his hip, or a political sign with profanity. they are equally important civil rights.

these kind of immediate judgment calls are made hundreds of times a year and sometimes the cop gets them wrong.

and fwiw, cops (myself included) routinely DON'T make stops of subjects even when they are dispatched and "expected" to do so because they realize that merely because a citizen is reporting a "suspicious" person does not automatically = RS for a terry stop.

as i have said many times, cops are frequently called upon to protect other's civil rights when one or many other citizens want them to take some sort of action.
10.21.2008 7:46pm