A Stitch in Haste

The cyber-ink was barely dry on my last post concerning what I am now calling "lost enforcement" (get it? "law enforcement" / "lost enforcement"), when this update appeared on my newsfeed:

A couple arrested for wearing anti-Bush T-shirts to a July 4 presidential appearance filed a federal lawsuit on Tuesday alleging their First Amendment rights were violated.

Nicole and Jeff Rank were removed from the event at the West Virginia Capitol in handcuffs after revealing T-shirts with President Bush's name crossed out on the front. Nicole Rank's shirt had the words "Love America, Hate Bush" on the back and Jeff Rank's said "Regime change starts at home."

Their lawsuit was filed in federal court by American Civil Liberties Union attorneys. "What is at stake here transcends politics," Jeff Rank said at a news conference at the Capitol. "What is at stake is the right of all Americans - Democrats, Republicans and independents, all Americans - to peacefully voice their dissent to their government."

Tresspassing [sic] charges filed against the couple were later dismissed. The City Council and Mayor Danny Jones have publicly apologized. ...The couple wants a judge to declare unconstitutional any policy that led to their arrest. They also are seeking unspecified monetary damages.
...
Nicole Rank, 30, initially was dismissed from her job with the Federal Emergency Management Agency, but was rehired after the charges were dropped.

Now, if First Amendment jurisprudence says that you can walk into a courtroom wearing a shirt that says "Fuck the Draft" (and it does), then it is simply not open to discussion whether you can wear the sort of shirts the Ranks were in a state capitol building. You can.

But what the heck...arrest them anyway and let the courts figure it out. By then the event will be over. Yet again law enforcement becomes "lost enforcement."

I was very disappointed in just how underreported, and underblogged, this story was when it first occurred back in July. Hopefully the press and blogosphere will stay on top of it going forward. I certainly will.

lost enforcement = when law enforcement, politicians or bureaucrats, when unsure of what the law is, choose to err on the side of arrest, threatening to arrest, confiscation of property or otherwise improperly infringing on individual liberties, often under the guise of "act now and let the courts figure it out later"

Two sad tales of the First Amendment being conveniently ignored by police officers.

First, courtesy of Law Dork -- can you "buy" (well, I suppose "rent" is more accurate) a public street and turn it into your own personal fiefdom, complete with no Bill of Rights?

[A]n off-duty Columbus police officer, still in uniform, told a man ... wearing a religious sign and passing out religious literature that the sponsors of the Columbus Arts Festival wanted him to leave.

Unfortunately, as it turns out, the permit given the group is a block party permit, which allow groups to block off the streets for "the non-exclusive use of the permitted area." Then, an off-duty officer in uniform told Parks that the sponsors wanted him to leave the festival -- going so far as to threaten arrest.

Then, when [the man] later complained to the city, the City Attorney responded "that the streets at issue were no longer a public area where Parks's First Amendment rights would apply because a private sponsor was using the area pursuant to City ordinance."

The appeals court held, basically, that the City Attorney and district court were wrong...

Maybe next time the Columbus Arts Festival will rent a meeting hall or something. The case is Parks v. Columbus, No. 03-4096 (Sixth Circuit, 2005), the decision PDF is here (nine pages).

Next we must reinvent the First Amendment wheel -- specifically, the automobile wheel:

A Denver police sergeant is under investigation for allegedly threatening to arrest a woman Monday for displaying on her truck a derogatory bumper sticker about President Bush.
...
About 11 a.m., Shasta Bates, 26, was standing in the shopping center store in the 800 block of South Monaco Parkway when a man walked in and started arguing with her about a bumper sticker on the back of her truck that had "F--- Bush" in white letters on a black background.
...
The two argued for a few minutes, and then the man walked out of the store and stood behind Bates' truck. A few minutes later, the man flagged down police Sgt. Michael Karasek, who was patrolling the area.
...
"He said, 'You need to take off those stickers because it's profanity and it's against the law to have profanity on your truck,'" Bates said. "Then he said, 'If you ever show up here again, I'm going to make you take those stickers off and arrest you. Never come back into that area.'"

Now I might -- might -- cut the "block party" officer some slack; block parties are a relatively unusual phenomenon. But the "bumper sticker" case is a no-brainer, or should be to any lawyer or law enforcement official, even a beat cop (and this one was a sergeant).

