First_Amendment_and_Fighting_Words

First Amendment and Fighting Words Issue (1): Are police officers afforded qualified immunity for First Amendment free speech violations' Brief Answer: It depends. Courts assess qualified immunity claims against government officials based on Saucier’s two prong test. The court must determine (1) whether plaintiff’s claims establish a violation of a constitutional right, and (2) whether the right was established at the time of the alleged violation. Qualified immunity attempts to balance the compensation of one who suffers an injury due to conduct of an official and to protect the government’s capacity to perform essential functions. In Hilton’s case, it is quite doubtful that the officer can prevail on a claim of qualified immunity. Issue (2): Was Hilton’s constitutional right to free speech violated by his arrest for disorderly conduct and obstruction of justice' Brief Answer: Yes. Hilton’s referral to the police officer as an “asshole” qualifies as protected speech under the First Amendment. His words did not constitute “fighting words,” or speech unprotected by the First Amendment. To prevail on the charge of disorderly conduct, the state would have to show that Hilton uttered the offensive language from a public place. He remained on his own property throughout the ordeal. The charge of obstruction of justice requires that force be used by a defendant while interfering in official police business. Hilton refrained from utilizing any force. Therefore, the officer violated Hilton’s First Amendment right to free speech by arresting him on these charges. Facts: James Hilton approached police officers outside of his home in Nashville last month after perceiving the officers roughing up his neighbor, Billy Baxton. He inquired as to what was going on and officers responded by telling him to go back inside and mind his own business. After informing the officers that he had a right to stand upon his own property, he advised them to respect Baxton rather than physically abuse him. He muttered, “What an asshole,” after being advised by one officer to turn around and shut up. When the officer questioned what he said, Hilton responded, “You are an asshole!” Officers then arrested Hilton for disorderly conduct and interference with official police business. An assistant district attorney dropped the charges two weeks later. Hilton claims officers violated his First Amendment right to free speech and seeks representation in a Federal Civil Rights lawsuit. Discussion: Officer immunity Qualified immunity protects public officials from lawsuits unless they violate a clearly established law of which a reasonable person in the officer’s position should have been aware. The Court in Katz v. U.S., 194 F. 3d 962 (1992), established a two-part test by which to evaluate the defense of qualified immunity. First, the Court must consider “whether the law governing the official’s conduct was clearly established.” If the answer is no, the analysis stops and the officer granted qualified immunity. If the answer is yes, the inquiry continues into “whether a reasonable person in the officer’s position could have believed that his conduct was lawful within that clearly established law.” Id. at 967. A military police officer arrested Katz, an animal rights activist and member of In Defense of Animals (IDA), during a speech by Al Gore for attempting to unfurl a banner that stated, “Please keep animal torture out of our national parks.” According to Katz’ deposition, military officers ripped down his sign, grabbed him by his arms, and walked him to a van, into which they shoved him. After being taken to a military base and briefly detained, officials released Katz and allowed him to drive home. Military officers never informed Katz of the reason for detaining him or of any law violations pertaining to his arrest. Id. at 966. Katz and IDA sued, alleging several claims against the United States and military officials. His claims against the arresting officer, Saucier, alleged a First Amendment free speech violation and a Fourth Amendment violation based on lack of probable cause to arrest and use of excessive force. Id. at 966. The Court of Appeals held that genuine issues of material fact existed and declined Saucier’s motion for summary judgment. The Supreme Court reversed the Court of Appeals in Saucier v. Katz, 533 U.S. 194 (2001), and ruled, however, that there existed no clearly established rule delineating the protocol for officers in charge of protecting the Vice President of the United States, therefore entitling Saucier to qualified immunity. Qualified immunity, then, balances compensating those injured by officials’ conduct while protecting the government’s ability to perform its essential functions. In other words, some lawful actions by officers required to enforce certain laws would be considered Constitutional violations if committed by a civilian. Applying the Saucier test to Hilton’s scenario, Hilton’s arresting officer most