On The "F Word": FIRST Amendment

Growing up, I feel like outside of punk rockers and political party activists, people rarely put stickers or other decorations on their cars.  Not so today.  If there is a product, a brand, a service – heck, even a fleeting thought – there is a way to display it on your car.  I’ve never done a survey, but I would guess that, in 2017, cars with stickers (or magnets) would outnumber the cars without them.  From our current car-as-billboard world comes a story out of Texas where a local sheriff and prosecutor have threatened disorderly conduct charges against the driver of a truck with a message on its rear window reading, “F*** Trump and F*** You For Voting For Him.” (Yes, I censor; this is a family friendly blog, and I’m sure children are reading….).  Apparently, the only thing holding them back is they cannot identify who the owner is.  But what should be holding them back is the First Amendment to the United States Constitution.  It is pretty clear that charging this guy with a crime just for having the message of “F*** Trump and F*** You For Voting For Him,” on a vehicle is unconstitutional. 

At least the first part of this statement (“F*** Trump”) is directly controlled by the 1971 U.S. Supreme Court case of Cohen v. California, 403 U.S. 15 (1971).  Cohen had been convicted for disturbing the peace by offensive conduct over wearing a jacket on which was scrawled “F*** the Draft” (this was the Vietnam War era), and appealed to the Supreme Court on the basis that the conviction violated his First Amendment rights. The Supreme Court agreed, and in doing so, specifically rejected (among others) the argument that the phrase in question, offensive though it may be, constituted “fighting words.”  Like Mr. Cohen publicly proposing to “F” the draft, the message of “F*** Trump” is not likely to instigate a fight with the person to whom it was directed, the current occupant of the White House.

But what about the “F*** You” to Trump voters part?  Suppose a Trump voter was driving right behind this truck, and took offense?  Believe it or not, this one isn’t a close call either.  Basically, a message of “F*** You,” standing alone, is not going to fall outside the scope of the First Amendment.  In Sandul v. Larion, 119 F.3d 1250 (6th Cir. 1997), the defendant, who was riding passenger-side in a moving truck, leaned out of the vehicle as it passed abortion protesters and shouted “f*** you.”  He was ultimately arrested and charged with disorderly conduct and felonious assault.  The Sixth Circuit rejected the idea that his words rose to the level of “fighting words” because, given the fact that the defendant was in a moving truck, the incident took mere seconds, and there was no face to face contact.  It was “inconceivable” to the court that the words would incite an immediate breach of the peace, given the circumstances presented.  There are no shortage of cases involving the utterance of “F*** You” out there, and the take away is that just saying it or writing it, without more, is not enough to transform protected speech into unprotected fighting words.

I’ll wrap this up with an observation and a story.

The observation is that the prosecutor and sheriff should know better than to try to prosecute this guy – and not just because they’re wasting their time.  Federal law, specifically 42 U.S.C. § 1983, gives individuals the ability to sue state actors for violating their constitutional rights.  This is a technical area of the law (I’ve done some of this work over my career), but one aspect is that individual state actors will have immunity from suit (“qualified immunity”) if – basically – they are making a good faith judgment call in a legally uncertain space, and get it wrong.  This doctrine is a recognition that law enforcement deserves some leeway where they're doing the best they can and no one's perfect  But here, there has been enough ink spilled by courts on the question of when the F word is a fighting word and when it isn’t that, on these facts, there is no uncertainty. A prosecution over this truck’s message will expose the police to liability for whatever the truck owner’s damages may be determined to be, but also to an award of the truck drivers’ attorneys’ fees, which are recoverable pursuant to 42 U.S.C. § 1988.  This would be the legal equivalent of an “own goal” in soccer.  

The story I have to share is about a Cincinnati-area provocateur who drives an old de-commissioned police cruiser with the phrase, “F*** You, I’m A Motherf***er” painted on all sides – and in police department blue, no less.  I kid you not.  This is a thing.  Anyway, on a nice summer day in 2015, I was standing on the corner of 8th and Vine in downtown Cincinnati with another lawyer.  She and I had just left a law office on 8th Street, where we had been trying to negotiate something or other in a case that was already the strangest and most complicated thing I’ve ever been a part of.  Because – OF COURSE – nothing about that case could ever be normal, it was fitting that the “MF-er” mobile drove right past us, heading north on Vine Street.  At that moment, my fellow attorney was telling me something and did not immediately see the car, so I frantically cut her off and pointed to the car: “Look!”  After a brief moment of shock, we both – two Catholic high school graduates – burst into laughter, proving the point that a car driving by with the F word emblazoned on it doesn’t necessarily breach the peace.