The law of profanity in public places has been well settled for over 30 years. In the landmark case Cohen v. California, 403 U.S. 15 (1971), the Supreme Court held that mere displays of profanity, including the "f-word," are protected -- even in a courthouse, let alone on a street curb:

For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Police are of course not lawyers; they shouldn't be expected to know at all times all the twists and turns of the evolving jurisprudence of their profession (e.g., the Fourth Amendment, which just evolved, or rather devolved, yesterday). But Cohen is not new news -- it was decided 34 years ago! How can police not know it?

Or is the real problem that the police actually do know the law, but hope that the public doesn't? How many people have the fortitude and the courage to stand up to this kind of police misconduct, to being threatened with arrest -- even if they know the law?

Lawyers have to undergo continuing education; so do most Wall Streeters and probably members of every other skilled profession. Is it too much to ask that the law enforcement be held to the same minimum requirements?

And as I've blogged before: God help anyone who doesn't go to law school these days.

Recent "Lost Enforcement" Posts:
"Lost Enforcement": Gay Couple Told Kissing "Illegal" in Texas
"Lost Enforcement": Dallas Cowboy Gear Banned from Polls
"Lost Enforcement": Preventing Students from Voting
"Lost Enforcement": Arrested for a Bookmark
"Lost Enforcement": Memory-Hole Tactic Acknowledged as Illegal

If, like me, you are mildly interested in the story about a man arrested for wearing a Grinch mask in public, here's a FindLaw piece from 2004 discussing the most recent high-reaching litigation on the subject.

In that case, the Supreme Court refused to hear an appeal of a Circuit Court's holding that Ku Klux Klansmen, while having a First Amendment right to stage a peaceful rally, did not have a right to wear their hoods. The denial of certiorari by the Supreme Court did not "ratify" the decision in any way, and there is arguably an important difference between hoods at a rally (especially one where there might be an increased likelihood of counter-demonstrations or even violence) and a lone man walking down the street with a costume mask. So the narrow issue of an otherwise law-abiding individual having a right to wear a mask in public remains unsettled.

What gives me pause is the argument that a grown person "has no legitimate business" doing something "silly" like wearing a Grinch mask in public. It echoes similar troubling doctrines we have seen recently — such as the Court's current dog sniff jurisprudence (i.e., "If you have nothing to hide, then why should you object?") and curfew laws (i.e., "Youths have no business being out late, so why not outlaw it to curb juvenile delinquency?").

Can't eccentricity be a positive attribute in society anymore? Can't people be "weird" without having to provide a justification for their otherwise harmless conduct? Is requiring just the slightest added suspicion of criminal intent before quashing bizarre behavior too much to ask in the name of the First Amendment? Do we always have to assume the worst in people?

The leading jurisprudence regarding masks at rallies or protests, whether wise or oppressive, simply should not be extended to lone individuals conducting themselves in an otherwise lawful manner. Let's reaffirm the right to be wacky.

Before you laugh too loudly at this story:

A group of people caught watching a pornographic movie at a cinema in India have been forced to do 10 sit-ups in public as punishment.

They were also made to take a public vow never to watch such a movie again.

Balasore police chief Sanjeev Panda said he was trying a new approach to stopping the screening of pornography, which is illegal in India.

Consider this: What might the punishment for watching pornography be in an alternative America run by legislatures full of Robert Borks, Lino Graglias and Antonin Scalias, or by legislators who knew that they could pass essentially any law they wanted and never face serious review by courts full of Robert Borks, Lino Graglias or Antonin Scalias?

That's no laughing matter.

As a follow-up to my last post, here's a link to an excellent primer on the current state of American law on exceptions to the First Amendment's freedom of speech and freedom of press, prepared by the Congressional Research Service (i.e., this is what members of Congress are reading). Suitable for laypersons.

If I had had this in law school, I probably would have gotten a better grade in Civil Liberties than I did.

Two things worth remembering:

--Most countries, including those in Europe, simply have no analogue to the First Amendment.

--Robert Bork was denied confirmation to the Supreme Court not for being "too conservative," but in large part for a very specific article he wrote in 1971 for the Indiana Law Journal asserting that only political speech should be covered by the First Amendment (i.e., that everything else was "an exception"). No one -- least of all Bork -- has any right to be indignant over the blocking of a man with such an un-American view of free speech from the Supreme Court.

SCOTUSblog reports that the Supreme Court may be interested in revisiting its decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which held that elementary and secondary school administrators may "censor" student media (i.e., newspapers), but expressly left open the question of whether that same rule should apply at the post-secondary level. A recent Seventh Circuit Court of Appeals case, Hosty v. Carter, No. 01-4155 (7th Cir, 2005) (PDF - 24 pages), held that it's not that simple and that traditional "designated public forum" analysis may apply. The Supreme Court is now considering whether to hear an appeal by the students.