likely will not triumph with the qualified immunity defense. The answer to the first part of the test, “whether the law governing the official’s conduct was clearly established,” is yes. The officer undoubtedly knew that it was unlawful to arrest Hilton for calling him an offensive name. The second part of the test, “whether a reasonable person in the officer’s position could have believed that his conduct was lawful within that clearly established law,” is answered in the negative. People consider the right to speak freely without fear of repercussion as a primary staple of freedom. Reasonable people, in general, know that clearly established laws govern our right to free speech, so a reasonable officer most assuredly recognizes that an arrest for spoken words is unlawful. (discuss Pearson v Callahan here) “Fighting Words” If the officer could prove, however, that the nature of Hilton’s words implied a breach of the peace or inflicted injury, his arrest would be justifiable. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those by which their very utterance inflict injury or intend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 62 S.Ct. 766, 769 (1942). Fighting words, therefore, require a certain amount of implied animosity toward those at whom they are directed. In a 2011 Tennessee case, State v. Mitchell, 343 S.W. 3d 381, the Court analyzed racial epithets directed at an officer according to the First Amendment. Morristown police officers arrested Teddy Ray Mitchell for disorderly conduct and resisting arrest. On June 24, 2006, several area law enforcement agencies provided security for a rally at the Hamblen County Courthouse intended to raise awareness about the effects of illegal immigration. Instructed by superiors to prohibit parking along the sidewalk of the courthouse, Andre Kyle, an African-American Morristown police officer, informed Mitchell that he needed to park his vehicle somewhere else. Mitchell responded that, “There’s no n*gger going to tell me where I can and can’t park.” Only after a white police officer intervened did Mitchell actually move his vehicle. Id. at 385. The trial jury found Mitchell guilty of disorderly conduct and acquitted him on the charge of resisting arrest. The Court of Criminal Appeals concluded, based on low-quality video footage from a Tennessee Highway Patrol cruiser, that although defendant acted belligerently, there existed no verbal threats as evidence in the video. Id. at 388. The Tennessee Supreme Court held, however, that the defendant’s use of the racial slur directed at the policeman, his refusal to obey officer’s orders, and his angry, loud, and belligerent responses to officers qualified as threatening behavior designed to annoy or alarm in a public place. Therefore, Mitchell’s conduct was not afforded the protections of free speech. The TN Supreme Court justifiably reversed the Court of Appeals and reinstated the conviction and sentence against defendant. Id. at 395. Since racial epithets express a negative opinion directed at specific groups of people that is likely to incite anger, they justifiably represent a form of “fighting words.” Mitchell portrays an instance in which a defendant went too far in his verbal assault upon a police officer. His referral to the officer as a n*gger, his refusal to obey official orders from the black officer, and the fact that he was attending a rally about illegal immigration, establish Mitchell’s hatred and contempt for minorities. It follows that any racially derogatory words out of his mouth likely constitute fighting words and should not be entitled to First Amendment free speech protection. Although possibly offensive, the word “asshole” does not carry with it the power to demean and belittle particular groups of people as racial slurs do. This differentiates Mitchell’s and Hilton’s words. The Supreme Court of Ohio echoed this sentiment in City of Cincinatti v. Karlan, 39 Ohio St. 2d 107 (1974). “For, where epithets, used in a public place and willfully directed at those who can hear them, are likely to provoke the average person to an immediate retaliatory breach of the peace, they are fighting words and the utterance thereof may be punished as a criminal act.” Id. at 164. The word “asshole” can be equally directed at anyone. Hilton’s words, “You’re an asshole,” directed at the police officer, although offensive, are not likely to provoke the average person to commit a retaliatory breach of the peace. No evidence has presented that indicates that the officer believed Hilton intended that his language be interpreted as “fighting words” against the policeman. Disorderly Conduct “A person commits an offense (of disorderly conduct) who, in a public place and with intent to cause public annoyance or alarm: (1) engages in fighting or in violent or threatening behavior; (2) refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency; or, (3) creates a hazardous or physically offensive condition by any act that serves no legitimate