Stream of Slurs, Threats Not Protected Under Constitution

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The SF Chronicle reported this weekend on a decision by the Fourth District Court of Appeal in San Diego affirming that loud, angry, aggressive, and disruptive language is not constitutionally protected speech.

The case, In re Curtis S. (2013) Cal. Super. Ct. No. JCM230237, came on appeal after a conviction in juvenile court of three counts:  1) petty theft (Pen. Code,  § 484); 2) assault (§ 240); and 3) disturbing another person by loud and unreasonable noise (§ 415, subd. (2)). Testimony revealed that Curtis S., a minor, stole a cell phone from another student and was pursued by a good Samaritan who stopped her car in front of Curtis S., preventing him from getting away. He threw the phone into a construction site and then began yelling obscenities and threatening language at the woman. When she attempted to grab his arm to detain him, he swung at her with a closed fist. According to testimony, Curtis S. called someone on his own cell phone during the altercation and said, “you better get this lady, because I’m about to.” Police arrived and arrested Curtis S. for the theft and for threatening the woman.

On appeal, Curtis S. argued that the purpose of his speech was to communicate and that such speech was protected by the First Amendment. Section 415, subdivision (2) makes it a crime for any person to “maliciously and willfully disturb[] another person by loud and unreasonable noise.” The appellate court relying on In re Brown (1973) 9 Cal.3d 612, 621, found that creating a disturbance by making loud noises, shouting obscenities, and making threats verbally is not protected speech.

Further, the Supreme Court has recognized, “the protections afforded by the First Amendment, however, are not absolute, and . . . the government may regulate certain categories of expression consistent with the Constitution.”  (Virginia v. Black (2003) 538 U.S. 343, 358.)  Words may be restricted under the First Amendment where they are ” ‘ “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” ‘ ”  (Id. at pp. 358-359, citing R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382-383.)

In California, when is speech not protected? When it communicates nothing!

“The loud shouting of obscenities and threats was disruptive, rather than communicative in nature.”

Via SF Chronicle.

Read the opinion.

2nd Circuit Court of Appeals Holds Giving a Police Officer the Finger is Not Valid Basis for a Traffic Stop

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Judge Jon O. Newman, writing for a unanimous panel, found that mild-mannered John Swartz did not provide a basis for a traffic stop when he flipped off New York cop Richard Insogna. A little backstory: John and his wife Judy Mayton-Swartz were driving down the highway when John spotted Officer Insogna using a radar gun to tag motorists. John, the passenger in this car, displeased with Officer Insogna’s speed trap, extended his arm out the window of the car and saluted Officer Insogna with one finger. The Court provides a nice little footnote to the history of the middle finger and even a nod to American University Professor of Law Ira Robbins’ article, Digitus Impudicus: The Middle Finger and the Law.

Officer Insogna gave chase and stopped John and Judy in front of their son’s house, ultimately arresting John for disorderly conduct because he may have heard John call himself “an asshole.” John’s criminal case was dismissed based on speedy trial grounds but John responded with a civil rights suit against Officer Insogna.

At deposition, Officer Insogna maintained that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and (3) “I was concerned for the female driver, if there was a domestic dispute.” With raised-eyebrows, Judge Newman disposed of Officer Insogna’s dubious testimony, offering this interpretation:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Even Aristophanes would have to be proud.

Read the opinion Swartz v. Insogna (2d Cir. Ct. of App. 2013) Docket No. 11-2846-CV.

Read Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008).

First Circuit Says Right to Film Police in Action Protected Under the First Amendment

Simon Glik was arrested for shooting this footage of police arresting a suspect after a car accident.

Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. On appeal the First Circuit Court upheld the lower court’s ruling that, yes, “in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established.”

Additionally, the Court went on to add, “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.” Your rights [in the First Circuit] are safe for another day.

Via the Citizen Media Law Project.