Perhaps I'm yet again coming dangerously close to losing my libertarian credentials, but I favor the schools in this instance. As much as I love the First Amendment, I love property rights even more, and I see no justification, even when cloaked as "part of the educational mission," to force schools to turn over their property to students to do with as they please. He who owns the printing press writes the editorials — or "censors" them.

Of course, "censors" is the wrong word, since only the government can censor. And a university — even a public university — is not "the government" in this context.

Meanwhile, one wonders whether the Court is expressing interest in this case as a result of the controversial Solomon Amendment case Rumsfeld v. FAIR, No. 03-4433 (3rd Cir., 2004), which also involves First Amendment rights on college campuses and the right of administrators to run their institutions as they see fit.

The key difference, of course, between Rumsfeld v. FAIR and the student newspaper case is where the money is coming from — the school itself or the government? The doctrine of "he who pays the piper calls the tunes" loses some of its punch in the context of taxpayer money used to bully colleges into adopting a facially discriminatory policy that serves no legitimate educational interest (or, for that matter, any legitimate military interest).

And as for distinguishing between colleges and high schools, the determinative difference is of course that high school students could not easily create an independent newspaper with its own funding. College students can and do (e.g., the Cornell Daily Sun, where I was once a weekly op-ed columnist).

Stay tuned...

It seems to me that if you have a First Amendment right to wear a jacket with "Fuck the Draft" on it in a courthouse (and you do have that right -- see Cohen v. California, 403 U.S. 15 (1971)), then you obviously also have a right to wear (or, more correctly, to sell) a t-shirt with "Stop Snitchin" on it on the streets of Boston.

That city's activist mayor, however, disagrees:

Joining a contingent of politicians, law enforcement officials and youth outreach workers ordered to an emergency meeting at City Hall yesterday, [Mayor Thomas M.] Menino vowed to combat the soaring crime rate.

Among the steps: Sending city Inspectional Services Division officials to seize T-shirts emblazoned with the "Stop Snitchin" message.

"It's wrong," Menino said. "We are going into every retail store that sells the shirts and remove them."
...
The mayor did not say what legal authority ISD would cite in seizing the shirts from retailers.

Hardly surprising, since there is no authority to cite, unless someone wants to make a case for the "imminent lawlessness test" of Brandenburg v. Ohio, 395 U.S. 444 (1969). But of course merely wearing (or selling) a t-shirt like this cannot be reasonably deemed to be a guarantee, or even a call for, imminent lawlessness. This is the most patently unconstitutional, and patently absurd, action by a local hack politician I've seen in quite a while.

Remind me again why democratically-elected politicians are so much better than unelected judges?

Via Hit & Run by way of Sploid.

A Massachusetts state judge has banned t-shirts bearing the words "Stop Snitchin'" from his courthouse (not his courtroom, mind you, but from the entire courthouse):

Robert A. Mulligan, chief justice for administration and management, also imposed strict limits on the use of cellphones in courthouses, citing several recent cases in which spectators pointed mobile-phone cameras at witnesses, jurors, or law-enforcement officials. The incidents included a gang-related conspiracy trial in Salem last spring.

"There are some people coming to courthouses, a very small fraction of people, who come there to chill individuals from participating in the process," Mulligan said in an interview. "This problem is not an overwhelming concern, but it's something we have to be cognizant of and sensitive to."

Wait a minute -- it's not "an overwhelming concern," but this judge still considers himself authorized to chill expressive conduct for all court spectators? That makes no sense.

I blogged about the issue previously in the context of an insane hack politician proposal to confiscate these shirts from merchants. That stupidity seems to have died the ignominious death it deserved.

As for this judge, however, whatever happened to Cohen v. California, 403 U.S. 15 (1971), which held in no uncertain terms that there is a First Amendment right to wear expressive messages in courthouses (in that case, a jacket proclaiming "Fuck the Draft")?

I suppose the argument here is that the t-shirt is not meant to convey a First Amendment message, but rather to intimidate witnesses and jurors; such conduct is not constitutionally protected. But still, the restriction would have to be narrowly tailored to the interest of preventing witness intimidation. Just the presence of a gang member in the court will likely be intimidating -- is the next step to deny gang members, or even suspected gang members, their right to attend a trial?

A flat-out ban is never "narrowly tailored" to anything. The proper approach is a case-by-case, witness-by-witness, "totality of the circumstances" approach and a requirement of some particularized reason to keep a particular individual from attending a trial or wearing a particular t-shirt with a particular message.

