Federal Judge Ridiculously Says That Holding A Sign Telling People Cops Are Ahead Is Not Free Speech

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 significance.

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.”

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Filed Under: 1st amendment, alfred covello, connecticut, cops ahead, free speech, michael friend, police, signs


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  • icon
    That One Guy (profile), 9 Oct 2020 @ 8:00am

    'How dare you tell people to not break the law?!'

    Well, looks like at least in the district of Connecticut 'telling people to obey the law, if doing so impacts police profits' is now one of the few exceptions to the first amendment, nice to see a judge so openly and shamelessly side with police here, usually they at least try to hide how corrupt they are.

    Much like in a previous case covered on TD this one positively reeks of deciding the outcome in advance and working back from that point.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 12 Oct 2020 @ 1:49am

      Re: 'How dare you tell people to not break the law?!'

      So...if I spot a sign saying "60 mph" and take that as advice that beyond that point it would be illegal to drive faster than 60 mph...how does the logic applied by this judge apply to the poor municipality which has peppered the public roads with such signs?

      Or does the illegality of a reminder not to break the law only apply when it means a cop may be out of a collar?

      reply to this | link to this | view in chronology ]

      • identicon
        teka, 12 Oct 2020 @ 5:04am

        Re: Re: 'How dare you tell people to not break the law?!'

        Those speed limit signs can sure be Very distracting. I'm trying to watch the road!

        reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 9 Oct 2020 @ 8:17am

    Authoritarian much?

    Do you want authoritarianism? This is how you get authoritarianism.

    Let's assume this judge is right... the ripple effects are huge. Anyone using Waze and notifying users of cops could be prosecuted. Writing an article about a speed trap in a city calling out their nefarious practices could be prosecuted. Telling people THE LAW could be prosecuted...

    According to him, you are now free to speak as long as a government employee doesn't object...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 9:36am

    Instead, the police department’s interest was in saving lives by stopping distracted drivers

    Which would not be the ones who saw the notice and decided not to speed or otherwise break traffic laws.

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 9 Oct 2020 @ 9:42am

    Opinionated

    The judge says that would only be the case if Friend were arguing that the police activity was improper.

    So in the future, make sure your sign reads "crooked cops ahead".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 9:47am

    Is it ok for the local news to tell everyone that the heat is on and there will be check points?

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 9 Oct 2020 @ 10:11am

    "Did you get that?"
    Yes, they are saying the ticket system is designed to encourage people into driving properly all the time because they know they could at any time be checked and if they fail get a ticket. Warning people about the surprise inspection clearly undermines that concept. Whether that is a legitimate way to cut down on distracted driving is certainly debatable ( I vote no ) but I don't think it's genuine to pretend that isn't what they are always saying when this situation comes up. He's not telling people not to use their cellphones when driving he's telling them when they will be caught doing so. He's playing the lookout, telling people to pause whatever their crime is because the cops are coming so they don't get caught doing it.

    Still protected speech is fine, ticket systems don't work is fine, shouldn't be using them as a deterrent that way is fine.. but not "the only thing he is doing is telling people to obey the law" That is willfully pretending you don't see what the other side is trying to say

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2020 @ 10:26am

      Re:

      He's not telling people not to use their cellphones when driving he's telling them when they will be caught doing so.?

      How does a sign stating "Cops Ahead" convey anything at all about cell phone use?

      It simply says there's police ahead. Perhaps he was concerned for their safety? Because you know when the police pull people over and get out of their car, they're creating a hazard for both themselves and other drivers.

      If that signed stopped one person from potentially slamming into either a cop or car that was stopped, isn't that in the interest of public safety?

      Shit, maybe we should get rid of those Road Work Ahead signs while we're at it. People should be paying attention, and if not face the consequences, amirite?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 9 Oct 2020 @ 10:43am

        How does a sign stating "Cops Ahead" convey anything at all about cell phone use?

        Driving with a cellphone in your hand is illegal in a number of states (if not most of them). A sign saying “cops ahead” is a reminder to stop doing anything that might earn you a ticket — which can include using your cellphone.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Oct 2020 @ 10:50am

          Re:

          A sign saying “cops ahead” is a reminder to stop doing anything that might earn you a ticket — which can include using your cellphone.