purpose,” Tenn. Code Ann. §37-13-305 (West). Although instances emerge in which a charge of disorderly conduct is proper, it is often applied in situations where law enforcement officers really want to arrest someone but realistically possess no grounds for doing so. Hilton spoke the words while on his property. He initially neglected to obey the officer’s order to “mind his own business, and go back inside;” however, the circumstances under which the officer issued the order lacked the necessary elements to qualify as a concern for the maintenance of public safety. Baxton’s arrest failed to meet the requirements of a fire, hazard, or other emergency, any of which could have justified the charge of disorderly conduct. Hilton also refrained from utilizing threatening behavior toward the officer, and his words in no way created a hazardous or threatening condition that served no legitimate purpose. The district attorney properly dismissed the charges of disorderly conduct against Hilton. Obstruction of Justice “(a) It is an offense (of obstruction of law enforcement) for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer, or anyone acting in a law enforcement officer’s presence and at the officer’s direction, from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, by using force against the law enforcement officer or another; (b) Except as provided in §39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest or search was unlawful; (c) It is an offense for a person to intentionally prevent or obstruct an officer of the state or any other person known to be a civil process server in serving, or attempting to serve or execute, any legal writ or process,” Tenn. Code Ann. §39-16-602 (West). Hilton’s charges included one for interference with official police officer business. According to Tennessee law, obstruction of justice is the appropriate charge when an individual is arrested for interference with police business in Nashville. The information provided by Hilton indicates that no force was utilized against officers. The basis of the arrest by the state rests upon Hilton’s phrase, “You’re an asshole,” words he uttered to police after witnessing what he perceived to be an unlawful arrest. If Hilton had decided to utilize force against the officers, rather than only words, he would likely be responsible for answering to the charge of obstruction of justice, even if he was correct in his perception that the arrest of Baxton was unlawful. However, Hilton’s verbal exchange with the officers by no means impeded a stop, frisk, halt, arrest, or search of Baxton, so the district attorney appropriately dropped this charge as well. First Amendment Violation “…the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” City of Houston v. Hill, 482 US 451, 458 (1987). Officers arrested Charles Hill under Houston Code of Ordinances § 34-11 for Assaulting or Interfering with Policemen after shouting “Why don’t you pick on somebody your own size,” in an attempt to divert officers’ attention away from his friend. Id. at 454. The ordinance stated that “It shall be unlawful for any person to assault, strike, or in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.” Id. at 455. Following his acquittal on the charge, Hill sued in Federal court seeking a declaratory judgment that the ordinance was unconstitutional on its face and as it was applied to him. Id. The district court did not find the ordinance unconstitutional. However, the Court of Appeals reversed, holding that the vagueness of the ordinance could lead to misapplication of it, presenting possible constitutional ramifications. The Supreme Court affirmed the Court of Appeals, stating that, “We are mindful that the preservation of liberty depends in part upon the maintenance of social order. But 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.” Id. at 2515. Perhaps one of the most widely recognized cases involving issues of free speech is Cohen v. California, 403 U.S. 15, 24 (1971). Officials arrested Cohen for wearing a jacket into a courthouse that included the words, “Fuck the Draft,” embroidered on the back. Officers justified his arrest based on a California statute that prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.” Id. at 16. The trial court convicted him, and the Court of Appeals affirmed. The Supreme Court reversed, and ruled, however that: “We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views,” Id. at 24. Although Cohen’s exercise of free speech did not involve speech directed at a police officer specifically, he wore the controversial jacket into a courtroom where the presence of law enforcement officers was inevitable. Calling a police officer “a son of a bitch,” Johnson v. Campbell, 332 F. 3d 199, 203 (6th Cir., 2003), or yelling “Fuck you all” to police officers, Cornelius v. Brubaker, unreported case No. 01CV1254, 2003 WL 21511125, were found by the respective courts not to connote fighting words, thereby First Amendment – protected. These examples indicate that even some of the most reprehensible language directed at officers or spoken in officers’ presence is protected speech, as long as that language does not denote “fighting words,” inflicting injury or inciting immediate breach of the peace. 