Witnesses and jurors deserve to be protected, but not via an overcompensating shotgun approach that trammels the First Amendment.

It's quite simple really: There is no such thing as "First Amendment rights" at an invitation-only event.

The fact that the event was a government function is irrelevant. A perfectly reasonable dress code at a restricted (and solemn) government ceremony is not "censorship."

The fact that the event took place on government property is irrelevant. Not all public property is a public forum.

Look at it this way: Can 270 million American citizens simultaneously exercise their "absolute First Amendment right" to even attend, let alone to misbehave at, the State of the Union Address, live in the House Gallery?

No? Then there is no such "absolute First Amendment right" in the first place.

I will grant Sheehan this much: it was probably not necessary to arrest her. Mere expulsion from the event and from the Capitol Building would probably have been sufficient, and would have reduced the media circus. On the other hand, if this account is accurate, then she was arrested for far more than her attire.

And, of course, anyone who doubts that the whole incident was very carefully orchestrated (if not by Sheehan herself then by the puppetmasters who have so shamelessly manipulated her) is hopelessly naive. The Sheehan circus played out exactly the way she and her overlords wanted it to.

Her threat to file a First Amendment lawsuit is the pinnacle of frivolity and grandstanding. She has become no different than the politicians she is so eager to condemn. As is so often the case with activists, the medium overtakes the message.

UPDATE: I'm going to revise and extend my remarks a bit. Having read some other blogs, I think it's important to distinguish between what the law is and what the law could properly be.

Congress has indeed prohibited "demonstrations" everywhere in the Capitol Building, 40 U.S.C. 193f(b)(7). Lower courts have confirmed my view that the Capitol is not a public forum and that viewpoint-neutral time/place/manner restrictions on expressive conduct are permissible if they are reasonable, Bynum v. Capitol Police Board, Civil Action No. 97-1337 (D.D.C., 1997).

On the other hand, there has never been an explicit dress code for the SOTU. Capitol Police and congressional leaders have relied on "tradition and common sense." Um, no, they can't do that. The burden is of course on the government to provide proper notice of what is expected at the SOTU. It appears that they failed. In which case Sheehan and Beverly Young could not have been lawfully expelled, and Sheehan certainly couldn't have been be lawfully arrested.

Capitol Police have meanwhile stated that their arrest of Sheehan was improper and have apologized to her. It would therefore appear that she does in fact have a lawsuit, but for wrongful arrest (i.e., for violating her Fourth Amendment rights), not for violating her First Amendment rights. Mike at Crime & Federalism tackles that question better than I can.

First the facts:

Charles Littleton says he was only standing up for his rights -- rights he says society continues to lose every day.

That is what got 22-year-old Littleton in trouble. He didn't obey a rule inside Saginaw City Council chambers. That rule is that all men must remove their hats.

Cut to the chase: He got tasered.

We have no video this time, so we cannot draw conclusions about whether he was disruptive or aggressive or whose version of events to believe. It's simply not as cut-and-dry as the UCLA atrocity last week.

But is anyone else seeing what I'm seeing?

all men must remove their hats

Let's assume, arguendo, that a no-hats policy in a legislative gallery is a permissible viewpoint-neutral restriction on expressive conduct. That's a big assumption, given the holding of Cohen v. California, 403 U.S. 15 (1971) (wearing a jacket with "Fuck the Draft" in a courthouse is constitutionally protected conduct). But let's put that aside.

all men must remove their hats

Huh? In the Twenty-First Century a government entity would implement a gender-based restriction on hats? So now we not only have First Amendment difficulties but also Fourteenth Amendment equal protection concerns.

To review: gender-based discrimination is subject to "intermediate-level scrutiny," which means that the discriminatory law must be "substantially related" to an "important" government interest. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (state cannot restrict alcohol sales to young adult men but not young adult women); cf., U.S. v. Virginia, 518 U.S. 515 (1996), (government must show an "exceedingly persuasive justification" for gender-based discrimination).

No court in the country would deem "decorum" a sufficiently "important" government interest, nor deem a gender-based ban to be "substantially related" to that interest. It's quite simple really: Why not just ban all hats? (But again, even that might run afoul of the First Amendment, just not the Equal Protection Clause.)

So, even if young Mr. Littleton was so "dangerous" as to warrant tasering, that is more than offset by the violation of his civil rights. Expect another 42 USC 1983 lawsuit because local hack politicians and bureaucrats don't know basic constitutional law.

(Via Fark.)