          But not limited to that. Police create a hazard nearly every time they pull someone over. We put up signs for bumps, construction crews, you name it, all in the name of safety. That people shouldn't be alerted to the fact that this is a more than temporary operation is an asinine ruling by the court.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Oct 2020 @ 11:22am

            Re: Re:

            When I moved to New England, it took a little getting used to people flashing their high beams, both day and night. What I quickly learned was that an oncoming car signaling didn't just mean "cops ahead", it meant possible problem ahead and to "proceed with caution". Times I've been signaled in this way include: a truck pulled over but still sticking into traffic around a blind corner, an accident around a bend where the backup of cars couldn't be seen, a kid with parent crossing the road in a bad spot... and the list goes on and on.

            It's almost as if some people think the job of cops is to make money off of criminals rather than to try to get people to be safe and considerate of others.

            reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 9 Oct 2020 @ 10:35am

    I really think this happened before.

    If I remember correctly,
    This was brought up in the past.

    Lets suggest that signs are place in random locations around town.
    Saying that 'police ahead', would it confuse the people, or just MAKE THEM PAY ATTENTION MORE? Even tho' there probably werent any.

    If you really think about it. Cops could place Camera's near schools to help them see problems. Since most times they are Never in the area. I dont think there is anything stopping them. And the random signs would Point this Thought out.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 9 Oct 2020 @ 12:00pm

      Re: I really think this happened before.

      In the UK they have used cut-out cops made from card board and placed them strategically. Crime and speeding went down.

      In this instance, if the guy had put up such a sign - would he been dragged to court too?

      reply to this | link to this | view in chronology ]

  • identicon
    ThatOtherOtherGuy, 9 Oct 2020 @ 10:50am

    Being a judge is like being a golfer. Even the pros shank one into the rough once in awhile.

    The difference is between a lost ball and weakening of the First Amendment.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 10:56am

    rises to the level of expression of an opinion related to a matter of public significance

    Where did a requirement that an opinion be "related to a matter of public significance" come in, in order to be protected by the 1st amendment?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 11:02am

    "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H. L. Mencken

    Sadly, for left wingers this only applies to their scoundrels.

    reply to this | link to this | view in chronology ]

  • icon
    fairuse (profile), 9 Oct 2020 @ 11:04am

    Signs, signs everywhere signs.

    Of course it is all about revenue. The classic cop car behind a shield of trees or billboard got me. I was exceeding the speed limit and it was nearly a tow the car - good lawyer and all helped.

    Sign on Capital Beltway (bad driving practice) has; Safe Driving Zone sign, a sign that says DUI enforcement zone (I forget what the exact wording is. The sign is near Capital Center so go figure. Have not seen any signs about Distracted Driving.

    The Seatbelt law signs are everywhere as are School Zone (photo enforced).

    So, it takes a cop sting operation being exposed by a guy holding a sign "Police Ahead" to make all safe driving signs okay except this one.

    I don't get it.

    reply to this | link to this | view in chronology ]

  • icon
    Gwiz (profile), 9 Oct 2020 @ 1:41pm

    I have researched this subject in the past and this one should be overturned on appeal. It is most definitely protected speech to hold a sign saying "Cops Ahead".

    The problem some other people have had in the past is when the sign is giving motorists some kind instruction, like "slow down". Most localities have laws to stop random people from putting up their own traffic signs (which makes sense) and those laws make signs with instructions to the motorists illegal and therefore not protect by the 1A.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 12 Oct 2020 @ 6:10am

      Re:

      Most localities have laws to stop random people from putting up their own traffic signs (which makes sense)

      Either mine doesn't or it's not enforced in residential areas, because a bunch of people have those little plastic signs in the shape of a kid that say to slow down. I say don't let your kids play where the cars are driving, but whatever.

      reply to this | link to this | view in chronology ]

      • icon
        Gwiz (profile), 13 Oct 2020 @ 10:05am

        Re: Re:

        Either mine doesn't or it's not enforced in residential areas

        Most likely it isn't enforced for those stupid kid shaped "slow down" signs. I see those in my area too. A lot of the local laws covering this stuff have wording that says "within x amount of feet of a highway" or "within y amount of feet of a residential road", etc..

        The reason I have reaseached this in the past is because it is a intersection of two things important to me: signage (which I make for a living) and the law (which I study as a hobby).

        reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 9 Oct 2020 @ 2:36pm

    I have a feeling that once this gets thrown out the judge might find Mr. Friend standing outside his courthouse with a different sign.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 9 Oct 2020 @ 3:12pm

    When a judge completely fails to uphold the law, esp. Constitutional law, then that judge should be removed from the bench.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2020 @ 6:07pm

    How come I never get these type of insane judges? This guy is gonna sue for MILLIONS for 1st amendment violations.

    reply to this | link to this | view in chronology ]


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