Tuesday, April 12, 2011

Them's fightin' words?

Rest assured, ladies and gentlemen, your right to call a policeman a “fat slob” is still most likely constitutionally protected.

In Louisville, Ky., last month, an appeals court ruled in favor of one man's right to call a police officer just that, reaffirming a free speech provision that has been challenged quite a hefty number of times in court.

As clear-cut as one would expect this area of law to be, however, free speech protection in relation to police can still be confusing. But the Kentucky case provides a good cross-section of just what the situation and criteria could be for an individual to prove his speech is protected when he is challenging a police officer.

Kennedy v. City of Villa Hills, Kentucky et al, begins with a simple argument. A Kentucky man, Kevin Kennedy, got into an altercation with police officer and building inspector Joseph Schutzman after Schutzman approved a permit to expand a strip mall near Kennedy's home. When a construction crew took up near the Kennedy residence to begin work, Kennedy confronted Schutzman over the matter. When Kennedy failed to steer the situation in his favor, he reportedly had this to say about the officer to other workers: “That son of a bitch broke all of the zoning laws.” Schutzman overheard the comment, asking Kennedy to repeat himself. At that point, Kennedy said: “You're a fat slob.” He was arrested for disorderly conduct. The citation description read: “verbal abuse in front of public works employees.”

The ensuring court case paints a typical scenario for those who encounter this type of situation. The disorderly conduct charge against Kennedy was dropped, but Kennedy filed suit, saying the arrest was a violation of his right to free speech. Schutzman, however, claimed qualified immunity. His defense? A reasonable officer in his situation would have also believed that he had probable cause to arrest Kennedy if he thought Kennedy's speech was unprotected or had invoked “fighting words.”

The court denied Schutzman's claims on both Fourth Amendment and First Amendment grounds, but today let's focus specifically on why Kennedy was justified in saying what he did under the First Amendment provision.

For the court, this case is open-and-shut. It takes a very clinical approach to this situation, using precedent that has been clearly established by several other cases.

A pretty clear process is also set into motion early on in the analysis:
1. Did the citizen “allege or show make” out of a violation of constitutional right?
2. Was the right at issue “clearly established” at the time of the officer's “misconduct”? 
So first off, did the individual use “fighting words” or was his speech otherwise unprotected? Hardly. According to the opinion:
“Even crass language used to insult police officers does not fall within the 'very limited' unprotected category of 'fighting words.'” 
To back their claim, they cite Greene v. Barber, a 2002 case out of Grand Rapids, Mich., which held that “a plaintiff did not use fighting words when he told a police officer 'you're really being [an] asshole' and 'if that's how you feel you're really stupid' (alteration in original)).”

It's interesting to note how much the category of “fighting words” has morphed overtime. Way back in 1942 in the case of Chaplinski v. New Hampshire, one man was not allowed to address a public official as such: “You are a God dammed racketeer” and “a dammed Fascist and the whole government of Rochester are Fascists or agents of Fascists.”

At the time, the Supreme Court ruled that these could be construed as “fighting words” — “... those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

But case after case after case, courts have tailored this provision, granting more and more freedom for private individuals to say what they want. One landmark claim, in 1989's Texas v. Johnson, held that “the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” Another, Sandul v. Larion, claimed that certain circumstances could swing the argument in favor of the private individual. That case was even based off of Cohen v. California, which very explicitly prohibits states from stopping an individual from displaying words like “f**k.”

The point here is that beneath the surface there is actually a wide array of precedent establishing a person's right to “lash out,” in some sense, while still being under the umbrella of protected speech.

In a broader sense, the police officer's status further damns the case: “... the First Amendment requires that police officers tolerate coarse criticism, (therefore) the Constitution prohibits states from criminalizing conduct that disturbs solely police officers,” according to one of the case's judges Karen Nelson Moore.

Now that we've established that Kennedy did use protected speech, the pieces fall into place as to whether his retaliation claim is valid and whether Schutzman deserves qualified immunity. The short answer? He doesn't. Let's use the court's three elements for a retaliation claim to break this one down:

1. The plaintiff engaged in protected conduct (established ad nauseum above).
2. An adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct (true, he was detained for disorderly conduct).
3. There is a casual connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct. (explained below)

As the court establishes in this last instance, they could determine that the use of “fat slob” was the key motivating factor in Schutzman's decision to arrest Kennedy. In the context of this case, the court affirms that given the situation, Kennedy's use of protected speech just wasn't enough for a reasonable officer to arrest him in a retaliatory context, in which motive really does play an important role.

Although the court acknowledges that motive is hard to prove, Kennedy's “ordinary retaliation claim” plays out in his favor. He was arrested before any involvement in the case from any other lawful body — in other words, a straightfoward arrest that immediately followed Kennedy's use of the words. This, the court says, suggests that Kennedy succeeds in his claim for retaliatory arrest even without demonstrating a lack of probable cause simply because he satisfied the court's criteria above. More damningly for Schutzman, the events of the case as described don't do much to help him; according to the description in the report, Schutzman ran into the building after overhearing Kennedy's first comment and “got in his face” before arresting Kennedy following the “fat slob” comment.

The circumstances in the case and the enormous amount of precedent that had been set out before it certainly affirm the court's decision, in my opinion. It will be interesting to see how narrowly tailored this area of free speech law becomes over the next few decades. In my analysis just of this case and the various cases over the years that it led me to, it's clear that the idea specifically of “fighting words” and the circumstances in which qualified immunity are decided have been curried in the private individual's favor. At least, we've certainly come a long way from Chaplinski v. New Hampshire.

Chaplinski v. New Hampshire: http://openjurist.org/315/us/568
6th Circuit: Man who called cop a 'fat slob' can sue over arrest: http://www.firstamendmentcenter.org/news.aspx?id=24025

Man Arrested for Calling a Cop 'Fat Slob' Can Sue: http://www.courthousenews.com/2011/03/25/35260.htm
Sandul v. Larion: http://openjurist.org/119/f3d/1250
Greene v. Barber: http://openjurist.org/310/f3d/889/greene-v-barber   

Kennedy v. City of Villa Hills, Kentucky et al: http://www.ca6.uscourts.gov/opinions.pdf/11a0073p-06.pdf

Texas v. Johnson: http://openjurist.org/491/us/397