42 U.S.C.A. § 1983 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable,” 42 U.S.C.A. § 1983 (West). Section 1983 not only provides a remedy for deprivation of constitutional rights, but it makes violations of federal laws actionable. The Supreme Court held in Carey v. Piphus, 435 U.S. 247 (1978) that the purpose of a damages award under Section 1983 is to compensate victims of official misconduct, meaning there is no limit on actual damages if they can be proven. This case involved two students who were suspended from school. Silas was perceived to be smoking marijuana and Brisco wore an earring to school, a violation of school policy. Both were suspended from school for 20 days. Parents filed suit in Federal District Court under 42 U.S.C.A. § 1983, alleging that the school violated the children’s due process rights under the 14th Amendment. The District Court consolidated their cases, subsequently dismissing the complaints. The Court of Appeals reversed and remanded, holding that, “even if the District Court found on remand that the suspensions were justified, they would still be entitled to recover substantial non-punitive damages simply because they were denied procedural due process.” Id. at 253. The Supreme Court reversed and remanded the Court of Appeals. In its holding, the Court stated that: “Common Law courts traditionally have vindicated deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed, but at the same time it remains true to the principle that substantial damages should be awarded only to compensate actual injury, or in the case of exemplary or punitive damages, to deter or punish malicious deprivation of rights.” Id. at 266. More simply stated, in order to hold a local government liable under Section 1983, causation must be shown between the defendant’s actions and the resulting harm. If no proof of harm is provided, an award of only nominal damages is appropriate. Section 1983 is not, in and of itself, a source of rights. It merely provides a route for the vindication of rights elsewhere established in the U.S. Constitution. Therefore, a plaintiff may only prevail if he can prove that he was deprived of Constitutional rights or of the rights granted by federal laws. The arresting officer subjected Hilton to the embarrassment and stigma of arrest, the stress involved in being charged with two offenses, and the inevitable pain and emotional suffering resulting from the incident. Any one of these aspects presents some type of harm to the subject of the arrest, so proving actual harm to Hilton should be surmountable. Conclusion: Had the law not been clearly established at the time of the arrest and if a reasonable officer in the same position would have believed his conduct to be lawful within that law, Hilton’s arresting officer could assert the affirmative defense of qualified immunity. However, the challenge to the arresting officer in asserting this defense is that the Saucier test is objective. Even if the officer claimed that he believed his actions to be lawful, it is doubtful that the reasonable officer would believe it lawful to arrest a person for the mere utterance of an offensive word. If Hilton utilized “fighting words,” or if his demeanor, coupled with the phrase uttered to the officer in any way implied that he intended to provoke a fight or incite anger or rage, his words would not be First Amendment-protected, and the arrest justified. Although not necessarily the best choice of words to direct at a police officer, “You’re an asshole,” does not carry with it the demeaning implications of epithets. The phrase, without any threat of violence and when spoken from private property, does not constitute a basis for a charge of disorderly conduct or obstruction of justice. Hilton did nothing to satisfy the elements of the two offenses charged, and his arrest rested on the words he muttered to the officer; words protected by the First Amendment. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peacefully assemble, and to petition the government for redress of grievances,” U.S. Const. Amend. I. The officer effectively abridged Hilton’s right to free speech guaranteed by the First Amendment by arresting him for two essentially bogus charges, given the circumstances. James Hilton’s arrest for disorderly conduct and obstruction of justice qualifies as a violation of his First Amendment right to free speech. He may file a Federal claim against the officer and the municipality under 42 U.S.C.A. § 1983, and an award of damages is likely as long as he can prove actual harm. Based solely on the facts as provided and my interpretation of Tennessee and Federal law, Hilton’s arresting officer violated his First Amendment rights, and a strong Federal Civil Rights case stands on his behalf.