from the the-first-amendment-would-like-a-word dept
I am perplexed. US district court judge Alfred Covello seems to have a very strange understanding of the 1st Amendment. As first noted in the Hartford Courant (who didn’t link to the ruling) Covello has ruled that holding up a sign telling drivers that there are police ahead is not protected speech under the 1st Amendment. Because I’m not the Hartford Courant, you can read the whole ruling yourself.
First off, let’s be clear: Covello is wrong, and hopefully the ACLU (which is handling this case) will appeal. Plenty of other courts have ruled otherwise, including that merely flashing your headlights to oncoming cars is a form of protected speech, which seems way less expressive than holding up a printed sign saying that police are up ahead.
To put an even finer point on this: by holding up a sign warning drivers that police are up ahead, the plaintiff in this case, Michael Friend, was actually encouraging drivers to obey the law. Which seems like a good thing. Except that the police didn’t like him telling people to obey the law, because they make money from people not obeying the law. Either way, holding up a sign about what government employees are doing is quintessential protected free speech.
Covello’s reasoning is… bizarre.
In this case, it is questionable whether Friend?s act of
holding a ?Cops Ahead? sign a few blocks from a location in
which officers were stopping distracted drivers, rises to the
level of expression of an opinion related to a matter of public
Um. Really? Of course it’s opinion related to a matter of public significance. The judge says that would only be the case if Friend were arguing that the police activity was improper.
Although Friend states that he ?objected to the
way [police] were issuing tickets,? no where does Friend state
how such issuance was unlawful or improper. While he makes
reference to the procedure by which Gasparino stood ?behind a
column? and ?radio[ed] ahead to his colleagues whenever he
alleged a driver to have been using a cell phone,? he never
discusses how this procedure was unfair to individuals driving
by or was a deviation from normal police procedure. His signs
did not discuss a topic or express his opinion on it. The court
agrees with Gasparino that Friend?s speech was ?of little, if
any, public concern.?
That is… untethered to any basic 1st Amendment analysis. The only reason the cops were pissed off at Friend was because he was exposing what they were doing. He’s obviously commenting on it (truthfully!) and letting drivers know they should obey the law. That’s clearly a form of expression on a matter of public concern. Under the judge’s reading of the 1st Amendment, it only protects speech over which you clearly state an opinion on, and that’s not how the 1st Amendment works.
The judge goes even further in arguing that even if he used the strict scrutiny standard required for content-based restrictions, this passes. And, again, the reasoning here is bizarre and disconnected from tons of precedent regarding the 1st Amendment.
Even assuming that his speech was protected, however, and
was content-based, the court concludes that Gasparino?s actions
pass strict scrutiny. Although Friend identifies the government
interest at stake as one of ?generat[ing] ticket-writing
opportunities,? instead, the police department?s interest was in
saving lives by stopping distracted drivers and issuing
citations for their behavior. More than simply writing tickets,
the police operation sought to stop and cite violators in order
to deter not only current behavior, but also future distracted
driving and, therefore, save lives. The court concludes that
this was a sufficiently ?compelling interest.? In light of this
purpose, and Friend?s stated purpose to warn such violators
before they were detected by police, the only way in which
Gasparino could tailor punishment was to remove Friend and his
signs from the adjacent area. The operation could only
effectively continue without Friend?s interference. The court
acknowledges that his removal defeated the purpose of what
Friend was trying to accomplish, however there was ?no ?less
restrictive alternative,?? Fed. Election Comm’n v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 265 (1986), given
Friend?s goal and the purpose of the police operation. Had
Friend wished to complain about particular police procedures or
in general about the police, he was free to do so elsewhere.
Did you get that? Because it sure looks like the court says that since the police wanted to “deter” bad behavior by drivers, it was a problem that Friend was effectively deterring that same bad behavior before the cops could profit off of it. That’s… not how this works at all.
Judge Covello seeks to distinguish this from the famous and important 1st Amendment precedent at the Supreme Court in Barnicki v. Vopper by saying that that was different because the speech was exposing law-breaking, and this was just… encouraging non-law breaking. I’m at a loss to see how this even remotely matters.
Friend?s cites Bartnicki v. Vopper, 532 U.S. 514 (2001),
for the Court?s observation that ?it would be quite remarkable
to hold that speech by a law-abiding possessor of information
can be suppressed in order to deter conduct by a non-law-abiding
third party.? Id. at 529-30. In that case, however, the
referenced ?non-law-abiding third party? broke the law by
providing the information at issue. Here, the information
obtained regarding the police presence in the area, was not the
basis for the unlawful conduct at issue. Such unlawful conduct
in this case was a violation of Connecticut distracted driving
laws. The Bartnicki Court also noted that ?there are some rare
occasions in which a law suppressing one party’s speech may be
justified by an interest in deterring criminal conduct by
another, see, e.g., New York v. Ferber, 458 U.S. 747 (1982) . .
But even if there are some “rare” cases where speech can be suppressed to deter criminal conduct, it’s hard to see how that fits here, wherein the speech itself was seeking to deter driving violations.
The ACLU says its reviewing the decision to determine whether or not to appeal — and I hope they do, because this is one of the worst 1st Amendment rulings I’ve seen in a while.
?We are reviewing the decision and thinking carefully about our options,? said Dan Barrett of the ACLU of Connecticut, who represented Friend. ?Our contemplation about the First Amendment includes the ability to protest the police on the sidewalk and publicize information about the police.?
Filed Under: 1st amendment, alfred covello, connecticut, cops ahead, free speech, michael friend, police, signs